Milsap v. Baker et al

Filing 33

OPINION: Defendants' motion for summary judgment is granted pursuant to Fed. R.Civ. P. 56. 26 This case is terminated, with the parties to bear their own costs. If Plaintiff wishes to appeal this judgment, he must file a notice of appeal w ith this Court within 30 days of the entry of judgment. If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee regardless of the outcome of the appeal. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 8/10/2016. (GL, ilcd)

E-FILED

Wednesday, 10 August, 2016 03:21:30 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JAMES MILSAP,
Plaintiff,
v.
DR. THOMAS BAKER,
Defendant.

)
)
)
)
)
)
)
)
)

14 -CV-3376

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated at Western Illinois
Correctional Center, brought the present lawsuit pursuant to 42
U.S.C. § 1983 alleging Dr. Thomas Baker violated his Eighth
Amendment rights when he was deliberately indifferent to his
serious medical condition. The matter is before the Court for ruling
on the Defendants' Motion for Summary Judgment (Doc. 26). For
the reasons stated below, the motion is granted.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) provides that summary
judgment “shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
Page 1 of 16 

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Ruiz-Rivera v. Moyer, 70 F.3d
498, 500-01 (7th Cir. 1995). The moving party has the burden of
providing proper documentary evidence to show the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Once the moving party has met its burden, the
opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial. Gracia v. Volvo Europa Truck, N.V.,
112 F.3d 291, 294 (7th Cir. 1997). “[A] party moving for summary
judgment can prevail just by showing that the other party has no
evidence on an issue on which that party has the burden of proof.”
Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th
Cir. 1993). “As with any summary judgment motion, we review
cross-motions for summary judgment construing all facts, and
drawing all reasonable inferences from those facts, in favor of the
nonmoving party.” Laskin v. Siegel, 728 F.3d 7314, 734 (7th Cir.
2013)(internal quotation marks omitted).

Page 2 of 16 

Accordingly, the non-movant cannot rest on the pleadings
alone, but must designate specific facts in affidavits, depositions,
answers to interrogatories or admissions that establish that there is
a genuine triable issue; he “‘must do more than simply show that
there is some metaphysical doubt as to the material fact.’” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 818 (7th Cir.
1999). Finally, a scintilla of evidence in support of the nonmovant’s position is not sufficient to oppose successfully a
summary judgment motion; “there must be evidence on which the
jury could reasonably find for the [non-movant].” Anderson, 477
U.S. at 250.
FACTS
The Plaintiff is a fifty-three year old male who has been
incarcerated at the Western Illinois Correctional Center since May
5, 2011.
Dr. Thomas Baker was the Medical Director at Western Illinois
Correctional Center from April 4, 2011 to September 8, 2015. (Def.
Mot., Bak. Aff., p. 1). The doctor first examined Plaintiff on May 19,
Page 3 of 16 

2011. Plaintiff reported a prior neck surgery in 2005, and
complained of left-side weakness due to a prior stroke. (Def. Mot.,
Bak. Aff., p. 2, Med. Rec. p. 210). Although the medical record
indicates Plaintiff reported a previous stroke which was treated in
Quincy, Illinois, Plaintiff now denies he ever suffered from a stroke.
(Def. Mot, Med. Red. P. 210)
Dr. Baker also saw Plaintiff on June 16, 2011, June 29, 2011,
July 27, 2011, and August 26, 2011. On each occasion, Plaintiff
“had normal gait with 5/5 strength in both upper and lower
extremities” but he was slightly weaker on his left side. (Def. Mot.,
Bak. Aff., p. 2, Med. Rec. p. 211, 213, 215, 216).
Plaintiff’s next complaint of back pain or left-sided weakness
was on June 12, 2013 during a sick call visit with a nurse. The
nurse provided ibuprofen, referred Plaintiff to a doctor, and
instructed him to take warm showers, rest as needed, no lifting for
five days, and no participation in sports activities. (Def. Mot., Bak.
Aff., p. 2, Med. Rec. p. 238).
Dr. Baker examined the Plaintiff two days later. Plaintiff
complained of lower back pain which radiated down his legs. He
had mild left-sided weakness compared to his right side and walked
Page 4 of 16 

with a hunched posture favoring his left side. Dr. Baker prescribed
muscle relaxers for back spasms, anti-inflammatories, ibuprofen,
and ordered a lumbar spine x-ray. (Def. Mot., Bak. Aff., p. 2, Med.
Rec. p. 234-240).
The x-ray did not reveal any fractures nor problems with the
disc height or spaces along his spine. However, the x-ray did show
signs of “normal osteoarthritis or degenerative joint disease.” (Def.
Mot., Bak. Aff., p. 2, Med. Rec. p. 241).
A nurse saw Plaintiff on February 13, 2014, for his complaints
of chronic left shoulder pain. She ordered an x-ray and another
follow-up appointment. Plaintiff saw Dr. Baker due to an abnormal
finding in the x-ray revealing “an accessory articulation” from the
edge of the left shoulder to the deltoid.(Def. Mot., Bak. Aff., p. 3).
Dr. Baker examined the Plaintiff and ordered an x-ray of the right
shoulder for comparison. Dr. Baker says he asked Plaintiff several
questions about the history of his shoulder pain, but Plaintiff was a
“poor historian and would not answer questions” to assist in
pinpointing the cause of his complaints. (Def. Mot., Bak. Aff., p. 3)
Plaintiff simply reported he had always had limited mobility with his
left shoulder. The doctor believed this was consistent with a rotator
Page 5 of 16 

cuff injury or bicep tendinitis (Def. Mot., Bak. Aff., p. 3, Med. Rec. p.
248-251).
The additional x-ray revealed no sign of fracture or dislocation,
and the abnormality in the left shoulder was not detected in the
right shoulder. Dr. Baker sent both x-rays to a radiologist for
comparison and met again with the Plaintiff.
Dr. Baker explained to the Plaintiff the abnormal finding in his
left shoulder was a congenital condition. Therefore, the doctor
explained he could help with the pain Plaintiff was experiencing,
but he did not believe he could help with the chronic weakness
Plaintiff was feeling because the doctor believed it was related to the
previously reported stroke.(Def. Mot., Bak. Aff., p. 3-4, Med. Rec. p.
254-255). Dr. Baker’s treatment plan included an analgesic balm
and an anti-inflammatory.
The doctor saw Plaintiff approximately two months later on
May 14, 2014 when Plaintiff complained his left shoulder pain was
getting worse. Plaintiff believed it was due to being handcuffed
behind his back for two hours during a lockdown. Plaintiff also
said the balm and anti-inflammatory medication were not helping.
Therefore, Dr. Baker prescribed a different anti-inflammatory and
Page 6 of 16 

discontinued the balm. (Def. Mot., Bak. Aff., p. 4, Med. Rec. p.
259).
The doctor also referred Plaintiff for an M.R.I. of his left
shoulder, but the referral had to be reviewed and approved by a
group of doctors known as the collegial review board. The board
determined based on Dr. Baker’s prior evaluations, Plaintiff was
suffering from a chronic condition and referred him to a physical
therapist. (Def. Mot., Bak. Aff., p. 4, Med. Rec. p. 261-263). Dr.
Baker informed Plaintiff of the referral on May 23, 2014. He also
continued the anti-inflammatory medication, prescribed tramadol
for pain, and ordered a cane for Plaintiff’s use. (Def. Mot., Bak. Aff.,
p. 4, Med. Rec. p. 263).
Dr. Baker met with the Plaintiff on June 6, 2014 for a followup appointment, and Plaintiff reported the tramadol was helping
with his pain. Plaintiff also returned the previously provided cane.
(Def. Mot., Bak. Aff., p. 4, Med. Rec. p. 266-267).
Plaintiff met with the physical therapist on June 26, 2016 and
returned for another follow-up appointment with Dr. Baker a few
days later. Plaintiff had been instructed to do home exercises twice
a day for six weeks and was allowed the use of an ice bag
Page 7 of 16 

afterwards. The medical records also indicate the tramadol
prescription was discontinued at Plaintiff’s request. (Def. Mot., Bak.
Aff., p. 4-5, Med. Rec. p. 271).
Plaintiff did the physical therapy exercises from June 30, 2014
to October 21, 2014. During this time, he met with Dr. Baker on
two occasions and reported the exercises were helping. The doctor
noted Plaintiff has increased range of motion and his pain had
partially subsided. However, on October 21, 2014, Plaintiff
returned claiming he hurt his shoulder, but denied any specific
injury. Plaintiff also reported the physical therapy had not helped.
Dr. Baker therefore discontinued physical therapy and also stopped
the anti-inflammatory prescription due to Plaintiff’s complaints of
constipation. Plaintiff was instead provided with an analgesic balm
and ibuprofen. (Def. Mot., Bak. Aff., p. 5, Med. Rec. p. 280, 282,
302).
Plaintiff contends he never told Dr. Baker the physical therapy
did not help. Nonetheless, he says it did not help much, and it did
not address his pain. (Resp., p. 4)
On December 1, 2014, another collegial review was conducted
to discuss Plaintiff’s history and condition. An x-ray was ordered of
Page 8 of 16 

his cervical spine to determine whether there was any change in the
hardware placed in Plaintiff’s neck during his 2005 surgery. The
board also ordered evaluations of Plaintiff’s left shoulder every six
months since Plaintiff had not been able to provide a history of his
condition. (Def. Mot., Bak. Aff., p. 5, Med. Rec. p. 304).
Plaintiff filed this lawsuit on December 5, 2014.
After the x-ray was completed, the collegial review board again
discussed Plaintiff’s condition on December 15, 2014. The x-ray
revealed severe narrowing between the C5 and C6 vertebra in his
neck. An Electromyogram (EMG) and a Nerve Conduction Velocity
(NVC) test were ordered to determine if there was any nerve
damage. (Def. Mot., Bak. Aff., p. 5, Med. Rec. p. 306).
The tests were conducted at an outside hospital on February
20, 2015. The results were consistent with severe “radicular
neuropathy,” and, therefore, Plaintiff was referred for an MRI of his
cervical spine which was approved by the collegial review board six
days later. (Def. Mot., Bak. Aff., p. 6, Med. Rec. p. 399-400).
The MRI was scheduled for March 14, 2015 and May 21,
2015, but the MRI was not completed until June 2, 2015. The first
MRI was canceled because Plaintiff was claustrophobic. The second
Page 9 of 16 

was canceled after Plaintiff ignored instructions not to eat after
midnight. (Def. Mot., Bak. Aff., p. 6, Med. Rec. p. 319, 323, 328).
Dr. Baker reviewed the MRI results with Plaintiff on July 9,
2015 which revealed “spinal stenosis” or the narrowing of the spinal
canal. (Def. Mot., Bak. Aff., p. 6, Med. Rec. p. 333, 412-413).
Therefore, Dr. Baker recommended neurosurgery which was
approved on July 13, 2015.
Dr. Baker met with Plaintiff on August 17, 2015 due to his
complaints of shoulder pain. The doctor discontinued the ibuprofen
prescription and prescribed naproxen.
After a surgery consultation, Plaintiff was approved for surgery
on October 12, 2015, and surgery was performed on December 17,
2015. (Def. Mot., Bak. Aff., p. 6, Med. Rec. p. 348).
ANALYSIS
Dr. Baker argues the Plaintiff cannot demonstrate a
constitutional violation. Plaintiff must show he suffered from a
serious medical need and the Defendant was deliberately indifferent
to that need. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976);
Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). “[A] finding of
deliberate indifference requires evidence that the official was aware
Page 10 of 16 

of the risk and consciously disregarded it nonetheless.” Mathis v.
Fairman, 120 F.3d 88, 91 (7th Cir. 1997) citing Farmer v. Brennan,
511 U.S. 825, 840-42 (1994)
Applying this standard to medical professionals, the Seventh
Circuit has stated that “[a] medical professional is entitled to
deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances.”
Sain v Wood, 512 F.3d 886, 894-95(7th Cir. 2008) quoting Collignon
v Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998). For a
medical professional to be liable for deliberate indifference to an
inmate's medical needs, he must make a decision that represents
“such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such a judgment.”
Sain, 512 F.3d at 895 (7th Cir.2008)(internal citations omitted).
Consequently, the Eighth Amendment is not a vehicle for
bringing claims of medical malpractice. Snipes v. DeTella, 95 F.3d
586, 590 (7th Cir. 1996). Inadequate medical treatment due to
negligence or even gross negligence does not support an Eighth
Amendment violation. Shockley v Jones, 823 F.3d 1068, 1072 (7th
Page 11 of 16 

Cir. 1987). In addition, mere dissatisfaction or disagreement with a
doctor's course of treatment is generally insufficient. See Snipes, 95
F.3d at 592.
Dr. Baker argues the record clearly demonstrates he was not
deliberately indifferent to Plaintiff’s medical condition. Dr. Baker
notes Plaintiff first complained of left-side weakness and back pain
in 2011. However, there were no further complaints regarding this
medical problem until June 12, 2013. During this time, Plaintiff
continued to see the doctor for other issues and Plaintiff knew how
to request medical care. Therefore, Dr. Baker argues Plaintiff did
not yet present a continuing, serious problem.
The Court notes in Plaintiff’s complaint, Plaintiff stated the
medical problem which forms the basis of this lawsuit began on
February 13, 2014. (Comp., p. 5). However, in response to the
dispositive motion, Plaintiff alleges he was left to suffer in pain for
years. Plaintiff further maintains Dr. Baker did not adequately
respond to his complaints of pain and the doctor should have
ordered an MRI the first time they met.(Resp.,p. 5)
However, Dr. Baker repeatedly examined Plaintiff in an
attempt to determine the cause of his complaints. Dr. Baker
Page 12 of 16 

ordered various x-rays and provided medications including antiinflammatories, pain relievers, and an analgesic balm. Dr. Baker
changed those prescriptions based on Plaintiff’s feedback. Dr.
Baker requested an MRI which was denied, but Plaintiff was
provided physical therapy which Plaintiff admits provided some
relief. Ultimately, when Plaintiff claimed physical therapy was no
longer helping and his pain had not subsided, additional x-rays
were ordered. However, before the results were available, Plaintiff
filed this lawsuit.
Based on the additional x-rays and change in Plaintiff’s
condition, additional testing was ordered to assist in the diagnosis
and treatment. Plaintiff ultimately received an MRI, a surgical
consult, and surgery.
The record before the Court demonstrates Dr. Baker was not
deliberately indifferent to Plaintiff’s condition, but instead continued
to evaluate and treat Plaintiff based on his examinations and the
information Plaintiff provided. See Haley v. Feinerman, 168 Fed.
Appx. 113, 117 (7th Cir.2006) (holding a doctor's four-month delay
in surgery that caused the surgery to be more difficult did not
evince deliberate indifference because further medical examinations
Page 13 of 16 

were being conducted during that time and the undisputed
evidence showed that the doctor was simply “exercise[ing] his
medical judgment” and thus not “fail[ing] to respond to an obvious
injury”); see also Plummer v. Wexford Health Sources, Inc., 609 Fed.
Appx. 861, 863 (7th Cir.2015) (holding that defendant doctors were
not deliberately indifferent because there was “no evidence
suggesting that the defendants failed to exercise medical judgment
or responded inappropriately to [the plaintiff's] ailments”).
Furthermore, “[a]n MRI is simply a diagnostic tool, and the
decision to forego diagnostic tests is ‘a classic example of a matter
for medical judgment.’” Pyles v. Fahim, 771 F.3d 403, 411–12 (7th
Cir. 2014) quoting Estelle, 429 U.S. at 107. More importantly, there
is no evidence before the Court demonstrating Dr. Baker’s exercise
of medical judgment departed significantly from accepted
professional norms. See Roe v Elyea, 631 F.3d 843,857–58 (7th Cir.
2011); Jackson v. Kotter, 541 F.3d 688, 697–98(7th Cir. 2008).
In short, Plaintiff has demonstrated a disagreement with the
treatment he was provided, and as the Court has previously advised
Plaintiff, this is not sufficient to establish a constitutional violation.

Page 14 of 16 

See February 24, 2015 Merit Review Order, p. 5. Therefore, the
motion for summary judgment is granted.
IT IS THEREFORE ORDERED:
1) Defendants’ motion for summary judgment is granted
pursuant to Fed. R.Civ. P. 56. [26] The Clerk of the Court is
directed to enter judgment in favor of Defendants and against
Plaintiff. This case is terminated, with the parties to bear their
own costs.
2) If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal
in forma pauperis MUST identify the issues the Plaintiff will
present on appeal to assist the court in determining whether
the appeal is taken in good faith. See Fed. R. App. P. 24(a)(1)(c);
See also Celske v Edwards, 164 F.3d 396, 398 (7th Cir.
1999)(an appellant should be given an opportunity to submit a
statement of his grounds for appealing so that the district
judge “can make a reasonable assessment of the issue of good
faith.”); Walker v O’Brien, 216 F.3d 626, 632 (7th Cir.
2000)(providing that a good faith appeal is an appeal that “a
Page 15 of 16 

reasonable person could suppose…has some merit” from a
legal perspective). If Plaintiff does choose to appeal, he will be
liable for the $505.00 appellate filing fee regardless of the
outcome of the appeal.
ENTERED: August 10, 2016
FOR THE COURT:
______s/ Sue E. Myerscough________

SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 16 of 16