Johnson v. Durr et al
Filing
59
OPINION entered by Judge Sue E. Myerscough on 7/14/2017. Defendants' motions for summary judgment are granted, d/e's 45 and 47 . All deadlines and settings on the Court's calendar are vacated. Judgment to be entered in favor of t he Defendants and against the Plaintiff. If the 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.4(a)(4). If the 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) (MAS, ilcd)
E-FILED
Friday, 14 July, 2017 01:42:42 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MARCUS I. JOHNSON,
Plaintiff,
v.
TERRY DURR, et al.,
Defendants.
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15-CV-3109
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the
Taylorville Correctional Center on claims of deliberate indifference
to his serious medical needs in the Sangamon County Jail. In
particular, he claims that Defendants failed to adequately treat
Plaintiff’s chronic and painful ear condition during his three and
one-half years of detention at the Jail.
Defendants move for summary judgment. At this stage, the
evidence is viewed in the light most favorable to the nonmovant,
with material factual disputes resolved in the nonmovant's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
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genuine dispute of material fact exists when a reasonable juror
could find for the nonmovant. Id. That means that, to survive
summary judgment, Plaintiff must have enough admissible
evidence for a reasonable juror to conclude that Defendants were
deliberately indifferent to Plaintiff’s serious medical needs. Thomas
v. Cook County Sheriff’s Dept., 604 F.3d 293, 301 n.2 (7th Cir.
2010); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).1
Defendants’ evidence shows that Plaintiff did suffer from
chronic and recurring problems with his ears. These problems
included at various times yellow and green discharge, other ear
drainage, redness and swelling, inner and outer-ear bacterial
infections, impacted wax, sinus infections, swollen glands, sore
throat, and pain. An inference of a serious medical need arises
from this evidence.
The question is whether a reasonable juror could find that
Defendants were deliberately indifferent. Deliberate indifference, is
not negligence (malpractice) or even gross negligence. Chapman,
1
The Seventh Circuit has indicated that the deliberate indifference standard may need to be revisited in light of
Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), but deliberate indifference remains the standard at this point.
Phillips v. Sheriff of Cook County, 828 F.3d 541, 544 (7th Cir. 2016)(applying deliberate indifference standard to
detainees’ claims of lack of medical care, but acknowledging Kingsley).
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241 F.3d at 845 (citation omitted). Deliberate indifference is the
conscious disregard of a known risk of substantial harm. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011). Deliberate indifference
in the medical context arises “‘if the decision by the professional is
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.’”
Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(quoting Sain v.
Wood, 512 F.3d 886, 894-95 (7th Cir. 2009). “A medical
professional is entitled to deference in treatment decisions unless
no minimally competent professional would have so responded
under those circumstances.” Sain, 512 F.3d at 894-95.
Defendants’ evidence shows that the medical staff were
attentive to Plaintiff’s problems, examining Plaintiff, prescribing oral
and topical antibiotics, pain medicine, nasal spray, steroids, and
Benadryl. Medical staff saw Plaintiff ten times in 2013, fifteen
times in 2014, and four times in 2015 until Plaintiff’s transfer to the
Illinois Department of Corrections in July 2015. Each time Plaintiff
received examinations and prescriptions. Plaintiff’s problems
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waxed and waned over this time period, never completely remitting,
or at least not for long. Plaintiff was referred to an ear-nose-andthroat specialist on February 20, 2014, who reported that Plaintiff’s
ears were clear, with no infection. However, despite the specialist’s
conclusions, Plaintiff continued to experience problems and
continued receive treatment at the Jail for his ear problems. (Defs.
Abraham, et al.’s Undisp. Facts 26-59.)
Plaintiff contends that Defendants wrongfully failed to identify
dozens of medical staff at the Jail who played a part in Plaintiff’s
treatment. Plaintiff does not explain, though, why this matters. He
does not contest that Defendants have set forth all of the medical
care Plaintiff received regarding his ear problems, regardless of who
rendered that care. Plaintiff does not offer admissible evidence that
any of that medical care was so far afield from accepted professional
standards to amount to deliberate indifference. Even if Plaintiff had
named as a defendant everyone on the medical roster, he has no
evidence of deliberate indifference.
Plaintiff also asserts that he does not believe he received all of
his prescribed medicine. He made no allegation about that in his
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Complaint, and his allegation is vague. He offers no evidence of
which medicine he did not receive, what days he missed the
medicine, or who was responsible for those missed doses. He also
offers no evidence that the alleged missed doses were the result of
deliberate indifference rather than mistakes.
Plaintiff next contends that the outside specialist was nervous
and did not examine Plaintiff, but the medical staff at the Jail is not
liable for the specialist’s alleged failure to properly examine Plaintiff.
There is no evidence that the medical staff at the Jail had any
reason to question the specialist’s conclusions. In any event, the
medical staff at the Jail continued to treat Plaintiff for his ear
problems even after the visit with the specialist.
Plaintiff admits that the medical staff “made a diligent attempt
to treat as well as cure my ‘then’ diagnosed ‘chronic ear condition,’
by prescribing various medications . . . as well as ear drops for my
ears.” (Pl. Aff ¶ 3, d/e 52.) Plaintiff’s primary argument is that he
was misdiagnosed. Plaintiff asserts that the cause of all of his ear
problems was a molar tooth. He maintains that, in September
2015, a dentist in the Taylorville Correctional Center made this
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diagnosis and removed Plaintiff’s molar tooth. Plaintiff avers that,
since the extraction of the tooth, he has had no more problems with
his ears. (Johnson Aff. ¶ 4, d/e 52, p. 1.)
Plaintiff has no admissible evidence that his ear problems were
caused by his molar tooth. The Court disregards Plaintiff’s affidavit
because the affidavit directly contradicts Plaintiff’s deposition
testimony. Plaintiff testified under oath in his deposition that his
ear problems continued at Taylorville Correctional Center. (Pl.’s
Dep. pp. 56-60.) Plaintiff’s deposition was taken in September
2016, one year after the prison dentist purportedly fixed all of
Plaintiff’s ear problems, yet Plaintiff maintained in his deposition
that those problems continued. Pourghaishi v. Flying J, Inc., 449
F.3d 751, 759 (7th Cir. 2011)(“A plaintiff cannot, however, create an
issue of material fact by submitting an affidavit that contradicts an
earlier deposition.”)
Even if the molar teeth were causing all of the ear problems, a
missed diagnosis is not deliberate indifference. Cesal v. Moats, 851
F.3d 714, 724 (7th Cir. 2017)(there is an “important difference
between ordinary, or even aggravated, medical malpractice, and an
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Eighth Amendment violation.”); Burton v. Downey, 805 F.3d 776,
786 (7th Cir. 2015)(“evidence that another doctor would have
followed a different course of treatment is insufficient to sustain a
deliberate indifference claim.”). Plaintiff has no evidence that the
medical staff’s treatment approach was outside the acceptable
standard of care, much less substantially so.
IT IS ORDERED:
1) Defendants’ motions for summary judgment are granted.
(d/e’s 45, 47.) The clerk of the court is directed to enter judgment
in favor of Defendants and against Plaintiff. This case is
terminated. All deadlines and settings on the Court’s calendar are
vacated.
2. Defendants may file a bill of costs within the time allotted
by Local Rule. If Plaintiff objects to the assessment of costs based
on indigency, he must file a timely objection and attach his trust
fund ledgers for the past year.
3. 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
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forma pauperis should identify the issues Plaintiff will present on
appeal. See Fed. R. App. P. 24(a)(1)(c). 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: July 14, 2017
FOR THE COURT:
_____s/Sue E. Myerscough_____
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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