Johnson v. Bustos et al
ORDER AND OPINION entered by Chief Judge James E. Shadid on 10/12/2016: IT IS ORDERED: 1)Plaintiff's motions for appointed counsel are denied 62 67 . 2 Dr. Peterson's second summary judgment is granted 59 . 3) The clerk of the court is d irected to enter judgment in favor of Defendants and against Plaintiff. 4) Defendants may file a motion for costs within the time allotted by local rule. If Plaintiff objects to the imposition of costs based on Plaintiff's indigency, Plaintiff must file his trust fund ledger from the past 12 months with his objections to the imposition of costs. 5) 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 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. (SEE FULL WRITTEN ORDER)(JRK, ilcd)
Wednesday, 12 October, 2016 02:26:47 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
WILLIE J. JOHNSON,
GERRY BUSTOS, et al.,
JAMES E. SHADID, U.S. District Judge.
Plaintiff claims that Defendants failed to treat his Hepatitis C
during his eight month detention in the Rock Island County Jail.
On April 7, 2016, the Court granted summary judgment to
Defendants Bustos, Fisher, Schuetz, and Hernandez. The Court
denied Dr. Peterson’s original summary judgment motion and
directed him to file another summary judgment motion with his
affidavit attached explaining the basis for his treatment decisions.
Dr. Peterson has filed his second summary judgment motion,
but the Court will first address Plaintiff’s renewed motions for
appointed counsel. The Court does not have the authority to
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require an attorney to accept pro bono appointment on a civil case
such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In
determining whether the Court should attempt to find an attorney
to voluntarily take the case, the question is “given the difficulty of
the case, does the plaintiff appear competent to litigate it himself?"
Pruitt, 503 F.3d at 654-55 (7th Cir. 2007). Plaintiff still appears
competent to proceed pro se. He has obtained his relevant medical
records and the transcript of an expert appointed in a case pending
in this district regarding the treatment of inmates with Hepatitis C
in the Illinois Department of Corrections (08-cv-2282). He has
personal knowledge of his attempts to obtain treatment from Dr.
Peterson and Dr. Peterson’s response. His pleadings adequately
convey his positions and demonstrate some knowledge of civil
procedure. And, though Hepatitis C is a complex disease, the focus
here is on whether Dr. Peterson was deliberately indifferent, the
determination of which does not require expert testimony on the
particular facts of this case, as will be seen below. See Ledford v.
Sullivan, 105 F.3d 354, 359 (7th Cir. 1997)(on particular facts of
case, expert not necessary to determine whether defendants were
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Moving to Dr. Peterson’s second motion for summary
judgment, the Court concludes that no rational juror could find
that Dr. Peterson was deliberately indifferent to Plaintiff’s Hepatitis
C. Plaintiff was diagnosed with Hepatitis C about two months
before his detention at the Rock Island County Jail, but he was
asymptomatic, and an ultrasound of Plaintiff’s abdomen was
normal, as was a physical examination of his liver and spleen.
(5/6/14 History & Physical by Dr. Glickenberger; 6/13/14 Clinic
Progress Note, d/e 41-3.) The plan from the outside clinic was to
perform an “EGD”—esophagogastroduodenoscopy—to check for
varices, which are enlarged veins in the esophagus. (d/e 64, p.11;
www.mayoclinic.org (search for esophageal varices)(last visited
9/13/16). The plan was also to send Plaintiff for a hepatology
Plaintiff was arrested before he obtained the EGD or the
hepatology consult, and the outside clinic does not treat
incarcerated persons. At the jail, Dr. Peterson ran some labs which
showed that one of Plaintiff’s liver function numbers was slightly
elevated (39, where 37 or less is normal). (8/12/14 lab results, d/e
41-2.) Dr. Peterson ordered an ultrasound of Plaintiff’s abdomen,
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which was unremarkable. (9/23/14 report, d/e 41-2.) Follow up
liver function tests in February of 2015 were completely normal,
with Plaintiff’s liver function numbers no longer elevated. (d/e 68.)
Dr. Peterson avers that, “[o]n two occasions when the Plaintiff
complained of issues which could indicate a progression of
Hepatitis C, appropriate blood tests were ordered and in my
professional judgment the results of those tests did not indicate any
treatment for Hepatitis C was required or would provide any health
benefits, therefore no treatment was ordered.” (Dr. Peterson Aff.
Plaintiff spent about eight months at the jail under Dr.
Peterson’s care until Plaintiff was transferred to the IDOC in March
2015. Plaintiff is currently being monitored in the IDOC’s Hepatitis
C clinic but has not yet been referred to begin treatment. (65, pp.
3-8.) A case is currently pending in this district before Judge
Baker, which, simplified, challenges the IDOC’s current policy of
providing Hepatitis C treatment only to inmates with a fibrosis stage
of 3 or 4. Orr v. Elyea, 08-cv-2282 (C.D. Ill.)
Plaintiff argues that Dr. Peterson was deliberately indifferent
by not ordering an EGD and referring Plaintiff for a hepatology
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consult, as the outside clinic had planned to do before Plaintiff was
arrested. But Plaintiff does not dispute that he was asymptomatic
both before and after his incarceration or that his diagnostic tests
both before and after his incarceration were normal, with the
exception of a slightly elevated liver function in August 2014. Dr.
Peterson exercised his professional judgment, relying on these tests
to conclude that no treatment was needed.
Plaintiff points to the testimony of a court-appointed expert in
case 08-cv-2232, which supports an inference that all inmates with
Hepatitis C should be treated, regardless of the stage of their
fibrosis. The expert also testified that an inmate should have at
least nine months to one year left on his sentence before receiving
treatment, in order to account for the required work-up, treatment,
and follow-up time. (Dr. Batey Dep. p. 43, d/e 64.) Plaintiff was
only at the jail for eight months, so even under the expert’s
recommendation, Plaintiff would not have received Hepatitis C
treatment. The expert’s testimony does not suggest that Dr.
Peterson’s decision was improper much less deliberately indifferent.
Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(Deliberate
indifference arises “‘if the decision by the professional is such a
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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.’”)(quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.
2009). As for the EGD, Plaintiff has no evidence that an EGD was
medically necessary, particularly given that Plaintiff’s other
diagnostic tests were normal. See, e.g., www.mayoclinic.org
(esophageal varices can be caused by cirrhosis, but there is no
evidence that Plaintiff has developed cirrhosis).
IT IS THEREFORE ORDERED:
1) Plaintiff’s motions for appointed counsel are denied
2) Dr. Peterson’s second summary judgment is granted
3) The clerk of the court is directed to enter judgment in
favor of Defendants and against Plaintiff.
4) Defendants may file a motion for costs within the time
allotted by local rule. If Plaintiff objects to the
imposition of costs based on Plaintiff’s indigency,
Plaintiff must file his trust fund ledger from the past 12
months with his objections to the imposition of costs.
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5) 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 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.
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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