Langham v. Sood et al

Filing 48

OPINION entered by Magistrate Judge Tom Schanzle-Haskins on 2/21/2018. Defendants' motion for summary judgment is denied, d/e 40 . A status conference is set for 3/16/2018 at 11:00 a.m. by telephone. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Wednesday, 21 February, 2018 10:51:00 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ERIC LANGHAM,

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Plaintiff,
v.
DR. KUL SOOD and
WEXFORD HEALTH SOURCES,
INC.,
Defendants.

16-CV-4169

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE.
Plaintiff, proceeding pro se from his incarceration in Hill
Correctional Center, pursues an Eighth Amendment claim for
deliberate indifference to his folliculitis/pseudofolliculitis.
Defendants move for summary judgment, which is denied. Drawing
inferences in Plaintiff’s favor, a rational juror could find that Dr.
Sood did not pursue an effective treatment because his employer,
Wexford Health Sources, Inc., would not allow that treatment. A
rational juror could find in Defendants favor, too, but that only
demonstrates the existence of a disputed material fact.

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Summary Judgment Standard
"The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A movant may demonstrate the absence of a material
dispute through specific cites to admissible evidence, or by showing
that the nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed. R. Civ. P. 56(c)(B). If the movant
clears this hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to admissible
evidence in the record to show that a genuine dispute exists. Id.;
Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). At
the summary judgment 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 genuine dispute of material fact exists
when a reasonable juror could find for the nonmovant. Id.
Facts
On or around September 14, 2014, Plaintiff noticed “three
little . . . hair bumps” around the nape of his neck, which felt sore.
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(Pl.’s Dep. 15-16.) Plaintiff showed Dr. Sood (the Medical Director)
the bumps that day during Plaintiff’s routine check-up at the
chronic hypertension/cardiac clinic. According to Plaintiff, Dr.
Sood told Plaintiff not to worry about the bumps. (Pl.’s Dep. 17.)
The medical record from that day indicates that A & D ointment
was prescribed but Plaintiff maintains in his deposition that
nothing was done for him that day. (Pl.’s Dep. 17.) However, in his
response to the summary judgment motion, Plaintiff states that he
did receive A & D ointment on September 16, 2014, two days after
seeing Dr. Sood. (Pl.’s Resp. ¶ 6, d/e 42, and attached Exhibits B1,
B2.)
The bumps got worse, spreading, enlarging, and filling with
pus. (Pl.’s Dep. 16.) On September 28, 2014, Plaintiff saw a nurse
at sick call, who noted in the records, “from base of neck fanning up
to back of head multiple fluid filled bumps, in many clusters.”
(9/28/14 progress note, d/e 40-4, p. 16.) The nurse noted that
there was no drainage, redness or bruising. Id. The nurse referred
Plaintiff to the doctor.
Dr. Sood saw Plaintiff the next day, on September 29, 2014.
Dr. Sood diagnosed Plaintiff with folliculitis. The parties agree that
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folliculitis is an “inflammation of the hair follicles that can be
caused by bacteria, yeast, or other types of fungus.” (Defs.’
Undisputed Fact 5.) The condition can range in severity from mild
to severe. (Defs.’ Undisputed Fact 6.)
Dr. Sood avers that he prescribed A & D ointment and a 10day prescription for clindamycin. (De. Sood Aff. 6.) The parties
agree that clindamycin is an antibiotic that can be used to treat
skin infections. The parties also agree that clindamycin was a safe
alternative to penicillin, to which Plaintiff is allergic. (Defs.’
Undisputed Facts 11, 12.) The medical record from September 29,
2014, reflects that Dr. Sood actually prescribed Bacitracin
ointment, not A & D ointment, but A & D ointment is what Plaintiff
received. (9/29/14 progress note, d/e 40-4, p. 18.)
Neither the clindamycin nor the A & D ointment helped,
according to Plaintiff. On November 11, 2014, a nurse examined
Plaintiff, noting multiple “fluid filled blister like vesicles” at the nape
of Plaintiff’s neck, with some dried vesicles. (11/11/14 progress
note, d/e 40-4, p. 20.) The nurse referred Plaintiff to the doctor.
Dr. Sood saw Plaintiff seven days later, on November 18, 2014. Dr.
Sood observed that Plaintiff had “minor razor bumps, also known as
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pseudofolliculitis.” (Dr. Sood Aff., ¶ 7.) The difference between
folliculitis and pseudofolliculitis is not clear—Dr. Sood seems to use
the terms interchangeably. In any event, Dr. Sood prescribed
another round of clindamycin for 10 days. (11/18/14 progress
note, d/e 40-4, p. 21.)
Plaintiff attaches an unauthenticated document describing a
condition called pseudofolliculitis barbae as “occur[ring] primarily
in black males when the hair of the beard grows into an adjacent
hair follicle and forms a small, curled-up mass within the follicle.
Chronic infection is present.” (d/e 42-1, p. 3.)
Dr. Sood does not address whether Plaintiff had this kind of
pseudofolliculitis, but Dr. Sood does aver that pseudofolliculitis
“commonly resolves itself with a change in grooming” and can be
treated with topical antibiotic and anti-inflammatory creams. (Dr.
Sood Aff ¶ 5.) The parties do not address whether or what kind of
“change in grooming” might have helped Plaintiff’s condition. One
medical note indicates that Plaintiff kept his hair cut short,
(7/23/16 progress note, d/e 40-5, p. 22), but Plaintiff stated in his
deposition that he was “always bald-headed.” (Pl.’s Dep. 16.) A
“Wikipedia” article attached to Plaintiff’s response recommends that
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hair be allowed to grow out to remedy and prevent
pseudofolliculitis. (d/e 42-1, p. 1.) Whether this approach was
viable for Plaintiff is not addressed. If Plaintiff is bald, then Plaintiff
obviously could not let his hair grow, but the Court does not
understand how, if Plaintiff is bald, Plaintiff’s “hair” could become
trapped in adjacent follicles. In any event, the parties do not
maintain that Plaintiff’s condition could have been remedied by
Plaintiff letting his hair grow, so the Court assumes this as well.
Plaintiff disputes that he presented with “minor razor bumps”
at the November 18 visit. Plaintiff contends that he had multiple,
pus-filled clusters, “some bleeding seeping with puss and leaving
areas of discharged puss on plaintiff’s bedding, and shirt collars.”
(Pl.’s Resp., p. 3, d/e 42.) Plaintiff’s cellmate from August 2014
through February 2015 avers that Plaintiff’s bumps started as 3-4
bumps in August 2014 and progressed in the next month or so to
bumps “nearly covering the entire back part of his head, and now
there is a large scar which looks horrible.” (Long Aff., ¶ 11, d/e 421.) The cellmate also observed some blood and puss on Plaintiff’s
mattress. (Long Aff., ¶¶4, 10-11.) At this stage, Plaintiff’s
description of the appearance of his condition governs.
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The second round of clindamycin and bacitracin did not
improve Plaintiff’s condition, according to Plaintiff. On December 1,
2014, Plaintiff saw a nurse, who scheduled Plaintiff for a follow-up
appointment with the doctor. On December 9, 2014, Dr. Sood saw
Plaintiff. Dr. Sood avers that Plaintiff’s pseudofolliculitis was
resolving, and in order to ensure complete resolution, Dr. Sood
prescribed a third round of clindamycin and some therapeutic
shampoo. (Sood Aff. ¶ 8.) Plaintiff disputes Dr. Sood’s description,
asserting that Plaintiff’s condition had actually gotten worse by
December 9, not better. (Pl.’s Resp. ¶ 9.)
The next medical visit regarding Plaintiff’s skin condition
occurred more than two months later, on February 24, 2015.
Plaintiff saw a nurse practitioner that day. The nurse practitioner
took a culture and prescribed Bacitracin ointment for 10 days, with
a follow-up in three days to check on the culture. (2/24/15
progress note, d/e 40-5, p. 2.) The nurse practitioner’s note from
2/24/17 stated that, subjectively, Plaintiff reported that the
condition had improved temporarily but was now just as bad again.
The nurse practitioner’s objective observations from that day were

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that Plaintiff had a large area on the back of Plaintiff’s head and
neck with pustules. Id.
The lab results were positive for staphylococcus.1 (2/27/15
lab report, d/e 42-2. P. 8; Pl.’s Dep. 20.) On February 27, 2015, the
nurse practitioner told Plaintiff the lab results, continued the
prescription for bacitracin ointment, and prescribed Bactrim for 10
days. The nurse practitioner instructed Plaintiff to apply warm,
moist heat to the area and also advised Plaintiff of the risks of
taking antibiotics long-term. (2/27/15 progress note, d/e 40-5.) A
follow-up was scheduled for March 13, 2015.
At the follow up visit on March 13, 2015, the nurse
practitioner noted “multiple dry, flat, papules” with no redness or
swelling. (3/13/15 progress note, d/e 40-5, p. 5.) The note also
states that Plaintiff reported improvement but still complained of
itching and swelling. Id. The Bacitracin ointment was continued
and Triamcinolone (a skin cream) was also prescribed. Id.

1 Plaintiff asserts that the culture was taken incorrectly because none of the fluid from the
pustules was retrieved. (Pl.’s Resp. ¶ 10.) The Court does not understand this objection
because the culture did come back positive for staphylococcus, according to Plaintiff.
Staphylococcus is “a bacterium of a genus that includes many pathogenic kinds that cause pus
formation, especially in the skin and mucous membranes.” Oxford Dictionaries,
en.oxforddictionaries.com (last visited 2/21/18).

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Two months later, on May 6, 2015, Plaintiff complained of
bumps and itching to a nurse practitioner. The medical note from
this date states that Plaintiff reported that the Bactrim had helped.
The nurse practitioner objectively noted multiple dry and flat
papules. (5/6/15 progress note, d/e 40-5, p. 7.) The nurse
practitioner prescribed “coal tar shampoo,” warm compresses, and
a follow-up in three months. Id. p. 8. Plaintiff counters that at all
times he had some areas that were filled with pus, though some
areas may have dried. Plaintiff submits the affidavit of his cellmate
from May to October 2015—Mitchell Laabs—who observed that the
back of Plaintiff’s head “always seemed to be very swollen, the
bumps always had puss dripping from them.” (Laabs Aff. ¶ 5, d/e
42-1, p. 25.)
About four months later, on September 21, 2015, Dr. Sood
saw Plaintiff at the hypertension clinic and examined Plaintiff’s
folliculitis. Dr. Sood prescribed Bactrim for two weeks. (Defs.’
Undisputed Facts 28, 29.) About six weeks later, on November 12,
2015, Plaintiff saw a nurse about his folliculitis, who referred him
to the doctor. The nurse’s medical notes states that she objectively
observed multiple clusters of pus-filled pockets, some open and
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some scabbed over. (11/12/15 progress note, p. 13.) Plaintiff saw
Dr. Sood on November 16, 2015, who prescribed more Bactrim,
which Plaintiff said had helped before. (11/16/15 progress note,
d/e 40-5, pp. 14-15.) Dr. Sood also prescribed Bacitracin ointment.
In a follow-up visit on December 31, 2015, an unidentified
physician noted no further flare up and that the folliculitis was
healing. (12/31/15 progress note, d/e 40-5, p. 16.) Plaintiff agrees
that the antibiotics helped with the appearance of the problem, but
he maintains that this approach did not resolve the underlying
problem, which Plaintiff believes was caused by ingrown hairs that
need to be freed or removed. (Pl.’s Resp. ¶¶ 19-20.)
Plaintiff next saw Dr. Sood a little over four months later, on
May 5, 2016, for a recurrence of Plaintiff’s folliculitis or
pseudofolliculitis, and again prescribed Bactrim and a
corticosteroid cream. Dr. Sood ordered a follow-up in six weeks. At
the follow-up appointment on June 30, 2016, Dr. Sood continued
Plaintiff’s corticosteroid cream, which helped reduce Plaintiff’s
itching. (Pl.’s Dep. 25.) Plaintiff did not see Dr. Sood again after
the June 30 visit because Dr. Sood left Hill Correctional Center.

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Analysis
The Eighth Amendment prohibits deliberate indifference to an
inmate’s serious medical needs. Orlowski v. Milwaukee County,
872 F.3d 417, 422 (7th Cir. 2017).
Defendants argue that Plaintiff did not have a serious medical
need for the first two to three months after Plaintiff first noticed the
problem. A serious medical need is one that a doctor determines
needs treatment, or a need so obvious that even a layperson would
recognize the need for treatment. King v. Kramer, 680 F.3d 1013,
1018 (7th Cir. 2012)(citation omitted). Plaintiff’s problem did
originally start with just three or four bumps, which Dr. Sood
thought would resolve without intervention. However, Plaintiff’s
condition worsened fairly rapidly, requiring antibiotics about two
weeks later, followed by more rounds of antibiotics, creams, and
ointments. Plaintiff’s own description of his condition allows an
inference that the condition became severe enough to need
treatment shortly after Plaintiff first noticed the bumps, and Dr.
Sood himself recognized the need for treatment by the end of
September 2014. A rational juror could find that Plaintiff’s medical
need was serious, even in its beginning stages.
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The question, then, is whether a rational juror could find that
Defendants were deliberately indifferent. An inference of deliberate
indifference may arise if a medical professional’s treatment
approach is “‘such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate
that the person responsible did not base the decision on such a
judgment.’” Petties v. Carter, 836 F.3d 722, 729 (7th Cir.
2016)(quoted cite omitted). A difference of opinion is not enough.
Id. (“[E]vidence that some medical professionals would have chosen
a different course of treatment is insufficient to make out a
constitutional claim.”)(cite omitted).
Dr. Sood did not ignore Plaintiff’s complaints and did prescribe
several rounds of antibiotics, ointments, therapeutic shampoo. But
an inmate “is not required to show that he was literally ignored by
prison staff to demonstrate deliberate indifference.” Petties v.
Carter, 836 F.3d 722 (7th Cir. 2016). Knowingly persisting with
ineffective treatment may arise to deliberate indifference. Petties,
836 F.3d at 729.

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Plaintiff avers that the nurse who informed Plaintiff of his lab
results told Plaintiff that he should be seen by a dermatologist, but
“it was not going to happen, because she would have to go through
Dr. Sood, and this is something he would not allow.” (Langham Aff.
¶ 24.) This is hearsay—the nurse’s statement cannot be considered
to show that Dr. Sood in fact would not allow a referral to a
dermatologist. See Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir.
2014)(inmate’s conversations with unnamed medical staff who told
him that specialist visit/MRI would not happen because it was too
expensive was “unsubstantiated hearsay assertion”).
However, Plaintiff also avers that Dr. Sood told Plaintiff
months after the culture, and shortly before Dr. Sood’s transfer,
that no treatment would work so long as Plaintiff had ingrown
hairs. Plaintiff avers that Dr. Sood told Plaintiff that Dr. Sood
“use[d] to be able to raise the ingrown hairs from the scalp, but his
current employer [Wexford] didn’t allow it, since the matter was
only considered a cosmetic issue, and not a serious medical need.”
(Pl.’s Aff. ¶ 25; see also Pl.’s Dep. p. 32.)
Defendants do not explain why Dr. Sood’s purported
statements are not admissible against them as admissions by party
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opponents under Federal Rule of Evidence 801(d)(2)(D). Dr. Sood
was employed by Wexford, providing medical care to inmates within
the scope of that employment relationship, and authorized to make
statements regarding the diagnosis and treatment of medical
conditions. “All that FRE 801(d)(2)(D) requires is that ‘the
statement be made by an individual who is an agent, that the
statement be made during the period of the agency, and that the
matter be within the subject matter of the agency.’” Harris v.
Chicago Transit Authority, 2017 WL 4224616 *8 (N.D. Ill., not
published in F.Rptr.)(occupational therapist’s alleged defamatory
statements about plaintiff’s medical condition were admissible
against therapist’s employer under Rule 801(d)(2)(D) even though
not specifically authorized by employer)(quoting Young v. James
Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir. 2003)); see also
Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 309-310 (7th
Cir. 2010)(jail nurse’s overheard statement that inmate was “just
dope sick” admissible against Cook County under Fed. R. Evid.
801(d)(2)(D)).2

In contrast, a nurse’s purported statement to Plaintiff that the only course of treatment now
is “laser removal surgery of some form of grafting” appears to be inadmissible hearsay if offered
to prove that laser treatment or grafting is how Plaintiff’s condition should be treated. The
2

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Viewed in the light most favorable to Plaintiff, Dr. Sood
purported statements are evidence that Dr. Sood knew the
treatment he was providing was ineffective, knew that an effective
treatment was available, and knew that Wexford would not
authorize that effective treatment. Dr. Sood also made purported
statements to Plaintiff that Wexford does not permit referrals to
dermatologists for cosmetic reasons, but Plaintiff’s evidence allows
an inference that his scalp condition was more than just a cosmetic
problem. A rational juror, even as a layperson, could conclude that
chronic pustules seeping blood and pus presented a serious
medical need warranting effective treatment. Inferences arise in
Defendants’ favor as well, but competing inferences must be
resolved in the nonmovant’s favor. Accordingly, summary judgment
is denied.
IT IS THEREFORE ORDERED:
1. Defendants’ motion for summary judgment is denied (d/e 40).

record does not support an inference that this nurse had personal knowledge or experience in
treating this condition, or that treating this kind of condition was within the scope of her
employment relationship with Wexford. (Pl.’s Aff. ¶ 27.)

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2. A telephone status conference is set for March 16, 2018, at
11:00 a.m. The clerk is directed to issue a telephone writ to
secure Plaintiff’s at the status conference.
ENTER: February 21, 2018
FOR THE COURT:

s/Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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