Verser v. Ghosh et al

Filing 206

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/13/2013. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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GLENN VERSER,
Plaintiff,
v.
PARTHA GHOSH,
Defendant.

No. 10 C 409

MEMORANDUM OPINION AND ORDER
On January 10, 2010, Glenn Verser, an inmate at Stateville
Correctional Center (“Stateville”), filed a 42 U.S.C. § 1983 suit
pro se against various Stateville staff, including its medical
director, alleging inter alia that he was denied adequate medical
care

as

guaranteed

under

the

Eighth

Amendment.

Subsequently,

Plaintiff retained counsel and amended his complaint on four
occasions.
of

I previously dismissed all parties with the exception

Stateville’s

former

medical

director.

Now

before

me

is

Defendant’s motion for summary judgment on all claims asserted in
the Fourth Amended Complaint, which I grant for the reasons that
follow.

1

I.
The following facts are undisputed. Plaintiff, an inmate
formerly incarcerated at Stateville, has a history of health
problems, including gastroenterological issues, hypertension and
high blood pressure.
On December 13, 2007, March 14, 2008, and June 25, 2008,
Plaintiff sought treatment from the Stateville medical staff for
his gastroenterological issues.

He was examined and prescribed

antacids for his discomfort. Plaintiff reported that the antacids
provided no relief for his abdominal pain.
After additional complaints of abdominal pain, Plaintiff saw
Defendant for the first time on October 15, 2008.

During that

visit, Defendant examined Plaintiff and determined that he was
suffering from irritable bowel syndrome and prescribed Zantac.
In a follow-up appointment on November 3, 2008, Defendant
again

examined

Plaintiff

and

prescribed

a

liquid

antacid

in

addition to the medication that Plaintiff was already receiving.
Also

that

time,

Defendant

referred

gastrointestinal (“GI”) consult.

Plaintiff

to

UIC

for

a

On December 17, 2008, Dr. Rana

Abraham at UIC examined Plaintiff and recommended that Plaintiff
undergo

a

CT

scan

to

examine

his

esophagus,

stomach,

and

duodenum. The CT scan, performed on Plaintiff on January 20,
2009, indicated that Plaintiff likely suffered from constipation.
2

The

record

further

indicates

that

Plaintiff

did

not

have

a

history of constipation.
Plaintiff underwent additional tests, including an edoscopy,
which was performed on February 19, 2009.
Plaintiff

again

edoscopic

report

duodenal

bulb

on

February

indicated

were

23,

2009,

that

“normal.”

Defendant examined
and

noted

Dr.

Abraham

at

the

esophagus

Plaintiff’s

that

and

UIC

examined

Plaintiff for a follow-up appointment again on March 4, 2009, and
diagnosed

Plaintiff

likely “functional.”

with

persistent

abdominal

for

that

was

She recommended a colonoscopy and the drug

Cyproheptadine for Plaintiff’s discomfort.
colonoscopy

pain

Plaintiff,

but

opted

Defendant ordered the
not

to

prescribe

the

Cyproheptadine.
During Plaintiff’s colonoscopy at UIC on April 8, 2009, the
doctors found and surgically removed a 10 mm polyp.

After the

procedure, Plaintiff was returned to the Stateville infirmary at
11:00

P.M.

for

observation.

At

approximately

9:00

A.M.

the

following morning, Defendant evaluated Plaintiff and noted that
he was not bleeding and that his chart indicated that he has no
“signs

of

acute

distress.”

After

the

evaluation,

Defendant

discharged Plaintiff from the infirmary.
Once returned to his cell, Plaintiff subsequently began to
experience pain and rectal bleeding.
guards,

and

a

Stateville

sergeant
3

He requested help from the
ordered

that

Plaintiff

be

escorted from his cell to the “bullpen” area where he awaited
medical treatment.

While in the bullpen area, Plaintiff lost

consciousness and was eventually found by a medical technician
sitting on the floor in a pool of his own blood.

The medical

technician took Plaintiff by wheelchair to the Health Care Unit
where

Stateville

arrival,

staff

Plaintiff’s

and

physicians

clothes

were

were

soaked

stationed.

in

blood.

Upon

Defendant

examined Plaintiff and discovered that he was bleeding rectally
and

determined

that

the

blood

loss

constituted

a

serious

emergency. Defendant ordered that Plaintiff be taken by ambulance
to

the

emergency

room

at

Provena

St.

Joseph’s

Hospital

(“Provena”), where he was admitted and remained for 7 days.
On April 17, 2009, Defendant examined Plaintiff and noted
that

there

bleeding.

was

no

tenderness

in

Plaintiff’s

abdomen

or

any

He further noted that Plaintiff had a history of

rectal bleeding and that the physicians at Provena were unable to
find the source of the bleeding, as all of Plaintiff’s tests were
normal.
Again on April 29, 2009, Defendant saw Plaintiff for a
follow-up appointment, wherein Plaintiff renewed his complaints
of abdominal pain. Defendant sent Plaintiff back to the GI clinic
at UIC on May 27, 2009, where Dr. Abraham recommended the drug
Elavil to treat Plaintiff’s pain.

Defendant approved Elavil for

Plaintiff, but the record indicates he was not aware whether
4

Plaintiff received it.

Defendant has since retired from service

at Stateville.
II.
Summary
discovery

judgment

and

affidavits,

is

disclosure

demonstrate

appropriate
materials

that

on

there

when

“the

file,

as

is

no

pleadings,

well

genuine

as

issue

any
of

material fact and the moving party is entitled to judgment as a
matter of law.” Winsley v. Cook County, 563 F.3d 598, 603 (7th
Cir. 2009).

In determining whether a genuine factual dispute

exists, I must construe all facts in the light most favorable to
plaintiff and all justifiable inferences in his favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
mere

existence

of

some

alleged

factual

dispute

Still, “the
between

the

parties will not defeat an otherwise properly supported motion
for summary judgment,” id., at 247-48 (original emphasis), nor
will the existence of “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986).

Plaintiff must come forward with more than

a mere scintilla of evidence in his favor to survive Defendant’s
motion. Anderson, 477 U.S. at 251-52.
Under
adequate

the

medical

Eighth
care.

Amendment
Estelle

v.

prisoners
Gamble,

are
429

entitled
U.S.

97,

to
105

(1976); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). To

5

prove that he was denied adequate medical care, an inmate must
put

forth

sufficient

deliberately
condition.
832

(7th

facts

indifferent

to

to
an

prove

that

objectively

prison

staff

serious

was

medical

Rodriquez v. Plymouth Ambulance Serv., 577 F.3d 816,
Cir.

2009).

Prison

doctors

can

show

deliberate

indifference to a known condition through inaction, Gayton v.
McCoy, 593 F.3d 610, 623-24 (7th Cir. 2010), or by persisting
with inappropriate treatment, Gonzalez v. Feinerman, 663 F.3d
311, 314 (7th Cir. 2011).

Prison physicians might also show

deliberate indifference by delaying necessary treatment and thus
aggravating the injury or needlessly prolonging an inmate’s pain.
Gomez, 680 F.3d at 865, Smith v. Knox Cnty. Jail, 666 F.3d 1037,
1039-40 (7th Cir. 2012).

“Prison doctors cannot simply ignore

serious medical conditions or an inmate’s severe pain.” Gaston v.
Ghosh, No. 12-2211, 2012 WL 6632088, at *3 (7th Cir. Dec.20,
2012).
The
serious

parties
medical

Defendant

acted

agree

that

condition.
with

Plaintiff
The

deliberate

was

central

suffering

question

indifference

to

from

a

is

whether

that

serious

medical condition. Thus, Plaintiff is charged with demonstrating
that Defendant “acted with the requisite culpable state of mind.”
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (quoting Reed
v. McBride, 178 F.3d 849, 852 (7th Cir. 1999)).

In order to

prove that Defendant acted with the culpable state of mind,
6

Plaintiff must show that Defendant had subjective knowledge of a
risk to his health, but nevertheless “intentionally disregarded
that risk.” Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006).
Negligent

action

will

not

suffice;

rather

“deliberate

indifference is simply a synonym for intentional or reckless
conduct,” which is “so dangerous that the deliberate nature of
the defendant’s actions can be inferred.” Qian v. Kautz, 168 F.3d
949, 955 (7th Cir. 1999) (quoting Brownell v. Figel, 950 F.3d
1285, 1291 (7th Cir. 1991)).

Moreover, “[e]ven if a defendant

recognizes the substantial risk, he is free from liability if he
‘responded

reasonably

to

the

risk,

even

if

the

harm

was

ultimately not averted.’” Gayton, 593 F.3d at 620 (quoting Farmer
v. Brennan, 511 U.S. 825, 843 (7th Cir. 2008)).
Whether

a

defendant

was

“deliberately

indifferent”

to

a

serious medical condition is a fact question “to be resolved by a
jury if a plaintiff provides enough evidence to survive summary
judgment.” Gayton, 593 F.3d at 620. This question may only go to
the jury if Plaintiff can demonstrate the following standard:
[D]eliberate indifference may be inferred based upon
a medical professional’s erroneous treatment decision
only when the medical professional’s decision is such
a substantial departure form accepted professional
judgment, practice or standards as to demonstrate
that the person responsible did not base the decision
on such judgment.

7

Id. at 622-23 (quoting Estate of Cole by Pardue v. Fromm, 94 F.3d
254, 261-62 (7th Cir. 1996)).
I

must

material

determine

fact

as

to

whether
whether

there

is

Defendant

a

genuine

acted

with

issue

of

deliberate

indifference towards Plaintiff’s condition.
Viewing
Plaintiff,

the
the

facts
record

in

a

light

demonstrates

most
the

favorable
Defendant

reasonably to each of Plaintiff’s complaints.

to

the

responded

Each complaint was

followed by a referral to the specialists at UIC or the emergency
room at Provena.

While initially the medication prescribed to

Plaintiff failed to alleviate his discomfort, Defendant responded
by referring Plaintiff to the specialists at UIC and ordering
each of the tests that Dr. Abraham recommended.

“Mere medical

malpractice or a disagreement with a doctor’s medical judgment is
not deliberate indifference.” Edwards v. Snyder, 478 F.3d 827,
831 (7th Cir. 2007). Plaintiff nevertheless complains Defendant
acted with deliberate indifference at four junctures, including
(1) when Defendant allegedly delayed treatment of his abdominal
pain in late 2007 and early 2008, (2) when Defendant prescribed
ineffective drugs to treat his pain, (3) when Defendant declined
to prescribe a drug recommended by Dr. Abraham at UIC, and (4)
when Defendant discharged Plaintiff from the infirmary after his
colonoscopy.
not

of

At most, however, Plaintiff’s facts are probative

Defendant’s

deliberate
8

indifference,

but

of

his

disagreement with Defendant’s medical judgment or even medical
malpractice.
Delay In Treatment From December 2007 Through October 2008
Plaintiff takes issue with the care he received from late
2007 to October 15, 2008, when he first saw Defendant for his
abdominal pain.

The record indicates, however, that Plaintiff

received medical attention and medication in December 2007, March
2008 and July 2008, which undercuts his delay argument.

He also

made an informal request, in passing from the bullpen, requesting
that Defendant examine his abdomen.

While delays in treatment,

even where not life threatening, may amount to a Constitutional
violation, such violation only occurs “provided that the illness
or injury for which assistance is sought is sufficiently serious
or painful to make the refusal or assistance uncivilized . . . A
prison’s medical staff that refuses to dispense bromides for the
sniffles or minor aches and pains. . . does not by its refusal
violate the Constitution.” Cooper v. Casey, 97 F.3d 914, 916 (7th
Cir. 1996) Moreover, Plaintiff faces a heavy burden here, as “[a]
series of negligent acts might be some evidence of either a
plaintiff’s exposure to serious risk or an official’s awareness
of

such

exposure

.

.

.

but

showing

deliberate

through a pattern of neglect entails a heavy burden.”

indifference
Dunigan v.

Winnebago Cnty., 165 F.3d 587, 591 (7th Cir. 1999) (emphasis in
original) (internal quotations omitted).
9

I am charged with reviewing the record as a whole and not
just isolated events. Dunigan, 165 F.3d at 591 (explaining that
“a

court

must

examine

the

entire

record,

not

just

isolated

events”). Here, the record indicates that Plaintiff was seen by
medical staff three times during this so-called period of delay.
When

Defendant

became

involved

in

Plaintiff’s

treatment,

he

prescribed medication, ordered that specialists at UIC examine
Plaintiff, and approved the tests the UIC doctors recommended to
determine the cause of Plaintiff’s ailments.

Any delay, at best,

was merely negligent and did not rise to the level of an Eighth
Amendment

violation.

“[P]ossible

evidence

of

negligence

or

malpractice does not implicate Constitutional concerns . . . An
Eighth Amendment claim requires much more.” Dunigan, 165 F.3d at
592 (emphasis added).
What Plaintiff has not claimed and cannot claim is that
Defendant

ignored

his

complaints

and

that

he

knew

that

the

condition was serious. A delay in treatment only satisfies the
Constitutional standard if Defendant knew of the severity of
Defendant’s abdominal issues and refused him treatment. “[D]elay
could support a deliberate-indifference claim if [Defendant] was
aware

of

the

severity

of

[Plaintiff’s

health]

problems

yet

refused to approve [treatment].” McGowan v. Hulick, 612 F.3d 636,
640 (7th Cir. 2010).

A shout out from the bullpen was not

sufficient to put Defendant on notice that Plaintiff’s abdominal
10

ailment was severe.

Thus, Plaintiff cannot demonstrate that

Defendant delayed medical treatment with the requisite culpable
state of mind.
Prescription of Antacids For Plaintiff’s Abdominal Pain

Next,

Plaintiff

contends

that

Defendant’s

decision

to

continue prescribing him antacids, which he claims he repeatedly
told

Defendant

did

not

alleviate

his

symptoms,

amounts

to

deliberate disregard of his serious condition. As above, this
claim does not fulfill the requirements for a Constitutional
violation.
Here, Plaintiff contends he should have been given stronger
and more effective medicine at the outset of his treatment.

A

prisoner, however, is not entitled to receive “unqualified access
to healthcare.” Holloway v. Delaware Cnty. Sheriff, 700 F.3d
1063,

1073

(7th

Cir.

2012)

(noting

entitled to “adequate care”).

that

prisoners

are

only

Moreover, “[t]here is not one

‘proper’ way to practice medicine in prison, but rather a range
of

acceptable

courses

based

on

prevailing

standards

in

the

field.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). For
a medical professional to be held liable under the deliberate
indifference standard, he must make a decision that is “such a
substantial
practice,

departure
or

from

standards,

as

accepted
to
11

professional

demonstrate

that

judgment,
the

person

responsible

actually

did

not

base

the

decision

on

such

a

judgment.” Id. (quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir.
2008)).

In fact, “the prison physician . . . is free to make his

own, independent medical determination as to the necessity of
certain treatments or medications, so long as the determination
is based on the physician’s professional judgment and does not go
against accepted professional standards.” Holloway, 700 F.3d at
1073.
Prescribing
abdominal

pain

antacids
is

not

at

so

the

outset

unreasonable

as

of
to

treatment
be

for

considered

uncivilized given that Plaintiff provided no facts to indicate
that Defendant intended to cause him harm.

Moreover, when it

became clear that the antacids were not sufficient to alleviate
Plaintiff’s symptoms, Defendant altered the treatment course by
referring him to the specialists at UIC and approving each of the
tests

the

specialists

recommended.

Plaintiff

also

did

not

present any evidence that prescribing antacids for his abdominal
complaints was outside the accepted professional norm such that
it

is

reasonable

to

infer

decision on medical judgment.

that

Defendant

did

not

base

his

Therefore, Defendant’s decision to

prescribe antacids at the outset of the course of treatment for
Plaintiff’s

abdominal

pain

does

not

indicate

a

disregard for Plaintiff’s serious medical condition.

12

deliberate

Failure To Prescribe Medication Recommended By Specialists
Plaintiff

also

contends

that

Defendant’s

failure

to

prescribe the medication recommended by the specialists at UIC is
evidence

of

Plaintiff’s

his
March

deliberate
4,

2009

disregard.

examination

Specifically,

with

Dr.

after

Abraham,

she

prescribed the medication Cyproheptadine for what she diagnosed
as Plaintiff’s “functional abdominal pain.”

Defendant, however,

opted not to prescribe the Cyproheptadine.
Defendant

testified

that

he

did

not

prescribe

the

Cyproheptadine because it “is mostly prescribed for allergies and
. . . sometimes gets to stimulate appetite.
sleep sometimes . . .

And put somebody to

It’s not standard pain medication.” (Dep.

111.) He disagreed with Dr. Abraham’s recommended medication for
Plaintiff

and

opted

not

to

prescribe

it

for

Plaintiff.

As

discussed above, “[t]here is not one ‘proper’ way to practice
medicine in prison, but rather a range of acceptable courses
based on prevailing standards in the field.” Holloway, 700 F.3d
at 1073 (quoting Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.
2008)).

Plaintiff’s

claim

cannot

survive

summary

judgment

because “[t]here is no evidence that [Defendant] intended to
cause [Plaintiff] pain” or knew that the Cyproheptadine would
cure Plaintiff’s pain yet he withheld it anyway. Id.

Moreover,

Plaintiff did not present any evidence that Defendant’s refusal

13

to prescribe the Cyproheptadine was “a substantial departure from
accepted professional standards.” Id.
Plaintiff also argues that Defendant offered conflicting
statements about why he did not prescribe the Cyproheptadine.
Defendant testified that he did not prescribe it because in his
medical judgment “it would not have helped plaintiff.”

He also

testified that when the UIC specialist diagnosed Plaintiff with
“functional”

abdominal

pain,

he

believed

that

indicated

the

condition was “psychosomatic” and not “a GI problem anymore.”
Those statements are not incompatible with one another.

More

importantly, both indicate that Defendant made his decision based
on his medical knowledge at the time. And, as Plaintiff’s primary
care doctor, Defendant was “free to make his own, independent
medical determination as to the necessity of certain treatments
or medications, as long as the determination is based on the
physician’s

professional

judgment

and

accepted professional standards.” Id.

does

not

go

against

There is no indication

that Defendant failed to exercise his professional judgment when
opting not to prescribe the Cyproheptadine.

In fact, Defendant’s

subsequent actions—approving and ordering additional tests for
Plaintiff—indicate

that

he

was

exercising

his

professional

judgment, even if Plaintiff disagrees with his choices.
Similarly, Plaintiff argues that on May 27, 2009, in a
follow-up appointment with Dr. Abraham, she prescribed the pain
14

medication Elavil for Plaintiff, but Defendant withheld it from
Plaintiff.

Defendant testified that he approved of Elavil as a

course of treatment for Plaintiff.

He also testified that he was

responsible for ensuring that Plaintiff received the medication,
but could not explain why Plaintiff never received it. While the
explanation (or lack thereof) of why Plaintiff failed to receive
the medication is troubling, it is evidence of negligence and not
deliberate disregard. “Mere medical malpractice . . . is not
deliberate indifference.”

Edwards, 478 F.3d at 831.

Here, there

are no facts to support a contention that Defendant “gratuitously
withheld”

the

Elavil

Ciarpaglini

v.

(explaining

that

“without

Saini,
a

352

a

F.3d

deliberate

reason.”
328,

331

indifference

See

id.

(7th
claim

(quoting

Cir.
can

2003)
survive

dismissal where inmate alleges that medication was gratuitously
held without a reason).

At most, this breakdown signals medical

malpractice and not the requisite state of mind required for a
Constitutional violation.
Early Discharge From The Infirmary After Colonoscopy
Finally,

Plaintiff

argues

that

Defendant

prematurely

discharged him from the infirmary after his colonoscopy.
above,

this

claim

fails

because

Plaintiff

cannot

show

As
facts

sufficient to demonstrate that Defendant’s decision to discharge
Plaintiff was motivated by animus as opposed to his professional
assessment of Plaintiff’s condition.
15

Defendant testified that

the colonoscopy and polypectomy are both “routine” procedures,
where

patients

are

typically

“observed

for

a

few

hours”

afterwards and then sent home. While Plaintiff states in his
Declaration

that

he

“complained”

to

the

nurse

that

he

“was

experiencing even more intense abdominal pain than usual,” the
nurse’s notes on that day belie that statement. The notes say
that

Plaintiff

“offers

no

complaints,”

had

“zero

signs

of

distress,” and that he “only want[ed] to talk to the Doctor.”
Plaintiff cannot create a genuine issue of fact by manufacturing
a dispute through his Declaration.

See Szymanski v. Rite-Way

Lawn Maintenance Co., Inc., 231 F.3d 360, 364 (7th Cir. 2000)
(explaining that a plaintiff’s “self-serving affidavits without
factual support in the record will not defeat the motion for
summary judgment”).
Defendant

testified

that

when

he

examined

Plaintiff

the

morning after the procedure, there were no signs of bleeding, and
no reports from Plaintiff that he was experiencing discomfort.
Accordingly, Defendant sent Plaintiff back to his cell.

As

above, there are not sufficient facts to support a contention
that Defendant based his decision to release Plaintiff back to
his cell on anything other than his professional judgment. He
observed that Plaintiff was not bleeding and the notes from
Plaintiff’s admittance the night before, which indicate that he
had no complaints and “zero” signs of acute distress.
16

Faced with

these facts, I cannot say that Defendant’s actions were outside
of the accepted professional norm or that he took those actions
guided by principles other than those of his professional medical
judgment.

Moreover, the record is clear that once Plaintiff’s

condition deteriorated unexpectedly, Defendant ordered him to the
emergency

room

and

took

all

the

necessary

Plaintiff’s serious medical condition.
deliberate

indifference

on

the

part

steps

to

treat

There is no evidence of
of

Defendant

that

would

support Plaintiff’s Eighth Amendment claim.

III.
For the foregoing reasons, Defendant’s motion for summary
judgment is granted.

Dated: February 13, 2013

ENTER ORDER:

____________________________
Elaine E. Bucklo
United States District Judge

17