Gaston v. Ghosh et al

Filing 208

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendants' summary judgment motion 157 is granted. A separate AO-450 judgment will be entered. The status hearing of 12/13/2017 is vacated. Civil case terminated.Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES GASTON
Plaintiff,
v.
PARTHASARTHI GHOSH, LIPING
ZHANG, IMHOTEP CARTER,
WEXFORD HELATH SOURCES, INC.,
AND SALEH OBAISI, M.D.
Defendants.

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No. 11-cv-6612
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff James Gaston, a prisoner at Stateville Correctional Center, brings
this civil-rights lawsuit, 42 U.S.C. § 1983, for violation of his Eighth Amendment
rights.1 Defendants are Wexford Health Sources, Inc., a private corporation that
provides medical services at Stateville; three current and former Stateville medical
directors; and one former Stateville staff physician. For the reasons explained
below, the Court grants summary judgment in favor of each defendant and against
Gaston.
I. Background
This case arises out of the treatment of James Gaston’s various medical
problems—a course of treatment “spanning eight years, three serious medical

1This

Court has subject-matter jurisdiction over the case under 28 U.S.C. § 1331.

conditions, and four surgeries.” R. 178, Pl. Resp. at 1.2 For the sake of clarity, the
Court will address each medical condition separately, though they overlap
chronologically. The facts narrated here are undisputed unless otherwise noted. The
Court views the evidence in the light most favorable to Gaston, the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Left Knee
In early May 2009, Gaston injured his left knee while playing basketball at
the prison. R. 159, DSOF ¶ 9; DSOF Exh. B at 27:21-23.3 On May 11, 2009, Gaston
complained of knee pain to physician’s assistant La Tanya4 Williams (who is not a
defendant). DSOF ¶ 9. X-rays were ordered, which showed degenerative changes in
the left knee. R. 180, PSOF ¶ 3. To deal with the knee pain, Williams ordered a
knee brace for Gaston, and also ordered him to take Motrin and to apply ice. Id.
Later that summer, then-medical director Dr. Parthasarathi Ghosh saw Gaston at a
Hepatitis C clinic. PSOF ¶ 4. It is not clear whether Gaston complained to Ghosh
about knee pain at that appointment. In the medical records, Ghosh listed “[left]
knee brace” under “Plans,” but did not make any other notes about Gaston’s knees.
2Citations

to the record are noted as “R.” followed by the docket number and the
page or paragraph number.
3Citations to the parties’ Local Rule 56.1 Statements of Fact are identified as follows:
“DSOF” for the Defendants’ Statement of Facts [R. 159], “PSOF” for Gaston’s Statement of
Facts [R. 180], “Pl. Resp. DSOF” for Gaston’s response to the Defendants’ Statement of
Facts [R. 173], and “Def. Resp. PSOF” for the Defendants’ response to Gaston’s Statement
of Additional Facts [R. 186]. When the facts are undisputed, only the asserting party’s
Statement of Facts is cited. Gaston has also filed supporting exhibits for his Statement of
Facts. The version of the supplemental exhibits filed at R. 197 is identified as “Pl. Supp.
Exh.” The non-numbered version, which contains additional exhibits, is identified by its
docket number, R. 187.
4Gaston spells Williams’s first name as “LaTonya,” see Third Am. Cmplt. at ¶ 8, but
Defendants spell her name as “La Tanya,” see Def. Mem. at 9. Because Wexford employs
Williams, this Opinion will use the defense spelling.

2

R. 197, Pl. Supp. Exh. at 16. Gaston, however, testified that his knee continued to
be painful, and that it would swell up and give out on him. DSOF Exh. B at 31:1632:11.
In September 2009, Gaston made an appointment to see a physician during
sick call. PSOF ¶ 6. But due to staff shortages and a Stateville lockdown, he did not
see a doctor until November 2009, when he presented for an appointment with Dr.
Liping Zhang. PSOF ¶¶ 7-10; Pl. Supp. Exh. at 21-22. Zhang examined Gaston,
noting that there was no bruising of the left knee and that Gaston had full range of
motion, but that he favored the knee while walking. DSOF ¶ 10; DSOF Exh D. at 3.
Zhang prescribed Ibuprofen (which is a non-steroidal anti-inflammatory drug) to
treat the pain and inflammation, as well as an analgesic balm. Id.5 Zhang did not
refer Gaston to a specialist at this appointment, and instead told him to return to
the clinic in two months (though Zhang did not schedule the follow-up). PSOF ¶ 10.6
Gaston next complained to Zhang of knee pain in April 2010, when he presented at
the health care unit for the Hypertension and Asthma Chronic Clinics. DSOF ¶ 11.
At this appointment, Gaston again complained about his left knee. Id. Gaston states
5In

Gaston’s response to Defendants’ description of this appointment, he states
“Admitted in part: However, Dr. Zhang refused to offer meaningful treatment to plaintiff,
telling him ‘I’m not treating you, and I am not letting you see a specialist.’” Pl. Resp. DSOF
¶ 10. But Gaston does not dispute the accuracy of the medical records recording Zhang’s
prescribed treatment for the knee, so the denial must specifically be directed at the refusal
to refer him to an outside specialist.
6In response to Gaston’s assertion about the specialist, Defendants state: “Denied
that Dr. Zhang refused to send Plaintiff to an off-site specialist, as it was not medically
necessary.” Def. Resp. PSOF ¶ 10. It is unclear whether defendants are denying that Zhang
refused to refer Gaston to a specialist (a contention unsupported by the record) or whether
they are opining that a specialist appointment was medically unnecessary at the time of the
appointment. In any event, there is no evidence in the record that Zhang ordered a
specialist referral during the November appointment.

3

that Zhang refused to examine his knee or to discuss it with him when he asked her
to. Id. Defendants deny that Zhang refused to examine Gaston’s knee, and note that
Zhang prescribed Tramadol,7 which is an opioid pain reliever, and an analgesic
balm. R. 186, Def. Resp. PSOF ¶ 11.8 Again, Zhang did not refer Gaston to a
specialist, but rather told him to follow up at the clinic. PSOF ¶ 13. Gaston reports
that he asked about a specialist referral, but Zhang told him “I don’t want to talk to
you about that. That ain’t what you’re here for.” DSOF Exh. B at 35:24-36:5. Gaston
further asserts that at one of these two appointments (it is unclear which one),
Zhang told him “I’m not treating you, and I’m not letting you see no specialist.”
DSOF Exh. B at 56:19-21.
Gaston followed up at the clinic about two weeks later, when he saw Williams
and reported that his left knee was getting worse. DSOF ¶ 12. Williams referred
Gaston to Ghosh for further evaluation. Id. On May 19, 2010—now more than a
year after Gaston’s initial injury—Ghosh examined Gaston. DSOF ¶ 13. Ghosh
noted Gaston’s history of pain, instability and swelling since May 2009, and planned
to refer him for an orthopedic consult at the University of Illinois at Chicago (UIC).
DSOF ¶ 13; PSOF ¶ 16. It took Ghosh until July 15, 2010—about two months—to
actually sign the order approving the orthopedic consult. PSOF ¶ 17. Then there
was another delay of several months until the consult took place, during which

7In

the medical records, Zhang notes that she is prescribing “Ultram,” which is a
brand name for Tramadol. DSOF Exh. D at 4.
8Gaston makes word-for-word the same denial regarding “meaningful treatment” as
described in note 5, supra. Pl. Resp. DSOF ¶ 11. But the medical records reflect that Zhang
prescribed the treatment described, DSOF Exh. D at 4, and Gaston does not directly deny
it.

4

Gaston grieved the treatment of his knee and continued to complain of knee pain to
Stateville medical personnel. PSOF ¶¶ 19-23.
In the end, the orthopedic consult did not take place until September 27,
2010, when Gaston saw Dr. Samuel Chmell, an attending orthopedic surgeon at
UIC. PSOF ¶ 25. At this appointment, Chmell noted a possible left meniscal injury
and ordered x-rays and an MRI to further evaluate the potential injury. DSOF Exh.
D at 11. But Gaston was not referred to UIC for an MRI until late November 2010,
and the MRI did not take place until February 4, 2011. PSOF ¶¶ 29, 32. Gaston met
with Ghosh on March 25, 2011 to discuss the results of the MRI. DSOF ¶ 18. Ghosh
planned another orthopedic referral. PSOF ¶ 35. Ghosh retired shortly after this
appointment. DSOF ¶ 18.
On June 6, 2011, Gaston returned to UIC for another appointment with
Chmell. DSOF ¶ 19. After reviewing the MRI, Chmell recommended a left knee
arthroscopy, which is an elective outpatient procedure, to repair or remove damaged
tissue in the knee. Id. Gaston agreed to undergo this surgery. Id. Wexford approved
Gaston for the left knee arthroscopy in July 2011, and Chmell performed the
surgery on August 2, 2011. PSOF ¶ 43; DSOF ¶ 21.
At a follow-up appointment on August 8, 2011, Chmell noted that Gaston was
doing well, ordered physical therapy, and gave him instructions on exercises to do in
his cell. DSOF Exh. D at 21-22.9 Gaston was never given physical therapy for his

9Defendants

state that Chmell ordered only exercises, not formal physical therapy.
DSOF ¶ 22. Chmell’s notes from the appointment state that “[w]e gave his some physical
therapy exercises to do in clinic. We ordered Physical Therapy for him to have at the
prison.” DSOF Exh. D at 22-23. Based on this record, it seems like formal physical therapy

5

left knee. PSOF ¶ 47. Even so, it appears that the left knee arthroscopy was a
success: Gaston did not complain about left knee pain again until four years later,
in October 2015. DSOF ¶ 51.
B. Right Knee
Gaston began complaining of right knee pain sometime in 2010, but there is
no evidence that Ghosh or the other defendants were aware of the right knee issue
until much later. Gaston filed a grievance mentioning his right knee pain in August
2010, but there is no indication that Ghosh knew about the grievance. See DSOF
Exh. G at 3-9. Gaston points to a letter that he wrote to Ghosh on December 1,
2010, stating that he had been waiting 18 months for left knee treatment, and that
“my other knee is getting bad from the pressure and extra weight.” Pl. Supp. Exh.
at 1-2. But the foundation for this letter (either its authorship by Gaston or its
receipt by Ghosh) is not in the record. Gaston’s Local Rule 56.1 Statement
paragraph on this letter cites only a purported copy of the letter, and fails to cite
any factual support, whether it be deposition testimony (or even an affidavit) of
Gaston, or an admission by Ghosh that he received the letter. PSOF ¶ 30. As
Defendants point out, there is no reason to think that this letter was ever received
by Ghosh. Def. Resp. PSOF ¶ 30. Gaston did complain of right knee pain to
Williams on December 17, 2010, DSOF ¶ 16, but there is no evidence that Ghosh or
any of the other defendants knew about this complaint. There is also no evidence
that Gaston complained to Ghosh or other medical personnel about his right knee
was ordered. To the extent that the record is ambiguous, it must be read in the light most
favorable to Gaston, which means that Chmell did order physical therapy (not just
exercises) during the August 8 appointment.

6

between December 2010 and August 2011. Indeed, it is not clear that Ghosh ever
knew about the right knee complaint (Ghosh retired in March 2011, DSOF ¶ 2).
On August 8, 2011, at an appointment with Chmell after the left knee
arthroscopy, Gaston complained of right knee pain. Chmell noted that he would
likely order an MRI of Gaston’s right knee at their next appointment, and that he
would see Gaston again in two weeks. DSOF Exh. D. at 23. This follow-up
appointment was never scheduled. Instead, in an August 25, 2011 appointment,
Stateville’s new medical director, Dr. Imhotep Carter, noted that there was “no
current indication for a right knee evaluation.” DSOF Exh. D at 24. In November
2011, Carter presented Gaston’s case at a Wexford collegial review. DSOF ¶ 24.
Collegial review is a discussion between the Stateville medical director and a
Wexford utilization management physician to determine a patient’s treatment plan.
Id. The collegial review decided to postpone an MRI of the right knee for six months
“to allow surgically repaired left knee to recover.” DSOF Exh. D at 25.
Gaston next presented for an evaluation with Carter in February 2012.
Carter noted that Gaston was walking with a crutch and “Basically NWB [nonweightbearing] on his right LE [lower extremity].” DSOF Exh. D at 26. Carter
reminded Gaston of the plan to delay the MRI of his right knee for six months, and
renewed his medical permits and prescriptions. DSOF ¶ 25. Carter left Stateville
shortly after this exam.
In May 2012, the interim medical director (not a defendant in this case)
referred Ghosh for an MRI of his right knee, which took place in July 2012. DSOF

7

¶ 27-28. The MRI showed degenerative tears of the medial and lateral meniscus, a
joint effusion, and some osteochondral fragments within the joint. DSOF Exh. D at
31. Based on the MRI results and an examination, Chmell recommended a right
knee arthroscopy. DSOF ¶ 28. Dr. Saleh Obaisi became medical director of
Stateville on August 2, 2012, and approved the right knee arthoscopy on August 8,
2012. DSOF ¶ 29, DSOF Exh. D at 33. The surgery was performed on October 2,
2012. DSOF ¶ 30. Gaston underwent several months of physical therapy after the
surgery. DSOF ¶¶ 32, 34.
In December 2012, Obaisi approved a follow-up orthopedic consultation at
UIC. PSOF ¶ 69. This consultation was approved in a Wexford collegial review on
January 7, 2013, but the consultation did not take place until June 17, 2013. DSOF
¶¶ 36-37. Neither party explains why it took six months to schedule this
appointment. During the appointment, Gaston complained of pain despite receiving
medication and physical therapy. DSOF ¶ 37. Chmell gave Gaston a steroid
injection, recommended further physical therapy, and noted that if non-operative
measures were unsuccessful, Chmell would consider recommending a full knee
replacement. Id. When Gaston returned to UIC in October 2013, he was still
experiencing knee pain, so Chmell recommended a right knee arthroplasty (in other
words, a full knee replacement). DSOF ¶ 39. Obaisi and the Wexford collegial
review approved the arthroplasty within a month. PSOF ¶ 79; Pl. Supp. Exh. at
324.

8

Unfortunately, the arthroplasty was long delayed. At least some of the
holdup was due to the need for Gaston to get pre-surgery clearance from the
pulmonary and cardiology departments at UIC to ensure that he was fit for surgery.
DSOF ¶¶ 41-42. It is unclear when the pre-surgical clearance process ended. Gaston
was cleared by cardiology in May 2014, PSOF ¶ 86, but the parties have pointed to
no evidence of the date of pulmonary clearance.10 In any event, during the time that
Gaston waited for the surgery, he was seen regularly by medical staff and provided
with pain medication, muscle relaxants, crutches, medical permits for lowbunk/low-gallery, and supportive knee braces. DSOF ¶ 42.
After more than a year of waiting, Gaston returned to Chmell’s office for a
pre-surgery consult in December 2014. DSOF ¶ 43. The right knee replacement was
performed on February 3, 2015, and was apparently successful. DSOF ¶ 44. Gaston
had frequent follow-up appointments with Obaisi in the year after the surgery, and
received multiple courses of physical therapy. DSOF ¶¶ 48-50. An August 2016
follow-up appointment with Chmell revealed that Gaston was healing well from the
arthroplasty, despite continued pain. DSOF ¶ 53.
C. Lower Back
Gaston first reported lower back issues on February 3, 2014, when he
complained to Obaisi of numbness in his left thigh. DSOF ¶ 55. Obaisi ordered xrays of the lumbar spine and left hip. Id. Williams reviewed the x-rays with Gaston
and diagnosed him with mild degenerative joint disorder of the lumbar spine. DSOF
10The

medical record contains a “Pulmonary Note” dated July 23, 2014. DSOF Exh.
D at 86. This report states that “surgery is not contraindicated.” Id. at 89. But neither party
explains whether this report definitively cleared Gaston for surgery.

9

¶ 56. She prescribed Mobic and Robaxin, and referred Gaston to Obaisi. DSOF ¶ 56;
PSOF ¶ 83; DSOF Exh. D at 156. Obaisi saw Gaston in late March and scheduled
him for a steroid injection, which took place in early April 2014. DSOF ¶ 57.
In August 2014, Gaston heard a “pop” while bench pressing weights. DSOF
¶ 58. Gaston saw a nurse at the health care unit about the injury. Id. The nurse
renewed Gaston’s Tramadol prescription and advised him to raise the issue with
Obaisi at an upcoming appointment. Id. Gaston did not mention the injury at his
appointment with Obaisi. Id.
Gaston next complained of hip pain to Obaisi on January 27, 2015. DSOF
¶ 59. Obaisi told Gaston that they would wait to address the issue until after his
right knee surgery, which was scheduled for the following week. Id. In the year
after the surgery, Gaston saw Obaisi frequently, but seemingly did not complain of
back pain during those visits. See DSOF ¶ 48.
In August 2016, Gaston reported low back pain and lower extremity
numbness during an appointment with Chmell. Chmell examined Gaston’s lower
back and ordered an x-ray of the lumbar spine, which revealed arthritis. DSOF
¶ 60. During a follow-up visit in September 2016, Chmell recommended physical
therapy and core strengthening. DSOF ¶ 61. Chmell has never recommended
surgery for Gaston’s lower back condition, and opined in a deposition that the
standard of care for treating lumbar spine arthritis is non-operative measures such
as medication. DSOF ¶¶ 60-61.

10

D. Hernia (Obaisi)
Gaston’s last pertinent medical condition is a reducible right-sided inguinal
hernia. DSOF ¶ 62. Gaston began to complain about the hernia in October 2013, but
there is no evidence that Obaisi (or any other defendant) knew about it until
September 28, 2014, when a nurse notified Obaisi that Gaston’s hernia was painful
and swollen. PSOF ¶¶ 77-78, 90; Pl. Supp. Exh. at 263. On October 7, 2014, Obaisi
presented Gaston’s case at a Wexford collegial review. PSOF ¶ 92. During the
review, Obaisi and the consulting physician decided to delay surgical evaluation of
the hernia until after Gaston’s knee surgery. Pl. Supp. Exh. at 346. Instead, Gaston
was given a hernia truss. DSOF ¶ 65.
On March 2, 2015, Gaston again reported discomfort from his hernia to
Obaisi. DSOF ¶ 66. Obaisi elected to re-present Gaston’s case at collegial review,
and Gaston was approved for a general surgery consult at UIC on March 10, 2015.
Id; DSOF Exh. D at 172. The consult took place on July 20, 2015 (more than five
months after it was approved). DSOF ¶ 67. The consulting physician recommended
hernia repair surgery, which was performed on August 25, 2015. DSOF ¶¶ 67-68.
II. Summary Judgment Standard
Summary judgment must be granted “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 genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating

11

summary judgment motions, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make
credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,
704 (7th Cir. 2011), and must consider only evidence that can “be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). However,
affidavits, depositions, and other written forms of testimony can substitute for live
testimony. Malin v. Hospira, Inc., 762 F.3d 552, 554–55 (7th Cir.2014). The party
seeking summary judgment has the initial burden of showing that there is no
genuine dispute and that they are entitled to judgment as a matter of law.
Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
III. Analysis
A. Exhaustion
Prisoners complaining about prison conditions—including prison medical
treatment—must exhaust available administrative remedies before filing suit. 42
U.S.C. § 1997e(a); Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004). The
procedures that prisoner must exhaust are defined by the prison grievance process
itself, not the Prison Litigation Reform Act. Maddox v. Love, 655 F.3d 709, 721 (7th

12

Cir. 2011). Illinois’s prison grievance procedures are set out in Title 20 of the Illinois
Administrative Code, 20 Ill. Admin. Code § 504.800 et seq.
1. Grievance No. 0792: Left Knee
Gaston filed three administrative grievances relating to his claims in this
case. The first, Grievance No. 0792, was filed sometime before May 11, 2009 and
grieved the treatment of his left knee. DSOF ¶ 73. But Gaston did not timely
complete the grievance appeals process. Illinois law requires an appeal to the
Director of the Illinois Department of Corrections to be received by the
Administrative Review Board within 30 days of the date of the Chief Administrative
Officer’s response to the grievance. 20 Ill. Admin. Code § 504.850(a). The Chief
Administrative Officer signed and responded to Gaston’s first grievance on May 11,
2009, but the Review Board did not receive the appeal until from the response until
June 17, 2009. DSOF ¶ 73; DSOF Exh. G. at 2. In light of the missed deadline, the
Review Board returned the appeal to Gaston as untimely filed. DSOF ¶ 73. Gaston’s
failure to comply with the appeals deadline means that he has failed to properly
exhaust his administrative remedies as to the left knee condition in 2009. See Kaba
v. Stepp, 458 F.3d 678, 684 (7th Cir. 2013).
2. Grievance No. 2559: Left and Right Knees
Gaston’s second grievance, filed on August 11, 2010, presents a more difficult
question. In this second formal grievance, No. 2559, Gaston complained that he had
been waiting over fifteen months to receive treatment for his left knee, and that his

13

right knee was also bothering him.11 DSOF Exh. G at 5. The subject of this
grievance was clearly the ongoing lack of medical treatment for Gaston’s knee
issues. See DSOF Exh. G at 5 (“I still have not gotten my knee fixed … I am being
denied Medical treatment on my left knee which is in constant pain and no
medication is being given to me … I would like to have my knees fixed after this 15
month wait.”). The Review Board, however, returned the grievance as untimely,
noting that the “last dated cited in this [grievance] by Gaston was ‘15 months’ ago.”
DSOG Exh. G at 9 (June 22, 2011). Illinois law requires a prison grievance to be
filed within “60 days after the discovery of the incident, occurrence or problem that
gives rise to the grievance.” 20 Ill. Adm. Code § 504.810(a). But the Review Board’s
rejection of the grievance as untimely is premised on a misreading of Gaston’s
grievance, which stated that he had been waiting fifteen months from the date of
his injury to receive adequate treatment. He was not complaining about a single
incident that happened fifteen months ago; he instead was complaining about an
ongoing failure to treat by the prison’s medical staff. His grievance was timely
because the injury was ongoing in nature; it would be nonsensical to start the 60-

11There

is a colorable argument that the second grievance does not exhaust the right
knee claim, but Defendants have not raised it. It is somewhat unclear from the grievance
whether Gaston was grieving lack of treatment for his right knee, or just pointing to his
right knee pain as evidence of the harm done by failure to treat the left knee. But in their
brief, Defendants treat both the right and left knee claim as one “knee condition,” and so do
not argue that Gaston’s right knee claim might be unexhausted even if Grievance No. 2559
successfully exhausted his left knee claim. Def. Mem. at 5-6. Defendants have the burden of
proving a prisoner’s failure to exhaust, Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004), so
the Court gives Gaston the benefit of the doubt on the question whether Grievance No. 2559
actually grieves right knee treatment (assuming that the treatment of the right and left
knees are separate claims for PLRA purposes, which they might not be).

14

day clock from the date of his initial injury in such a circumstance, especially as he
waited for treatment.12
Defendants appear to argue that Gaston’s remedies are unexhausted because
the Review Board “returned” the grievance on procedural grounds instead of issuing
a final determination on the merits. See R. 158, Def. Mem. at 6 (“because Plaintiff
never received a final determination on the merits of his grievances … he did not
meet his obligations under the PLRA exhaustion requirement.”); R. 185, Def. Reply.
at 5. That line of thinking is imprecise. In most cases, the Review Board will issue a
procedural return because the prisoner has failed to comply with state-law
procedural requirements for grievances. The prisoner’s claim will be unexhausted
because he actually failed to follow the proper procedures, not just because the
Review Board chose to issue a procedural “return” as opposed to a decision on the
merits. See, e.g., Kaba, 458 F.3d at 684 (“[W]hen the prisoner causes the
unavailability of the grievance process by simply not filing a grievance in a timely
manner, the process is … forfeited.”). To allow the Review Board’s stated rationale
to be 100% dispositive would allow prison officials to evade review by issuing bogus
procedural

denials

in

order

to

render

prisoners’

complaints

perpetually

On the return form, the Review Board also stated as a reason for rejection that
“[t]his office previously addressed this issue on 8/20/10”—apparently referring to the
Review Boards’ response to separate correspondence Gaston had sent to Stateville’s director
complaining about his medical care. See DSOF Exh. G at 3. In a rejection signed on August
20, 2010, the Review Board admonished Gaston to follow the grievance system and to
contact his counselor about the issue. Id. at 4. This back-and-forth was separate from the
formal grievance (No. 2559) that Gaston filed on August 11, 2010. And at any rate, the
Review Board did not “address” Gaston’s grievance in the August 20 return, but merely told
him that he should follow the formal grievance process—which he did with the August 11
grievance.
12

15

unexhausted—effectively making prison grievance decisions unreviewable by
federal courts. The PLRA requires that prison officials be given “a fair opportunity
to consider the grievance,” Woodford v. Ngo, 548 U.S. 81, 95 (2006), not absolute
control over whether exhaustion has been satisfied. So when a prisoner has
complied with applicable rules but the prison-review official mistakenly believes
that he has not, then the prisoner has satisfied the exhaustion requirement. By
following the prison’s procedure, Gaston gave the Review Board a fair opportunity
to address his grievance. Defendants cannot assert an exhaustion defense when the
prison, not Gaston, is responsible for the failure of the grievance process. Cf. Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (prisons cannot exploit the exhaustion
requirement by not responding to grievances or denying access to an administrative
remedy); Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016) (prisoner need not
exhaust remedies when prison fails to respond to a properly field grievance or
otherwise prevents the prisoner from filing); Brown v. Croak, 312 F.3d 109, 111-12
(3d Cir. 2002) (administrative remedies were not available when prison officials
erroneously told the prisoner that he must wait until the investigation was
complete before filing a grievance).
In short, Defendants have not carried their burden of showing that Gaston
failed to exhaust administrative remedies for his right and left knee claims, at least
as of the June 22, 2011 rejection of the grievance that had been filed on August 11,
2010.13

13The

Court recognizes that, by denying summary judgment to the defense on this
issue, the Opinion comes close to a holding that Gaston has exhausted his claims. But

16

3. Grievance No. H597: Lower Back, Hernia, Knees
Gaston filed his third formal grievance in May 2015, this time grieving that
he had not received treatment for his right knee, hernia, and lower back. DSOF
Exh. G at 10-11. The Chief Administrative Officer responded to the grievance on
August 27, 2015, starting the clock for Gaston to complete the administrative
process by appealing to the Director. 20 Ill. Admin. Code 504.850(a). But instead of
appealing and awaiting a response, Gaston immediately filed his Third Amended
Complaint, which added allegations about his hernia and lower back treatment.
Only later did Gaston file an administrative appeal. See DSOF Exh. G at 12 (appeal
to Director dated September 10, 2016). The Third Amended Complaint was filed on
August 27, 2015. R. 102, Third. Am. Cmplt. The Review Board did not return
Gaston’s grievance until September 17, 2015. The problem is that Gaston jumped
the gun on the lower back and hernia claims by filing the Third Amended
Complaint before finishing the grievance appeals process. So he cannot proceed on
them in federal court, even though he eventually finished the administrative
process during the suit’s pendency. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
2004) (prisoners must exhaust their remedies before filing suit, even if exhaustion is
completed while the lawsuit is pending).
Gaston argues that he may amend his complaint to include unexhausted
claims as long as he is “properly before the court” on some exhausted claims. Pl.
Resp. at 2-3. In support, he cites only Jones v. Bock, which flatly contradicts his

Gaston did not cross-move for summary judgment against the exhaustion defense. In any
event, the claims fail on the merits, as discussed below.

17

position. See 549 U.S. 199, 211, 219-221 (2007) (“There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.”; “All agree that no unexhausted claim may be considered …. [I]f a
complaint contains both good and bad claims, the court proceeds with the good and
leaves the bad.”). And even apart from the lack of case law support, Gaston’s
position is nonsensical. Gaston argues that Federal Rule of Civil Procedure 15
trumps the PLRA, which is a later-enacted congressional statute. Pl. Resp. at 2-3.
But a later-enacted statute of course trumps a federal procedural rule if the two are
in conflict. Harris v. Garner, 216 F.3d 970, 982 (“If there were a conflict between
Federal Rule of Civil Procedure 15 and the PLRA, the rule would have to yield to
the later-enacted statute to the extent of the conflict.”). What’s more, Gaston’s
position runs against the PLRA’s exhaustion rationale, which is to allow prison
officials a chance to address each grievance. The aim of the PLRA would be
frustrated if prisoners could use Rule 15 to bootstrap endless unexhausted claims
onto a single exhausted claim. Williams v. Adams, 2007 WL 1595457, at *1 (E.D.
Cal. June 1, 2007).
No better is Gaston’s argument that it is improper to raise exhaustion on a
motion for summary judgment. See Pl. Resp. at 2. As Defendants point out,
exhaustion “most often is raised via summary judgment motion, so that the Court
can consider evidence outside the pleadings, such as affidavits, grievances,
responses, appeals, and related documentation.” Boyce v. Carter, 2014 WL 4436384,
at *8 (N.D. Ill. Sept. 8, 2014) (quotation marks omitted). True, this motion for

18

summary judgment comes at the close of all discovery, but Gaston has had ample
notice that Defendants intended to argue exhaustion. Defendants asserted the
exhaustion defense in their answer to Gaston’s Amended Complaint, and did so
again in their answers to the Third Amended Complaint. R. 68 at 10; R. 105 at 15;
R. 127 at 17-18. Far from waiving the exhaustion defense, Defendants have
diligently asserted it from the start.
So Defendants are entitled to dismissal of the hernia and lower back claims
on exhaustion grounds alone. A court may choose, however, to address the merits of
an unexhausted claim even after determining that the claim is unexhausted. Fluker
v. Cty. of Kankakee, 741 F.3d 787, 793 (7th Cir. 2013). For the sake of
completeness—and for appellate review—it often makes sense for a district court to
proceed to the merits of an exhausted claim when the claims are fully briefed and
plaintiff has had a “full and fair opportunity to respond to the substance of the
motions.” Id. In this case, the lower back and hernia claims are fully briefed, so the
Court will consider these claims on the merits even though they are unexhausted.
B. Deliberate Indifference
Prison doctors violate the Eighth Amendment when they act with “deliberate
indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97,
104 (1976). Defendants do not contest that Gaston’s medical conditions were
“serious,” so the question is whether a reasonable jury could find that any of the
defendants acted with deliberate indifference. Deliberate indifference is more than
mere negligence or medical malpractice. Collignon v. Milwaukee Cty., 163 F.3d 982,

19

988 (7th Cir. 1998); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
Physicians may be liable if they intentionally disregard a known, objectively serious
medical condition that poses an excessive risk to an inmate's health. Gonzalez v.
Feinerman, 663 F.3d 311, 313-14 (7th Cir. 2011) (per curiam). A jury can infer
deliberate indifference on the basis of a physician’s treatment decision when the
decision is so far afield of accepted professional standards as to raise the inference
that it was not actually based on a medical judgment. Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011). A significant delay in medical treatment may also support
an inference of deliberate indifference, especially when the result is prolonged and
unnecessary pain. See Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008).
The Court will march through the record in a moment, but it is worth
summing up that, even giving Gaston the benefit of reasonable inferences, the
treatment decisions in this case were not so manifestly unreasonable that a
reasonable jury could infer—without additional evidence—that they amounted to
deliberate indifference on the part of a particular Defendant. To be sure, Gaston has
pointed to evidence of long, unexplained delays in treatment, which might on their
own have supported a deliberate-indifference claim—if Gaston had identified the
person or party responsible for the delays. But—as detailed in the remainder of the
Opinion—Gaston has not shown which of the named defendants caused the delays,
so his arguments based on delay also fail for lack of evidence.14

14Because

the Court holds that Gaston has not set out sufficient evidence to prove a
claim of deliberate indifference against any defendant, we need not address the issue of
qualified immunity. But the Court notes that, contrary to Defendants’ assertions, see Def.
Mem. at 20, qualified immunity does not apply to private medical personnel in prisons.

20

1. Dr. Zhang
First up is Dr. Zhang. Zhang saw Gaston in connection with his left-knee
complaint on two occasions.15 At the first appointment, in November 2009, she
prescribed Ibuprofen and analgesic balm for Gaston’s knee pain. DSOF ¶ 10; DSOF
Exh D. at 3. Zhang saw Gaston again in April 2010, when he presented for the
Hypertension and Asthma Chronic Clinics. DSOF ¶ 11. According to Gaston, Zhang
refused to examine his knee at this appointment, and told him “I don’t want to talk
to you about that. That ain’t what you’re here for.” DSOF Exh. B at 35:24-36:5. But
there is undisputed evidence that Zhang did offer some treatment for the knee,
prescribing Tramadol (a different pain reliever) and analgesic balm. Def. Resp.
PSOF ¶ 11. Zhang also instructed Gaston to follow up at the clinic. PSOF ¶ 13.
Gaston also claims that Zhang told him on one occasion, “I’m not treating you, and
I’m not letting you see no specialist.” DSOF Exh. B at 56:19-21.
Zhang’s behavior presents a close call, but ultimately there is not enough
evidence in the record to support a reasonable inference of deliberate indifference. It
is true that the Seventh Circuit’s opinion on the dismissal motion in this case held
that Zhang’s behavior as described in Gaston’s complaint could support a deliberate
indifference claim. Gaston v. Ghosh, 498 F. App’x 629, 632 (7th Cir. 2012). But the
Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016); Shields v. Ill. Dep’t of Corr., 746 F.3d
782, 794 (7th Cir. 2014). Notably, Petties and Carter both involved Wexford employees. To
be sure, there might be some form of good-faith defense, but Defendants do not develop that
argument at all.
15Gaston also states that he saw Zhang on December 14, 2011. PSOF ¶ 57. This
assertion is inconsistent with the cited record: the entry for December 14, 2011 is labeled
“PA note,” indicating that Ghosh was seen by a physician’s assistant (probably Williams),
not by Zhang, who is an M.D. DSOF ¶ 3. The handwriting and signature for the December
14 entry also do not match Zhang’s.

21

Seventh Circuit did not have the benefit of Dr. Chmell’s deposition testimony, which
illuminates the standard of care for a condition like Gaston’s. Chmell’s
uncontroverted testimony states that the usual course of treatment for Gaston’s
condition is to attempt non-operative measures, like pain medication, before going
forward with surgery. DSOF Exh. E at 14:11-15. Given the preference for nonoperative treatment, Zhang’s decision to provide painkillers instead of pursuing
other treatments did not manifestly fall below the standard of care, let alone sink to
the level of deliberate indifference.
What’s more, Gaston’s complaint alleged that during the April 2010
appointment, Zhang refused to even discuss Gaston’s knee, let alone treat it. See
Gaston, 498 F. App’x at 632. But from the evidence on the record, it is
uncontroverted that Zhang did treat Gaston’s knee, even though she did not refer
him to a specialist. At the first appointment (in November 2009), she examined the
knee and noted that it was not bruised and that Gaston had full range of motion.
DSOF Exh. D at 22. Zhang prescribed him Ibuprofen, which was a different pain
reliever than what he had been taking before, and told him to follow up if he was
still in pain. Id. Zhang apparently did not herself schedule this follow-up
appointment, see PSOF ¶ 10, but Gaston points to no evidence in the record as to
what happened, and it is not clear what Gaston did, if anything, to pursue this issue
in discovery. Deliberate indifference requires a conscious disregard of a serious
medical need. For all we know, Zhang negligently forgot to make the appointment,
or there was a miscommunication in who was supposed to initiate the follow-up

22

appointment, or perhaps Zhang was not even the person responsible for scheduling
follow-up appointments. Yes, Gaston is entitled to the benefit of reasonable
inferences, but he does not cite to actual record evidence to establish even the bare
constituent facts from which to draw an inference of deliberate indifference. See
Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997) (“isolated instances of
neglect” cannot support a finding of deliberate indifference). When Zhang saw
Gaston in April 2010 and he was still in pain, she changed treatment course and
prescribed yet another pain reliever—this one an opioid used to treat moderate to
severe pain. DSOF ¶ 11. Gaston asserts that Zhang refused to discuss his knee (an
assertion that must be credited at this stage), but given that Gaston’s appointment
was at the Hypertension and Asthma Clinic, Zhang’s refusal to discuss his knee in
detail is understandable: as she told Gaston, he was at the clinic for a different
reason. And Zhang did not merely turn Gaston away; she prescribed the different
pain reliever and told him to return to the clinic to address the knee, which he did a
few weeks later. DSOF ¶ 12 (noting that Gaston saw Williams on May 7, 2010).
Gaston also complains that Zhang did not refer him to an outside specialist,
see PSOF ¶¶ 10-11, but there is simply no evidence that an outside specialist visit
was medically indicated at the time. On Gaston’s version of the facts, Zhang was
negligent and rude, but there is not enough evidence to infer that her treatment
was “so inadequate … that no minimally competent professional would have so
responded under those circumstances.” Arnett, 658 F.3d at 751 (7th Cir. 2011)
(quoting Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011)) (quotation marks omitted).

23

2. Dr. Ghosh
Moving on to Ghosh, he appears to have been aware of Gaston’s knee
condition since July 21, 2009, when he saw Gaston and either noted that Gaston
was wearing knee braces or planned to give him knee braces (the record is unclear).
See Pl. Supp. Exh. at 16. But there is no evidence that Gaston told Ghosh about his
symptoms or previous treatment at this appointment. Nor is there evidence that
Ghosh knew that Gaston continued to suffer in the months leading up to their next
encounter in May 2010. Gaston states that he wrote letters to Ghosh complaining of
knee pain, see PSOF ¶ 30, but it is unclear when these letters were sent and
whether Ghosh actually received them, as detailed earlier in this Opinion, see supra
at 6.
When Ghosh did see Gaston again in May 2010, Ghosh took action by
planning an outside orthopedic referral. DSOF ¶ 13. For some reason, it took Ghosh
two months to get around to actually approving this referral. See PSOF ¶ 17. Of
course, ideally there would not have been a two-month wait for the referral. But
Gaston offers no evidence to explain why a scheduling delay of that length, standing
alone, is enough to support an inference of deliberate indifference, especially given
that Gaston’s knee pain did not require immediate intervention. See DSOF Exh. E
at 20:12-16; Gutierrez 111 F.3d at 1375. Perhaps some expert evidence would have
helped Gaston cross the divide between the current record and a reasonable
inference of deliberate indifference, or even just engaging in some discovery to

24

understand the cause of the two-month delay. But Gaston does not offer that
evidence.
It is true that there was another period of delay between Wexford’s approval
of the specialist referral and Gaston’s first appointment with Chmell, see PSOF ¶
18; DSOF ¶ 14, but there is no reason to think Ghosh was the one responsible for
the delay. Gaston has not provided evidence, for example, that Ghosh was in charge
of scheduling offsite consults, or that he stonewalled someone else’s scheduling of
the consult. The delay could just as easily have been caused by an administrative
snafu at Wexford, or by scheduling difficulties at UIC. For example, Chmell holds a
Monday clinic to see patients, and on those days he sees around 90-100 patients
(usually 2 or 3 are inmates). DSOF Exh. E at 8:22-23. Chmell also performed 158
knee replacements in calendar year 2016. Id. 11:7-8. It is entirely possible that
Chmell’s busy schedule was the cause of the holdup. Perhaps some discovery efforts
would have uncovered a connection between Ghosh and the referral delay, but
Gaston does not offer any evidence.
There was another long gap before Gaston got the MRI that Chmell ordered,
but again, there is no indication that this was Ghosh’s fault. Ghosh ordered the MRI
the day after Gaston’s appointment with Chmell, PSOF ¶ 28, and Wexford collegial
review approved the MRI about a month later. PSOF ¶ 29. The several-month delay
that followed is entirely unexplained, so there is no evidence for a jury to infer that
Ghosh himself was responsible. See, e.g., Walker v. Benjamin, 293 F.3d 1030, 1038
(7th Cir. 2002) (summary judgment in favor of doctor was appropriate where

25

“[plaintiff’s] sole complaint about [the doctor was] the delay between the initial
visit, the diagnosis, and the visit to the specialist” and plaintiff “presented no
evidence that these delays were even within [the doctor’s] control.”); Baker v.
Wexford Health Sources, Inc., 118 F. Supp. 3d 985, 996-97 (N.D. Ill. 2015) (granting
summary judgment in favor of defendant physicians where there was no evidence
they were responsible for delays scheduling surgery and specialist visits, even
though one at least one of the doctors was aware of the lengthy delays).
Contrary to Gaston’s assertion in his response brief, the Seventh Circuit has
not already “ruled” that Ghosh’s actions constitute deliberate indifference. See Pl.
Resp. at 1. The Seventh Circuit held that the two-year delay between Gaston’s
injury and his surgery was sufficient to state a claim against Ghosh. But the
complaint blamed Ghosh for the delays, and at the dismissal motion stage, that was
taken as true. At the summary judgment stage, evidence is required, and the record
evidence now does not justify holding Ghosh responsible. See Perez v. Fenoglio, 792
F.3d 768, 779 (7th Cir. 2015) (holding that plaintiff had stated a claim of deliberate
indifference against a physician based on long delays between specialist visits, but
noting that “a more complete examination of the facts may show that … someone
else was responsible for the alleged delays.”). For example, taking the complaint’s
allegations as true, it was natural to blame Ghosh for refusing to authorize surgery,
Gaston, 498 F. App’x at 632, but post-discovery there is no evidence at all that
Ghosh delayed surgical authorization. In fact, it appears that Ghosh recommended
the surgery to the Wexford collegial review. Pl. Supp. Exh. at 301. The factual

26

record now is substantially different from the facts alleged in the complaint, and it
does not permit a reasonable jury to find that Ghosh was deliberately indifferent.
3. Dr. Carter
Gaston’s main complaints about Carter’s care are that (1) Carter did not
effectuate Gaston’s prescription for physical therapy after his left knee arthroscopy
and (2) Carter delayed treatment of Gaston’s right knee. See Pl. Resp. at 7-8.
Neither of these complaints support a deliberate indifference claim against Carter.
First, when it comes to the physical therapy, there is no evidence that Carter
was the person responsible for making sure that Gaston received physical therapy.
Again, discovery might have uncovered who was responsible for ensuring that
Gaston received the therapy, but if it did, Gaston does not point to the evidence. ven
if Carter was responsible for the lapse, there is no evidence that the lack of physical
therapy harmed Gaston. After his recovery from the left knee surgery, Gaston did
not complain of left knee pain for over four years. DSOF ¶ 51. It would be
unreasonable to infer, without more evidence, that Gaston’s complaints of left knee
pain in 2015 were due to lack of physical therapy four years earlier—especially
because Gaston has osteoarthritis, which tends to naturally worsen over time. See
Exh. E at 42:11-16.
Carter’s decision to delay treatment of Gaston’s painful right knee also does
not support an inference of deliberate indifference, at least on this record. The
medical records show that Gaston complained to Chmell of right knee pain during
the August 8, 2011 follow-up visit for his left knee surgery. DSOF Exh. D at 23.

27

Chmell ordered Gaston to return in two or three weeks and noted that he would
“likely order an MRI of his right knee at his next visit.” Id. On August 25, 2011,
Carter saw Gaston and noted in his medical records that there was “[n]o current
indication for [right] knee evaluation.” DSOF Exh. D at 24. Gaston continued to
complain about right knee pain, but in November 2011, Carter and the Wexford
collegial review denied Gaston’s request for an MRI, deciding to wait six months “to
allow surgically repaired left knee to recover.” DSOF Exh. D at 25. At Gaston’s next
appointment with Carter in February 2012, Carter noted that Gaston was unable to
bear weight on his right knee, but reminded him of the plan to delay the MRI for six
months. DSOF Exh. D at 26.
Unfortunately for Gaston, there is nothing in the record to support a
conclusion that Carter’s decision to delay evaluation of the right knee was not the
product of reasoned medical judgment. “[T]he Eighth Amendment does not reach
disputes concerning the exercise of a professional’s medical judgment, such as
disagreement over whether one course of treatment is preferable to another.” Cesal
v. Moats, 851 F.3d 714, 721 (7th Cir. 2017). No evidence suggests that Carter’s
decision to countermand Chmell’s suggestion that Gaston return for a right knee
evaluation was not based on Carter’s independent medical judgment about a course
of treatment. Similarly, no evidence demonstrates that it was medically
unreasonable to delay the right knee evaluation until the left knee recovered from
the surgery. Of course, one could speculate in the other direction—if Gaston was
already essentially non-weightbearing on his right leg, why not bite the bullet and

28

move forward with surgery?—but the decision is not so self-evidently wrong that a
jury could reasonably conclude that it was “far afield of accepted professional
standards.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). Gaston might
contend that he should not have to retain a medical expert to rebut Carter’s
judgment. It is of course true that a plaintiff claiming medical mistreatment need
not always engage a medical expert. In some cases, courts and juries will have no
trouble inferring that a treatment decision or delay comprised deliberate
indifference even without outside evidence. See, e.g., Grieveson v. Anderson, 538
F.3d 763, 789 (7th Cir. 2008). But that is not this case. Consider a jury deliberating
on this record: what would a juror point to in response to Carter’s medical judgment
that it was better to wait for the left knee to heal before treating the right knee? It
cannot be inferred from the medical record alone that Carter fell below the
constitutional minimum, so Gaston must carry his burden by providing some
evidence that the treatment was so unreasonable as to amount to deliberate
indifference. He did not.
It is worth noting, again, that the Seventh Circuit’s opinion on the dismissal
motion does not control this decision at the summary-judgment stage. At the
dismissal-motion stage, Gaston alleged that Carter ignored Chmell’s postoperative
instructions (about the physical therapy) and told Gaston that the MRI of his right
knee would be delayed for another year. See Gaston v. Ghosh, 498 F. App’x 629, 631
(7th Cir. 2012). But at this summary-judgment stage, there is no evidence that
Gaston was actually harmed by the failure to carry out Chmell’s physical therapy

29

instruction. And the decision to delay the right knee MRI is now explained by
Carter’s plan (supported by the Wexford collegial review) to allow the left knee to
heal first. Gaston’s allegations against Carter certainly were sufficient to state a
claim, but he has not backed them up with enough evidence to survive summary
judgment.
4. Dr. Obaisi
Last up of the physician defendants is Dr. Obaisi, Stateville’s current medical
director. Gaston claims that Obaisi was deliberately indifferent to Gaston’s right
knee condition, lower back condition, and hernia. As discussed earlier in the
Opinion, the lower back and hernia claims are not exhausted, but the Court will
address them (as well as the right knee condition) for the sake of completeness.
a. Right Knee
First, the right knee. Upon becoming medical director of Stateville, Obaisi
approved Gaston for a right knee arthrosopy, which took place in October 2012.
DSOF ¶ 29-30. When the arthoscopy did not alleviate Gaston’s discomfort even after
several months of physical therapy, Obaisi referred Gaston for another orthopedic
consult at UIC. PSOF ¶ 69. This consult was approved by collegial review on
January 7, 2013, but Gaston did not see the orthopedist, Chmell, until June 2013.
DSOF ¶¶ 36-37. There is no evidence explaining why it took so long to schedule this
appointment, but neither is there evidence that Obaisi was responsible for the
scheduling delay.

30

When further treatment still failed to help, Chmell recommended a right
knee replacement, which was approved by Obaisi and Wexford within a month.
DSOF ¶ 39; PSOF ¶ 79. The knee replacement surgery did not take place until
February 2015—more than fifteen months after it was approved. But again there is
no evidence that the delay was caused by Obaisi. At least some of the long wait is
attributable to the necessity of clearing Gaston for surgery with UIC’s cardiology
and pulmonary departments. DSOF ¶ 41. It is unclear when Gaston was actually
cleared for surgery, but all agree that it took until at least late May 2014. PSOF ¶
86. Assuming Gaston was cleared in late May 2014, it is disturbing that he waited
nine months after that to have the surgery. But again, there is no evidence that
Obaisi caused the delay. Obaisi did note in September 2014 that Gaston still had
not been called to UIC for surgery, PSOF ¶ 91, but Obaisi’s knowledge of the delay
does not establish that he caused the delay. See Baker, 118 F. Supp. 3d at 996-97.
Aside from the delays in care, there is no evidence that Obaisi’s treatment of
Gaston’s knee was deliberately indifferent. Obaisi provided Gaston with medical
permits and medication before and after the surgery, and he checked in on Gaston
frequently in the year after. See, e.g., DSOF ¶ 36, 48, 52. All in all, the only clear
problems with Gaston’s knee treatment during Obaisi’s tenure were the long
holdups scheduling follow-ups and surgery, and there is no evidence that Obaisi
was responsible for those delays.
b. Lower Back

31

Next up is Gaston’s lower back condition. Gaston first raised this problem
with Obaisi in February 2014, when Gaston reported numbness in his left thigh.
DSOF ¶ 55. Obaisi immediately ordered x-rays, which revealed degenerative joint
disease. DSOF ¶ 55; DSOF Exh. D at 154-55. When Obaisi met with Gaston the
next month, Obaisi scheduled him for a steroid injection, which was soon performed.
DSOF ¶ 57. Gaston injured his back and complained of sciatica during summer
2014, but there is no reason to think that Obaisi knew about these complaints. See
DSOF ¶ 58; PSOF ¶ 95. All in all, there is little reason for Gaston to complain about
Obaisi’s treatment of his lower back through the end of 2014: Obaisi provided
treatment (x-rays and a steroid injection) promptly upon learning about Gatson’s
back pain, and had no idea that Gaston was still having back issues after that.
Gaston next complained of hip pain during an evaluation with Obaisi in
January 2015. Obaisi did not evaluate Gaston’s spine condition at that point, but
rather told him that they would address the issue after the knee replacement
(which was scheduled for the next week). DSOF ¶ 59. In his affidavit, Obaisi opined
that it was “medically appropriate” to defer evaluation of the back condition until
Gaston had recovered from knee surgery because Gaston “would not be able to
perform activities of daily living while recovering from knee and spinal surgery at
the same time.” DSOF Exh. C at ¶ 12. This explanation does not elaborate on what
“activities” would have been limited by surgery on Gaston’s lower back. In any
event, Gaston waited for over a year to get Chmell’s opinion on his back pain. There
is no evidence that, during this time period, Gaston was complaining to Obaisi

32

about back pain during, even though Gaston was seeing Obaisi every couple of
months to follow up on his knee recovery. See DSOF ¶ 50. In the end, Chmell did
not recommend back surgery, but instead recommended physical therapy for core
strengthening. DSOF ¶ 61.
The analysis here is very similar to the analysis of Carter’s decision to delay
treatment of Gaston’s right knee while the left healed. On Obaisi’s side, he offers
the medical opinion, via his affidavit, that it was “medically appropriate” to defer
evaluation of the back condition until Gaston had recovered from knee surgery, so
as to avoid putting Gaston through simultaneous recoveries for both knee and back
surgery. DSOF Exh. C at ¶ 12. It is certainly possible to question that judgment,
but remember that Gaston, in response, does no more than point to the medical
record and ask the Court to infer that Obaisi’s decision to delay was deliberately
indifferent. See Pl. Resp. at 10-11. Without counter-evidence, and in light of the
standard for deliberate indifference, a decision to delay treatment must be so far off
the mark that no “minimally competent professional” would have acted that way.
Arnett, 658 F.3d at 751. Obaisi’s decision to wait is not self-evidently negligent, let
alone deliberately indifferent.
c. Hernia
Gaston’s final claim against Obaisi is that Obaisi failed to treat his hernia.
Gaston first complained about the hernia in October 2013, but there is no evidence
that Obaisi knew about it until September 28, 2014. See PSOF ¶¶ 77-78, 90. After
being notified about the hernia, Obaisi responded in less than two weeks by

33

presenting Gaston’s case for collegial review on October 7, 2014. DSOF ¶ 65. At the
review, it was decided that surgical evaluation of the hernia would be delayed
“pending patient’s knee arthroscopy,”16 and that Gaston would be referred to a
surgeon regarding his hernia after the knee surgery. Pl. Supp. Exh. at 346. And
indeed, only a month after Gaston’s right knee arthroplasty, Obaisi re-presented
Gaston’s case at collegial review, and Gaston was approved for a general surgery
consultation. DSOF ¶ 66. There was a five-month delay between this approval and
the consultation, R. 173, Pl. Resp. DSOF ¶ 67, but here again there is no evidence
that Obaisi caused the delay.
The analysis here is identical to the analysis of Obaisi’s decision to delay
treatment of Gaston’s lower back—even down to Obaisi’s word-for-word assertion
that the delay was appropriate because dual surgical recoveries would prevent
Gaston from performing “activities of daily living.” DSOF Exh. C at ¶ 17. Again,
although Defendants have provided only Obaisi’s affidavit,17 Gaston has elected to
stand on the medical records only, and provided no other evidence that Obaisi’s
decision was medically unsound. Because the decision to delay treatment for the
hernia was not self-evidently wrong, and Gaston has provided no evidence
suggesting that Obaisi’s course of treatment fell below the constitutional minimum,
Obaisi is entitled to summary judgment on the hernia claim.
16This

appears to be a typo, because at the time Gaston was awaiting right knee
arthroplasty, not arthroscopy.
17In their Statement of Facts, Defendants point to an article published in the
Journal of the American Medical Association article to support the contention that
“watchful waiting” is a reasonable alternative to surgery when it comes to treatment of
reducible hernias. DSOF ¶ 63; DSOF Exh. F. But Defendants present very little
explanation about the article, so the Court gives it little weight.

34

5. Wexford
Under the law of the Seventh Circuit, private corporations acting under color
of law are liable under the standard laid out in Monell v. Dep’t of Social Servs., 436
U.S. 658 (1978). Shields v. Ill. Dept. of Corr., 746 F.3d 782, 790 (7th Cir. 2014).18
This means that Wexford is only liable if the unconstitutional actions of its agents
were caused by a Wexford policy, custom, or practice of deliberate indifference to
medical needs, or a series of acts (or failures) that together raise the reasonable
inference of a policy, custom, or practice. Id. at 796.
Gaston points to two Wexford “policies” as meeting the Monell standard.
First, he argues that Wexford had a “policy of treating only one condition at a time,
no matter the severity of the untreated problem.” Pl. Resp. at 1. But Gaston has no
evidence that this so-called policy actually exists, apart from the record of his own
treatment.19 Gaston encountered the one-at-a-time treatment decision three
times.20 Standing alone, those three times do not amount to a policy, custom, or
practice under the Monell standard. See Shields, 746 F.3d at 796 (isolated incidents

18In

Shields, a Seventh Circuit panel stated that it would consider overruling
Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir. 1982), and its progeny, which
rejected holding private corporations liable under a respondeat superior theory. Shields, 746
F.3d at 789. But the panel did not overrule Iskander, and private corporations sued under
§ 1983 continue to be liable only under the Monell standard for municipal liability. Id at
795-96.
19Gaston did supply an expert report prepared by a court-appointed expert in Lippert
v. Godinez. But this report is inadmissible hearsay, and cannot be considered as evidence.
Diaz v. Chandler, 2016 WL 1073103, at *1 (N.D. Ill. Mar. 18, 2016); Mathis v. Carter, 2017
WL 56631, at *4-5 (N.D. Ill. Jan. 5, 2017). And even if it were admissible, the Lippert report
lends no support to Gaston’s claim that Wexford had a “one-at-a-time” policy for treating
medical conditions.
20The three times were (a) Carter as to the right knee, waiting for the left knee’s
post-surgery recovery; (b) Obaisi as to the lower back condition, waiting for the knee
surgery recovery; and (c) Obaisi as to the hernia, waiting for the knee arthroplasty.

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did not add up to a pattern of behavior that would support an inference of a custom
or policy). To be sure, if the conditions were so disconnected from one another, or so
serious, that it made no sense to delay treatment, then perhaps a fact-finder could
reasonably attribute the physicians’ decisions to some overall Wexford policy. For
example, if an inmate was suffering from the stomach flu and receiving treatment
for it, and then the inmate broke his leg, obviously there would be no reason for a
physician to delay treatment of the leg just because the flu was being treated. That
is not this case, as discussed earlier in reviewing the record evidence of the
decisions made by Carter and Obaisi. Nowhere does Carter or Obaisi attribute the
decision to delay treatment on a Wexford policy to always treat just one condition at
a time. And even if there was a policy like that, Gaston has not shown that it caused
unconstitutional acts by Wexford’s agents. As discussed earlier, the instances of
deferred treatment did not rise to the level of deliberate indifference, and so did not
violate the Constitution.
Gaston’s second Monell theory is more specific, namely, that Wexford’s
written hernia policy mandates that reducible hernias will not be repaired,
regardless of how painful they are. Pl. Resp. at 11. But the copy of Wexford’s hernia
policy provided by Gaston does not support this characterization. The policy does
say that patients with reducible hernias are not “in general” candidates for hernia
repair surgery, but it also admonishes that “[d]ecisions … must be made on a caseby-case basis,” and that its recommendations “are intended only as a guide for the
site physician.” R. 187-3, Pl. Rule 56.1 Exhibits, Wexford Hernia Policy. There is no

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evidence in the record that Wexford’s official policy is to deny surgery to all patients
with reducible hernias regardless of pain, and Gaston has provided no evidence that
Wexford has an unofficial policy, custom, or practice along those lines. Because
Gaston has not provided evidence of a corporate policy, custom, or practice that
meets the Monell standard, Wexford is entitled to summary judgment on all claims.
IV. Conclusion
Gaston has not put forward enough evidence for a reasonable jury to conclude
that any of the physicians were deliberately indifferent to his serious medical needs.
Nor has he successfully demonstrated the existence of a Wexford policy, custom, or
practice that caused the alleged violations of his constitutional rights. Summary
judgment on the merits is therefore entered in favor of each defendant and against
Gaston.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: November 28, 2017

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