Taylor, Jr. v. Wexford Health Sources, Inc. et al

Filing 233

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 10/6/2015. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN TAYLOR,
Plaintiff,
v.
CYNTHIA GARCIA and
WEXFORD HEALTH SOURCES, INC.,

Case No. 11 C 7386
Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
This action arises from the repeated lapses in the provision of Elavil (a pain
medication) over the course of years to Plaintiff John Taylor while he was
incarcerated at Stateville Correctional Center (“Stateville”). Plaintiff, through 42
U.S.C. § 1983, brings deliberate indifference claims under the Eighth Amendment
against Defendants Cynthia Garcia and Wexford Health Sources (“Wexford”).
Defendants now move [213] for summary judgment. The motion is granted in part
and denied in part.
I.

Legal Standard
Summary judgment is appropriate 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any 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).

The party seeking summary

judgment has the burden of establishing that there is no genuine dispute as to any
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether a genuine issue of material fact exists, this Court must construe all facts
and reasonable inferences in the light most favorable to the nonmoving party, here,
Plaintiff. CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th
Cir. 2014).
II.

Facts 1
The State of Illinois contracts with Wexford, a private corporation, to provide

health care to inmates in Illinois Department of Corrections (“IDOC”) prisons, such
as Plaintiff John Taylor who is housed at Stateville.

DSOF ¶ 5; PSOF ¶ 42.

Cynthia Garcia is a Wexford nurse employed at Stateville. DSOF ¶ 69. Nurse
Garcia became Stateville’s Director of Nursing in late 2011, and was Stateville’s
Nursing Supervisor for the preceding two to three years. DSOF ¶ 65. Plaintiff,
among other ailments, suffers chronic hip pain, called “neuropathic pain,” from
nerve damage caused by surgeries and radiation from a prior cancer treatment.
PSOF ¶¶ 1-2.
Beginning on November 4, 2009 and at all relevant times, Plaintiff was
prescribed Elavil, a pain medication, to alleviate his neuropathic pain. DSOF ¶ 10;
PSOF ¶¶ 3-4. Elavil is designated as a “watch-take” drug at Stateville, meaning
The facts are taken from the parties’ Local Rule 56.1 statements and the exhibits thereto.
“DSOF” refers to Defendants’ statement of undisputed facts [214], with Plaintiff’s responses
[217]. “PSOF” refers to Plaintiff’s statement of additional facts [222], with Defendants’
responses [229].
1

2

that a nurse is supposed to deliver each dose to the inmate and then watch the
inmate take and swallow the pill. DSOF ¶¶ 14, 58, 71, 106. Plaintiff estimated
that taking Elavil may reduce his pain levels from severe (7 or 8, presumably on a
scale of 10) to moderate (4 or 5). DSOF ¶ 15. Conversely, even a single missed dose
of Elavil will cause Plaintiff to experience more pain than had he taken the drug
and sleep deprivation. PSOF ¶¶ 3-4. This action concerns the lapses in Elavil
provision, that is, those repeated times when Stateville nurses failed to dispense
Elavil to Plaintiff as they were supposed to do.
There is no dispute at summary judgment that Plaintiff should have received
Elavil throughout November 4, 2009 to at least March 19, 2013 (when his operative
complaint was filed).

Yet, as the below table shows, Plaintiff, according to his

Medication Administration Records, did not receive Elavil for more than 165 days
during that period.

3

Lapse
Beginning

Lapse End

Duration

11/4/2009

2/10/2010

99 days

2/23/2010

2/23/2010

1 day

2/25/2010

2/26/2010

2 days

3/1/2010

3/6/2010

6 days

3/8/2010

3/14/2010

7 days

3/17/2010

3/19/2010

3 days

3/22/2010

3/24/2010

3 days

10/1/2010

10/6/2010

6 days

10/9/2010

10/13/2010

5 days

10/28/2010

10/28/2010

1 day

10/30/2010

10/30/2010

1 day

8/15/2011

8/18/2011

4 days

8/20/2011

8/20/2011

1 day

8/31/2011

8/31/2011

1 day

7/28/2012

7/28/2012

1 day

7/31/2012

8/1/2012

2 days

8/4/2012

8/4/2012

1 day

8/6/2012

8/24/2012

19 days

8/28/2012

8/29/2012

2 days

Total

165 days

DSOF ¶¶ 10, 13; PSOF ¶¶ 17, 21, 24, 29, 33-34, 40. There are more lapses than
captured by the table, see PSOF ¶ 58, but they were not expressly identified in the
Local Rule 56.1 statements and, in any event, this Court need not identify them to
resolve Defendants’ summary judgment motion. Moreover, while the Medication
Administration Records are intended to be a comprehensive record of when
medication is dispensed to an inmate, see PSOF ¶¶ 17, 21, 24, 29, 33-34, Plaintiff
disputes the accuracy of his records. Defendants agree, albeit to a lesser extent.
For example, Nurse Garcia testified that, based on her review of Plaintiff’s October
2010 Medication Administration Record, the nurse who recorded dispensing Elavil
4

to Plaintiff on October 7 and 8, 2010 was “inaccurate” because the drug was
unavailable or out of stock on those days, as shown by the drug’s unavailability on
the immediately preceding and following days. PSOF ¶ 25.
To remedy these lapses, Plaintiff alerted medical and prison officials to them,
either in person or through letters, and filed multiple grievances. On March 22,
2010, for example, Plaintiff wrote what he said was his “third letter” (the first two
are not in the record) to Wexford Chairman Kevin Halloran about not receiving
Elavil.

PSOF ¶ 23; 3/22/10 Letter [218-1], with Bates No. TAYLOR 000013.

Plaintiff recounted his initial lapse and said he had not received Elavil since
February 22, 2010.

3/22/10 Letter [218-1].

The record does not show whether

Halloran received this letter.
On July 8, 2010, Plaintiff wrote to “Nurse Garcia, Director of Nursing,”
informing her of his conversation with Dr. Parthasarathi Ghosh, Stateville’s thenMedical Director, the day before. 7/8/10 Letter [214-8], with Bates No. TAYLOR
000027. As recounted in the letter, Plaintiff told Dr. Ghosh that he had not received
his full Elavil dose on July 5 and 6, 2010, and more generally noted his “problems
receiving my medication (Elavil) every [day] since … November 4th, 2009.” Id. Dr.
Ghosh responded that Nurse Garcia, not him, was responsible for disciplining
nurses “for not doing their jobs,” and advised Plaintiff to contact her. Id. Plaintiff
thus said he was writing to Nurse Garcia based on Dr. Ghosh’s advice. Id.
On September 24, 2011, Plaintiff filed a grievance (#M178) complaining that
Nurse Deanna Williams did not dispense his Elavil on September 19, 2011. 9/24/11

5

Grievance [218-2], with Bates No. TAYLOR 000349.

On August 29, 2012, the

Grievance Officer denied the first of four grievances filed by Plaintiff, finding: “Per
C. Garcia, DON, grievant received his Elavil on 9/19/11.”

8/29/12 Grievance

Officer’s Report [218-2], with Bates No. TAYLOR 000350.
On October 2, 2011, Plaintiff filed a second grievance (#M252) again
complaining that he did not receive Elavil. 10/2/11 Grievance [218-2], with Bates
No. TAYLOR 000351. This time, according to Plaintiff, Nurse Athena Rossiter did
not dispense Elavil to him on October 2, 2011. Id. Plaintiff added that Nurse
Rossiter also had not dispensed Elavil to him in July 2010, and that Elavil helps
Plaintiff manage his pain and sleep. Id. Again on August 29, 2012, the Grievance
Officer denied the grievance, finding: “Per C. Garcia, DON, grievant did receive his
Elavil on 10/2/11 per the MAR as verified by staff initials.”

8/29/12 Grievance

Officer’s Report [218-2], with Bates No. TAYLOR 000352.
On October 29, 2011, Plaintiff filed a third grievance (#M337) complaining
that, on October 29, 2011, an unknown nurse gave him a 100 mg tablet of Elavil
when Plaintiff only should have received a 50 mg tablet. 10/29/11 Grievance [2182], with Bates No. TAYLOR 000353. Plaintiff inferred that the nurse had given him
someone else’s Elavil tablet and requested that the nurse be disciplined. Id. Again
on August 29, 2012, the Grievance Officer denied the grievance, finding: “Per C.
Garcia, DON, grievant received his correct dosage of Elavil on 10/29/11.” 8/29/12
Grievance Officer’s Report [218-2], with Bates No. TAYLOR 000354.

6

The fourth grievance (#M844) is not in the record. This Court infers from the
Grievances Officer’s response that the fourth grievance was filed on or before March
28, 2012 and regards Plaintiff not receiving Elavil on March 13, 2012.

8/29/12

Grievance Officer’s Report [218-2], with Bates No. TAYLOR 000364. This grievance
too was denied on August 29, 2012, with the Grievance Officer finding: “Per C.
Garcia, DON, grievant received his Elavil on 3/13/12 per the MAR as verified by
staff initials.” Id.
On April 15, 2012, Plaintiff again wrote to “Nurse Garcia, Director of
Nursing.” 4/15/12 Letter [214-8], with Bates No. TAYLOR 000071. Plaintiff said
that he did not receive any Elavil on April 13, 14 and 15, 2012, and that, earlier
that month, Plaintiff had received someone else’s Elavil tablet. Id. Plaintiff again
informed Nurse Garcia of the pattern of Elavil lapses: “I have been trying to receive
my medication as prescribed for over two years, and the problem continues.” Id.
The final letter relevant here is dated April 19, 2012. 4/19/12 Letter [214-8],
with Bates No. TAYLOR 000073. Plaintiff wrote to the “Director of Nursing,” who
was Nurse Garcia, informing her of recent Elavil lapses. Id.
III.

Analysis
A.

Nurse Garcia

To prove a claim for denial of medical care, Plaintiff must show: (1) that he
had an objectively serious medical condition; (2) that Nurse Garcia knew of the
condition and was deliberately indifferent to treating Plaintiff; and (3) that this
indifference caused Plaintiff some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th

7

Cir. 2010). Under the second prong, which is the only disputed element here at
summary judgment, Nurse Garcia must have had subjective knowledge of the risk
to Plaintiff’s health, and she also must have disregarded that risk.
Seeman, 462 F.3d 757, 761 (7th Cir. 2006).

Collins v.

Evidence that the official acted

negligently is insufficient to prove deliberate indifference. Hicks v. Churchich, 161
F.3d 1030, 1040 (7th Cir. 1998). Rather, “deliberate indifference” is a synonym for
“intentional or reckless conduct,” and “reckless” describes conduct 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).

Circumstantial evidence is appropriate proof of

deliberate indifference. Foelker v. Outagamie County, 394 F.3d 510, 513 (7th Cir.
2005).
Nurse Garcia disputes both that she had the requisite subjective knowledge
and, if so, that she acted with deliberate indifference. This Court considers both
arguments in turn, and concludes that Plaintiff has satisfied his burden at the
summary judgment stage of the proceedings.
1.

Subjective Knowledge

Plaintiff has propounded three categories of evidence that create a triable
issue of fact as to Nurse Garcia’s knowledge that Plaintiff suffered repeated lapses
in Elavil and, consequently, was in pain. First, the most direct evidence of Nurse
Garcia’s purported knowledge comes from Plaintiff’s testimony that he had a
“number of conversations” with her about his Elavil lapses. Taylor Decl. ¶¶ 2-5 and
Taylor Dep. at 96-97, both cited at PSOF ¶ 52.

8

While the dates of these

conversations are not given (though some may have occurred on or about summer
2010, if not earlier, compare 7/8/10 Letter [214-8], with Bates No. TAYLOR 000027
(referencing a 7/6/10 conversation with Dr. Ghosh), with Taylor Decl. ¶ 2 (appearing
to reference the same conversation)), Plaintiff otherwise has described the
conversations in detail. Plaintiff explained that, while waiting in the Healthcare
Unit to see a doctor, he would see Nurse Garcia and initiate conversations with her
about his Elavil lapses. Taylor Decl. ¶ 2. On various occasions, Nurse Garcia,
referring to the Elavil lapses, said: “I will take care of it,” “I will check on it,” or “I
received your letter, I’m working on it.” Taylor Decl. ¶¶ 2-3, 5. Nurse Garcia, for
her part, did not “recall” ever having conversed with Plaintiff about his Elavil
lapses. Response to DSOF ¶ 97 (citing Garcia Dep. at 179). Even had Nurse Garcia
outright denied ever having had such conversations with Plaintiff, there
nonetheless still would be a triable issue of fact.
Second, Plaintiff also testified that, in one of his conversations with Nurse
Garcia, she acknowledged receiving Plaintiff’s letters about his Elavil lapses. PSOF
¶ 51. Plaintiff wrote letters to Nurse Garcia, addressed to her by name or title, on
July 8, 2010, April 15, 2012 and April 19, 2012. PSOF ¶ 51; Letters [214-8], with
Bates Nos. TAYLOR 000027, 000071 and 000073. All three letters identified recent
Elavil lapses.
Even assuming that Nurse Garcia did not tell Plaintiff that she received his
letters, as she argues, DSOF ¶¶ 89, 93, 96-97, the fact that some of the letters are
addressed to her creates an inference of knowledge—though perhaps not a strong

9

enough inference to survive summary judgment on its own. Nurse Garcia explained
that she “usually” did not receive letters from inmates, even when addressed to her.
DSOF ¶ 89. For letters addressed to the Director of Nursing, such as Plaintiff’s
April 19, 2012 letter, the Health Care Unit Administrator received them and chose
who would respond. Response to DSOF ¶ 91. When Nurse Garcia did receive a
letter, her practice was to write on the letter if she addressed the issue herself and,
until recently, have the Medical Records Office place the letter in the inmate’s file.
DSOF ¶ 90. None of the letters here have Nurse Garcia’s writing on them, which
suggests—but does not conclusively establish—that Nurse Garcia never saw them.
Sending letters to a prison official, even without proof of receipt, can create a
triable issue of fact as to knowledge depending on their content and manner of
transmission.

Vance v. Peters, 97 F.3d 987, 993-94 (7th Cir. 1996); Gentry v.

Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Instructive are two cases from this
District also involving the deprivation of medication to Stateville inmates.

In

Hardy v. Hardy, No. 10-5921 (N.D. Ill. Aug. 29, 2013) (Dkt. 215) (unavailable on
LexisNexis and Westlaw), the inmate required medical care from a dentist to treat a
cavity and gum infection causing severe pain, and, similar to here, addressed three
letters to Dr. Ghosh, the Medical Director at Stateville, alerting him to the problem.
Hardy Op. at 23. Dr. Ghosh denied that the inmate’s letters created a culpable
state of mind, arguing, like Nurse Garcia here, that the inmate failed to show that
Dr. Ghosh “actually received” them. Id. The Court rejected the argument. Id. at
22-24. Like Nurse Garcia, Dr. Ghosh testified only that he could not recall the

10

letters and not that he never received them, thereby creating a genuine issue of fact
for trial. Hardy Op. at 24.
Likewise, in Gallo v. Ghosh, No. 08-6974, 2013 WL 5587081, at *1-2 (N.D. Ill.
Oct. 10, 2013), another Stateville inmate sued Dr. Ghosh for failing to timely
dispense his medications. It took Dr. Ghosh one month to prescribe a protein-pump
inhibitor recommended by an outside specialist. Id. at *2. Once prescribed, Dr.
Ghosh failed to correct the dispensation of the wrong medication to the inmate,
despite the inmate, as here, “mailing letters to Dr. Ghosh, filing administrative
grievances, and hand-delivering dozens of letters to medical staff.” Id. at *2-3. The
Court denied Dr. Ghosh’s summary judgment motion, emphasizing the letters and
grievances as supplying the “strongest indication of [his] deliberate indifference.”
Id. at *3.
Defendants cite, by comparison, Johnson v. Synder, 444 F.3d 579 (7th Cir.
2006), overruled on other grounds, Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th
Cir. 2013), where the inmate’s letter to the defendant Donald Synder, IDOC’s
Director, did not create a triable issue of fact as to Snyder’s knowledge. Like Dr.
Ghosh in Hardy, there was no evidence that Synder had read the letter. Johnson,
444 F.3d at 584. Unlike in Hardy where Dr. Ghosh did not recall receiving the
letter, however, the record in Johnson affirmatively showed that Synder never
received the letter. An uncontroverted affidavit from the IDOC’s Office of Inmate
Issues explained that Synder did not personally receive inmate correspondence

11

related to grievances, but instead delegated that task to subordinates. Johnson,
444 F.3d at 584.
The facts here fall somewhere between Hardy and Johnson, where the Courts
reached different outcomes on summary judgment based upon the record before
them. While there is no evidence that Nurse Garcia would not, as a matter of
policy, have received any of Plaintiff’s three letters as in Johnson, her testimony
shows, unlike in Hardy, that she probably did not receive the letters. DSOF ¶¶ 8991. Given the other evidence of knowledge in the record, however, this Court need
not decide whether the letters to Nurse Garcia, on their own and setting aside her
purported admission that she received them, create a triable issue of fact.
Third, Nurse Garcia participated in the resolution of Plaintiff’s grievances.
As part of her job description, Nurse Garcia assisted in the resolution of inmate
grievances. PSOF ¶¶ 47, 54. On August 29, 2012, the Grievance Officer answered
four of Plaintiff’s grievances with information that came from: “C. Garcia, DON.”
PSOF ¶ 53.

In the grievances, Plaintiff described specific lapses in his Elavil

provision and sometimes also the resulting “pain” and “sleep deprivation” he
suffered. Grievances [218-2], cited at PSOF ¶ 53. While the mention of Nurse
Garcia’s name in the grievance responses does not prove that she reviewed the
grievances themselves or had knowledge of the Elavil lapses, it is, as shown in
Hardy (at pages 14 and 15) and Gallo (2013 WL 5587081, at *1-2), another
circumstantial piece of evidence for the jury to consider at trial.

12

Nurse Garcia cites the Seventh Circuit’s unpublished decision in Williams v.
Guzman, 346 F. App’x 102 (7th Cir. 2009), which also involved the provision of
Elavil.

In Williams, the Seventh Circuit affirmed summary judgment for the

defendant prison doctors. The case is readily distinguishable. As here, there were
delays in the provision of Elavil in Williams, but, unlike here, there was no evidence
that the doctors knew of the delays as required to maintain a deliberate indifference
cause of action against them. Id. at 105-06.
2.

Deliberate Indifference

Having established that there is a triable issue of fact as to Nurse Garcia’s
knowledge, this Court next considers whether she acted with deliberate
indifference. Nurse Garcia primarily argues that she had no role in ordering Elavil
and that other medical personnel, not her, failed to dispense Elavil to Plaintiff. The
flaw in Nurse Garcia’s argument, however, is that she can be liable even without
having directly participated in the medication deprivation. In Gentry, 65 F.3d at
561, which Defendants themselves cite, the Seventh Circuit found that deliberate
indifference attaches when a prison officials knows of the unconstitutional conduct
and facilitates, approves, condones or turns a blind eye to it. See also Vance, 97
F.3d at 993. In Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999), the Seventh
Circuit cited Vance (which, in turn, cited Gentry) to find that the only reason why
the defendants, the prison’s superintendent and the Commissioner and Regional
Director of the Indiana Department of Corrections, could be liable, even though they

13

were not personally responsible for the inmate’s medical care, was because they
received the inmate’s letter complaints.
With an affirmative obligation to act, the question remains here whether a
reasonable jury could make a finding of deliberate indifference based upon Nurse
Garcia’s actions (or allegedly willful inactions) after she purportedly learned of
Plaintiff’s Elavil lapses.

A jury could reach that conclusion for at least three

reasons. First, this is the “prototypical case” of deliberate indifference because, as
in Reed, 178 F.3d at 854-55, the inmate did not receive his prescribed medications,
repeatedly requested aid from the defendant prison officials through letters and
grievances, received no aid and suffered injury. See also Ralston v. McGovern, 167
F.3d 1160, 1161-62 (7th Cir. 1999) (deprivation of prescribed pain medication was a
“gratuitous cruelty”).
Second, deliberate indifference reasonably can be inferred from Nurse
Garcia’s alleged hostile retort in one conversation with Plaintiff.

See Greeno v.

Daley, 414 F.3d 645, 654 (7th Cir. 2005); Gil v. Reed, 381 F.3d 649, 661-62 (7th Cir.
2004); Wilder v. Wexford Health Sources, Inc., No. 11-4109, 2015 WL 2208440, at
*9-10 (N.D. Ill. May 8, 2015) (Blakey, J.). Plaintiff claims that, in one face-to-face
conversation, he told Nurse Garcia that another nurse had broken her promise to
return to Plaintiff’s cell with his missing Elavil, and Nurse Garcia sarcastically
responded that the nurse never should have told Plaintiff that she would come back.
PSOF ¶ 52.

A reasonable jury thus may infer that Nurse Garcia did not care

whether nurses dispensed Plaintiff’s prescribed medications to him. Likewise, the

14

defendant nurse in Greeno told the inmate that he would be “locked up” if he
continued to complain about not receiving medication for an esophageal condition.
414 F.3d at 654. Animosity thus may show deliberate indifference.
Third, in her role as a supervisor, Nurse Garcia purportedly had knowledge
that Plaintiff and other inmates were not receiving watch-take medicines, such as
Elavil, yet chose not to investigate or rectify the problem, such as by retraining or
disciplining her nurses for that misconduct. PSOF ¶¶ 44, 49-50, 55-57. The record
shows that Nurse Garcia had clinical responsibility over all nurses, whether
employed by IDOC or Wexford, including the responsibility to correct nurses’
failures to administer medicine. PSOF ¶¶ 46-48. These facts, if true, supply a
reasonable basis for a jury to find that Nurse Garcia at least condoned or turned a
blind eye to the constitutional violations. Jones, 856 F.2d at 992-93; Gentry, 65 F.3d
at 561. Under analogous circumstances, the Court denied summary judgment in
Flournoy v. Ghosh, 881 F. Supp. 2d 980, 989-90 (N.D. Ill. 2012).
In Flournoy, as here, the defendant prison official (again Dr. Ghosh) argued
that he was not responsible for the medication lapses.

Dr. Ghosh wrote the

inmate’s prescriptions and argued that, once written, the matter was out of his
hands, because filling and dispensing the prescriptions were handled by other
medical personnel and the off-site pharmacy. Id. at 989. The Court denied that
argument, finding an issue of material fact as to whether Dr. Ghosh bore some
responsibility to ensure that inmates received medications without undue delay. Id.
at 989-90. The Court emphasized that the IDOC’s contract with Wexford made Dr.

15

Ghosh, as Stateville’s medical director, responsible for coordination of health care at
the prison.

Id. at 989.

Dr. Ghosh could not escape that responsibility at the

summary judgment stage, and neither can Nurse Garcia, who had the power to
correct nurses’ failures to administer medicine.
Even assuming Nurse Garcia lacked the power to remedy Plaintiff’s Elavil
lapses herself, that would not excuse her from action. At a minimum, Nurse Garcia
could have told her supervisors about the Elavil lapses. See Berry v. Peterman, 604
F.3d 435, 443 (7th Cir. 2010). Based upon the record, she does not appear to have
done even that. In Berry, 604 F.3d at 443, the inmate required dental care, and the
Seventh Circuit rejected the defendant nurse’s argument that he could not be held
liable because he lacked the authority to refer the inmate to a dentist without
further approval. The Court explained that, as here, the nurse “always” had the
ability to contact supervisory personnel about the inmate’s care. Id. So did Nurse
Garcia.
One final point bears noting. Even though she may have known as early as
summer 2010 that there was a problem at Stateville with inmates not receiving
their medications, see PSOF ¶¶ 44, 49-50, Nurse Garcia lacks the requisite personal
involvement to be liable for Plaintiff’s Elavil lapses that occurred before she
acquired personal knowledge of them. Luck v. Rovenstine, 168 F.3d 323, 325, 32728 (7th Cir. 1999); McKinnie v. Dart, No. 14-9588, 2015 WL 5675425, at *3 (N.D. Ill.
Sept. 24, 2015) (Blakey, J.); Sutton v. Ghosh, No. 10-8137, 2015 WL 5461663, at *910 (N.D. Ill. Sept. 16, 2015). Thus, Nurse Garcia may not be liable for all the Elavil

16

lapses, such as the initial and longest lapse from November 4, 2009 to February 10,
2010. Of the relevant letters and grievances purportedly seen by Nurse Garcia, the
earliest is dated July 8, 2010, months after this initial lapse. 7/8/10 Letter [214-8],
with Bates No. TAYLOR 000027. Plaintiff’s purported face-to-face conversations
with Nurse Garcia may have been earlier, but he does not say when they occurred.
See Taylor Decl. ¶¶ 2-5, cited at PSOF ¶ 52. The dates of these conversations can
be clarified at trial if necessary.
Once Nurse Garcia learned that there was a pattern of lapses, she may be
deliberately indifferent for subsequent lapses. Reed, 178 F.3d at 854-55. In Reed,
the Seventh Circuit found a triable issue as to the defendant prison officials’
deliberate indifference based on a similar recurring pattern of medication
deprivation. On “many” occasions over two years, the inmate received treatment at
an outside hospital on Fridays but could not retrieve his identification badge upon
returning to the prison.

Id. at 851.

The inmate only received his badge the

following Monday or Tuesday. Id. Without the badge, the inmate could not receive
food or medication from prison authorities. Id. The inmate sent three letters to the
prison officials (dated October 14, 1994, October 24, 1995 and April 26, 1996)
notifying them of the problem, and the prison officials, at summary judgment,
acknowledged receiving the first and third letters. Id. at 854. In response to the
first letter, the prison officials said the inmate’s concerns were “duly noted” and
that the prison’s policy would be reviewed. Id. at 855. The record did not show
what actions, if any, the prison officials took, but the Court found that the inmate’s

17

second and third letters, like Plaintiff’s subsequent oral and written complaints to
Nurse Garcia here, could lead a jury to conclude that the prison officials had done
nothing. Id. at 855. The Court added that, upon learning of the medication and
food lapses, prison officials had an obligation to investigate and, if necessary,
prevent the lapses from happening again. Id. at 854-55. Their failure to do so could
support an inference of deliberate indifference. Id. The same holds true here.
For these reasons, Nurse Garcia’s summary judgment motion is denied.
B.

Wexford Health Sources

Plaintiff brings two Monell claims against Wexford, alleging that it had
unconstitutional policies or practices that caused his Elavil lapses (Subsection 1)
and the denial of a cervical pillow and a hot / cold pack (Subsection 2). This Court
considers each claim in turn, and grants Wexford’s summary judgment motion only
as to its purported denial of a cervical pillow and a hot / cold pack.
1.

Elavil Lapses

A corporation contracting with the State of Illinois, such as Wexford, can be
liable under Section 1983. Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008);
Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917, 927 (7th
Cir. 2004). To prevail on his Monell claim, Plaintiff must show that he suffered a
constitutional injury and that injury was caused by: (1) an express policy; (2) a
widespread practice that is so permanent and well-settled as to constitute a custom
or usage with the force of law; or (3) a person with final policy-making authority.
Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008); see also Monell v.

18

Department of Social Services of City of New York, 436 U.S. 658, 690-91 (1978). If
Wexford has actual or constructive knowledge that its agents probably will violate
constitutional rights, then it may not adopt a policy of inaction. King v. Kramer,
680 F.3d 1013, 1021 (7th Cir. 2012).
This case falls squarely within Davis v. Carter, 452 F.3d 686 (7th Cir. 2006),
so denial of summary judgment is warranted here. The Seventh Circuit in Davis
denied summary judgment for defendant Cook County based on the absence of
policies or procedures to verify an inmate’s outpatient methadone treatment
program and ensure that the inmate received timely care. Id. at 692-93, 695. The
Court found that, absent those policies or procedures, inmates at Cook County Jail
fell through the cracks and did not always receive methadone treatment. Id. at 69293. Supporting that decision was the testimony of a Cook County pharmacist about
the absence of policies and procedures, and testimony from a Cook County
correctional officer and a physician assistant about the widespread delays in
methadone treatment. Id. at 692-93, 695.
Similarly in Fox v. Peters, No. 09-5453, 2011 WL 6378826, at *1, 7-8 (N.D. Ill.
Dec. 19, 2011), Wexford itself unsuccessfully moved for summary judgment on a
Monell claim. The Court found that there was a material issue of fact as to whether
Wexford’s failure to establish a written policy governing the distribution of
medication to inmates at Stateville led to the medication provision lapses at issue.
Id. at *7-8. A trial therefore was required in Fox, and in the case here.

19

As in Davis and Fox, here, there is an apparent absence of Wexford policies
and procedures to ensure that prescriptions are recorded on the Medication
Administration Records and dispensed correctly. See, e.g., PSOF ¶¶ 44-45, 50, 6062, 66. This problem was widespread and not limited to Plaintiff. IDOC Quality
Improvement Study Reports on the delivery of psychotropic medications showed
repeated months of “inconsistent documentation” on the Medication Administration
Records, with compliance at: (1) 73 percent in September 2011, (2) 76 percent in
October 2011, (3) 97 percent in December 2011 and (4) 59 percent in May 2012.
PSOF ¶ 44.

These studies measured how frequently psychotropic drugs were

delivered and how often “the distributions [were] documented properly in the
Medication Administration Record.” Quality Improvement Study Reports [218-3],
with Bates Nos. IDOC 002990-91 and IDOC 003332-33.

Consistent with the

Reports, and like the correctional officer in Davis, Nurse Garcia found from her own
audit of Medication Administration Records that many—possibly more than half—
contained charting errors in 2009 and 2010. PSOF ¶ 50.
Wexford argues that the IDOC is at fault, but, given that both shared health
care responsibilities at Stateville, that argument is for a jury to decide and not this
Court at summary judgment.

Wexford in fact admits that the operation of the

Healthcare Unit at Stateville was a “joint process” with the IDOC. [230] at 10.
Plaintiff responds that Wexford had an obligation to ensure that Stateville inmates
received their medications even when IDOC employees, and not Wexford employees,
were responsible for the medication lapses. In support, Plaintiff cites Wexford’s

20

2005 to 2011 contract with the State of Illinois, which provides that Wexford “shall
arrange for the provision of medical services to IDOC inmates,” and “shall ensure
that all medical services are provided in accordance with medically accepted
community standards of care.”

PSOF ¶ 42.

Plaintiff also cites Wexford’s

Operations Policies and Procedures, Policy No. P-128, titled “Medical Services,”
which requires that Wexford “ensure that medications are provided in a timely, safe
and sufficient manner.” PSOF ¶ 43. Wexford denies that Policy No. P-128 “governs
the entire actions or conduct of Wexford relative to the provision of medications at
Stateville Correctional Center.” Response to PSOF ¶ 43 (citing DSOF ¶¶ 69, 101,
103-04).

But DSOF ¶¶ 69, 101, 103 and 104 only show that conflicting IDOC

policies trump Wexford policies and that the IDOC had certain unspecified policies
governing medication distribution and administration. DSOF ¶¶ 69, 101, 103 and
104 do not show that any IDOC policy conflicts with Wexford’s contractual
obligations and Policy No. P-128.

Ultimately, the scope of each party’s

responsibilities will be decided by a jury. For these reasons, Plaintiff can proceed to
trial against Wexford on its Monell claim regarding the Elavil lapses.
2.

Cervical Pillow and Hot / Cold Pack

Plaintiff’s last claim against Wexford is that he suffers pain from the
company’s decision not to provide him with a cervical pillow and a hot / cold pack.
PSOF ¶ 74.

On July 23, 2010, an outside spine specialist recommended both

devices for Plaintiff’s neck and back pain. Four days later, Dr. Ghosh signed off on
that recommendation. PSOF ¶ 69. Almost two years later, in June 2012, Plaintiff

21

requested a new cervical pillow and a replacement hot / cold pack, and Dr. Saleh
Obaisi, Stateville’s then-Medical Director, signed a Medical Permit for Plaintiff to
have both. PSOF ¶¶ 70-71. On November 9, 2012, Dr. Obaisi signed a Medical
Special Services Referral and Report noting that a cervical pillow and hot / cold
pack had been recommended to Plaintiff by a specialist. PSOF ¶ 72. At a December
4, 2012 “collegial review” between Dr. Obaisi and Dr. David Haymes (Wexford’s
dedicated utilization management physician), however, Wexford discontinued
providing Plaintiff with a cervical pillow and a hot / cold pack as “not medically
necessary.” DSOF ¶ 123; PSOF ¶ 73. They recommended that Plaintiff use a rolled
up towel instead. PSOF ¶ 73.
Based upon this factual record, Wexford’s summary judgment motion is
granted. Plaintiff fails to show that there is any triable issue of fact as to any of the
three methods for proving a Monell claim. See Klebanowski, 540 F.3d at 637. There
is no evidence, for example, that the denial of the cervical pillow and the hot / cold
pack were the manifestation of an unconstitutional policy or widespread practice at
Wexford. Plaintiff instead argues that Dr. Haymes should not have departed from
the spine specialist’s prior recommendation (then more than two years old). While
that fact might contribute to a potential claim against Dr. Haymes personally, it
does not support a Monell claim against Wexford. Confirming this point, Plaintiff
only cites cases about doctors who may have been deliberately indifferent for
rejecting treatment recommendations from specialists—not Monell claims against
municipalities and corporations, which have a different standard. [221] at 18, citing

22

Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999), and King v. Chapman, 4 F. Supp.
3d 1017, 1039-40 (N.D. Ill. 2013).
For these reasons, Plaintiff cannot proceed to trial against Wexford on his
Monell claim regarding the denial of a cervical pillow and a hot / cold pack.
IV.

Conclusion
Defendants’ motion for summary judgment [213] is granted in part and

denied in part.
The October 29, 2015 status hearing is stricken, and hereby reset to October
15, 2015, at 9:45 a.m., in Courtroom 1725. The parties should meet and confer in
advance of the status hearing and come prepared to select a trial date in February
or March 2016 and address related issues, including the expected length of trial.
Any Daubert motions the parties may wish to file shall be briefed as pre-trial
motions in limine, and this Court will set a schedule for pretrial motions and the
proposed pretrial order at the forthcoming status hearing.
Dated: October 6, 2015
Entered:

____________________________
John Robert Blakey
United States District Judge

23