Gevas v. Wexford Health Sources, Inc. et al

Filing 424

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 12/20/16. Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID GEVAS,
Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC.;
T. UTKE; DR. PATTERSON; DR.
CARTER; H. MOSS; R. BROWN-REED;
E. MARTIN; D. EDWARDS; DR.
GHOSH; M. HARDY; C. FASANO;
A. MATUZAS; R. BEATTIE;
L. WILLIAMS; DR. SCHAEFER;
DR. FUNK; S.A. GODINEZ, not
individually, but in his capacity as
Director of the ILLINOIS
DEPARTMENT OF CORRECTIONS;
and BOSWELL PHARMACY
SERVICES,
Defendants.

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12 C 1297
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff David Gevas (“Gevas”), an inmate at Stateville Correctional Center,
sued Wexford Health Sources, Inc., and various Wexford employees (“Wexford
Defendants”), as well as various state employees, under 42 U.S.C. § 1983. Gevas
alleges deliberate indifference to his medical needs in violation of the Eighth
Amendment. On March 29, 2016, this Court granted in part and denied in part the
Wexford Defendants’ motion for summary judgment [398].

The Wexford

Defendants now move the Court to reconsider those portions of its motion for
summary judgment that the Court denied [402]. For the reasons that follow, the
Wexford Defendants’ motion for reconsideration is denied.

Background
Gevas’s complaint raises three counts against some or all of the Wexford
Defendants.

In Count I, Gevas alleges that Dr. Patterson and Tiffany Utke, a

Wexford nurse, were deliberately indifferent to his medical needs by failing to
provide suitable contact lenses in a timely manner. Compl. ¶¶ 22–52, ECF No. 63.
Dr. Patterson has been dismissed from the case pursuant to a settlement. Minute
Order 6/9/14, ECF No. 290. The Wexford Defendants moved for summary judgment
on Gevas’s claims as against Nurse Utke, arguing in part that Gevas failed to show
Utke was personally liable for failing to provide for his ocular needs. Defs.’ Mem.
Supp. Summ. J. 11, ECF No. 333. The Court agreed, finding no evidence from
which a jury could conclude that Utke was responsible for depriving Utke of
appropriate treatment. Mem. Op. & Order 6, ECF No. 398. The Court therefore
granted the Wexford Defendants’ motion as to Count I.
In Count II, Gevas claims that Wexford and various Wexford employees—Dr.
Imhotep Carter, Dr. Parthasarathi Ghosh, Dr. Ronald Schaefer, Dr. Arthur Funk,
and physician’s assistant LaTanya Williams—along with various state employees,
were responsible for gaps occurring in his prescription for Tramadol, a pain
medication.

Compl. ¶¶ 53–75.

The Wexford Defendants moved for summary

judgment as to this count, arguing in part that there was no evidence from which a
jury could infer personal involvement on the part of the named Wexford employees.
Defs.’ Mem. Supp. Summ. J. 13–14. The Court denied the Wexford Defendants’
motion as to Count II, citing a missed appointment with Dr. Ghosh as one example

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of evidence from which a jury could conclude that the Wexford Defendants were
responsible for gaps in Gevas’s Tramadol prescription, and thus deliberately
indifferent to his medical needs. Mem. Op. & Order 7.
Finally, in Count III, Gevas asserts that Wexford and three of its
employees—Drs. Carter and Ghosh and Nurse Heidi Moss—along with various
state employees, failed to keep a sufficient supply of other medications in stock,
resulting in Gevas missing dosages of certain prescriptions.

Compl. ¶¶ 76–97.

Again, the Wexford Defendants moved for summary judgment on the basis that the
named Wexford employees could not be found personally responsible. Defs.’ Mem.
Supp. Summ. J. 16–17.

The Court disagreed, explaining that Drs. Ghosh and

Carter, as medical directors at Stateville, and Nurse Moss, as supervising nurse,
were in positions of responsibility such that a reasonable jury could find each knew
of Gevas’s unmet medication needs and could have taken corrective action. Mem.
Op. & Order 9–10.
The Wexford Defendants also moved for summary judgment on the claims
against Wexford itself, arguing that Gevas had failed to provide evidence from
which a reasonably jury could find a policy, custom, or practice necessary to impose
liability under Monell v. Department of Social Services of New York, 436 U.S. 658,
(1978). Defs.’ Mem. Supp. Summ. J. 18–19. The Court denied the motion as to
Wexford, noting that the Wexford Defendants had admitted that Gevas did not
receive the medications he was prescribed at certain times, and finding that “a

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reasonable jury could find an unconstitutional custom from the various times he did
not receive his medication because it was out of stock.” Mem. Op. & Order 13.
Legal Standard
Under Federal Rule of Procedure 54(b), “any order . . . that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.” Fed. R. Civ. P. 54(b). But while motions to reconsider under Rule
54(b) are permitted, “they are disfavored.” Patrick v. City of Chi., 103 F. Supp. 3d
907, 911 (N.D. Ill. 2015). They serve a very limited purpose: correcting manifest
errors of law or fact and presenting newly discovered evidence.

Id. (citations

omitted). This is a heavy burden for the moving party and makes a motion for
reconsideration an inappropriate medium to “rehash” past arguments, id. (citations
omitted), or revisit improvident strategic decisions made earlier.

Birdo v. Dave

Gomez, 2016 WL 6070173, at *1 (N.D. Ill. Oct. 17, 2016) (citation omitted). Motions
for reconsideration will be granted only where “the Court has patently
misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of
apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990).

Given these exacting standards, “issues appropriate for

reconsideration ‘rarely arise and the motion to reconsider should be equally rare.’”

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Burrell v. United Parcel Serv., Inc., No. 14 C 5127, 2016 WL 4720024, at *2 (N.D.
Ill. Sept. 8, 2016) (quoting Bank of Waunakee, 906 F.2d at 1191).
Analysis
The Wexford Defendants have moved the Court to reconsider its previous
ruling on two grounds.

First, they contend that the Court failed to adequately

address their argument that, as to Counts II and III, Gevas failed to produce
evidence from which a reasonable jury could infer that the individual Wexford
Defendants were personally responsible for deliberate indifference to his medical
needs.

Second, regarding Wexford itself, they assert that the Court did not

sufficiently explain why a reasonable jury could find a policy, custom, or practice
necessary for liability under § 1983.

The Court will address each of these

arguments in turn.
I.

Individual Wexford Defendants’ Personal Involvement
The

Wexford

Defendants

present

two

bases

on

which

they

seek

reconsideration of the Court’s denial of their summary judgment motion as to the
individual defendants’ personal involvement.

First, they state that the Court’s

opinion “does not appear to address the personal involvement standard” with regard
to Count II, Defs.’ Mot. Recons. Summ. J. 6, ECF No. 402, and make a similar
argument as to Count III. Id. at 10.
But this argument misconstrues the Court’s opinion. In discussing Count II,
the Court offered, as an “example,” a description of one of the gaps in treatment
that are the basis of Gevas’s claim in Count II. Mem. Op. & Order 7. The Court

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stated that Gevas was scheduled to see Dr. Ghosh, but his appointment was
cancelled, resulting in a gap in his prescription. Id. This is an explicit discussion of
the personal involvement that the Wexford Defendants claim is lacking in the
Court’s opinion.
And, for the sake of completeness, there is additional evidence in the record
from which a jury could find the requisite personal involvement beyond the Court’s
example. It is undisputed that each of the named Wexford employees was in a
position to prescribe Gevas Tramadol. Defs.’ LR 56.1 ¶¶ 124 (Ghosh), 136 (Carter)
151–52 (Schaefer), 155 (Williams), 160 (Funk), ECF No. 341. To that end, Gevas
claims that he named at least one of the employees in each of his grievances
regarding Tramadol and verbally informed each of them that he was experiencing
pain, but that they ignored his needs. Pl.’s Resp. Opp. Defs.’ Mot. Recons. 4–5, ECF
No. 372. 1 On these bases, a reasonable jury could conclude that the named Wexford

In support of this proposition, Gevas cites to two provisions in his statement of facts
that are supported only by his complaint and grievances attached to it. Pl.’s LR 56.1¶¶ 22–
23, ECF No. 372. The Wexford Defendants objected to these facts on the basis that they
rely solely on materials inappropriate for consideration on summary judgment. Defs. Resp.
Pl.’s LR 56.1 ¶¶ 22–23, ECF No. 380. The Court’s review of the record, however, indicates
broader support for Gevas’s assertions. In his deposition, Gevas noted that his Tramadol
prescription was permitted to expire “up to 11 times,” Defs.’ LR 56.1, Ex. 3, Gevas Dep. at
71:22–24. He also identified each of the named Wexford employees and explained that he
voiced his concerns to them concerning the gaps in his Tramadol prescription. Id. at 212:6–
220:7. For example, in discussing Defendant Williams, Gevas acknowledged that he “made
some complaints to her consistent with what [he’s] claiming in this case.” Id. at 217:8–12.
Drawing all reasonable inferences in Gevas’s favor, this testimony is evidence from which a
reasonable jury could draw the requisite personal involvement on the part of the named
Wexford employees.
1

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employees were personally involved in causing gaps to occur in Gevas’s Tramadol
prescription.
The Wexford Defendants take particular objection to the Court granting its
motion for summary judgment as to Nurse Utke in Count I—on the basis that
Gevas has presented no evidence of her personal involvement—while denying its
motion as to the other individual defendants. Defs.’ Reply 3, ECF No. 410. As the
previous discussion makes clear, however, the simple explanation for the Court’s
differing rulings is the difference in evidence that Gevas has presented as to each
defendant.
With regard to Count III, the Wexford Defendants again misread the Court’s
opinion, which discusses at length how a reasonable jury could conclude that Drs.
Ghosh and Carter and Nurse Moss were personally involved in allowing his
medications to run out.

Drs. Ghosh and Carter each occupied the position of

Medical Director, and thus assuming they knew Gevas was not consistently
receiving medications, both were in a position to investigate and remedy his
treatment. 2 Mem. Op. & Order 9. And Nurse Moss, who occupied the position of
The Court’s opinion cited Flournoy v. Ghosh, 881 F. Supp. 2d. 980 (N.D. Ill. 2012).
The Wexford Defendants object to this authority in part because the plaintiff in Flournoy
presented evidence that the defendant knew the plaintiff was not receiving medications,
whereas here, they argue, proof of knowledge is lacking. Mot. Recons. at 11. But as the
Court noted in its opinion, the Wexford Defendants did not argue that Drs. Ghosh and
Carter lacked the requisite knowledge, and cannot now raise the argument in a motion to
reconsider. Mem. Op. & Order 9 n.6. The Wexford Defendants also object to Flournoy on
the basis that there is no evidence in this case that Drs. Ghosh and Carter were responsible
for overseeing administration of medication and could take corrective action. Mot. Recons.
at 11. But as the Court explained in its opinion, Drs. Ghosh and Carter were in a position
of responsibility as Medical Director where they could have taken corrective action. Mem.
Op. & Order 9–10.
2

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supervising nurse, was in charge of the administration of Gevas’s medicine and
allegedly knew he was not receiving it.

Id. at 9–10. 3

Thus, the Court fairly

addressed and disagreed with the Wexford Defendants’ argument based on lack of
personal involvement.
In addition to their argument based on lack of personal involvement, the
Wexford Defendants seek reconsideration on the ground that “it is apparent that
the duties and responsibilities pertaining to the [challenged] conduct were those of
other prison personnel, and not these Defendants.”

Mot. Recons. at 6.

This

argument, however, contravenes the Court’s explicit holding in which it rejected
Wexford’s

attempt

to

eschew

responsibility

for

Gevas’s

medical

care,

notwithstanding the plain language of its contract with IDOC, finding instead that
Gevas had raised a triable issue of fact on this issue. Mem. Op. & Order 13 n.9.
This holding applies both to Wexford itself and the individual defendants, as
explained in the very authority the Court cited. Taylor v. Garcia, No. 11 C 7386,
2015 WL 5895388, at *6 (N.D. Ill. Oct. 6, 2015) (quoting Flournoy, 881 F. Supp. 2d
at 989). The Court therefore denies the Wexford Defendants’ motion to reconsider
its rulings as to the individual defendants.

Nurse Moss is a helpful comparator for addressing the Wexford Defendants’
objection to the Court’s finding that State Defendant Regina Beattie did not have sufficient
personal involvement, whereas Drs. Ghosh and Carter and Nurse Moss did. Mot. Recons.
at 12. While Drs. Ghosh and Carter and Nurse Moss each occupied positions of
responsibility regarding Gevas’s treatment and medication, Defendant Beattie was merely
a technician tasked with refilling and placing orders. Mem. Op. & Order 12. As the Court
explained, there was no evidence to suggest Beattie was responsible for or could have
addressed Gevas’s complaints. Id.
3

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II.

Wexford’s Policy, Custom, or Practice
As to Wexford itself, the Wexford Defendants seek reconsideration based

primarily on their belief that the Court misapplied Seventh Circuit precedent. They
argue that the Court’s determination that a reasonable jury could conclude that
there was a policy, custom, or practice of causing gaps in Gevas’s Tramadol
prescription and failing to provide Gevas access to medication is not fairly
supported by the authority that the Court cites.
Specifically, the Wexford Defendants contend that the Court’s reference to
Shields v. Illinois Department of Corrections., 746 F.3d 782 (7th Cir. 2014), was
mistaken. Mot. Recons. at 13. The Court cited Shields for the proposition that
Gevas can raise a triable issue of fact as to a policy, custom, or practice by “pointing
to a series of bad acts that together raise the inference of such a policy.” Mem. Op.
& Order 13. The Wexford Defendants misinterpret this citation as an attempt to
analogize to Shields’s facts. To that end, they argue that, as in Shields, all Gevas
alleges is an isolated “series of bad acts,” which should be insufficient to permit an
inference of a policy, custom, or practice. Mot. Recons. at 13. But the series of bad
acts in Shields was known to be approximately three isolated incidents, 746 F.3d at
796, and the Court therefore cited the case only for the general proposition that a
series of bad acts can raise an inference of a policy, even though such an inference
could not be raised in Shields itself. In this case, on the other hand, the Wexford
Defendants have admitted that Gevas’s prescriptions went unfilled “at certain

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times.” Mem. Op. & Order 13. As the Court noted in its opinion, when it draws all
reasonable inferences in Gevas’s favor, there is a genuine dispute as to the number
of times Gevas was denied medication and whether this number supports a policy,
custom, or practice. Id. Thus, this case is significantly different from Shields, and
the Court did not suggest otherwise.
Additionally, the Wexford Defendants’ argument that Gevas cannot show a
widespread practice because he cannot show conduct as to any other inmates, Mot.
Recons. at 14, is simply incorrect and misrepresents the authority they cite.
Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (“[I]t is not impossible for a
plaintiff to demonstrate the existence of an official policy or custom by presenting
evidence limited to his experience.”). While the Seventh Circuit has recognized the
difficulty a plaintiff faces in proving a policy or custom based only on his or her own
experience, id., the evidence in the record in this case is such that a jury could
conclude a policy or custom exists. 4

The Court acknowledges that its opinion addressed the issue of Wexford’s policy,
custom, or practice primarily by reference to Gevas’s claim that “he did not receive his
medication because it was out of stock.” Mem. Op. & Order 13. But Wexford’s admission
that Gevas did not receive medications at certain times appears equally probative of
Gevas’s claim that Wexford caused gaps in his Tramadol prescription. Additionally, as
noted previously, there is evidence in the record that Wexford personnel allowed Gevas’s
Tramadol prescription to expire up to eleven times. Gevas Dep. 71:22–24. The Seventh
Circuit has declined to “adopt any bright-line rules defining a ‘widespread custom or
practice,’” setting something of a lower boundary in holding that three isolated incidents of
misconduct do not suffice. See Shields, 746 F.3d at 796; see also Thomas v. Cook Cty.
Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010). Additionally, the Court has held that “to
survive summary judgment, a plaintiff need not present a full panoply of statistical
evidence showing the entire gamut of a defendant’s past bad acts to establish a widespread
practice or custom. Instead, it is enough that a plaintiff present competent evidence
tending to show a general pattern of repeated behavior.” Davis v. Carter, 452 F.3d 686, 694
(7th Cir. 2006). Here, based on Gevas’s representation of eleven permitted expirations and
the Wexford Defendants’ admission that gaps occurred, Gevas has presented a triable issue
4

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Accordingly, the Court rejects the Wexford Defendants’ request that the
Court reconsider its denial of summary judgment as to Wexford’s policy, custom, or
practice.
Conclusion
For the reasons stated herein, the Wexford Defendants’ motion to reconsider
[402] is denied.
IT IS SO ORDERED.

ENTERED

12/20/16

__________________________________
John Z. Lee
United States District Judge

of fact as to whether a policy, custom, or practice of permitting his Tramadol prescription to
expire existed.

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