Dixon v. Wexford Health Sources Inc. et al
Filing
128
MEMORANDUM Opinion and Order: For the foregoing reasons, the motions for summary judgment, 109 104 , are granted in part and denied in part. Summary judgment is granted with respect to Count I (gloves) and Counts II and III (retaliation). Summary judgment is granted with respect to Count II in so far as it alleges deliberate indifference to Dixon's medication needs, and by Assistant Warden Edwards. Summary judgment is denied with respect to Count II is in so far as it alleges deliberate indifference with respect to Dixon's physical therapy. The remaining defendants in the case are Warden Hardy, Dr. Carter, and Wexford. A status hearing is set for October 14,2016 at 9:00 a.m. to discuss how the parties would like to proceed and whether referral to a magistrate judge for settlement discussions would be helpful. Ricardo Tejeda, Darryl Edwards and Milton Jones terminated. Status hearing set for 10/14/2016 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 9/30/2016:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CLINTON DIXON,
Plaintiff,
No. 12 C 5531
v.
WEXFORD HEALTH SOURCES, INC.;
MARCUS HARDY; DARRYL EDWARDS;
IMOTEP CARTER; MILTON JONES; and
RICARDO TEJEDA,
Judge Thomas M. Durkin
Defendants.
MEMORANDUM OPINION AND ORDER
Clinton Dixon is an inmate in the custody of the Illinois Department of
Corrections (“IDOC”) at Menard Correctional Center in Illinois. In his amended
complaint, he alleges that, while he was in custody at Stateville Correctional
Center, IDOC staff and medical service providers were deliberately indifferent to
his medical needs in violation of the Eighth Amendment (Counts I & II), and
retaliated against him for filing this case (Counts III & IV). R. 75. Specifically,
Dixon has sued Stateville’s former Warden, Marcus Hardy; Stateville’s former
Assistant Warden, Darryl Edwards; correctional officer, Ricardo Tejeda; clothing
room supervisor, Milton Jones; the IDOC’s medical services provider, Wexford
Health Sources, Inc.; and a doctor employed by Wexford, namely Imotep Carter,
who served as Stateville’s medical director. See id. Defendants have filed motions
for summary judgment. R. 104; R. 109. The Court appointed counsel for Dixon, and
his counsel has prepared the amended complaint and papers opposing Defendants’
motions. For the following reasons, Defendants’ motions are granted in part and
denied in part.
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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Background
Dixon worked as a “cellhouse worker” in Stateville. R. 117 ¶ 10. Dixon
requested gloves for his job, but was told that he would not be provided gloves
because he did not work outside. Id. ¶ 12. As part of his duties, on August 4, 2011,
Dixon was pushing a heavy cart when another cellhouse worker’s chart pushed the
cell house’s door into Dixon’s cart, and Dixon’s middle finger was smashed between
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the cart and the wall. Id. ¶ 10. The tip of his middle finger was severed. Id. Dixon
claims that Stateville’s failure to provide him with gloves caused his injury, and has
sued Warden Hardy, Assistant Warden Edwards, and clothing room supervisor
Jones, with regard to this claim.
After he injured his finger, Dixon was immediately treated by Dr. Carter at
Stateville and then transferred to a private hospital, where his finger’s condition
was stabilized. R. 121 ¶¶ 9-13. Over the next six days, Dixon was examined several
times by a hand specialist at the medical offices of Alan Chen Surgical Associates,
namely Dr. Victor Tsai, and had two surgeries. Id. ¶¶ 14-27. Dr. Tsai was
ultimately unable to re-attach the tip of his middle finger. Id. Dixon does not
dispute that his finger healed adequately despite Dr. Tsai’s inability to reattach the
tip of his finger. Dixon also does not claim that he received inadequate medical care
with respect to the efforts to repair and heal his finger.
Dixon alleges that he was given inadequate pain medication and was not
provided necessary physical therapy, and has sued Warden Hardy, Assistant
Warden Edwards, Dr. Carter, and Wexford with regard to these claims. At his
initial hospital visit to treat his injury, Dixon was prescribed Norco, which is opioid
pain medication. R. 121 ¶ 17. But when he returned to Stateville, Dixon was instead
given Tramadol, a narcotic-like pain reliever with the brand name Ultram. R. 106-4
at 5. On August 5, 2011, Dr. Tsai prescribed Vicodin. R. 121 ¶ 22. But upon his
return to Stateville, Dixon was again given Tramadol. Id. ¶ 23. Dixon saw Dr. Tsai
again on August 9, 2011, but he was not prescribed any pain medication. Id. ¶ 25;
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R. 121-9 at 16. After performing surgery on Dixon’s finger on August 11, 2011, Dr.
Tsai prescribed Tylenol #3, R. 121 ¶ 28, but Stateville provided Dixon with Motrin.
R. 121-7 at 14. Stateville continued to provide Dixon with Tramadol through the
date of his transfer to Menard on September 17, 2012. See R. 121 ¶¶ 30, 43, 47, 53,
60; R. 121-7 at 36; R. 106-4 at 64.
Dr. Carter referred Dixon for physical therapy on November 23, 2011. R. 1217 at 36. Dr. Tsai also recommended physical therapy on December 8, 2011. R. 121 ¶
58. Dixon testified that he never received physical therapy, and Defendants have
not identified any evidence in the record to show that he did receive physical
therapy. The parties dispute whether Dixon was ever instructed on how to do range
of motion exercises on his own.
Dixon filed this action on July 13, 2012. Two months later on September 17,
2012, Dixon was transferred to Menard Correctional Center (which is 400 miles
further away from his family) based on an investigation that revealed that Dixon
had threatened another inmate saying, “I’m gonna bag and tag the b****.” R. 111-1
at 101. Dixon contends that there was no basis for this investigation and that it was
undertaken solely to create pretext for his transfer. See R. 116 at 6-7.
Analysis
I.
Gloves
Dixon argues that Warden Hardy, Assistant Warden Edwards, and clothing
room supervisor Jones were deliberately indifferent to Dixon’s need to wear gloves
to safely complete his duties as a cellhouse worker. “In the context of a conditions of
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confinement claim . . . a convicted prisoner is entitled to be free from conditions that
constitute cruel and unusual punishment” in violation of the Eighth Amendment.
Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). To be cruel and unusual, “the
alleged condition must be objectively serious . . . and the defendant prison official
must possess a sufficiently culpable state of mind.” Id. “An adverse condition
amounts to a constitutional deprivation when it results in the denial of a basic
human need, such as adequate food, clothing, shelter, and medical care.” Id. at 30910; see also Grady v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (“lack of heat,
clothing, or sanitation”). To have a sufficiently culpable state of mind a defendant
must have been deliberately indifferent to the condition posing a serious risk. See
Smith v. Sangamon Cty. Sheriff’s Dep’t, 715 F.3d 188, 191 (7th Cir. 2013).
Deliberate indifference “requires a showing that the [defendant] was aware of a
substantial risk of serious injury to [the plaintiff] but nevertheless failed to take
appropriate steps to protect him from a known danger.” Id.
Dixon has failed to demonstrate that performing his cellhouse duties without
gloves was an objectively serious risk. Pushing a cart (even if it was large and
heavy) around the prison is not objectively dangerous work. Notably, Dixon’s injury
was caused by a freak accident when another cart was pushed into a door which in
turn caused Dixon’s cart to smash his finger against a wall. Dixon has not argued,
let alone presented evidence, that an accident such as this was foreseeable such
that officials at Stateville should have taken additional precautions such as
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equipping Dixon with gloves. Absent such foreseeability, Dixon performing his
cellhouse duties without gloves is not an objectively serious condition.
Furthermore, even if such an accident was foreseeable, Dixon has presented
no evidence that wearing cloves would have prevented his injury. Even work gloves
are not so thick that they would protect a finger from injury when it is smashed
between heavy and hard objects. If prison officials knew that carts pushed by
cellhouse workers regularly crash, the solution is not gloves but better organization
of the movement and use of the carts. Therefore, no reasonable jury could conclude
that Defendants’ failure to provide gloves was deliberately indifferent.
II.
Retaliation
Dixon also alleges that, in retaliation for his filing this case, Warden Hardy
and Assistant Warden Edwards caused Officer Tejeda to create the Disciplinary
Report that was the basis for Dixon’s transfer. Dixon alleges that being housed in
Menard as opposed to Stateville is a hardship for him because it is 400 miles
further away from his family. Such a transfer can be actionable if it is done in
retaliation for the exercise of a constitutionally protected right, like filing a civil
action. See Hewitt v. Helms, 459 U.S. 460, 468 (1983); Higgason v. Farley, 83 F.3d
807, 810 (7th Cir. 1996).
Dixon has produced no evidence that his transfer was motivated by
retaliatory intent. By contrast, Stateville’s records show that Dixon was transferred
based on an investigation into a threat he made against another inmate. Dixon
contends that the timing of the investigation, coming shortly after he filed this case,
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is a sufficient basis to send this claim to a jury. He is wrong. “[T]emporal proximity
between a[] . . . protected activity and an adverse . . . action is rarely sufficient to
show that the former caused the latter.” O’Leary v. Accretive Health, Inc., 657 F.3d
625, 635 (7th Cir. 2011). “Close temporal proximity provides evidence of causation
and may permit a plaintiff to survive summary judgment provided that there is
other evidence that supports the inference of a causal link.” Scaife v. Cook County,
446 F.3d 735, 742 (7th Cir. 2006) (emphasis added); see also Boss v. Castro, 816 F.3d
910, 918 (7th Cir. 2016) (“A causal link requires more than the mere fact that an
employer's action happens after an employee’s protected activity.”); Lumpkin v.
Cook Cty. Pub. Def’s Office, 640 Fed. App’x 509, 512 (7th Cir. 2016) (“But ‘suspicious
timing’ alone is rarely sufficient to infer causation.”). Dixon has failed to provide
any other evidence that Warden Hardy, Assistant Warden Edwards, and Officer
Tejeda transferred him with a retaliatory motive. Thus, Defendant’s motion for
summary judgment on Dixon’s retaliation claim is granted.
III.
Pain Medication & Physical Therapy
Dixon alleges that Dr. Carter, Wexford, Warden Hardy, and Assistant
Warden Edwards, deliberately disregarded his need for certain pain medication and
physical therapy. “Prison officials violate the Eighth Amendment's proscription
against cruel and unusual punishment when they display deliberate indifference to
serious medical needs of prisoners.” Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.
2008). To establish a deliberate indifference claim under this standard, a plaintiff
must show (1) that the plaintiff suffered an objectively serious risk of harm, and (2)
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that the defendant acted with a subjectively culpable state of mind in acting or
failing to act in disregard of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011). Nevertheless, the “Constitution is not a medical code that mandates specific
medical treatment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). And
“evidence that another doctor would have followed a different course of treatment is
insufficient to sustain a deliberate indifference claim.” Burton v. Downey, 805 F.3d
776, 786 (7th Cir. 2015). Rather, “medical professionals . . . are entitled to deference
in treatment decisions unless no minimally competent medical professional would
have so responded under the circumstances at issue.” McGee v. Adams, 721 F.3d
474, 481 (7th Cir. 2013) (emphasis added). In other words, “[w]hen a medical
professional acts in his professional capacity, he may be held to have displayed
deliberate indifference only if the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on such a
judgment.” Id.
A.
Medication
Dixon alleges that Dr. Carter and Wexford were deliberately indifferent
because they provided him with Tramadol instead of a narcotic pain medication. Dr.
Tsai has passed away and was unavailable for a deposition in this case. Dr. Tsai’s
former colleague who took over his practice, Dr. Alan Chen was deposed. Dr. Chen
testified that “generally” Tramadol would not be given to a patient with an
amputated finger. R. 106-5 at 11 (37:21-24). He estimated that “98 percent of the
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time, we do not” prescribe Tramadol in such circumstances, id. at 12 (38:1), and
“Dixon clearly has a reason to require Norco.” Id. (38:6-7). But he also noted that it
is a “judgment call” and not a “big departure . . . from accepted professional
standards” to substitute Tramadol for Norco in Dixon’s case. Id. at 11 (37:24), 12
(38:8), 17 (59:11-21).
Dr. Chen’s testimony is an insufficient basis for a reasonable jury to conclude
that Dr. Carter’s decision to prescribe Tramadol for Dixon’s pain was a “substantial
departure from accepted professional judgment.” Notably, as Defendants point out,
the Seventh Circuit has held that a prison doctor’s decision to substitute a nonnarcotic medication for a narcotic medication prescribed by a doctor outside the
prison does not constitute deliberate indifference. See Holloway v. Del. Cnty. Sheriff,
700 F.3d 1063, 1073 (7th Cir. 2012) (“[The plaintiff] did not present any evidence to
show that [the doctor’s] decision not to prescribe Oxycontin was a substantial
departure from accepted professional standards.”); see also Latham v. Mitcheff, 2016
WL 3081932, at *2 (7th Cir. June 1, 2016) (“As for [the doctor’s] suggestion that a
switch to ‘direct observation therapy’ should be made before introducing another
medication for [the plaintiff’s] chest pain, [the plaintiff] does not point to any
evidence suggesting that [the doctor] had failed to exercise medical judgment.”).
Defendants ensured that Dixon’s pain was treated. It is not the Court’s job to
“second-guess” the manner in which his pain was treated absent evidence that no
“minimally competent medical professional” would have made the same decision.
See Fitzgerald v. Greer, 324 Fed. App’x 510, 515 (7th Cir. 2009). And here, Dr. Chen
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testified that such a decision was a judgment call and did not fall below accepted
professional standards. Thus, summary judgment is granted to Defendants on
Dixon’s claim regarding pain medication.
B.
Physical Therapy: Dr. Carter & Wexford
Defendants argue that Dr. Tsai taught Dixon how to do exercises with his
finger such that physical therapy was not necessary. On this basis, Defendants
argue that it was within Dr. Carter’s professional judgment to decide that Dixon did
not require physical therapy. There are several problems with this argument. One
is that Dr. Carter referred Dixon for physical therapy, indicating that Dr. Carter
made a judgment that Dixon required physical therapy. R. 121-7 at 36. Defendants
cite to Williams v. Fahim in which the Seventh Circuit held that it was within a
prison doctor’s professional judgment to decide that an inmate could be trained to
do range of motion exercises himself in lieu of physical therapy. 572 Fed. App’x 445,
446 (7th Cir. 2014). But if Dr. Carter and his staff determined that physical therapy
was necessary then Williams is inapposite.
Further, the evidence shows that Dr. Carter and Wexford did not provide the
materials necessary for Dixon to follow Dr. Tsai’s instructions. As Dr. Tsai was not
available to be deposed, Dr. Chen testified that it was Dr. Tsai’s custom and
practice to demonstrate such exercises to his patients. R. 106-5 at 17 (61:10-22).
Dixon also testified that Dr. Tsai showed him home to do exercises, but that these
exercises required him to squeeze a rubber ball, which Dr. Carter and Wexford
failed to provide. R. 121-2 at 7-8 (24:8–25:6). Defendants have not produced any
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records to contradict Dixon’s testimony that he did not receive physical therapy. Id.
at 13 (45:5-9). Thus, Wexford and Dr. Carter’s motion for summary judgment on
Dixon’s claim that they were deliberately indifferent to his need for physical
therapy is denied.
C.
Physical Therapy: Warden Hardy & Assistant Warden Edwards
Dixon also testified that he addressed grievances to Warden Hardy and
Assistant Warden Edwards telling them that he had not received prescribed
physical therapy. R. 121-2 at 20 (73:14-16). But the grievances in the record do not
indicate that either Warden Hardy or Assistant Warden Edwards received them.
See R. 118-8 at 10-11. Thus, the grievances are not evidence that either Warden
Hardy or Assistant Warden Edwards had knowledge that Dixon was not receiving
the physical therapy he had been prescribed.
Dixon also testified that he personally told Warden Hardy that he was not
receiving physical therapy when Warden Hardy made rounds through the prison. R.
121-2 at 19-20 (72:17–73:10). (Dixon did not testify that he had a similar
conversation with Assistant Warden Edwards.) Warden Hardy submitted a
declaration that fails to address this allegation, and in any case the declaration is
unsigned. R. 111-1 at 87-89. Dixon’s testimony is sufficient evidence for a
reasonable jury to find that Warden Hardy knew Dixon has been prescribed
physical therapy, was not receiving it, and was deliberately indifferent to that
information.
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Warden Hardy argues that his lack of medical training absolves him of
responsibility since Dixon was receiving the attention of medical professionals and
he was entitled to rely on their judgment. The problem with that argument is that
the evidence in the record indicates that Warden Hardy was aware that Dr. Carter
had made a judgment that Dixon required physical therapy but Dixon was not
receiving it. The relevant medical judgment had already been made, and Dixon was
complaining about a lack of provision of services. Presumably, ensuring that such
services are provided is part of a warden’s responsibilities. Thus, Warden Hardy’s
motion for summary judgment on Dixon’s claim of a failure to receive physical
therapy is denied, but granted as to Assistant Warden Edwards.
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Conclusion
For the foregoing reasons, the motions for summary judgment, R. 109; R. 104,
are granted in part and denied in part. Summary judgment is granted with respect
to Count I (gloves) and Counts II and III (retaliation). Summary judgment is
granted with respect to Count II in so far as it alleges deliberate indifference to
Dixon’s medication needs, and by Assistant Warden Edwards. Summary judgment
is denied with respect to Count II is in so far as it alleges deliberate indifference
with respect to Dixon’s physical therapy. The remaining defendants in the case are
Warden Hardy, Dr. Carter, and Wexford. A status hearing is set for October 14,
2016 to discuss how the parties would like to proceed and whether referral to a
magistrate judge for settlement discussions would be helpful.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: September 30, 2016
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