Grant v. Encarnacion et al

Filing 123

MEMORANDUM Opinion and Order. The Court grants in part and denies in part defendants' motions for summary judgment 98 & 103 . The State Defendants' motion is granted as to the claims related to plaintiff's shoulder and rash and deni ed as to the claims related to plaintiff's thumb. The Wexford Defendants' motion is granted as to the claims related to plaintiff's thumb and shoulder and denied as to the claims related to his rash. The parties are ordered to file their final pretrial order on or before October 16, 2015. A status hearing is set for October 20, 2015 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 9/8/2015. Notice mailed by judge's staff(ntf, )

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

)
)
Plaintiff,
)
)
v.
)
)
JENNIFER ENCARNACION, JOSE
)
ENCARNACION, WENDY OLSEN)
FOXON, JOHNATHAN RUSSELL,
)
1
JULIE STEPHENS, IMHOTEP
)
CARTER, and LATONYA WILLIAMS, )
)
Defendants.
)

12 C 10372

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiff sues defendants pursuant to 42 U.S.C. § 1983 for their alleged deliberate
indifference to his serious medical needs.2 Defendants have filed motions for summary judgment
pursuant to Federal Rule of Civil Procedure (“Rule”) 56. For the reasons set forth below, the Court
grants in part and denies in part the motions.

Facts
At the times relevant to this suit, plaintiff was an inmate at the Illinois Department of
Corrections’ (“IDOC’s”) Stateville facility and defendants Jennifer Encarnacion, Jose Encarnacion,
Julie Stephens, Wendy Olsen-Foxon and Johnathan Russell (collectively, the “State Defendants”)

1

Julie Stephens is incorrectly sued as “Mrs. A. Stephens.” (See Compl.)

2

In his response to defendants’ motions for summary judgment, plaintiff attempts, for the
first time, to raise a retaliation claim. Because plaintiff “may not amend his complaint through
arguments in his brief in opposition to a motion for summary judgment,” Shanahan v. City of
Chi., 82 F.3d 776, 781 (7th Cir. 1996), the Court does not address this claim.

worked there as a registered nurse, a correctional sergeant, a correctional officer, and medical
technicians, respectively. (Pl.’s Resp. State Defs.’ LR 56.1(a) Stmt. ¶¶ 1-7.) Defendants Imhotep
Carter and LaTonya Williams (“Wexford Defendants”) are a physician and physician’s assistant,
respectively, who were not employed by IDOC but provided health care services to Stateville
inmates. (Id. ¶ 8; Pl.’s Resp. Wexford Defs.’ LR 56.1(a) Stmt. ¶¶ 1, 8-9.)
On November 16, 2010, plaintiff slipped on ice in the Stateville yard and injured his right
thumb. (Pl.’s Resp. State Defs.’ LR 56.1(a) Stmt. ¶ 9.)
After he fell, plaintiff asked defendant Stephens for medical attention, and she “responded
using derogatory language and told him, among other things, she would write [him] a ‘disciplinary
ticket.’” (Id. ¶¶ 10-12, 14.)
A few minutes later, plaintiff says he asked defendant Olson-Foxon, one of the medical
technicians assigned to his cell house, for medical care. (Id. ¶ 16.) She reportedly told him “she did
not have ‘time for’ [him] and . . . was going to each [sic] lunch.” (Id.)
As soon as he walked into his cell house, plaintiff saw the cell house commanding officer,
defendant Jose Encarnacion, and asked him for medical care. (Id. ¶ 18.) Encarnacion refused to
provide it, saying that plaintiff was “‘always complaining about something and crying like a baby.’”
(Id. ¶¶ 18-19 (quoting Compl.).)
Several hours later, plaintiff saw defendant Russell, who also refused to get plaintiff any
medical help. (Id. ¶ 20.)
That evening, plaintiff submitted a written request for medical treatment for his thumb. (Id.
¶ 23.)

2

The next day, November 17, 2010, plaintiff was examined by a doctor, who ordered an x-ray
of the thumb and prescribed pain medication and a splint for plaintiff. (Id. ¶ 30.)3 The x-ray, which
was taken the same day, showed that the thumb was fractured. (Pl.’s Ex. E, Med. Records IDOC
662.) Sometime after the x-ray, plaintiff received the splint. (State Defs.’ Ex. B, Pl.’s Dep. at 2728.) It is not clear whether he received the prescribed pain medication. It is undisputed, however,
that at the time of his thumb injury, plaintiff was already taking pain medication for back and
shoulder pain. (Pl.’s Resp. State Defs.’ LR 56.1(a) Stmt. ¶ 33.)
Sometime after November 16, 2010, plaintiff: (1) saw defendant Jennifer Encarnacion three
or four times and asked her for pain medication, which she refused to provide and told plaintiff (a)
“You think you can write grievances and sue me and expect my help, no”; and (b) “You are of no
concern to me and [it] is not my job to be your mother”; (2) complained about his thumb a few times
to Russell, who variously told plaintiff (a) to speak to the medical technician assigned to his cell
house, (b) “you think you can write grievances and sue me and expect my help, no,” and (c) “I
[would] never help you even if you were dying”; and (3) asked Jose Encarnacion for medical
attention, which Encarnacion refused to provide, telling plaintiff, on one occasion: “No you cannot
see any medical staff, you always complaining about one thing or another like a little bitch.” (Id.
¶¶ 22, 25-26, 28 (quoting Compl. ¶ 59); Pl.’s Stmt. Add’l Facts ¶¶ 11, 13-14, 17-18.)
On November 19, 2010, plaintiff was sent to UIC for an MRI of his right shoulder, which
he had injured in 2003 and was causing him pain. (See Pl.’s Ex. E, Med. Records at IDOC 552.)

3

Because plaintiff did not respond to ¶ 30 of the State Defendants’ LR 56.1(a) Statement,
he is deemed to have admitted the facts asserted in it. See LR 56.1(b)(3)(C) (“All material facts
set forth in the statement required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.”).
3

The MRI showed that plaintiff had “severe acromioclavicular joint osteoarthrosis,” i.e., arthritis of
the

joint

between

the

collarbone

and

the

top

of

the

shoulder

blade.

See

http://www.hopkinsmedicine.org/orthopaedic-surgery/specialty-areas/sports-medicine/conditions
-we-treat/ac-joint-injury.html; http://www.ncbi.nlm.nih.gov/pubmed/18343323.
On January 3, 2011, defendant Williams examined plaintiff, who said his thumb hurt, he had
difficulty bending it, and was out of pain medication. (Pl.’s Resp. State Defs.’ LR 56.1(a) Stmt. ¶
35.)4 She prescribed pain medication for him and referred him to Dr. Ghosh, who was then
Stateville’s Medical Director. (Id. ¶ 36.)
On January 10, 2011, Dr. Ghosh examined plaintiff, who complained of decreased range of
motion in his right shoulder. (Id. ¶ 37; see Pl.’s Ex E, Med. Records at IDOC 456.)5 Ghosh
prescribed pain medication, ordered an MRI of the shoulder, and referred plaintiff to an orthopedist.
(Pl.’s Resp. State Defs.’ LR 56.1(a) Stmt. ¶ 37.)

4

The Court overrules plaintiff’s objection to the facts asserted in this paragraph and
others that rely on Williams’ notes from plaintiff’s medical records because: (1) evidence
offered at summary judgment must be admissible in substance, not form, see Wragg v. Village of
Thornton, 604 F.3d 464, 466 (7th Cir. 2010); (2) Williams testified, albeit not in these words,
that the records refreshed her recollection as to her treatment of plaintiff; and (3) plaintiff
submits the same records as an exhibit to his response. (See State Defs.’ Ex. H, Williams Dep.
at 15; State Defs.’ Ex. I, Med. Record at IDOC 426; Pl.’s Ex. E, Med. Records at IDOC 462.)
5

The Court overrules plaintiff’s objection to the facts asserted in this paragraph, which
rely on Dr. Ghosh’s notes from plaintiff’s medical records because: (1) evidence offered at
summary judgment must be admissible in substance not form, see Wragg, 604 F.3d at 466; (2)
the notes state that they are “MD notes” and contain Dr. Ghosh’s initials, and thus he could
testify at trial as to his treatment of plaintiff as reflected in the notes; and (3) plaintiff submits the
same document as an exhibit to his response. (See State Defs.’ Ex. J, Med. Record IDOC at 420;
Pl.’s Ex. E, Med. Records at IDOC 456.)
4

On March 21, 2011, the orthopedic referral request was approved. (Pl.’s Ex. E, Med.
Records at IDOC 554.)
On April 18, 2011, Williams saw plaintiff for pain in his shoulders and thumb. (Pl.’s Resp.
State Defs.’ LR 56.1(a) Stmt. ¶ 38.) She prescribed pain medication and confirmed that plaintiff had
an appointment with an orthopaedist on April 29, 2011. (Id.)
On April 29, 2011, plaintiff was examined by a UIC orthopaedist, who scheduled plaintiff
for shoulder surgery, which was performed on July 12, 2011. (See Pl.’s Ex. E, Med. Records at
IDOC 556, 566.)
In July 2011, plaintiff told Olson-Foxon he had pain in his shoulder, thumb and skin, but she
refused to get medical care for him. (Pl.’s Stmt. Add’l Facts ¶ 9.)
On July 26, 2011, Carter examined plaintiff, renewed his pain medication prescription, and
referred him for physical therapy (“PT”). (Pl.’s Ex. E, Med. Records at IDOC 476, 559.) Plaintiff
had PT for his shoulder from August 2011 through January 2012. (Id. at IDOC 481-94, 497-98,
502-04, 506-07, 560, 567, 569, 571-72, 574.)
On August 9, 2011, a non-party medical technician saw plaintiff and noted that he had “a
large hard lump that is painful . . . [when] touch[ed]” on his right shoulder. (Id. at IDOC 479.) The
medical technician put plaintiff on the sick call for August 11. (Id.)
On August 11, 2011, Williams examined plaintiff and diagnosed the lump as a “lipoma,” i.e.,
“a slow-growing, [benign] fatty lump.” (Id. at IDOC 480); see http://www.mayoclinic.org/diseasesconditions/lipoma/basics/definition/con-20024646.

5

On August 23, 2011, Williams again saw plaintiff, who complained that his right shoulder
was swollen. (Pl.’s Ex. E, Med. Records at IDOC 483.) Williams ordered ice and heat packs for
plaintiff and instructed him to return to the healthcare unit, if necessary. (Id.)
Sometime in August 2011, when plaintiff asked Jose Encarnacion to send him for
unspecified medical treatment, Encarnacion refused, saying: “You remind me of a girl, you are too
feminine to be locked up.” (Pl.’s Stmt. Add’l Facts ¶ 12.)
On October 20, 2011, plaintiff was seen by a non-party nurse, complaining of “tender painful
skin on [his face],” numbness in his right index finger, which he had previously injured, and a lump
on his right shoulder blade. (Pl.’s Ex. E, Med. Records at IDOC 494.) The nurse gave him ointment
for his face and referred him to sick call for his other complaints. (Id.)
During some of his PT sessions, plaintiff saw Dr. Carter and asked him to do something
about the rash on plaintiff’s face. (State Defs.’ Ex. B, Pl.’s Dep. at 34.) Carter said “he [was] not
spending . . . money on [plaintiff],” that he had “bigger problems,” and plaintiff’s “issues weren’t
. . . major problems.” (Id.) At another unspecified time, Carter told plaintiff “[he] should either die
or go home but [Carter] wasn’t going to deal with [plaintiff] anymore.” (Id. at 52.)
On October 31, 2011, plaintiff was again seen by medical personnel for the rash on his face,
the lump on his back, and pain in his index finger. (Pl.’s Ex. E, Med. Records at IDOC 491.) He
was given orders for a pain reliever and heat packs and referred to the Medical Director for the
lipoma. (Id.)
On December 15, 2011, defendant Carter examined plaintiff and noted that he had “no
visible facial rash,” and a “small rt shoulder posterior seroma,” i.e., “a sterile collection of fluid

6

under

the

skin,

usually

at

the

site

of

a

surgical

incision,”

http://www.uofmmedicalcenter.org/healthlibrary/
Article/116838EN. Carter ordered a pain reliever and ice packs for plaintiff and instructed him to
get skin lotion from the commissary. (Id. at IDOC 502.)
On February 2, 2012, plaintiff told a non-party medical technician that he was still having
shoulder pain. (Id. at IDOC 509.) The medical technician scheduled plaintiff to see Carter in
March. (Id.)
On February 27, 2012, plaintiff saw Williams, complaining of right shoulder pain. (Id. at
IDOC 511.) She gave him a pain reliever and noted that he was scheduled to see Carter in March.
(Id.)
On March 26, 2012, plaintiff saw Carter, who renewed plaintiff’s prescription for a pain
reliever, but noted that plaintiff’s right shoulder “moves freely” and said there was “no medical
indication for further intervention.” (Id. at IDOC 512.)
On August 12, 2012, plaintiff was transferred to another IDOC facility. (Pl.’s Resp. State
Defs.’ LR 56.1(a) Stmt. ¶ 50.)

Discussion
To prevail on a summary judgment motion, “the movant [must] show[] 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). At this stage, we do not weigh evidence or determine the truth of the matters
asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and
draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc.,

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209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a
whole establishes that no reasonable jury could find for the non-moving party. Id.
To defeat defendants’ motions on his § 1983 claims, plaintiff must offer evidence that they
were deliberately indifferent to one of his objectively serious medical needs. Estelle v. Gamble, 429
U.S. 97, 104 (1976). “An objectively serious medical need is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.
2001) (per curiam) (quotations omitted). A defendant acted with deliberate indifference if “[he] was
subjectively aware of the prisoner’s serious medical needs and disregarded an excessive risk that a
lack of treatment posed to the prisoner’s health or safety.” Id. A delay in treatment “may constitute
deliberate indifference if [it] exacerbates the injury or unnecessarily prolongs an inmate’s pain.”
Myrick v. Anglin, 496 F. App’x 670, 674 (7th Cir. 2012). To prevail on a delay-of-care claim,
however, plaintiff “must offer medical evidence that tends to confirm or corroborate a claim that the
delay was detrimental.” Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007). Finally, none of the
defendants can be held liable under § 1983 unless he or she was personally involved in the allegedly
wrongful conduct. Pepper v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005).

State Defendants
The State Defendants do not argue that plaintiff’s medical conditions are not objectively
serious, and they concede that the facts, viewed in plaintiff’s favor, suggest that they delayed his
receipt of medical treatment. (State Defs.’ Mem. Supp. Mot. Summ. J. at 12 n.2; see Pl.’s Resp.

8

State Defs.’ LR 56.1(a) Stmt. ¶¶ 14, 16, 18-19, 22, 25-26, 28; Pl.’s Add’l Facts ¶¶ 9, 11-14, 17-18.)
But they contend that there is no medical evidence that suggests any delay was detrimental.
The Court disagrees. Though plaintiff does not offer expert testimony about the impact of
the delay in treating his thumb, the Seventh Circuit has made it clear that such testimony is not
required. See Williams, 491 F.3d at 715-16. Rather, as in Williams, “evidence of a plaintiff’s
diagnosis and treatment . . . is []sufficient if it . . . assist[s] the jury in determining whether a delay
exacerbated the plaintiff’s condition or otherwise harmed him.” Id. at 715. Viewed favorably to
plaintiff, the record shows that, when he broke his thumb, he “felt pain at a level of nine or ten out
of ten,” he did not receive pain medication or a splint until the next day, at the earliest, and after
receiving treatment his pain level decreased to a “five or six out of ten.” (Pl.’s Stmt. Add’l Fact ¶
5.) That is sufficient evidence to create a genuine issue as to whether the delay in treatment
allegedly caused by the State Defendants was detrimental to plaintiff. See Williams, 491 F.3d at 716
(“[A] reasonable jury could have concluded from the medical records that the delay unnecessarily
prolonged and exacerbated Williams’ pain and unnecessarily prolonged his high blood pressure.”).
Thus, the Court denies the State Defendants’ motion for summary judgment on the claim that they
were deliberately indifferent to plaintiff’s broken thumb.
The record is much less clear with respect to plaintiff’s shoulder condition and rash. Plaintiff
generally says that he told all of the State Defendants except Stephens about both conditions and
asked them for medical attention. (See State Defs.’ Ex. B, Pl. Dep. at 38-39, 71-72, 82, 85-87, Pl.’s
Stmt. Add’l Facts ¶¶ 9, 12, 14, 18-19.) But he does not say when he asked each of them for help or
when he actually received it. Moreover, he offers no medical evidence that suggests any delay in
treatment exacerbated either condition or increased whatever pain the conditions caused him.

9

Absent such evidence, plaintiff has not created a triable issue as to whether any of the State
Defendants was deliberately indifferent to his shoulder and skin conditions.

Wexford Defendants
The Wexford defendants contend that they are entitled to judgment as a matter of law on any
deliberate indifference claim related to the initial treatment, i.e., in November 2010, of plaintiff’s
broken thumb because they had no involvement in it. The Court agrees, and grants their motion with
respect to any such claim.
The Wexford Defendants are also entitled to judgment on any claim related to plaintiff’s
post-November 2010 complaints of thumb pain. It is undisputed that each time Williams examined
plaintiff for complaints of thumb pain, she prescribed pain relievers and referred him to a doctor.
(See Pl.’s Resp. State Defs.’ LR 56.1(a) ¶¶ 35-36, 38.) Further, there is no evidence that plaintiff
ever complained to Carter about his thumb. Accordingly, the Court grants the Wexford Defendants’
motion for summary judgment on any claim related to post-November 2010 thumb pain.
Plaintiff fares no better with his shoulder-related claims. It is undisputed that on August 9,
2011, a non-party medical technician noted that plaintiff had “a large hard lump [on his right
shoulder] that is painful . . . [when] touch[ed],” and put him on sick call. (Pl.’s Ex. E, Med. Records
at IDOC 479.) On August 11, Williams examined plaintiff and diagnosed the lump as a lipoma. (Id.
at IDOC 480.) On August 23, Williams saw plaintiff again for shoulder pain, ordered ice and heat
packs for plaintiff, and instructed him to return to the healthcare unit, if necessary. (Id. at IDOC

10

483.) In December, Carter examined plaintiff, noted that he had a seroma, and ordered a pain
reliever and ice packs for him. (Id. at IDOC 502.) In February 2012, plaintiff saw Williams for
shoulder pain, and she gave him a pain reliever and referred him to Carter. (Id. at IDOC 511.) In
March 2012, plaintiff saw Carter, who renewed plaintiff’s prescription for a pain reliever, but said
there was “no medical indication for further intervention.” (Id. at IDOC 512.) Rather than showing
deliberate indifference, these facts show that Williams and Carter were attentive to plaintiff’s
shoulder complaints. Plaintiff may not believe that they treated his shoulder properly, but medical
malpractice, if that is what it was, does not constitute deliberate indifference. McGowan v. Hulick,
612 F.3d 636, 640 (7th Cir. 2010) (“[N]egligence, even gross negligence, does not violate the
Constitution.”). Therefore, the Court grants the Wexford Defendants’ motion with respect to
plaintiff’s shoulder claim.
That leaves plaintiff’s rash claims. The Wexford Defendants assert that plaintiff’s rash was
not an objectively serious medical need (see Wexford Defs.’ Mem, Supp. Mot. Summ. J. at 9-10),
but they offer no evidence to support that assertion or to counter the medical notes that say plaintiff
had a “dark butterfly rash [on his] face” and his testimony that the rash was painful and so itchy that
he has scars from scratching it. (See Pl.’s Ex. E, Med. Records at IDOC 491; State Defs.’ Ex. B,
Pl.’s Dep. at 29-31.) While not overwhelming, that evidence is sufficient to create a triable issue
as to whether the rash was an objectively serious medical need.
Moreover, the record suggests that both defendants knew about the rash and refused to
provide treatment for it. (See State Defs.’ Ex. B, Pl. Dep. at 31-34 (plaintiff testifying that he spoke
to Williams “[m]ultiple times” and to Carter “every time [plaintiff] saw him” about getting treatment
for his rash, to which Williams responded, “[Y]ou’ve got too many problems. We’re tired of dealing

11

with you,” and Carter responded, “[I am] not spending . . . money on [you],” I have “bigger
problems,” and plaintiff’s “issues weren’t . . . major problems.”).) Accordingly, the Court denies
the Wexford defendants’ motion for summary judgment on this claim.

Conclusion
For the reasons set forth above, the Court grants in part and denies in part defendants’
motions for summary judgment [98 & 103]. The State Defendants’ motion is granted as to the
claims related to plaintiff’s shoulder and rash and denied as to the claims related to plaintiff’s thumb.
The Wexford Defendants’ motion is granted as to the claims related to plaintiff’s thumb and
shoulder and denied as to the claims related to his rash. The parties are ordered to file their final
pretrial order on or before October 16, 2015. A status hearing is set for October 20, 2015 at 9:30
a.m.
SO ORDERED.

ENTERED: September 8, 2015

__________________________________
JORGE L. ALONSO
United States District Judge

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