Allen v. Ghosh et al
Filing
126
MEMORANDUM Opinion and Order: For the reasons set forth in the accompanying Memorandum Opinion and Order, Plaintiff's Affidavit Pursuant to Fed. R. Civ. P. 56(d) 125 is denied. The Wexford Defendants' motion for summary judgment 95 and Defendant Carter's motion for summary judgment 97 are granted and judgment is entered in favor of the defendants. Enter Judgment Order. Civil case terminated. Signed by the Honorable John J. Tharp, Jr on 1/12/2016. Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Robert Allen (N-03705),
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Plaintiff,
v.
Partha Ghosh, et al.,
Defendants.
Case No. 13 C 0146
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Allen (hereinafter, “the plaintiff”), an Illinois prisoner confined at
Stateville Correctional Center, brought this 42 U.S.C. § 1983 lawsuit alleging deliberate
indifference to his serious medical needs in regard to the treatment of his testicular pain.
Currently before the Court are two motions for summary judgment, one from Dr. Imhotep
Carter, who formerly served as medical director at Stateville, and one from the other medical
defendants, Dr. Parthasarathi Ghosh, a former medical director at Stateville; Dr. Saleh Obaisi,
the current medical director at Stateville; Adrienne Downs-Miller, a nurse at Stateville; and
Wexford Health Sources, Inc., the state’s contracted provider of prison health services
(collectively, “Wexford Defendants”). 1 Also before the Court is the plaintiff’s “Affidavit
Pursuant to Fed. R. Civ. P. 56(d),” which the Court interprets as a motion for additional
1
The complaint, filed in January 2013, named an additional defendant employed by
Wexford, Dr. Liping Zhang, who left Wexford in 2010. The Court previously granted summary
judgment to Dr. Zhang on statute of limitations grounds. (Dkt. No. 64.)
1
discovery pursuant to Fed. R. Civ. P. 56(d). For the reasons stated herein, the Court denies the
plaintiff’s motion for additional discovery, and grants both motions for summary judgment.
BACKGROUND
I.
Northern District of Illinois Local Rule 56.1
Because the plaintiff is now a pro se litigant, 2 both sets of defendants served him with a
“Notice to Pro Se Litigant Opposing Motion for Summary Judgment” as required by Northern
District of Illinois Local Rule 56.2. (Dkt. Nos. 122, 123.) The notice explains the consequences
of failing to properly respond to a motion for summary judgment and statement of material facts
under Federal Rule of Civil Procedure 56 and Local Rule 56.1.
Local Rule 56.1 “is designed, in part, to aid the district court, ‘which does not have the
advantage of the parties’ familiarity with the record and often cannot afford to spend the time
combing the record to locate the relevant information,’ in determining whether a trial is
necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (internal citation omitted).
Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to
which the moving party contends there is no genuine issue.” Cracco v. Vitran Exp., Inc., 559
F.3d 625, 632 (7th Cir. 2009). “The opposing party is required to file ‘a response to each
numbered paragraph in the moving party’s statement, including, in the case of any disagreement,
specific references to the affidavits, parts of the record, and other supporting materials relied
2
Previously, the plaintiff was represented by two different attorneys in this case, one
retained and one recruited by the Court following the withdrawal of the plaintiff’s retained
counsel. Both attorneys ultimately were given leave to withdraw after determining that they
reported to the Court that they could not continue to press the plaintiff’s claims consistent with
their obligations under Fed. R. Civ. P. 11. (See Dkt. Nos. 83, 114.)
2
upon.’” Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Local Rule 56.1(b)(3)(C) requires the nonmoving
party to present a separate statement of additional facts that requires the denial of summary
judgment, including references to the affidavits, parts of the record, and other supporting
materials relied upon to support the statement of additional facts. See Ciomber v. Cooperative
Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).
The purpose of Local Rule 56.1 statements and responses is to make the summary
judgment process less burdensome on district courts, by requiring the parties to nail down the
relevant facts and the way they propose to support them.” Sojka v. Bovis Lend Lease, Inc., 686
F.3d 394, 398 (7th Cir. 2012). The local rule requires the parties to identify the relevant
admissible evidence supporting the material facts, not to make factual or legal arguments. See
Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (holding that pro se plaintiff’s statement
of material facts did not comply with Rule 56.1 as it “failed to adequately cite the record and was
filled with irrelevant information, legal arguments, and conjecture.”). “When a responding
party’s statement fails to dispute the facts set forth in the moving party’s statement in the manner
dictated by the rule, those facts are deemed admitted for purposes of the motion.” Cracco, 559
F.3d at 632; see also Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 513 (7th Cir. 2013).
Consistent with the Local Rules, both sets of the defendants filed Local Rule 56.1(a)(3)
Statements of Material Facts with their summary judgment motions. (Dkt. Nos. 94, 99.)
Although he has been given ample opportunity to do so (see Dkt. Nos. 112, 116, 121), the
plaintiff did not submit responses to these factual assertions as required by Local Rule
56.1(b)(3). Instead, he submitted an affidavit which the court interprets as a motion brought
pursuant to Fed. R. Civ. P. 56(d). That rule provides in relevant part: “If a nonmovant shows by
3
affidavit or declaration that, for specified reasons, [he] cannot present essential facts to justify
[his] opposition” to a motion for summary judgment, the Court may deny the motion, allow
additional time for discovery, or issue any other appropriate order. Fed. R. Civ. P. 56(d). The
rule places the burden on the party that believes additional discovery is necessary to “‘state the
reasons why the party cannot adequately respond to the summary judgment motion without
further discovery.’” Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 628 (7th Cir. 2014)
(quoting Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006)).
The plaintiff states in the affidavit that he is functionally illiterate and needs the
assistance of other prisoners to communicate with the Court. The plaintiff states that he suffered
testicular pain for six years “without any help from defendants in spite of being reduced to tears,
unable to walk, and constent [sic] please [sic] for help.” The plaintiff contends that he cannot
respond to the motion for summary judgment because “no discovery was conducted in this case”
and he cannot find an expert to challenge the defendants’ motions. He claims, without
elaboration, that the defendants’ statements of fact are inaccurate, false, or misleading. He seeks
further recruitment of counsel to assist him in locating an expert witness and responding to the
defendants’ motions.
The issues raised by the plaintiff in his affidavit have been previously addressed by this
Court. (See Dkt. Nos. 116, 121.) The plaintiff’s assertion that no discovery has been conducted in
this matter is incorrect. In fact, the plaintiff’s treating urology specialist, Dr. Roohollah Sharifi, a
urology surgeon at the University of Illinois Medical Center, was deposed in this matter and
opined that he would consider the plaintiff a candidate for a vasectomy, which at one point he
thought might relieve the plaintiff’s chronic and acute testicular pain. (See Sharifi Dep., Dkt. No.
4
94-5, at 54:7-57:21). However, after examining the plaintiff again (a consultation arranged by
agreement with Wexford, as discussed below), Dr. Sharifi concluded that the plaintiff was not a
good candidate for surgery because his complaints were too diffuse to suggest that surgery would
be effective. (See Dkt. No. 73.) It was Dr. Sharifi’s opinion that surgery is not medically
indicated that ultimately prompted the withdrawal of both the plaintiff’s retained counsel and
counsel later recruited by the Court. (See Dkt. Nos. 81, 108, 116.) The plaintiff has provided no
basis to question the integrity of Dr. Sharifi’s medical opinion, and there is no reason to believe
that further discovery, or the recruitment by the Court of another expert, or a third attorney,
would make a difference in the outcome of this case.
As such, the Court denies the plaintiff’s motion under Fed. R. Civ. P. 56(d) and accepts
all assertions in both sets of the defendants’ Statement of Material Facts as true to the extent that
the facts are supported in the record. See L.R. 56.1(b)(3)(C); Apex Digital, Inc. v. Sears, Roebuck
& Co., 735 F.3d 962, 965 (7th Cir. 2013); Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th
Cir. 2012). Notwithstanding these admissions, the Court construes the record evidence in the
light most favorable to the plaintiff.
II.
Facts
The plaintiff has been incarcerated at Stateville since 2006. (Wexford Defs.’ Stmt. [94] at
¶ 3.) Dr. Ghosh was medical director at Stateville prior to his retirement in March of 2011. (Id. at
¶¶ 4, 29.) Dr. Carter served as medical director at Stateville from July 25, 2011 to May 10, 2012.
(Carter Stmt. [99] at ¶ 3.) Dr. Obaisi is the current medical director at Stateville. (Wexford Defs.’
Stmt. at ¶ 5.) Downs-Miller was a nurse employed by Wexford at Stateville on November 18,
2012, the date of her alleged misconduct. (Id. at ¶ 6.) Wexford contracts with the State of Illinois
5
to provide health care services to inmates at Stateville. (Id. at ¶ 7.)
The record reflects that the plaintiff has received a long and sustained course of treatment
based on his complaints of testicular pain. The plaintiff testified that he first started having
testicular problems in 2006, although “really things didn’t start until like 2007.” (Id. at ¶ 12.) On
August 22, 2007, the plaintiff was treated by Dr. Ghosh for his testicular pain. (Id. at ¶ 13.) Dr.
Ghosh noted that the left testes was slightly enlarged and diagnosed the plaintiff with
epididymitis. 3 (Id. at ¶ 14.) Dr. Ghosh prescribed the plaintiff an antibiotic, Doxycycline, a pain
reliever, Motrin, and a jock strap for support and advised him to follow up in the emergency
room on Sept. 7, 2007. (Id. at ¶ 15.) Dr. Ghosh next treated the plaintiff on October 18, 2007, at
which time he noticed a small lump in the plaintiff’s left testes. (Id. at ¶ 16.) At that time, Dr.
Ghosh continued to prescribe Motrin for pain, and referred the plaintiff to UIC Medical Center
for a testicular ultrasound. (Id. at ¶ 17.) The plaintiff underwent the ultrasound on December 13,
2007. (Id. at ¶ 18.)
Dr. Ghosh next treated the plaintiff on January 4, 2008, at which time he provided the
plaintiff with a jock strap and Motrin, although the plaintiff testified that the Motrin was
discontinued at some point because had a bad reaction to the drug. (Id. at ¶ 19; Pl.’s Dep., Dkt.
No. 94-1, at 31:15-17.) On February 14, 2008, the plaintiff was admitted to the infirmary for
observation concerning his scrotal pain, at which time he was given the antibiotics Doxycycline
and Bactrim, as well as Tylenol for the pain. (Wexford Defs.’ Stmt. at ¶ 20.) The next day, Dr.
Ghosh saw the plaintiff in the infirmary, at which time he continued the plaintiff’s prescriptions
3
Epididymitis is an inflammation of the epididymis, which is the cord or tube that runs
from the testicle to the prostate. (Wexford Defs.’ Stmt. at ¶ 53.)
6
for Doxycycline, Motrin, and a jock strap, issued the plaintiff a low bunk permit, and arranged to
have the plaintiff evaluated by a specialist at UIC, Dr. Roohollah Sharifi. (Id. at ¶ 21.)
Dr. Sharifi has been a board-certified urologist since 1978, is currently the director of the
Uro-Oncology Fellowship at the University of Illinois at Chicago, and has been associated with
the university for 40 years. (Id. at ¶ 51.) Although he is a professor of surgery in urology, Dr.
Sharifi also treats patients. (Id. at ¶ 52.) Dr. Sharifi first treated the plaintiff on August 12, 2008,
at which time he also reviewed the results of the plaintiff’s December 2007 ultrasound. (Id. at
¶ 54.) When Dr. Sharifi saw the plaintiff on August 12, 2008, the plaintiff indicated to the nurse
that he was not in any pain. (Id. at ¶ 57.) Based on his examination and review of the ultrasound,
Dr. Sharifi diagnosed the plaintiff’s condition as orchiepididymitis, or inflammation involving
the epididymis and the testes. (Id. at ¶ 55.) The primary treatment for this condition is antibiotics,
pain medication, and scrotal support. (Id. at ¶ 56.). Because of the small lump in the plaintiff’s
left testicle, Dr. Sharifi recommended an MRI to rule out a testicular tumor. (Sharifi Dep. at
18:23-19:24.)
Dr. Ghosh also examined the plaintiff on August 12, 2008, after he returned from his
appointment with Dr. Sharifi. (Wexford Defs.’ Stmt. at ¶ 22.) Consistent with Dr. Sharifi’s
diagnosis, Dr. Ghosh prescribed another antibiotic, Ciprofloxacin, to treat the plaintiff’s
epididymitis. (Id.) A follow-up examination by Dr. Sharifi was conducted on November 18,
2008. (Id. at ¶ 58.) At that time, the plaintiff complained of testicular pain, but there was no
significant change in the plaintiff’s diagnosis or condition. (Id.) The recommended MRI,
however, had not been conducted. (Sharifi Dep. at 24:10:14.)
7
The plaintiff next saw Dr. Ghosh on April 7, 2009, 4 for multiple medical conditions, at
which point Dr. Ghosh noted that no mass was felt in the plaintiff’s left testes. (Wexford Defs.’
Stmt. at ¶ 23.) Dr. Ghosh again prescribed Ciprofloxacin, discontinued Bactrim, and ordered a
CT scan of the plaintiff’s abdomen due to the plaintiff’s complaint that there was blood in his
urine. (Id. at ¶ 24)
Dr. Ghosh next treated the plaintiff on October 5, 2009, October 6, 2009, and October 8,
2009, at which time the plaintiff was in the infirmary for chest and abdominal pains. (Id. at ¶ 25.)
Dr. Ghosh noted no complaints concerning testicular problems. (Id.) On October 13, 2009, Dr.
Ghosh again treated the plaintiff in the infirmary for abdominal issues, at which time Dr. Ghosh
planned a consultation with a gastroenterologist to address those issues.
(Id. at ¶ 26.)
On February 2, 2010, Dr. Ghosh noted in the plaintiff’s chart that the plaintiff had
received further testing for his epigastric issues at UIC. (Id. at ¶ 27.) Dr. Ghosh prescribed
multiple medications for this condition. (Id.) Dr. Ghosh next treated the plaintiff on October 10,
2010, for complaints of lower back pain, which resulted in an MRI of the plaintiff’s lumbar
spine, a prescription for the pain reliever Naprosyn, and a low bunk permit. (Id. at ¶ 28.) This
was apparently the last time Dr. Ghosh treated the plaintiff. (Id. at ¶ 29.)
The first instance in which the plaintiff received medical treatment after Dr. Carter
became medical director at Stateville was on August 9, 2011. (Carter Stmt. at ¶ 5.) 5 On that
4
The plaintiff was also seen by other medical personnel on a number of occasions that
are not detailed in this factual summary, which focuses on the interaction of the remaining
individual defendants with the plaintiff.
5
There is no evidence of record that the plaintiff requested but was unable to obtain
medical care in the interim.
8
occasion, physician’s assistant La Tanya Williams saw the plaintiff in connection with his
complaints of lower back pain and referred the plaintiff to Dr. Carter. (Id. at ¶ 6.) On August 23,
2011, Dr. Carter evaluated the plaintiff in connection with his complaints of lower back pain. (Id.
at ¶ 7.) Dr. Carter diagnosed the plaintiff with chronic musculoskeletal lower back pain, and
prescribed him the pain relievers Naprosyn and Flexeril. (Id. at ¶ 8.) The medical records do not
reflect any complaints by the plaintiff to Dr. Carter about his testicular pain.
(Id. at ¶ 9.)
On October 13, 2011, Dr. Carter performed a follow-up evaluation of the plaintiff in
connection with his complaints of lower back and heel pain. (Id. at ¶ 10.) Dr. Carter ordered a
heel cup, renewed the plaintiff’s permits, and directed him to continue taking Naprosyn and
Flexeril. (Id.) There is again no indication in the medical records that the plaintiff made any
complaints of testicular issues on this date, although the plaintiff testified that he did tell Dr.
Carter he was having pain in his testicles. (Id. at ¶ 11; see Pl.’s Dep. at 129:19-131:5.) The
plaintiff acknowledged, however, that although he was having a “little pain” in his testicles, the
primary reason for his visit to Dr. Carter was his heel injury. (Pl.’s Dep. at 130:18-21;
130:24-131:1.)
On January 9, 2012, Dr. Carter treated the plaintiff for the third and final time. (Carter
Stmt. at ¶ 12.) On that occasion, the plaintiff complained of an upset stomach, and Dr. Carter
diagnosed the plaintiff with gastritis induced by non-steroidal anti-inflammatory medication. (Id.
at ¶ 13.) Dr. Carter directed that the plaintiff undergo laboratory blood testing, and prescribed
him Prilosec and Mylanta. (Id.) There is no indication in the medical records that the plaintiff
complained of testicular pain on this date. (Id. at ¶ 14.)
On April 25, 2012, the plaintiff was evaluated by a staff physician, Dr. DuBrick, in
9
connection with his complaints of testicular pain. (Id. at ¶ 15.) Dr. DuBrick diagnosed the
plaintiff with recurrent acute epididymitis and possible concurrent symptomatic benign
hyperplasia, or increased cell production. (Id. at ¶ 16.) Dr. DuBrick ordered the plaintiff to
undergo laboratory testing and prescribed the antibiotic Bactrim. (Id.) Dr. DuBrick again
examined the plaintiff on May 8, 2012. (Id. at ¶ 17.) After performing a physical examination,
Dr. DuBrick prescribed additional antibiotics, Rocephin and Levofloxacin. (Id.) He also ordered
a prostate antigen test to investigate whether the plaintiff had prostatitis. (Id.)
On May 10, 2012, Dr. Carter resigned from his position as medical director at Stateville.
(Id. at ¶ 18.) He did not have any further involvement in the plaintiff’s care. (Id. at ¶ 19.) It is Dr.
Carter’s custom and practice to note a patient’s subjective complaints in the patient’s medical
records. (Id. at ¶ 20.). Dr. Carter never documented any complaints relative to the plaintiff’s
testicular issues in the plaintiff’s medical records, from which he concludes that the plaintiff
never made any such complaints to him on the three occasions he treated the plaintiff. (Id. at ¶
21.) Dr. Carter is of the opinion that he and other medical personnel at Stateville provided
appropriate medical treatment for the plaintiff. (Id. at ¶ 22.)
Dr. Obaisi succeeded Dr. Carter as the Medical Director at Stateville. (Wexford Defs.’
Stmt. at ¶ 30.) After coming to Stateville on August 2, 2012, Dr. Obaisi first treated the plaintiff
on August 22, 2012, for recurrent testicle pain. (Id.) Dr. Obaisi prescribed injections of the
antibiotics Rocephin and Doxycycline. (Id.) Dr. Obaisi again treated the plaintiff on Sept. 12,
2012, at which time he prescribed alternate medications and ordered another ultrasound. (Id. at ¶
31.) The plaintiff next saw Dr. Obaisi on October 1, 2012, at which time no changes were noted
in his condition. (Id. at ¶ 32.) The plaintiff received the ultrasound on October 26, 2012. (Id. at ¶
10
33.) At their next appointment, on November 1, 2012, Dr. Obaisi continued the plaintiff on his
testicular medications. (Id. at ¶ 34.)
On November 18, 2012, Nurse Downs-Miller was summoned to the plaintiff’s cell to
treat his complaints of testicular pain. (Id. at ¶ 35.) During or shortly after her visit with the
plaintiff, Downs-Miller prepared a medical note concerning the treatment provided to the
plaintiff. (Id. at ¶ 36.) The plaintiff informed Downs-Miller that he was having testicular pain,
and although he was hesitant at first, he allowed her to examine him. (Id. at ¶¶ 37-38.)
Downs-Miller examined the plaintiff, and found no visible indicators of a problem; his testes
were descended and round in shape, with no visible swelling, redness, twisting, rashes, or lumps.
(Id. at ¶ 39.) Downs-Miller encouraged the plaintiff to apply warm compresses to the area and to
take Tylenol, which he refused. (Id. at ¶ 40.) She also instructed the plaintiff to report any
changes in his condition, and advised the day nurse and medical technician of the situation. (Id.)
Based on Downs-Miller’s physical examination of the plaintiff, it was her opinion that the
plaintiff’s condition was a non-emergency, and that the plaintiff should be placed on the sick call
for the following morning. (Id. at ¶ 41.) However, she also instructed the plaintiff to report any
further increase in his pain. (Id.) 6
The following day, November 19, 2012, Dr. Obaisi examined the plaintiff and referred
6
The plaintiff testified in his deposition that Downs-Miller made him sign a co-pay
voucher but did not examine him and did not offer him Tylenol. (Pl.’s Dep. at 189:1-190:20.) He
did not know if she placed him on sick call. (Id. at 192:3-11.) However, regardless of what
treatment Nurse Downs-Miller did or did not provide, the plaintiff was seen at least twice more
by nursing personnel within an approximately 12-hour period, with the results of the examination
the same as reported by Downs-Miller; the plaintiff also acknowledged receiving some form of
pain medication. (Wexford Defs.’ Stmt. at ¶ 44; Pl.’s Dep. at 198:11-199:10.)
11
him to St. Joseph’s Hospital, believing that he was possibly suffering from a kidney stone. (Id. at
¶ 45.) The plaintiff was released the next day, with no acute findings. (Id.) Dr. Obaisi followed
up with the plaintiff on November 26, 2012, and November 27, 2012. He continued to assess the
plaintiff’s condition as chronic epididymitis, and Rocephin injections were resumed. (Id. at ¶ 46.)
On December 3, 2012, Dr. Obaisi, following a “collegial review” (Pl.’s Dep. at 207:7), 7
obtained approval for another outside consultation with a urologist. (Id. at ¶ 47.) After referring
the plaintiff for a urology consultation, Dr. Obaisi followed up with the plaintiff on December
12, 2012, and December 17, 2012, at which time he noted that the plaintiff’s epididymitis was
“improving” and resolving. (Id. at ¶ 48.) Dr. Obaisi treated the plaintiff once more prior to the
filing of the plaintiff’s complaint, on January 31, 2013. (Id. at ¶ 49.) Dr. Obaisi has continued to
treat the plaintiff for chronic epididymitis regularly since the filing of the complaint. (Id. at ¶ 50.)
Notwithstanding his two examinations by Dr. Sharifi in August and November 2008, in
his complaint the plaintiff alleged (among other things) that “Doctors Zhang, Ghosh, Carter and
Obaisi, and others . . . refused to examine, diagnose or have his testicle illness diagnosed by a
specialist or consultant.” (Pl.’s Compl., Dkt. No. 7, at ¶ 28.) Dr. Sharifi examined the plaintiff for
a third time in February 2013 pursuant to Dr. Obaisi’s December 2012 referral. (Sharifi Dep. at
32:10-12). As a result of this examination, Dr. Sharifi believed that excision of the small mass in
the plaintiff’s left testicle was indicated both to rule out cancer and as a possible means of
alleviating the plaintiff’s pain. (Id. at 33:16-34:9, 60:20-61:1.) Dr. Sharifi conducted a follow-up
examination on July 2, 2013, however, and concluded that surgery was no longer indicated to
7
The record does not reflect what was required for, or who was involved with, this
review of the plaintiff’s condition.
12
rule out cancer because he deemed the lack of growth in the mass to be inconsistent with
testicular cancer. (Id. at 43:15-44:3 and Sharifi Ex. 8.) 8 He opined, however, that a vasectomy
might alleviate some of the plaintiff’s pain by disconnecting a possible pathway of bacteria from
the urethra to the epididymis. (Id. at 50:9:13, 54:11:15). 9 Dr. Sharifi also opined that periodic
injections of Rocephin—an antibiotic that had previously been prescribed for the
plaintiff—could be a helpful treatment for the plaintiff’s bouts of epididymitis. (Wexford Defs.’
Stmt. at ¶ 62.) Based on what he knew of the other physicians’ treatment of the plaintiff, Dr.
Sharifi had no criticism of the treatment they had provided to the plaintiff. (Id. at ¶ 63.)
Dr. Sharifi’s testimony that a vasectomy might be indicated as a means of relieving the
plaintiff’s pain prompted the plaintiff’s counsel to file a motion for a preliminary injunction
requiring Wexford to arrange for a surgical consultation with Dr. Sharifi. (Dkt. No. 62.)
Ultimately, the defendants agreed to this consultation and, further, to abide by Dr. Sharifi’s
determination of whether surgery was indicated. (Dkt. No. 68.) When Dr. Sharifi examined the
8
Dr. Sharifi did not have the results of the October 2012 ultrasound during his two 2013
examinations of the plaintiff. During his deposition in February 2014, however, Dr. Sharifi
reviewed the October 2012 ultrasound results and concluded that the test confirmed that the mass
resulted from an enlarged epididymis (therefore non-cancerous) rather than a testicular growth
(which would have indicated a high likelihood of cancer) and that an MRI was not needed.
(Wexford Defs.’ Stmt. at ¶¶59-60; Sharifi Dep. at 19:3-21, 28:19-29:11.)
9
Although no such allegation is included in his complaint, the plaintiff testified in his
deposition that Dr. Sharifi told him years earlier (“in 2009”) that he needed surgery. (Pl.’s Dep.
at 210:12-15; “He told me that like in 2009.”). Somewhat inconsistently, the plaintiff represented
in response to written discovery that Dr. Sharifi had told him in February 2013 that he should
have had surgery three years earlier. (Dkt. 94-5 at Ex. 7.) Dr. Sharifi testified, however, that he
had never told the plaintiff that he should have surgery before February 2013 and had never
considered surgery to be indicated before that time. (Wexford Defs.’ Stmt. at ¶ 61; Sharifi Dep.
at 35:2-37:8.)
13
plaintiff in April 2014, however, he concluded that, in fact, surgery for the plaintiff was not
indicated. (Dkt. No. 73, at ¶ 6-8 and Exs. C and D thereto.) 10 This determination prompted the
plaintiff’s retained attorney to conclude that he could not in good faith press the plaintiff’s claims
further and counsel was permitted to withdraw. The Court subsequently recruited new counsel
for the plaintiff, who similarly sought and was granted leave to withdraw after reviewing the
discovery in the case. (See Dkt. Nos. 86, 108, 112,114.)
LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the non-moving party, reveals that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Smith v. Hope
School, 560 F.3d 694, 699 (7th Cir. 2009). A genuine issue of material fact exists when “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); Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the
record as a whole, in the light most favorable to the non-moving party, and draw all reasonable
inferences in favor of the non-moving party. Anderson, 477 U.S. at 255.
The parties seeking summary judgment have the initial burden of showing that there is no
genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Village
of Palatine, 605 F.3d 451, 460 (7th Cir. 2010). If the moving parties demonstrate the absence of
a disputed issue of material fact, “the burden shifts to the non-moving party to provide evidence
10
The paragraph that should be number 8 in this pleading is misnumbered as a second
paragraph “6.”
14
of specific facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012).
The non-movant must go beyond the pleadings and “set forth specific facts showing there is a
genuine issue for trial.” Hannemann v. Southern Door County School Dist., 673 F.3d 746, 751
(7th Cir. 2012). A genuine issue of material fact exists only if there is evidence sufficient “to
permit a jury to return a verdict for” the non-moving party. Egonmwan v. Cook County Sheriff’s
Dep’t, 602 F.3d 845, 849 (7th Cir. 2010).
The Eighth Amendment’s proscription against cruel and unusual punishment “safeguards
the prisoner against a lack of medical care that ‘may result in pain and suffering which no one
suggests would serve any penological purpose.’” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)
(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “Accordingly, ‘deliberate indifference to
serious medical needs’ of a prisoner constitutes the unnecessary and wanton infliction of pain
forbidden by the Constitution.” Roe, 631 F.3d at 857 (quoting Estelle, 429 U.S. at 104).
A deliberate indifference claim consists of both an objective and a subjective element.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). An inmate must be able to establish both: (1) he
suffered an objectively serious medical condition, and (2) defendants acted with deliberate
indifference to that condition. Id. As to the first prong, a condition is sufficiently serious if it “has
been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person
would perceive the need for a doctor’s attention.” Roe, 631 F.3d at 857 (quoting Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005)). As to the second prong, the plaintiff must prove that
the defendants acted with a “sufficiently culpable state of mind,” i.e., that they knew of a serious
risk to the inmate’s health, but disregarded it. Roe, 631 F.3d at 857 (quoting Greeno, 414 F.3d at
653); see also Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006). Something more than
15
negligence or medical malpractice is required. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)
(citing Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)).
Although a prisoner may demonstrate deliberate indifference through a showing that the
treatment he received was “blatantly inappropriate,” such a showing is difficult to make. Pyles,
771 F.3d at 409 (internal quotation omitted). “[A] medical professional is entitled to deference in
treatment decisions unless ‘no minimally competent professional would have so responded under
those circumstances.’” Id. (quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008)).
Disagreement between a prisoner and his doctors about the proper course of treatment is
insufficient, by itself, to establish an Eighth Amendment violation. Id. (citing Doughty, 433 F.3d at
1013). A doctor’s decision to pursue a particular course of treatment does not amount to deliberate
indifference unless it represents so significant a departure from accepted professional standards
that it calls into question whether the doctor actually was exercising his professional judgment.
Id. (citing Roe, 631 F.3d at 857).
ANALYSIS
The crux of the plaintiff’s complaint is that the defendants did not properly treat his
testicular condition, causing him to suffer unnecessary pain. While the Court is sympathetic to the
evident fact that the plaintiff suffers from a chronic and often painful condition, he has not shown
that any defendant was deliberately indifferent to his condition. To the contrary, the record
demonstrates that numerous medical professionals have attempted conscientiously to address the
plaintiff’s condition in a wide variety of ways. That course of treatment has been endorsed by Dr.
Sharifi, an independent and well-credentialed outside urological consultant. The only potential
treatment Dr. Sharifi identified that the defendants had not pursued is surgery, but even Dr. Sharifi
16
ultimately concluded that the plaintiff is not a candidate for surgery. Accordingly, there is no basis
to conclude that the treatment that the plaintiff has received for his testicular condition has been
inadequate, much less deliberately so. Therefore, it is appropriate to grant the defendants’ motions
for summary judgment.
As a preliminary point, the defendants concede for the purposes of their motion that the
plaintiff’s epididymitis constitutes a serious medical condition, and the Court will assume it to be
one as well. See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (a medical condition is
serious if the failure to treat it could result in further significant injury or the unnecessary infliction
of pain). A court examines the totality of an inmate’s medical care in determining whether prison
officials have been deliberately indifferent to a prisoner’s serious medical needs. Reed v. McBride,
178 F.3d 849, 855 (7th Cir. 1999).
Examining the totality of care in this case, the plaintiff has received regular and appropriate
treatment for his testicular condition (the record reflects some three dozen or more examinations
and reviews relating to this condition alone), including the provision of non-prescription and
prescription painkillers, the use of an assortment of antibiotics, scrotal support, multiple
ultrasounds, and multiple referrals to an outside specialist. These steps spanned the tenures of Drs.
Obaisi, Carter, and Ghosh as the Stateville medical directors. It is clear that the plaintiff is
frustrated by his chronic pain and is willing to try anything that might provide relief, but there is no
evidence of, or reason to believe, that there is a medically indicated course of treatment that the
defendants have unreasonably refused to provide. The only possible alternative treatment that is
even suggested by the record is surgery, but an independent outside specialist, Dr. Sharifi,
17
examined the plaintiff and determined that he was not a good candidate for surgery. 11
Further, even if another medical professional would have chosen a different course of
treatment, a difference of opinion between treaters would not amount to deliberate indifference.
See Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996). The Eighth Amendment does not provide
inmates with a right to specific care, or the best care possible. Arnett v. Webster, 658 F.3d 742,
754 (7th Cir. 2011). “There is not one ‘proper’ way to practice medicine in prison, but rather a
range of acceptable courses based on prevailing standards in the field.” Jackson v. Kotter, 541 F.3d
688, 697 (7th Cir. 2008). Dr. Sharifi recommended the same course of treatment (scrotal support,
antibiotics, and pain medication) that the defendant doctors have been prescribing, and it cannot be
credibly argued that this highly experienced professor of urology is not a “minimally competent”
professional. Dr. Sharifi’s opinions therefore doom the plaintiff’s claim; even were he to obtain a
medical opinion that surgery or some other course of treatment ought to have been pursued, the
plaintiff cannot, in light of Dr. Sharifi’s testimony and opinions, establish that “no minimally
competent” professional would have agreed with the course of treatment provided by the
defendants. The plaintiff has not demonstrated (and cannot) that any of the defendants’ treatment
11
As noted in a prior ruling of the Court, Dr. Sharifi is not, as the plaintiff has most
recently characterized him, the “defendant’s expert” and there is no basis to credit the plaintiff’s
unsupported charge that Dr. Sharifi “conspired” with the defendants to deny him medical care.
(See Dkt. No. 116.) Dr. Sharifi is no shill for the defendants; it was Dr. Sharifi’s initial
suggestion in February 2013 that surgery might be indicated that initially gave life to the
plaintiff’s efforts to obtain surgery. At that stage, the plaintiff described him as “plaintiff’s
consulting urologist.” (Dkt. No. 62, ¶¶ 1, 5.) The plaintiff was quite content to have Dr. Sharifi’s
determination govern the future course of his treatment—until that determination was
unfavorable to him. He has provided no basis to question the integrity of Dr. Sharifi’s medical
opinion regarding his condition, which is entirely consistent with the prior assessments of
defendants Ghosh and Obaisi.
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decisions fell below the accepted standard of care, much less amounted to deliberate indifference.
Further, in regard to Dr. Carter, the record reflects that Dr. Carter was not involved in the
treatment of the plaintiff’s epididymitis. Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, “to be liable under [Section] 1983, an individual
defendant must have caused or participated in a constitutional deprivation.” Pepper v. Village of
Oak Park, 430 F.3d 809, 810 (7th Cir.2005) (citations omitted). At best, and construing the record
in the light most favorable to the plaintiff, the plaintiff can establish that he told Dr. Carter that he
was experiencing testicular pain during a visit that was for the primary purpose of addressing a
different health issue. By his own description, however, the plaintiff was experiencing only “a
little pain.” There is no evidence that Dr. Carter was aware of, much less disregarded, a serious risk
to the plaintiff’s health. This is particularly true given the fact that during Dr. Carter’s tenure, the
plaintiff received treatment for his testicular problems from Dr. DuBrick. As did the defendant
doctors, Dr. DuBrick prescribed antibiotics and ordered laboratory testing to address the plaintiff’s
complaints. The plaintiff does not allege any inadequacies in the care provided by Dr. DuBrick,
who is not a party to this lawsuit.
In regard to Nurse Downs-Miller, the plaintiff cannot establish deliberate indifference
based on her assessment of a co-pay charge required by the institution. See Hightower v. Godinez,
524 Fed. App’x 294, 296 (7th Cir. 2013). As noted at the outset, the plaintiff failed to properly
dispute the defendants’ statement of facts as to Nurse Downs-Miller’s actions and, in any event,
while the plaintiff contended in his deposition testimony that Nurse Downs-Miller failed to
examine him, the undisputed medical evidence shows that the plaintiff was seen twice more by
nurses within an approximately 12-hour period following his encounter with Nurse Downs-Miller,
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so it is also plain that Downs-Miller did not significantly delay further treatment of the plaintiff. At
that time, the plaintiff received pain medication and an appointment with Dr. Obaisi was scheduled
for the next day. (See Pl.’s Medical Records, Dkt. No. 94-4, at 40-42.) In fact, after the plaintiff
stated that he was throwing up blood and that the pain pills he had received the night before had
made him sick, the nursing staff offered to allow the plaintiff to come to the Health Care Unit to
await his appointment with Dr. Obaisi. (Id. at 42.) The plaintiff declined. (Id.) In light of this
record, the plaintiff cannot show that he suffered any harm as a result of Nurse Downs-Millers’
actions or inactions. Therefore, she is entitled to summary judgment.
Finally, as to Defendant Wexford, the Court analyzes a Section 1983 claim against a
private corporation using the same principles applied to such claims against a municipality.
Brown v. Ghosh, No. 09 C 2542, 2010 U.S. Dist. LEXIS 103992, *25 (N.D. Ill. September 28,
2010) (citing Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009)). In
particular, there is no respondeat superior liability under Section 1983. Rodriguez, 577 F.3d at
822; see Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789-96 (7th Cir. 2014) (questioning this rule
in the context of private corporations, but noting that it remains the law). Rather, a private
corporation cannot be held liable under Section 1983 unless the constitutional violation was
caused by an unconstitutional custom or policy of the corporation itself. Shields, 746 F.3d at 789.
Such liability may be demonstrated directly through a showing that the policy itself is
unconstitutional, or indirectly by showing a series of bad acts on behalf of the corporation, thus
inviting the court to infer that the policymakers noticed misconduct and failed to act,
encouraging or condoning such misconduct. Estate of Novack v. County of Wood, 226 F.3d 525,
531 (7th Cir. 2000).
20
While the plaintiff alleged that Wexford’s cost-saving policies deprived him adequate care,
he has produced no evidence to this effect; indeed, as noted, the plaintiff was referred at least three
times to Dr. Sharifi, the outside specialist, who had no criticism of the course of treatment that the
Wexford staff had followed. Further, because the plaintiff has not established that any individual
defendant was deliberately indifferent to his serious medical needs, he cannot recover against
Wexford. See Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013) (holding that
where plaintiff had not established a constitutional problem with his treatment, he did not suffer an
actionable injury from the policy he attributed to the corporation).
CONCLUSION
For the foregoing reasons, the plaintiff’s “Affidavit Pursuant to Fed. R. Civ. P. 56(d),”
which the Court interprets as a motion for additional discovery pursuant to Fed. R. Civ. P. 56(d)
(Dkt. No. 125) is denied. The Wexford Defendants’ motion for summary judgment (Dkt. No. 95)
is granted, as is Dr. Carter’s motion for summary judgment (Dkt. No. 97). Final judgment will be
entered. If the plaintiff wishes to appeal, he must file a notice of appeal with this Court within
thirty days of the entry of judgment. See Fed. R. App. P. 4(a)(1). If the plaintiff appeals, he will
be liable for the $505.00 appellate filing fee regardless of the appeal’s outcome. See Evans v. Ill.
Dep’t of Corr., 150 F.3d 810, 812 (7th Cir. 1998). If the appeal is found to be non-meritorious,
the plaintiff could be assessed a “strike” under 28 U.S.C. § 1915(g). If a prisoner accumulates
three “strikes” because three federal cases or appeals have been dismissed as frivolous or
malicious, or for failure to state a claim, the prisoner may not file suit in federal court without
pre-paying the filing fee unless he is in imminent danger of serious physical injury. Ibid. If the
plaintiff seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to
21
proceed in forma pauperis in this Court. See Fed. R. App. P. 24(a)(1).
DATE: 1/12/2016
______________________
John J. Tharp, Jr.
United States District Judge
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