Montano v. Wexford Health Services Inc. et al

Filing 147

ORDER Signed by the Honorable John J. Tharp, Jr on 2/7/2018: For the reasons set forth in the Statement below, the defendants' motions for summaryjudgment 112 , 121 , 126 are granted. The Clerk is directed to enter final judgment for all d efendants, without costs. Any scheduled hearings are stricken and any pending motions are denied as moot. Absent a basis for extension, if Montano wishes to appeal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(1). If Montano seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to do so in this Court as well. Fed. R. App. P. 24(a)(1). Civil case terminated. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AURELIO MONTANO,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC., SALEH OBAISI, M.D., JASON
DUNN, O.D., MICHAEL LEMKE,
MICHAEL MAGANA, and TARRY
WILLIAMS,
Defendants.

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No. 14 C 2416
Judge John J. Tharp, Jr.

ORDER
For the reasons set forth in the Statement below, the defendants’ motions for summary
judgment [112], [121], [126] are granted. The Clerk is directed to enter final judgment for all
defendants, without costs. Any scheduled hearings are stricken and any pending motions are
denied as moot. Absent a basis for extension, if Montano wishes to appeal, he must file a notice
of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(1). If
Montano seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to
do so in this Court as well. Fed. R. App. P. 24(a)(1). Civil case terminated.
STATEMENT
Aurelio Montano, an inmate at Stateville Correctional Center (“Stateville”), has been
experiencing pain in his eyes and spells of temporary blindness for the past several years. He has
sued two doctors, Dr. Jason Dunn, an optometrist, and Dr. Salah Obaisi, Stateville’s former
medical director, as well as Wexford Health Sources, Inc. (“Wexford”) and several former
Illinois Department of Corrections (“IDOC”) officials, for deliberate indifference to his vision
problems in violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983. The defendants
move for summary judgment on Montano’s claim for deliberate indifference, which is the only
count in his second amended complaint. Because no reasonable jury could find—after Montano
has been examined by Dr. Dunn on five occasions, by Dr. Obaisi on at least 12 different
occasions, by two other optometrists at Stateville, by two different neurologists from the
University of Illinois at Chicago Medical Center (“UIC”), by three different ophthalmologists at
outside eye clinics, by a neuro-ophthalmologist on two different occasions, by a psychiatrist, and
having undergone multiple MRI scans, an ultrasound of his carotid artery, myriad vision tests,
and other diagnostic exams—that Dr. Dunn or Dr. Obaisi were indifferent to Montano’s
condition, or that there is any basis to extend liability to Wexford or the State of Illinois, the
Court grants summary judgment for all defendants.

BACKGROUND
A.

Northern District of Illinois Local Rule 56.1

Courts in this district determine whether to grant or deny summary judgment based on the
facts set forth in the parties’ Local Rule 56.1 statements. Under the rules set forth by the
Northern District of Illinois, “a party filing a motion for summary judgment . . . must serve and
file ‘a statement of material facts as to which the moving party contends there is no genuine issue
and that entitle the moving party to a judgment as a matter of law.’” Judson Atkinson Candies,
Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (quoting N.D. Ill. R.
56.1(a)(3)). The opposing party then 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 upon.’” Cracco v.
Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (quoting N.D. Ill. R. 56.1(b)(3)(B)). The
response also may include a separate statement of additional facts that the opposing party
believes “require[s] the denial of summary judgment,” to which the moving party must respond.
N.D. Ill. R. 56(b)(3)(C); see Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008).
However, if the opposing party’s response “fails to dispute the facts set forth in the moving
party’s statement in the manner dictated by [Local Rule 56.1], those facts are deemed admitted
for purposes of the motion” for summary judgment. Cracco, 559 F.3d at 632; accord N.D. Ill. R.
56(b)(3)(C).
The defendants all filed Rule 56.1 statements of material fact with their motions for
summary judgment. (ECF Nos. 114, 122, 128.) For the most part, the facts asserted in those
statements are supported by materials in the record. Moreover, consistent with Local Rule 56.2,
the defendants provided Montano with notices that explain what is required of him to oppose
summary judgment. (ECF Nos. 111, 124, 129.) Montano responded to those submissions by
filing only a collection of affidavits from other Stateville inmates, (ECF No. 132); he did not
otherwise file a response to any of the defendants’ Rule 56.1 statements or provide an additional
statement of facts. Montano’s response therefore does not comply with Local Rule 56.1(b)(3)
and the Court accepts as true the facts set forth in the Defendants’ Rule 56.1 statements. See,
e.g., Olivet Baptist Church v. Church Mut. Ins. Co., 672 F. App’x 607, 607 (7th Cir. 2017) (“The
district court treated most of the [defendant’s] factual submissions as unopposed, because the
[plaintiff] failed to contest them in the form required by Local Rule 56.1(b). We have held that
the district court is entitled to enforce that rule in precisely the way it enforced the rule in this
litigation.”) (citations omitted); Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015)
(stating that the Seventh Circuit “has consistently upheld district judges’ discretion to require
strict compliance with Local Rule 56.1” in affirming district court’s decision to deem 42 of 47
paragraphs in defendants’ Rule 56.1 statement admitted) (citations omitted).
Montano’s status as a pro se litigant at the time of summary judgment does not excuse
him from complying with Local Rule 56.1. See Milton v. Slota, 697 F. App’x 462, 464 (7th Cir.
2017) (“[T]he court was entitled to strictly enforce the local rule, even against a pro se litigant,
by deeming uncontroverted statements of material fact admitted for purposes of deciding
summary judgment.”); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (stating that “the
Supreme Court has made clear that even pro se litigants must follow rules of civil procedure” in
finding that district court did not abuse discretion in adopting defendants’ statement of facts

2

where pro se plaintiff failed to comply with Local Rule 56.1) (citing McNeil v. United States,
508 U.S. 106, 113 (1993)). And to be clear, although he is now proceeding pro se, Montano had
been represented earlier in this litigation. The Court twice recruited counsel to represent
Montano. (Orders, ECF Nos. 4, 79.) Both attorneys, however, were permitted to withdraw after
reporting to the Court that they could not proceed due to their assessment of the viability of
Montano’s claim. (Orders, ECF Nos. 75, 94.) After the second attorney withdrew, the Court
declined to recruit additional counsel for Montano. (Orders, ECF Nos. 105, 136.) Nevertheless,
because Montano is pro se at this juncture, the Court has considered a number of other materials
in an effort to determine whether there could be a material issue of disputed fact for trial,
including: any statements in the second amended complaint to which Montano could attest, the
exhibits attached to the second amended complaint, the affidavits Montano filed as part of
summary judgment, and Montano’s deposition testimony. See Boykin v. Dart, No. 12 C 4447,
2014 WL 5611466, at *6 (N.D. Ill. Nov. 4, 2014) (discussing how district courts often afford pro
se plaintiffs “significant leeway in responding to summary judgment filings”). But to the extent
that Montano has failed to contradict facts set forth in the defendants’ Rule 56.1 statements,
those facts are deemed to be admitted.
B.

Facts

Montano is an IDOC inmate who has been incarcerated at Stateville since 1998. (SOF
¶ 1.) 1 On October 15, 2012, he was examined by Dr. Dunn, an optometrist at Stateville. (Id. ¶ 8.)
Dr. Dunn identified Montano as being near- and farsighted, noted that Montano had “ocular
allegories,” and ordered Montano new eyeglass lenses and eye drops. (Id. ¶¶ 8, 55, Ex. C at 1.)
Montano did not complain of any vision problems during this visit. (Id. ¶ 56.)
In late December 2012, however, Montano claims that he began to experience issues with
his eyes after having been placed in segregation in a cell that, he says, was “condemned.”
(Montano Dep. 19:15-21:14, 66:16-67:17, ECF No. 114-1.) In a grievance dated February 2,
2013, Montano complained that after being placed in that cell, his “eyes began to swell badly and
run – leak constantly,” and became so painful and irritated that he could not see “a foot in front
of [him].” (Second Am. Compl. ¶ 18, Ex. A.) Montano asked to be compensated for his time in
the cell (a total of 21 days) and “to be adequately treated for his eye condition.” (Id., Ex. A at 1.)
His grievance was denied by a counselor ten days later on the basis that Montano’s cell had not
been condemned and that his claims otherwise were “[n]ot substantiated.” (Id.) There is no
evidence that any of the defendants were aware of this grievance.
In April 2013, Montano filed three more grievances (including letters addressed to thenWarden Michael Lemke) stating that he had been attempting to see the prison eye doctor, and
that he feared he would go permanently blind if he was not treated. (Id., Exs. B-G.) In his
grievance dated April 17, 2013, Montano noted that his requests were an emergency as he
understood that the Stateville eye doctor was available only eight hours per week and that there
was a six to eight month wait for an appointment. (Id., Ex. D at 1-2.) On May 10, 2013, Montano
1

The defendants filed three separate statements of fact; however, the latter two
statements adopt and incorporate all of the facts asserted in the prior statements, and number
their paragraphs consecutively with the prior statements. (ECF No. 114, 122, 128.) Accordingly,
the Court cites to all three statements collectively as “SOF.”

3

wrote another emergency grievance requesting to see an eye doctor. (Id., Ex. H at 1.) He noted
here that in addition to submitting several other grievances and letters to the warden, he had
alerted the Stateville health care unit and wrote to the eye doctor about his condition. (Id. at 2.)
Warden Lemke reviewed this grievance on May 23, 2013 and determined that it was not an
emergency. (Id. at 1.)
Nevertheless, Montano was seen again by Dr. Dunn about two months later, on June 27,
2013. (SOF ¶¶ 9, 57.) Montano reported during this examination that “for several hours at a
time,” his “vision goes out completely;” that is, he was unable to see out of either eye. (Id., Ex. C
at 3.) Dr. Dunn found “no objective evidence to substantiate” Montano’s symptoms. (Id. ¶¶ 9,
58.) However, he wrote that Montano may need a neurological consultation. (Id. ¶ 59, Ex. C at
3.) He also provided Montano with eye drops and artificial tears. (Second Am. Compl. ¶ 25.) The
following week, on July 3, 2013, Dr. Obaisi, the then-Medical Director of Stateville, ordered an
MRI of Montano’s brain. (Id., Ex. K; SOF ¶ 2.) That request was approved by Wexford two
weeks later on July 16, 2013. (Second Am. Compl., Ex. L.) Dr. Obaisi then examined Montano
on July 29, 2013 in connection with his complaints of vision loss. (SOF ¶ 10.) During this
examination, Montano did not complain of any pain in his eyes; nonetheless, Dr. Obaisi provided
him with a one-year medical permit for a low bunk and low gallery. (Id.)
On August 7, 2013, Wexford Health’s Utilization Management sent a fax to the Stateville
Medical Director stating that it recently had received a referral from “optometry” (which
optometrist is unclear) on Montano’s behalf for a neurological consultation. (Second Am.
Compl., Ex. M.) The purpose of the referral, which had been approved, was to address “blind
spells” and rule out the possibility of a pituitary tumor. (Id.) Later that month, Montano visited
the Stateville health care unit with continued complaints of head and eye pain. (Id. ¶ 30.) The
nurses who treated Montano provided him with eye drops and artificial tears. (Id.)
Montano was seen again by Dr. Dunn on September 14, 2013. (SOF ¶ 11.) During this
examination, Montano reported issues with headaches, irritation, and “sudden loss of vision,”
and asked about a “possible referral.” (Id., Ex. C at 7.) Dr. Dunn again found “no objective
evidence to support [Montano’s] ongoing complaints of sudden loss of vision.” (Id. ¶ 62.) He
informed Montano that his “ocular findings were normal” and that his headaches “do not appear
to be associated with his eyes.” (Id. ¶ 11, 63.) He also told Montano that there “could be a carotid
issue,” but that it was up to Dr. Obaisi to approve further testing or examination outside the
prison. (Id. ¶ 64, Ex C. at 7.)
Shortly after that examination, on September 22, 2013, Montano filed a grievance stating
that he has been “refused proper medical treatment” for his eyes and that his vision was getting
worse as he could “barely see out [of his] eyes.” (Second Am. Compl., Ex. P at 1.) Montano
further grieved that he had been given only eye drops to treat his pain, which were not working,
and that he requested to be seen by an “outside doctor.” (Id.) Montano filed two more grievances
to the same effect in November 2013. (Id., Exs. Q-R.)
On December 10, 2013, Montano was sent to Presence St. Joseph Medical Center
(“Presence”) to undergo the brain MRI that Dr. Obaisi had ordered. (SOF ¶ 12.) The reviewing
radiologist noted that the MRI results were “normal.” (Id.) Over the next few months, Montano
visited the Stateville health care unit multiple times complaining of eye pain and asking to

4

receive the results of his MRI. Montano again was provided with eye drops and artificial tears
and was told that Dr. Obaisi would discuss his MRI results with him. (Second Am. Compl.
¶¶ 38-41, Ex. T.) On March 4, 2014, Dr. Obaisi met with Montano and informed him that his
MRI results had not revealed any issues. (SOF ¶ 13.) Moreover, although there still were no
clinical findings to support Montano’s complaints, Dr. Obaisi referred him for outside neurology
and ophthalmology evaluations. (Id.)
Three weeks later, on March 27, 2014, Dr. Dunn examined Montano again. (Id. ¶ 14.)
Montano continued to report sudden losses in vision and asked to be referred to a neuroophthalmologist. (Id. ¶¶ 65-66.) Dr. Dunn again found Montano to be near- and farsighted and
did not identify any objective evidence to support Montano’s complaints of vision loss. (Id.
¶¶ 14, 67.) Dr. Dunn informed Montano that he had been approved for a neuro-ophthalmology
consultation and that there was nothing more he could do. (Id. ¶¶ 68-69.)
In early April 2014, Montano was sent to the Stateville infirmary after reporting he had
temporarily lost sight in both of his eyes. (Second Am. Compl. ¶ 44; Irving and Stackhouse
Affs., ECF No. 132.) He stayed in the infirmary for observation for approximately four days.
(Second Am. Compl. ¶ 44.) Following his time in the infirmary, Montano filed several new
grievances requesting to see outside specialists to obtain a diagnosis of his symptoms. (Id., Exs.
W-X, Z, AA.) On April 17, 2014, Montano was approved by Wexford to see an outside
ophthalmologist. (Id., Ex. Y.)
The following month, Montano was seen by both a neurologist and an ophthalmologist.
He first was examined on May 7, 2014 by Dr. Rebbeca Gryziewicz, a neurologist at UIC. (SOF
¶ 15.) Dr. Gryziewicz’s observed that Montano had “poor visual acuity,” but that he had “no
tenderness” in his temples and that the rest of his test results were “wnl [within normal limits].”
(Id. ¶ 15, Ex. C at 18.) She further noted that the cause of Montano’s vision issue was “unclear.”
(Id. ¶ 15.) On May 12, 2014, Montano was examined by Dr. Alen Hein, an ophthalmologist at
the Aurora Eye Clinic. (Id. ¶ 16.) Dr. Hein reported “[n]o ocular problems” and that Montano’s
eye and vision examination was “[n]ormal.” (Id., Ex. C at 21.) A week later, on May 19, 2014,
Dr. Obaisi met with Montano and explained to him that neither specialist found any “anatomical
deficit in [his] eyes.” (Id. ¶ 17.) Dr. Obaisi then prescribed Montano a medication used to treat
high blood pressure, as he suspected Montano’s vision problems could be related to an issue with
his carotid artery. (Id.) Shortly after this appointment, Montano filed another grievance
requesting additional treatment. (Second Am. Compl. Ex. FF.)
Montano continued to be monitored over the next several months. In June 2014, Dr.
Obaisi met with him for a follow-up examination, during which Montano reported no change in
vision. (SOF, Ex. C at 28.) On August 21, 2014, however, Montano experienced another episode
of temporary blindness. (Second Am. Compl. ¶ 58.) He was seen by Dr. Obaisi later that day and
was admitted to the health care unit for another four days of observation. (Id.; SOF, Ex. C at 31.)
Dr. Obaisi saw Montano again on August 28, 2014, at which time he extended Montano’s
medical permits for a low bunk and low gallery, and provided Montano with eye drops and
Motrin for pain relief. (SOF ¶ 18, Ex. C at 32.) On September 5, 2014, Dr. Dunn examined
Montano again, and again found no physiological evidence to support Montano’s claims. (Id.

5

¶¶ 20, 70-72.) 2 Montano then met with Dr. Obaisi for follow-up appointments in November 2014
and January 2015. (Id. ¶ 18.) Dr. Obaisi noted during these visits that Montano’s test results had
been within normal limits. (Id., Ex. C at 34-35.)
In 2015, Montano was seen by several other doctors and underwent additional testing. In
July, he was examined by a new Stateville optometrist, Dr. George Nista, who noted that
Montano was waiting for test results from UIC. (Id. ¶ 20, Ex. C at 36.) On August 10, 2015,
Montano was sent to UIC for a neurological evaluation with Dr. Nicolas Martin. (Id. ¶ 21.) He
reported to Dr. Martin that he had completely lost vision in his left eye six to eight months prior
and that he continued to have burning in his eyes. (Id., Ex. C. at 37-38.) Dr. Martin, however,
found that Montano appeared to have some “element of [left] eye vision preserved as evidence
by +OKN [positive optokinetic]” test results. (Id. ¶ 21, Ex. C at 38.) Dr. Martin also wrote that
he was unable to determine the etiology of Montano’s symptoms and recommended further
testing and evaluation. (Id. ¶ 21.) The next day, Montano underwent an ultrasound of his carotid
arteries. (Id. ¶ 22.) The test showed “[n]o elevated flow velocities to indicate flow-limiting
stenosis.” (Id.) In September and October 2015, Montano went back to UIC for a visual field test
and an examination with Dr. Eric Feinstein, an ophthalmologist. (Id. ¶¶ 24-25). Dr. Feinstein
reported that Montano’s eyes “appear healthy” and that there was “no clear etiology” for his
symptoms. (Id. ¶ 25.) He did, however, rule out a pituitary tumor as an explanation for
Montano’s symptoms. (Id.)
Montano next underwent testing with Dr. Peter MacIntosh, a neuro-ophthalmologist at
UIC. During Dr. MacIntosh’s first examination, on November 18, 2015, Montano reported that
he could not perceive light in either eye. (Id. ¶ 26.) However, later in the day, Montano
responded to light sensitivity tests and was able to follow his image in a mirror held in front of
him. (Id.) Dr. MacIntosh noted that he could not be sure of the cause of Montano’s vision loss,
but suggested conversion as a possible diagnosis, which is a mental condition in which the
patient experiences blindness that cannot be explained by medical evaluation. (Id. ¶¶ 26-27.) He
also recommended that Montano undergo an MRI of his digital orbits, and that procedure took
place on December 22, 2015. (Id. ¶¶ 26, 29.) Following that MRI, which was noted as being
“[u]nremarkable,” Dr. MacIntosh saw Montano again on February 19, 2016. (Id. ¶¶ 29, 31.)
Following this examination, Dr. MacIntosh reported that he still could not determine the cause of
Montano’s vision problems, noted that Montano’s test results were “normal . . . except for visual
acuity and fields which fluctuate wildly from visit to visit and even within the same visit,” and
referred Montano to a psychiatrist. (Id. ¶ 31.)
In March 2016, Dr. Obaisi met with Montano to discuss Dr. MacIntosh’s findings and
recommendations, and referred Montano for a psychiatric consultation. (Id. ¶¶ 32-33.) Montano
subsequently met with a psychiatrist at Stateville; however, that evaluation did not reveal any
new results. (Montano Dep. 50:13-51:17.) In May 2016, Montano received an optometry
examination at Stateville from Dr. Krystel Miller. (SOF ¶ 34.) Montano continued to report
vision issues and burning in his eyes, but denied any history of trauma. (Id., Ex. C at 67.) Dr.
Miller referred Montano to UIC for further testing. (Id.)
2

This was Dr. Dunn’s final examination of Montano; Dr. Dunn stopped providing
optometric services to inmates at Stateville in November 2014. (SOF ¶ 73.)

6

In August 2016, Dr. Obaisi met with Montano for a follow-up examination and informed
him that he had been approved for another ophthalmology evaluation at UIC. (Id. ¶ 35.) Dr.
Obaisi noted, however, that he was waiting for UIC to provide dates for an appointment. (Id.) On
October 22, 2016, Montano was examined by Dr. Mark Dikopft, an ophthalmologist at UIC. (Id.
¶¶ 35-36.) Dr. Dikopf reported that he was unable to find “evidence of a pathology” and
suggested that Montano obtain a psychiatric evaluation. (Id. ¶ 36, Ex. C at 69.) Montano then
met with Dr. Obaisi for two more follow-up visits, one in October and one in November 2016.
(Id. ¶ 37.) As of June 2017, the date of Montano’s deposition, no physician had diagnosed the
problems Montano claimed with his eyes or vision. (See id. ¶ 38.) Nor has any physician
informed Montano that his vision could have been better preserved had he been referred outside
of Stateville sooner. (Id. ¶ 39.)
C.

Procedural Posture

Montano filed a one-count complaint alleging that Dr. Dunn, 3 Dr. Obaisi, 4 Wexford, and
three former Stateville wardens, Michael Lemke, Michael Magana, and Tarry Williams, have
been deliberately indifferent to his ocular problems. Following discovery, all of the defendants
moved for summary judgment. Dr. Obaisi and Wexford argue that Montano has not shown that
he suffers from a serious medical condition and that, even if he does, he was provided with a
comprehensive course of treatment that cannot establish indifference. (Wexford and Obaisi Mot.
for Summ. J. 7-13, ECF No. 113.) Dr. Dunn similarly argues that Montano cannot establish the
elements of his claim as there is no objective medical evidence to support his complaints of
vision loss. (Dunn Mot. for Summ. J. 5-6, ECF No. 123.) Finally, the former Stateville wardens
point out that they have been sued only in their official capacities for injunctive relief and that
Montano has already received the care he requests in his complaint. (Williams, Magana, and
Lemke’s Mot. for Summ. J. 4-5, ECF No. 127.) Having reviewed the parties’ submissions, the
Court grants summary judgment in their favor of all defendants on Montano’s claim.

3

Dr. Dunn was sued in both his individual and official capacities. Although Dr. Dunn
does not discuss his official capacity claim in his motion for summary judgment, he has moved
to dismiss it under Rule 12(b)(6), arguing that it is barred under the Eleventh Amendment. (Def.
Dunn Mot. to Dismiss Pl. Second Am. Compl. 10, ECF No. 98.) Dr. Dunn does not clarify in his
motion whether he was an employee of the State of Illinois or Wexford at the time he treated
Montano. But in either case, his official-capacity claim is duplicative of other claims asserted. If,
as seems most likely, Dr. Dunn was an employee of Wexford, the claim is subject to dismissal as
duplicate of the claim asserted against Wexford. (See Order, ECF No. 47 (dismissing official
capacity claim against Dr. Obaisi on same basis).) If, on the other hand, he was a state employee,
then the claim is the same as the one asserted against the IDOC Defendants, who were sued only
in their official capacities. In short, the official capacity claim against Dr. Dunn adds nothing to
Montano’s complaint.
4

The Court understands that Dr. Obaisi recently passed away. However, because no one
in this suit has filed a notice of death or sought leave to substitute another party in place of Dr.
Obaisi pursuant to Federal Rule of Civil Procedure 25, the Court will analyze Montano’s
deliberate-indifference claim against Dr. Obaisi. If, for some reason, a motion for substitution is
filed after this order is entered, the Court will consider the motion at that time.

7

ANALYSIS
Summary judgment is appropriate only if the defendants show that there is “no genuine
dispute as to any material fact and [that they are] entitled to judgment as a matter of law.” EEOC
v. CVS Pharmacy, Inc., 809 F.3d 335, 339 (7th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). A
genuine dispute as to a material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Kvapil v. Chippewa County, 752 F.3d 708, 712 (7th
Cir. 2014). When considering a motion for summary judgment, the Court construes “all facts and
makes all reasonable inferences in favor of the non-moving party.” Jajeh v. County of Cook, 678
F.3d 560, 566 (7th Cir. 2012). “[D]istrict courts presiding over summary judgment proceedings
may not weigh conflicting evidence . . . or make credibility determinations.” Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (internal quotation marks and
citations omitted). Rather, the Court's role is “to determine whether there is a genuine issue for
trial.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (citation omitted).
A.

Medical Defendants

“[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eight Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (internal citation omitted). “To prevail on a deliberateindifference claim, the plaintiff must prove that he suffered from (1) an objectively serious
medical condition to which (2) a state official was deliberately indifferent, that is, subjectively,
indifferent.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016)
(quotation marks and citation omitted). “The burden is on the prisoner to demonstrate that prison
officials violated the Eighth Amendment, and that burden is a heavy one.” Pyles v. Fahim, 771
F.3d 403, 408-09 (7th Cir. 2014) (citing Whitley v Albers, 475 U.S. 312, 325 (1986)).
The defendants maintain that Montano is not suffering from a serious medical condition
because Montano can point to no diagnosis explaining his eye problems. (Obaisi and Wexford
Mot. Summ. J. 8-9.) They argue that despite the numerous examinations and tests that Montano
has undergone—administered by myriad healthcare professionals (some employed by Wexford,
others independent)—no one has been able to identify a physiological problem that accounts for
Montano’s complaints concerning his eyesight. At most, they argue, Montano suffers from a
psychiatric issue and he already has been referred for psychiatric treatment. But whatever the
cause may be, Montano’s complaints and symptoms have been continual and, at least at times,
debilitating. And just because medical professionals have not been able to identify or explain a
serious medical condition does not eliminate the possibility that there is one. See Pyles, 771 F.3d
at 409 (stating that a medical condition is objectively serious if either “a physician has diagnosed
it as requiring treatment, or the need for treatment would be obvious to a layperson”) (emphasis
added) (citation omitted). Thus, although there is a dispute about whether Montano is, in fact,
suffering from a serious medical condition, the Court will assume he is for purposes of summary
judgment and address only the second element of Montano’s claim: deliberate indifference.
“A prison official is deliberately indifferent only if he ‘knows of and disregards an
excessive risk to inmate health and safety.’” Whiting, 839 F.3d at 662 (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). “The state-of-mind element is measured subjectively: The
defendant must know of facts from which he could infer that a substantial risk of serious harm

8

exists, and he must actually draw the inference.” Id. (citations omitted). This standard requires
more than mere negligence or even medical malpractice, “and it approaches intentional
wrongdoing.” Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); see also
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (“[N]either medical malpractice nor a mere
disagreement with a doctor’s medical judgment amounts to deliberate indifference . . . .”)
(citations omitted). Yet, summary judgment is improper where there is evidence that “the
defendants knew better than to make the medical decisions that they did.” Petties v. Carter, 836
F.3d 722, 730-31 (7th Cir. 2016) (en banc). Thus, an inmate may proceed to trial if he has proof
that the defendants provided him with “blatantly inappropriate” treatment, ignored the
recommendation of specialists, or needlessly delayed his treatment (which increased his pain).
Stewart v. Wall, 688 F. App’x 390, 392 (7th Cir. 2017); Perez v. Fenoglio, 792 F.3d 768, 777
(7th Cir. 2015).
With these principles in mind, the Court considers whether Dr. Dunn and/or Dr. Obaisi
(the “Medical Defendants”) were deliberately indifferent to Montano’s vision issues. Montano’s
claim against these doctors appears to be threefold: (1) they delayed in providing him treatment,
(2) failed to accurately diagnosis his condition, and (3) denied him access to certain specialists
and testing. (Second Am. Compl. ¶ 77; Pl. Supp. Argument 1-2, ECF No. 135.)
1.

Delays in Treatment

The Court turns first to the issue of delay. Although Montano fails to explain what delays
in treatment he believes were unconstitutional, the Court nevertheless will examine three that
Montano focuses on in his complaint. The first period of delay concerns when Montano initially
was treated for his eye pain and temporary blindness. Montano reported experiencing these
issues sometime after December 19, 2012, but was not examined for this complaint until Dr.
Dunn saw him in June 2013. Despite the length, this delay does not give rise to an Eighth
Amendment violation against the Medical Defendants. For starters, there is no evidence that a
four-month wait 5 to see the prison optometrist is out of the ordinary or that Montano’s symptoms
warranted more immediate attention. See Petties, 836 F.3d 722 (“[D]elays are common in the
prison setting with limited resources, and whether the length of a delay is tolerable depends on
the seriousness of the condition and the ease of providing treatment.”). To be sure, an inmate’s
subjective complaints that he is going blind would seem to warrant prompt attention; however, in
this case, there is no medical evidence that corroborates Montano’s claim of eye pain or that he
was experiencing hour-long spells of blindness at the time. Indeed, when Montano was finally
examined in June 2013, Dr. Dunn found nothing to support Montano’s complaints. Nor has any
other medical professional since then.
Furthermore, Montano has not presented any evidence that the Medical Defendants
actually knew about the initial period of delay. 6 See Harvey v. Ghosh, No. 11 C 6716, 2015 WL
5

Although he says his eye problems began in December 2012, Montano did not file a
grievance complaining about his eyes until February 2013 and was examined by Dr. Dunn in
June of that year.
6

Although Montano indicated in a grievance dated May 10, 2013 that he “wrote to the
eye doctor” about his condition, this statement cannot be used to establish Dr. Dunn’s
9

8329876, at *5 (N.D. Ill. Dec. 9, 2015) (finding that even though 218-day delay in inmate
receiving x-ray was “extraordinary,” doctor could not be liable for indifference because he was
not aware of delay); Poff v. Schettle, No. 15-CV-954-JPS, 2017 WL 2728430, at *7 (E.D. Wis.
June 23, 2017) (finding dental staff could not have been deliberately indifferent for five-day
delay in treatment because they did not know of plaintiff’s condition beforehand). On the
contrary, Dr. Dunn testified that Montano did not report any vision problems to him until June
27, 2013. Dr. Obaisi similarly testified that the first time he examined Montano for eye pain and
vision issues was on July 29, 2013, and that he did not see Montano’s written requests for
medical attention before then.
The second and third delays relate to the scheduling of Montano’s initial MRI and first
neurological consultation. Montano was approved for an MRI in July 2013 and referred to a
neurologist sometime between late June and early August 2013, but Montano did not undergo
the MRI until December 2013 and did not see the neurologist until May 2014. Yet, there is
simply no basis to infer deliberate indifference from the fact that scheduling consultations with
outside experts required significant lead time. In particular, Montano has not shown that the
Medical Defendants had any control over when the MRI (which took place at Presence) or the
neurological consultation (which occurred at UIC) were scheduled. See Stewart, 688 F. App’x at
394 (affirming summary judgment for defendants where inmate failed to argue or present
evidence that the defendants had control over the delays in providing medical supplies at issue). 7
Nor does the record indicate that the delay was due to inaction on the part of the Medical
Defendants. Dr. Dunn appears to have recommended the neurological consultation shortly after
he examined Montano on June 27, 2013, and that request was approved by Wexford in early
August 2013. Moreover, Dr. Obaisi ordered Montano’s MRI on July 3, 2013—a week after Dr.
Dunn’s examination—and his request was approved by Wexford two weeks later, on July 16,
2013. Therefore, Montano cannot base his deliberate indifference claim against the Medical
Defendants on the delays in actually obtaining this treatment.

knowledge. (Second Am. Compl., Ex. H at 2.) As an initial matter, that unattested statement, as
written, is hearsay that cannot be used to establish that Montano did, in fact, send Dr. Dunn a
letter about his condition. See Fed. R. Evid. 801-02. But even if Montano had attested to sending
Dr. Dunn a letter (assuming the eye doctor referenced is Dr. Dunn), that testimony would not
establish that Dr. Dunn received the letter, let alone when. And in any event, even if Dr. Dunn
received the letter in mid-May, he saw Montano again only about a month later.
7

Montano also fails to demonstrate that any the delays in treatment “exacerbated [his]
injury or unnecessarily prolonged [his] pain.” Petties, 836 F.3d at 731. While Montano believes
that his visual acuity and eye pain became worse due to the delay, he has not “place[d] verifying
medical evidence in the record to establish” a connection between any delay and his worsen
symptoms. Lloyd v. Moats, No. 16-3939, 2017 WL 6728519, at *3 (7th Cir. Dec. 29, 2017)
(quoting Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)). To the contrary, the evidence
of record demonstrates that there has never been any physiological explanation for Montano’s
complaints about his vision and that his condition has not changed over time.

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2.

Lack of Clinical Diagnosis

Nor can Montano establish that the Medical Defendants violated the Eighth Amendment
by failing to diagnosis his symptoms or prevent his loss of vision. Even where a defendant
recognizes a substantial risk of harm to an inmate, “he is free from liability if he ‘responded
reasonably to the risk, even if the harm ultimately was not averted.’” Gayton v. McCoy, 593 F.3d
610 (7th Cir. 2010) (quoting Farmer, 511 U.S. at 843). Here, the record shows that Medical
Defendants responded reasonably to Montano’s ocular problems. Dr. Dunn examined Montano’s
eyes four times between June 2013 and September 2014. During that time period, he found no
objective evidence to support Montano’s symptoms. Nonetheless, he recommended that
Montano be seen by a neurologist to evaluate his head and eye pain more thoroughly, and later
suggested that Montano undergo testing to rule out an issue with his carotid artery. On several
occasions, Dr. Dunn also provided Montano with eye drops to treat his pain.
Dr. Obaisi’s treatment of Montano was even more extensive. Starting in July 2013, he
ordered Montano to undergo a battery of tests, including several MRIs and an ultrasound, and
referred him to a litany of specialists, including ophthalmologists and neurologists. Although
Montano continuously complained to Dr. Obaisi and others that he was in pain and that his
vision was getting progressively worse (to the point he lost vision in one eye), the tests results
were all consistently normal and the specialists reported that Montano’s eyes appeared to be
healthy or within normal limits. Despite these findings, Dr. Obaisi continued to evaluate and
monitor Montano through at least November 2016. Moreover, during his visits with Montano,
Dr. Obaisi discussed recent test results as well as the findings and recommendations of
specialists, and also ordered eye drops and other medication to alleviate Montano’s eye pain.
At bottom, the Medical Defendants provided Montano with a continuous course of care
that sought to determine the cause of his blindness and address his eye pain. Although the
defendants were ultimately unsuccessful in their efforts to identify and resolve the cause of
Montano’s eye problems, it was not for lack of trying, and there is no evidence that the treatment
they pursued was a departure from professional standards, let alone constitutionally inadequate.
See Lloyd, 2017 WL 6728519, at *3 (emphasizing record “of continuous care” in finding no
deliberate indifference); Proctor v. Sood, 863 F.3d 563, 567-68 (7th Cir. 2017) (concluding that
doctors were not subjectively indifferent to inmate’s abdominal pain and colon spasms where
they performed extensive testing, but the results were consistently normal); Holloway, 700 F.3d
at 1073 (affirming summary judgment for doctor where inmate provided no evidence that doctor
knew medication would be insufficient to alleviate symptoms or that failure to prescribe other
medication was departure of professional standards). This kind of “meaningful and ongoing
assessment of a patient's condition is the antithesis of ‘deliberate indifference.’” McGee v.
Adams, 721 F.3d 474, 482 (7th Cir. 2013). In view of these efforts, a reasonable jury could not
find that the Medical Defendants acted with deliberate indifference based on the fact that no one
has yet identified a cause for Montano’s symptoms or been able to stem his vision loss.
3.

Failing to Authorize Certain Tests and Referrals

Montano also claims that the Medical Defendants were deliberately indifferent due to
their failure to order certain tests and refer him to certain types of specialists. In particular, he
argues in his response that he should have should sent to a neuropsychologist to assess issues

11

relating to traumatic brain injury. (Pl. Supp. Argument, 1-2.) But Montano was sent on outside
consultations with neurologists and was seen by at least one psychiatrist at Stateville. Moreover,
he fails to explain how a neuropsychologist would have been able to address his vision problems
(especially considering he has denied a history of trauma), or that failing to refer him was a
substantial departure from accepted medical practices. See Harper v. Santos, 847 F.3d 923, 928
(7th Cir. 2017) (affirming summary judgment where inmate did not show how ordered blood and
urine tests failed to adequately monitor kidney or that relying on such tests was inappropriate).
Montano is not entitled to dictate which specialists he should see; that decision is a matter of
medical discretion that does not give rise to a constitutional violation unless blatantly
inappropriate. Pyles, 771 F.3d 403; see also Frobes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)
(“[Plaintiff] is not entitled to demand specific care. [He] is not entitled to the best care possible.
[He] is entitled to reasonable measures to meet a substantial risk of serious harm to [him].”)
Montano also alleges in the complaint that the Medical Defendants failed to schedule a
neurological consultation to examine his head and eye pain and to rule out the possibility of a
pituitary tumor. But that is not so. Not only was Montano evaluated by a neurologist prior to the
filing of the second amended complaint, he was examined by a second neurologist and a neuroophthalmologist afterward. Montano also underwent testing that ruled out a pituitary tumor as
the cause of his symptoms. Thus, there is no basis to conclude that the Medical Defendants were
deliberately indifferent and the Court grants summary judgment in their favor.
B.

Wexford

Montano contends that Wexford was deliberately indifferent to his vision problems as
well. To prevail against Wexford, Montano must show that it had an official policy, pattern, or
practice that caused a constitutional violation. Chatham v. Davis, 839 F.3d 679, 685 (7th Cir.
2016) (Monell liability “applies in § 1983 claims brought against private companies acting under
color of state law”). That policy or practice also must be the “direct cause of” or “moving force
behind” Montano’s constitutional injury. Pyles, 771 F.3d at 409-410 (internal quotation marks
and citation omitted). Although the Court has found that Montano has no claim against Dr.
Obaisi or Dr. Dunn, liability may still flow to Wexford if its “institutional policies are
themselves deliberately indifferent to the quality of care provided.” Glisson v. Ind. Dep't of
Corr., 849 F.3d 372, 378 (7th Cir. 2017). But the alleged failures in care must be caused by
Wexford itself; section 1983 “does not permit liability to rest on the doctrine of respondeat
superior.” Pyles, 771 F.3d at 409.
Here, Montano alleges that Wexford had a policy of limiting inmate treatment in order to
save costs; however, he has not provided any evidence to establish that policy. That bare
assertion also has been repeatedly rejected as a basis for holding Wexford liable on claims of
deliberate indifference where, as here, the plaintiff fails to establish an underlying constitutional
violation. See, e.g., id. at 412. And, even if Wexford had such a policy, there is no basis to infer
that it played a role in causing Montano's eye problems because there is no evidence Wexford
ever denied him treatment, let alone on the basis of cost, or that Wexford was responsible for any
of the delays discussed above. Therefore, the Court grants summary judgment for Wexford.

12

C.

IDOC Defendants

Finally, Montano brings suit against Defendants Lemke, Magana, and Williams (the
“IDOC Defendants”) for deliberate indifference. By suing the IDOC Defendants in their official
capacities, Montano effectively is suing IDOC, and in turn, the State of Illinois. 8 See, e.g.,
Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). To be sure, Montano cannot seek
monetary relief against the IDOC Defendants. The State of Illinois is not a “person” for purposes
of section 1983 liability. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). It also is
shielded from damage claims under the Eleventh Amendment. Kentucky v. Graham, 473 U.S.
159, 169-70 (1985). Montano may, on the other hand, sue them for injunctive relief, Gonzalez v.
Feinerman, 663 F.3d 311, 315 (7th Cir. 2011); Hadi v. Horn, 830 F.2d 779, 783 (7th Cir. 1987)
(“The Eleventh Amendment . . . does not bar the award of injunctive or declaratory relief
requiring a state official to conform his or her behavior to the requirements of federal law in the
future.”) (citing Ex parte Young, 209 U.S. 123 (1908)), which he has done.
Despite the availability of injunctive relief, the Court must grant summary judgement in
favor of the IDOC Defendants for two reasons. First, Montano has failed to establish, let alone
allege, an unconstitutional policy by the State of Illinois. Much like his claim against Wexford,
Montano must show that the state had a policy, practice, or custom that caused a constitutional
violation. Graham, 473 U.S. at 166-67 & n.14 (“[I]n an official capacity suit the entity’s ‘policy
or custom’ must have played a part in the violation of federal law.”) (citations omitted); see King
v. Ghosh, No. 10 C 6838, 2017 WL 1151059, at *15 (N.D. Ill. Mar. 28, 2017) (granting
summary judgment for IDOC employees sued in their official capacities where inmate failed to
identify state policy); Hughes v. Durrent, No. 15 C 6432, 2016 WL 626800, at *2 (N.D. Ill. Feb.
17, 2016) (dismissing official capacity claims against IDOC personnel sued in their official
capacity where inmate failed to allege facts that support unconstitutional policy).
Additionally, Montano no longer has standing to pursue injunctive relief. Because the
jurisdiction of federal courts is limited to “actual, ongoing cases or controversies,” a claim
becomes moot when “there is no longer an injury that can be redressed by a favorable decision.”
Ostby v. Manhattan School Dist. No. 114, 851 F.3d 677, 682 (7th Cir. 2017). Here, Montano
asks for an injunction requiring the IDOC Defendants to schedule a neurological consult with
doctors at UIC, ensure that Stateville doctors follow any course of treatment recommended by
outside specialists, and provide Montano with a copy of his MRI results and to have those results
explained to him in Spanish. But Montano has already obtained this relief. Even before the
second amended complaint was filed, Montano was seen by a neurologist at UIC and had his
MRI results explained to him by Dr. Obaisi. 9 Further, the record indicates that Dr. Obaisi
8

As a clerical matter, “when a public officer who is a party in an official capacity dies,
resigns, or otherwise ceases to hold office while the action is pending [, t]he officer's successor is
automatically substituted as a party.” Fed. R. Civ. P. 25(d). The import of this rule here is that
Stateville’s current warden, Randy Pfister, is the appropriate IDOC Defendant in this case, not
Williams, Magana, and Lemke. Nevertheless, because the Court grants summary judgment for
the IDOC defendants, there is no need to substitute the parties.
9

When asked if he ever had trouble communicating with Dr. Obaisi, Montano responded
“not really.” (Montano Dep. 37:4-7.)

13

followed all of the recommendations provided to him by outside specialists. At any rate, despite
a continuous course of treatment over several years, no medical professional has been able to
identify what is wrong with Montano’s eyes. Thus, no reasonable jury could find that Montano is
suffering from an ongoing violation of the Eighth Amendment. 10 See Nunez v. Lashbrook, No.
15-CV-514-SMY-RJD, 2018 WL 514329, at *6-7 (S.D. Ill. Jan. 23, 2018) (granting summary
judgment for IDOC warden sued in his official capacity after finding that inmate’s claim for
injunctive relief was mooted by subsequent course of treatment). The Court therefore grants
summary judgment for the IDOC Defendants on Montano’s claim.
*

*

*

For the reasons set forth above, the defendants’ motions for summary judgment [112],
[121], [126] are granted. The Clerk is directed to enter final judgment for all defendants, without
costs. Any scheduled hearings are stricken and any pending motions, including Dunn’s motion to
dismiss for failure to state a claim [98], are denied as moot. Civil case terminated.

John J. Tharp, Jr.
United States District Judge

Date: February 7, 2018

10

While there are exceptions to the mootness doctrine, such as cases in which an injury is
capable of repetition, yet evading review, Montano did not raise any of these exceptions in the
response he filed. The Court therefore declines to consider whether any apply here.

14