McCoy v. Wexford Medical Company et al

Filing 144

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 10/15/2018. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAX MCCOY,
Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC.,
SALEH OBAISI, M.D., and
ANDREW TILDEN, M.D.,
Defendants.

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No. 14-cv-03558
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff Max McCoy, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), claims that he suffered an injury to his toe that has caused him chronic pain. According
to McCoy, Defendants Saleh Obaisi and Andrew Tilden were deliberately indifferent to his
serious medical condition in violation of the Eighth Amendment to the United States Constitution.
McCoy thus has brought this civil rights action under 42 U.S.C. § 1983 against those individual
Defendants as well as their employer, Wexford Health Sources, Inc. (“Wexford”). Before the
Court is Defendants’ motion for summary judgment. (Dkt. No. 101.) For the reasons explained
below, the motion is denied.
BACKGROUND
Unless otherwise noted, the following facts are undisputed. On July 10, 2014, while
incarcerated at Stateville Correctional Center (“Stateville”), McCoy injured the big toe on his
right foot when he kicked his cell door. (Pl.’s Resp. to Defs.’ Statement of Facts (“PRDSF”) ¶ 7,
Dkt. No. 111.) That same day, McCoy was examined by Dr. Obaisi, the medical director at
Stateville. (Id. ¶¶ 3, 8.) Dr. Obaisi is employed by Wexford, a private corporation that has

contracted with IDOC to provide medical services to inmates at IDOC facilities, including
Stateville and Pontiac Correctional Center (“Pontiac”), where McCoy later transferred. (Id. ¶ 5.)
During the July 10 visit, Dr. Obaisi examined McCoy’s toe, ordered an x-ray, prescribed him
ibuprofen, and provided him with a crutch. (Id. ¶ 8.) The x-ray results indicated that McCoy’s toe
was neither fractured nor dislocated. (Id. ¶ 9; Obaisi Dep. at 61:21‒24, Ex. B to Defs.’ Statement
of Facts (“DSF”), Dkt. No. 103.)
On July 15, 2013, McCoy’s crutch slipped, and he fell in the mess hall. (Id. ¶ 10.) That
day, Dr. Obaisi again evaluated McCoy and diagnosed him with an acute sprain of his big toe. (Id.
¶ 11.) During that visit, Dr. Obaisi ordered a medical lay-in permit and a low-bunk and lowgallery permit, provided McCoy with a second crutch, increased the prescription for ibuprofen,
prescribed a stronger pain medication, ordered that his toe be iced twice daily for a week, and
ordered him to follow up as needed. (Id. ¶ 12.) On July 23, 2013, Dr. Obaisi again evaluated
McCoy’s toe, noted bruising and swelling, and diagnosed him with a contusion. (Id. ¶ 13.) A
contusion is a bit more severe than a sprain and can take months to resolve fully. (Id.) During this
visit, Dr. Obaisi ordered an additional x-ray of McCoy’s right foot on the theory that an x-ray
taken on the first day of trauma may not reveal a hairline fracture. (Id. ¶ 14.) The second x-ray
revealed no broken bones and ruled out a fracture of the big toe. (Id. ¶ 15.)
On August 7, 2013, McCoy met with Dr. Davis, another physician at Stateville, who
ordered another x-ray to rule out an intraarticular facture. (Id. ¶ 16.) The x-ray report indicated no
fracture. (Id. ¶ 17.) On November 11, 2013, McCoy was evaluated by a nurse, who noted that
McCoy’s right big toe was swollen and that there was a small lump on the bottom of the toe. (Id.
¶ 18.) On the nurse’s report, she noted “turf toe” and tendonitis on the right toe. (Id. ¶ 19.)
Tendonitis is treated with ibuprofen, and turf toe is an injury related to the tendons that is treated

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with rest and steroid shots. (Id.) At the visit, the nurse scratched out “refer to MD,” indicating that
she felt there was no need for a referral to the doctor. (Id.) At Stateville, if a nurse examines a
patient and does not refer the patient to the doctor, then the patient is not put on the doctor’s sick
call list. (Id. ¶ 21.) At their depositions, Dr. Obaisi and Dr. Tilden both indicated that they were
unfamiliar with the term or diagnosis “turf toe.” (Id. ¶ 20.)
Subsequently, on February 4, 2014, McCoy was evaluated by physician assistant (“PA”)
Owikoti, who assessed McCoy’s toe injury as post-traumatic arthropathy (a term indicating a
general issue with the joint) and possible ligament tear. (Id. ¶ 22; Owikoti Dep. at 110:1‒4, Ex. F
to DSF.) PA Owikoti testified that MRIs can be used to diagnose ligament or tendon damage, but
that “regular folks” (as opposed to professional athletes, for example) would generally not be
given an MRI to diagnose ligament or tendon damage unless the injury was to larger ligament like
a knee. (PRDSF ¶ 24; Owikoti Dep. at 15‒17.) PA Owikoti further testified that treatment for a
possible ligament tear in the big toe would be to maintain function and leave it alone because
performing surgery would cause scar tissue. (PRDSF ¶ 22; Owikoti Dep. at 110‒12.) McCoy
disputes that this is the correct treatment of a possible ligament tear, and points to testimony from
Dr. Davis, suggesting her testimony indicates that she would send the patient to a specialist.
(PRDSF ¶ 22; Defs.’ Resp. to Pl.’s Statement of Additional Facts, Dkt. No. 122 (“DRPSAF”)
¶ 19.) Dr. Davis testified that when confronted with symptoms like McCoy’s, she would likely
“do a course of conservative treatment probably with physical therapy and anti-inflammatories
and range of motion exercises . . . if the patient was no better after that, I would have them see a
specialist and then let them make the determination from there. In Stateville, I would have had the
medical director look at him.” (DRPSAF ¶ 19; Davis Dep. at 99‒100, Ex. E to DSF.)

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On May 5, 2014, McCoy was again evaluated by PA Owikoti because of his ongoing pain
in his big toe. (PRDSF ¶ 25.) PA Owikoti again noted post-traumatic arthropathy and prescribed a
stronger anti-inflammatory medication because he was concerned that McCoy was unable to bend
his toe. (Id.) PA Owikoti did not believe that McCoy needed to be referred to a physician. (Id.)
PA Owikoti testified at his deposition that he reviewed his progress notes from his visit with
McCoy and those notes indicated that McCoy had a steady gait, which means that he was walking
with a stable gait and was not limping. (Id. ¶ 26; Owikoti Dep. at 204:10‒21, 207:5‒23.) McCoy
disputes this assessment and testified at his deposition that he has had a limp since his injury.
(PRDSF ¶ 26; DRPSAF ¶ 42; McCoy Dep. at 78:22‒79:4, Ex. A to DSF.)
On June 18, 2014, Dr. Obaisi again evaluated McCoy due to complaints of stiffness in his
big toe. (PRDSF ¶ 28.) Dr. Obaisi scheduled McCoy for an epidural steroid injection in his toe.
(Id.) Dr. Obaisi evaluated McCoy again on June 27, 2014 and performed the epidural steroid
injunction, which is a long acting anti-inflammatory intended to reduce pain and swelling and
enhance the range of motion. (Id. ¶ 29.) On December 20, 2014, McCoy fell out of bed and
injured his right hand. (Id. ¶ 30.) Two days later, Dr. Obaisi ordered an x-ray of McCoy’s right
toe and right hand. (Id. ¶ 31.) The x-ray of the right toe was negative, which meant no fracture, no
dislocation, and no subluxation. (Id.; Obaisi Dep. at 129:19‒130:3.) Dr. Obaisi again evaluated
McCoy on December 23, 2014 and prescribed Indocin, a non-steroid anti-inflammatory agent that
is slightly more powerful than ibuprofen. (Id. ¶ 32.)
Dr. Obaisi evaluated McCoy three more times on January 6, 2015, January 20, 2015, and
February 3, 2015. (Id. ¶¶ 33‒35.) McCoy still had some pain in his right foot, and Dr. Obaisi
believed that McCoy might have myositis, or muscle inflammation, which could be related to the
stiffness in his toe. (Id.) Dr. Obaisi noted that the tendon in McCoy’s toe appeared to be intact.

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(Id.) At the February 3 visit, Dr. Obaisi prescribed pain medication and ordered physical therapy
to help McCoy learn how to bend and extend his toe. (Id. ¶ 36; DRPAF ¶ 24; Obaisi Dep. at
110:14‒111:6.) The parties dispute whether Dr. Obaisi actually prescribed physical therapy as
opposed to having merely “ordered” it. McCoy insists that Dr. Obaisi prescribed physical therapy,
while Dr. Obaisi claims that he merely ordered it or recommended a consult. (DRPAF ¶¶ 23‒26.)
In any event, it is undisputed that at the very least, Dr. Obaisi “ordered” physical therapy and that
his treatment note includes under the “Plans” heading that McCoy should “consult to PT [physical
therapy].” (Obaisi Dep. at 110:14‒111:08; Ex. D to DSF at 000067.)
In the approximately 19 months between McCoy’s injury and his transfer to Pontiac in
February 2015, McCoy was seen at least thirty times by Stateville medical staff about his toe,
including many visits with Dr. Obaisi directly, and he received four x-rays. (PRDSF ¶ 40.)
McCoy transferred to Pontiac on February 28, 2015. (Id. ¶ 40.) McCoy’s medical records
describing his medical history at Stateville were also transferred to Pontiac and available to
Pontiac medical staff, including Dr. Tilden, Pontiac’s medical director. (DRPAF ¶¶ 3, 16, 26.) In
fact, Dr. Tilden reviews such notes particularly at the time of transfer. (Id. ¶ 3.) On the date of
McCoy’s transfer, he met with a nurse in urgent care at Pontiac about his toe. (PRDSF ¶ 41.) The
nurse prescribed him Indocin. (Id.) McCoy met with a nurse again on March 1, 2015 and was
added to the physician assistant’s sick call at that time. (Id. ¶ 42.) McCoy met with PA Caruso on
April 1, 2015 and complained of toe pain and received a refill of Indocin. (Id.) Dr. Tilden
evaluated McCoy on May 10, 2015. (Id. ¶ 43.) At that visit, Dr. Tilden noted that McCoy had an
old trauma to his right big toe, with a two-year history of tenderness, a decreased range of motion
on flexion, and a normal range of motion on extension. (Id. ¶ 44.) Dr. Tilden testified at his
deposition that McCoy functioned well, ambulated well, and walked with a normal gait, and that

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the examination did not reveal any issues. (Id.; Tilden Dep. at 54:4‒22, Ex. C to DSF.) Again,
McCoy disputes that he had a normal gait and testified at his deposition that he has had a limp
since his injury. (PRDSF ¶ 44; DRPAF ¶ 42; McCoy Dep. at 78:22‒79:4.) Dr. Tilden testified that
as a result of this visit, he did not think that McCoy needed physical therapy—given that McCoy
presented with a benign, old, minor trauma that he dealt with extremely well. (PRDSF ¶ 45;
Tilden Dep., 90:20‒91:24.)
Dr. Tilden testified that after the May 10 visit, McCoy did not request a visit or follow-up
for the next year. (PRDSF ¶ 46; Tilden Dep. 55:10‒14.) McCoy disputes this, pointing to the two
grievances he filed after May 10 while at Pontiac. (PRDSF ¶ 46; DRPAF ¶¶ 64‒65.) McCoy filed
grievances in July 2016 and in August 2016, indicating that he had been receiving Indocin for
pain in his foot and needed a renewal of his prescription, that without the prescription he
experienced “overwhelm[ing]” and “unbearable” pain, and that he desired to see Dr. Tilden about
the issue. (Ex. C to Pl.’s Statement of Additional Facts, Dkt. No. 112 (“PSAF”) at pp. 15‒20.) In
October 2015, McCoy was evaluated by PA Ojelade with a request for Indocin renewal for the
pain in his right big toe. (PRDSF ¶ 51.) On January 16, 2016, Dr. Tilden met with McCoy in the
asthma clinic and renewed his Indocin prescription. (Id. ¶ 52.) Dr. Tilden testified at his
deposition on May 25, 2016 that since January 16, 2016, McCoy had not made any further
requests for treatment related to his toe. (Id. ¶ 53.) McCoy disputes this and states that he
continued to complain about his toe injury throughout his incarceration at Pontiac. (Id.; PSAF ¶
45.) McCoy does not put forward evidence showing additional complaints during this time but
points to the affidavit he filed along with his statement of facts. (Id.; PSAF ¶ 45 and Ex. A.)
McCoy was transferred from Pontiac to Menard Correctional Center (“Menard”) in April 2017.
(PRDSF ¶ 2.)

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After the instant motion for summary judgment was briefed, McCoy filed a sur-reply and
supporting x-ray report indicating that after his transfer to Menard, he received another x-ray of
his toe on May 26, 2017. (Pl.’s Sur-Reply in Opp. to Defs.’ Mot. for Sum. J., Dkt. No. 123, at Ex.
A.) The x-ray report from Dr. Yousuf indicates that the x-ray reveals a “partial dislocation of the
interphalangeal joint.” (Id.) McCoy subsequently transferred back to Pontiac in June 2017. (Id. at
Ex. B ¶ 7.) McCoy states in his affidavit that since transferring back to Pontiac, he has not
received any further medical treatment for his big toe beyond the prescription of pain medication.
(Id. at Ex. B ¶ 12.) Along with their response, Defendants filed an affidavit from Dr. Tilden
expressing the opinion that the partial dislocation found on the May 2017 x-ray was not related to
McCoy’s July 2013 original injury and that there is no reason to change the current medical
treatment of McCoy’s toe based on the findings in the May 2017 x-ray report. (Defs.’ Resp. to P’s
Sur-Reply at Ex. 1, Dkt. No. 128.)
DISCUSSION
Summary judgment is appropriate when the movant shows that there is no genuine issue
as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). If the movant clears this hurdle, the nonmovant must point to admissible evidence in the
record to show that a genuine dispute exists. Id. The mere existence of a factual dispute is
insufficient to overcome a motion for summary judgment; the nonmovant “must present definite,
competent evidence in rebuttal.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir.
2012). “In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation
that underlies the claim, and thus must come forward with sufficient evidence to create genuine
issues of material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d 877, 881 (7th

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Cir. 2010). At the summary judgment stage, evidence is viewed in the light most favorable to the
nonmovant. Id.
I.

Exhaustion of Administrative Remedies

Defendants argue that McCoy’s claims are barred because he failed to exhaust his
administrative remedies through the IDOC grievance process. Under the Prison Litigation Reform
Act, prisoners are required to exhaust all administrative remedies before bringing a civil action in
federal court based on prisoner conditions. 42 U.S.C. § 1997(e)(a). Defendants may raise the
affirmative defense of exhaustion, and they carry the burden of proof for demonstrating failure to
exhaust. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). The Court must resolve the
question of whether McCoy exhausted his administrative remedies prior to considering the merits
of his deliberate indifference claim. See Fluker v. Cty. of Kankakee, 741 F.3d 787, 793 (7th Cir.
2013).
The grievance process for prisoners in IDOC custody usually includes three distinct levels
of review. First, a prisoner must submit a grievance to a counselor. 20 Ill. Admin. Code
§ 504.810. Next, if the prisoner is not satisfied with the counselor’s resolution, he must submit a
formal grievance to the Grievance Officer. Id. at § 504.820. The Grievance Officer reviews the
grievance and forwards his recommendation to the Chief Administrative Officer, who makes the
final decision at the institutional level. Id. at § 504.830(e). Last, if the prisoner is not satisfied with
the Chief Administrative Officer’s response, he may file an appeal to the Administrative Review
Board within 30 days after the date of the Chief Administrative Officer’s decision. Id. at
§ 504.850(a)‒(c); see also Dole, 438 F.3d at 806–07.
Defendants contend that McCoy failed to exhaust his administrative remedies because he
failed to complete the final step properly by appealing his August 10, 2013 grievance to the

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Administrative Review Board within 30 days of the Chief Administrative Officer’s decision.
(Defs.’ Mem., Dkt. 102 at 15; DSF ¶ 58; Defs.’ Rep., Dkt. 121 at 13.) The undisputed facts and
attached grievances establish that on August 10, 2013 McCoy filed a grievance with a counselor
regarding the lack of treatment on his toe while at Stateville, his ongoing pain, and Dr. Obaisi’s
improper diagnosis. (DRPSAF ¶57; Ex. H to DSF at 1.) The grievance was sent to the Grievance
Officer, and McCoy received a written denial of his grievance from the Chief Administrative
Officer on October 21, 2013. (DRPSAF ¶ 58; Ex. H to DSF at 5.) McCoy appealed the grievance
denial to the Administrative Review Board on November 6, 2013—well within the 30-day
window provided in the administrative rules. (DRPSAF ¶ 59; Ex. B to PSAF.) The Administrative
Review Board denied McCoy’s appeal. (DRPSAF ¶ 60.) McCoy filed his original complaint in
this case on May 14, 2014, after this administrative review process was complete. (Dkt. No. 1.)
Defendants do not appear to dispute any of these facts and do not point to any evidence to the
contrary. Defendants have therefore failed to meet their burden of showing that McCoy failed to
exhaust his administrative remedies.1
II.

Merits of McCoy’s § 1983 Claim

The Eighth Amendment, through the Fourteenth Amendment, imposes a duty upon states
to provide adequate medical care to incarcerated individuals. See, e.g., Johnson v. Doughty, 433
F.3d 1001, 1010 (7th Cir. 2006). “To determine if the Eighth Amendment has been violated in the

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Defendants do not raise the separate argument that McCoy did not exhaust his administrative remedies
with respect to Dr. Tilden on the basis that McCoy filed his amended complaint adding Dr. Tilden as a
defendant before any grievance naming Dr. Tilden had made it through the entire administrative grievance
process. Because Defendants do not make this argument, the Court need not address it here. See Fluker,
741 F.3d at 791 (“Defendants may waive or forfeit reliance on § 1997(e)(a), just as they may waive or
forfeit the benefit of a statute of limitations.” (internal quotation marks omitted)). The Seventh Circuit has
made clear that “[f]ailure to exhaust administrative remedies does not deprive a court of jurisdiction” and
where, as here, discovery is complete and summary judgment on the merits is fully briefed, “it [makes]
perfect sense” for a district court to go on to address summary judgment. Id. at 792–93 (internal quotation
marks omitted).

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prison medical context, [the Court] perform[s] a two-step analysis, first examining whether a
plaintiff suffered from an objectively serious medical condition, and then determining whether the
individual defendant was deliberately indifferent to that condition.” Petties v. Carter, 836 F.3d
722, 727‒28 (7th Cir. 2016).
A.

Objectively Serious Medical Condition

A serious medical condition is characterized by “the presence of a medical condition that
significantly affects an individual’s daily activities; or the existence of chronic and substantial
pain.” Hayes v. Snyder, 546 F.3d 516, 523 (7th Cir. 2008) (internal quotation marks omitted). A
condition could also be objectively serious if a “failure to treat [it] could result in . . . the
unnecessary and wanton infliction of pain.” Id. at 522 (internal quotation marks omitted). The
Seventh Circuit has found that “a broad range of medical conditions may be sufficient to meet the
objective prong of a deliberate indifference claim, including a dislocated finger, a hernia, arthritis,
heartburn and vomiting, a broken wrist, and minor burns sustained from lying in vomit.” Roe v.
Elyea, 631 F.3d 843, 861 (7th Cir. 2011).
McCoy’s testimony suggests that his toe was extremely painful and impacted his daily
life, and that he could not bear weight on his foot or walk without a limp. Chronic and substantial
pain is sufficient to show a serious medical condition. See, e.g., Hayes, 546 F.3d at 523. Thus,
viewing the evidence in the light most favorable to McCoy as the nonmovant, McCoy has put
forth sufficient evidence from which a reasonable jury could conclude that he had an objectively
serious medical condition.
B.

Deliberate Indifference

To show deliberate indifference, “a plaintiff must provide evidence that an official
actually knew of and disregarded a substantial risk of harm.” Petties, 836 F.3d at 728 (emphasis

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in original). “[S]howing mere negligence is not enough. Even objective recklessness—failing to
act in the face of an unjustifiably high risk that is so obvious that it should be known—is
insufficient to make out a claim.” Id. (internal citations omitted; emphasis in original). Rather,
“the defendant must know of facts from which he could infer that a substantial risk of serious
harm exists, and he must actually draw the inference.” Zaya v. Sood, 836 F.3d 800, 804 (7th Cir.
2016). Where a defendant “denies knowing that he was exposing a plaintiff to a substantial risk of
serious harm, evidence from which a reasonable jury could infer a doctor knew he was providing
deficient treatment is sufficient to survive summary judgment.” Petties, 836 F.3d at 726.
“A medical professional acting in his professional capacity may be held to have displayed
deliberate indifference only if the decision by the professional is such a substantial departure from
accepted professional judgment, practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such a judgment.” Rasho v. Elyea, 856 F.3d 469,
476 (7th Cir. 2017) (internal quotation marks omitted). Put another way, a medical professional’s
response must be “so inadequate that it demonstrate[s] an absence of professional judgment, that
is, that no minimally competent professional would have so responded under those
circumstances.” Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998). Evidence that
“some medical professionals would have chosen a different course of treatment is insufficient to
make out a constitutional claim.” Petties, 836 F.3d at 729; see also Zaya, 836 F.3d at 804 (“By
definition a treatment decision [that is] based on professional judgment cannot evince deliberate
indifference because professional judgment implies a choice of what the defendant believed to be
the best course of treatment.”).
A court looks at the “totality of an inmate’s medical care when considering whether that
care evidences deliberate indifference to serious medical needs.” Petties, 836 F.3d at 728. A

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prison official persisting in a course of treatment known to be ineffective may “establish a
departure from minimally competent medical judgment” sufficient to establish deliberate
indifference. Id. at 729‒730. In addition, “[i]f a prison doctor chooses an easier and less
efficacious treatment without exercising professional judgment, such a decision can also
constitute deliberate indifference.” Id. at 730 (internal quotation marks omitted). Specifically,
where there is evidence that a defendant did not alter his or her response to a condition despite
repeated complaints of enduring pain or lack of improvement to the condition, this creates an
issue of fact sufficient to defeat summary judgment. See Petties, 836 F.3d at 731 (indicating that
“evidence that the patient repeatedly complained of enduring pain with no modifications in care”
can create a fact issue for the jury); see also Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011) (reversing dismissal of complaint where defendant “never altered their response to
[plaintiff’s condition] as the condition and associated pain worsened over time”).
Similarly, the Seventh Circuit in Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005),
found that the plaintiff created an issue of fact sufficient to defeat summary judgment because “a
jury could find deliberate indifference from [defendant’s] refusal over a two-year period to refer
[plaintiff] to a specialist or authorize an endoscopy” despite persistent complaints of pain and
requests to see a specialist. And in Berry v. Peterman, 604 F.3d 435, 441–42 (7th Cir. 2010), the
Seventh Circuit reversed a grant of summary judgment for the defendant where, despite repeated
complaints by the plaintiff that the pain medication was not helping and “modest request[s]” to be
referred to a dentist, the defendant persisted in her “obdurate refusal to alter [the plaintiff’s]
course of treatment.” The Berry court held that “a jury could reasonably conclude that [the
defendant] knowingly adhered to an easier method to treat [the plaintiff’s] pain that she knew was
not effective. She had not identified an effective pain medication, nor could she explain [the

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plaintiff’s] pain, yet she rejected the obvious alternative of referring [the plaintiff] to a dentist.”
Id. at 441. See also Keller v. Feinerman, No. 3:06-CV-661, 2011 WL 1519384, at *3 (S.D. Ill.
Apr. 20, 2011) (denying summary judgment for the defendant because “a jury could conclude that
[the defendant] persisted in an easier method to treat the Plaintiff’s pain that he knew was
ineffective” where the defendant “was unable to identify the source of [the] Plaintiff’s throat
pain” yet “refused to refer the Plaintiff to an ENT specialist for a period of nearly a year”); Beard
v. Obaisi, 2013 WL 3864415, at *4 (C.D. Ill. July 25, 2013) (denying summary judgment because
“a prison doctor cannot avoid liability by continuing to prescribe ineffective treatment and
refusing to order tests or referrals needed to properly diagnose the condition” and “arguably
something more was required to at least confirm [the defendant’s] diagnosis of the cause of
Plaintiff’s pain and [the defendant’s] decision that surgery should not be considered”).
Here, the undisputed facts establish that during the approximately nineteen months after
his initial injury, McCoy met with Stateville medical staff at least thirty times about his toe pain,
including at least nine visits directly with Dr. Obaisi interspersed throughout this period. Dr.
Obaisi had access to treatment notes regarding McCoy’s visits with other medical staff. (DRPSAF
¶¶ 16, 26.) Despite almost nineteen months of McCoy’s repeated medical visits for toe pain,
complaints about his toe, noted inflammation and difficulty with toe movement, and possibly a
visible limp,2 Dr. Obaisi never altered from his course of treatment involving pain medication and
anti-inflammatories and never referred McCoy to a specialist or ordered any testing beyond
repeated x-rays. This is enough to create a factual issue sufficient to allow a jury to determine
whether Dr. Obaisi acted with deliberate indifference. See Petties, 836 F.3d 722; Greeno, 414
F.3d 645; Berry, 604 F.3d 435. After McCoy’s transfer to Pontiac, Dr. Tilden continued in this
course of treatment despite information in McCoy’s medical records about the previous two years

2
McCoy has created a factual issue as to whether he walked with a pronounced limp.

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of toe pain, did not refer McCoy to a physical therapist despite Dr. Obaisi’s February 2015
treatment plan note to send McCoy for a physical therapy consult, and declined to alter the course
of treatment once a Menard physician indicated that a May 2017 x-ray showed a partial joint
dislocation in McCoy’s toe. This, too, is enough to create a factual issue sufficient to allow a jury
to determine whether Dr. Tilden acted with deliberate indifference.
Because McCoy has identified a genuine issue of material fact as to whether Dr. Tilden
and Dr. Obaisi acted with deliberate indifference, the motion for summary judgment as to those
Defendants is denied.3 Because Defendants’ motion as to Defendant Wexford is premised only
upon the propriety of summary judgment for the individual Defendants, the motion is denied as to
Defendant Wexford as well.
III.

Punitive Damages

Defendants further argue that even if the Court holds that Defendants are not entitled to
summary judgment on liability, the Court should nevertheless grant summary judgment for
Defendants on McCoy’s claim for punitive damages. However, as the Seventh Circuit has noted,
the standard for punitive damages for a § 1983 claim is the same as the standard for liability.
Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 930 (7th Cir. 2004) (“Punitive damages
are recoverable in § 1983 actions where the defendant had a reckless or callous disregard to the
federally protected rights of others. This is the same standard as for § 1983 liability.” (internal
citation omitted)); Walsh v. Mellas, 837 F.2d 789, 801‒02 (7th Cir. 1988) (similar). The Court
therefore denies Defendants’ motion for summary judgment as to punitive damages as well.

3
As Defendants concede in their Reply, the Seventh Circuit has held that medical staff at a correctional
institution that are employed by a private contractor, such as Wexford, are not entitled to a qualifiedimmunity defense. Defendants are thus not entitled to such a defense here. Petties, 836 F.3d at 734; Rasho,
856 F.3d at 479.

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CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. No. 101) is
denied.
ENTERED:

Dated: October 15, 2018

__________________________
Andrea R. Wood
United States District Judge

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