Harper v. Ghosh et al
Filing
388
MEMORANDUM OPINION and ORDER: For the stated reasons, the Court grants Defendants' summary judgment motions: Jeffreys' motion 334 , Obaisi's motion 330 , and Wexford's motion 326 are granted. The Clerk shall enter judgment in favor of Defendants and against Plaintiff. Civil case terminated. Signed by the Honorable Mary M. Rowland on 9/25/2023. Mailed notice (ags)
Case: 1:14-cv-04879 Document #: 388 Filed: 09/25/23 Page 1 of 16 PageID #:4154
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIE HARPER,
Plaintiff,
Case No. 14-cv-04879
v.
WEXFORD HEALTH SOURCES, INC.
et al,
Judge Mary M. Rowland
Defendants.
MEMORANDUM OPINION AND ORDER
Willie Harper, who was incarcerated at Stateville Correctional Center
(“Stateville”), filed this lawsuit in 2014 pursuant to 42 U.S.C. § 1983, alleging that
Stateville medical provider, Wexford Health Sources, Inc. and Wexford doctor Dr.
Saleh Obaisi and the Director of IDOC Rob Jeffreys were deliberately indifferent to
his medical conditions. All of the defendants moved for summary judgment. For the
reasons stated below, Jeffreys’ summary judgment motion [334] is granted, Dr.
Obaisi’s motion [330] is granted, and Wexford’s motion [326] is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine dispute as to any material fact exists if “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). The substantive law controls which facts are
1
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material. Id. After a “properly supported motion for summary judgment is made, the
adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)).
The Court “consider[s] all of the evidence in the record in the light most favorable
to the non-moving party, and [ ] draw[s] all reasonable inferences from that evidence
in favor of the party opposing summary judgment.” Logan v. City of Chicago, 4 F.4th
529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from making
credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast Corp.,
951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). In ruling on
summary judgment, the Court gives the non-moving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [its] favor.” White v.
City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The
controlling question is whether a reasonable trier of fact could find in favor of the
non-moving party on the evidence submitted in support of and opposition to the
motion for summary judgment.” Id.
BACKGROUND 1
Plaintiff Willie Harper has been an inmate of the Illinois Department of
Corrections (“IDOC”) since 2002 and was incarcerated at Stateville between 2007
until November 4, 2016. WSOF ¶ 1. In November 2016, he was transferred to
Lawrence Correctional Center (“Lawrence”). Id. Defendant Rob Jeffreys (“Jeffreys”)
The facts are taken from the parties’ Rule 56.1 statements and are undisputed unless
otherwise noted. “WSOF” is Wexford’s statement of facts; “JSOF” is Jeffreys’ statement of
facts; and “OSOF” is Obaisi’s statement of facts.
1
2
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is the current Director of IDOC (previously it was John Baldwin). JSOF ¶ 2; FAC ¶
5. Harper sues Jeffreys in his official capacity only. JSOF ¶¶ 2, 7. Jeffreys is not a
medical professional, has no personal involvement in delivering medical treatment to
IDOC inmates, and Harper never directly contacted Jeffreys. Id. ¶¶ 10, 11.2
Defendant Saleh Obaisi, M.D. (“Dr. Obaisi”) served as the Medical Director at
Stateville from August 2012 until he passed away on December 23, 2017. 3 OSOF ¶ 2.
Dr. Robert Carroll, a board-certified internist and gastroenterologist who has been
on the faculty at the UIC Medical Center’s Department of Digestive Disease and
Hepatology since 1999, examined Harper on May 3, 2011. Id. ¶ 5. The exam was for
chronic abdominal pain, and Dr. Carroll performed a colonoscopy related to Harper’s
complaints of constipation. Id. 4 After performing Harper’s colonoscopy, Dr. Carroll
formed the impression that diverticula (small bulges) were found in part of Harper’s
colon, and the rest of his colon and rectum appeared normal. Id. ¶ 6. Dr. Carroll’s
findings were of a hiatal hernia and normal esophagus. Id. Anna Mellgren, a nurse
practitioner at UIC, testified that for a patient with a hiatal hernia even managed
appropriately, symptoms can increase or decrease from time to time. Id. ¶ 7. On
The Court deems JSOF ¶ 10 admitted. Harper’s response does not specify which portion of
the fact is disputed and without citation to any evidence. A district court can strictly enforce
the local rule “by accepting the movant’s version of facts as undisputed if the non-movant has
failed to respond in the form required.” Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 648
(7th Cir. 2014).
2
Ghaliah Obaisi was substituted in place of Saleh Obaisi as Independent Executor of the
Estate of Saleh Obaisi (see Dkt. 185).
3
OSOF ¶ 5 is deemed admitted. Harper responds that the fact is “Admitted in part,” without
specifying the dispute and his response does not appear to contradict the asserted fact.
4
3
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February 28, 2013, Dr. Obaisi submitted a referral for Harper to receive a CT scan of
his abdomen and pelvis. Id. ¶ 10. Dr. Kelly Roberts at UIC Medical Center reviewed
and interpreted the CT scan; it was unremarkable. Id. ¶ 11. On July 9, 2013, Dr.
Obaisi in collegial review referred Harper to a GI specialist. Id. ¶ 12. This referral by
Dr. Obaisi was not approved and Dr. Obaisi agreed to represent upon completion of
the alternative medical plan. Id. ¶ 15. The alternative care recommended was acid
reducer and antispasmodic medication and to continue treatment at Stateville. Id.
Also in July 2013, Dr. Obaisi issued a Medical Permit for Harper to receive
compression garment stockings. Id. ¶ 53. In January 2015, Dr. Obaisi submitted a
referral request for Harper to see a GI at UIC, due to Harper’s persistent abdominal
discomfort. Id. ¶ 19.
In July 2016, Dr. Farid saw Harper at UIC Medical Center and did not provide
any treatment for Harper’s left knee for the bone infarct and provided no
recommendations as to treatment for his left knee bone infarct. Id. ¶ 58. Also at that
time Dr. Farid found that Harper’s clinical examination and x-rays did not warrant
total hip arthroplasty or hip replacement. Id. ¶ 61. Later, in May 2021, Dr. James
Davis performed Harper’s diagnostic arthroscopy and surgery, and noted that the
bone infarct/enchondroma did not require surgical intervention. Id. ¶ 59.
Wexford is a company that provides medical services to inmates in IDOC custody
pursuant to its contract with the IDOC. WSOF ¶ 2. On February 5, 2020, Wexford
approved a left knee arthroscopy for Harper’s left knee medial meniscal tear. Id. ¶
57. In October 2020, a new Medical Special Services Referral was generated for a new
4
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orthopedic consult. Id. Later, on May 11, 2021, Dr. Davis performed arthroscopic
repair of Harper’s left medial meniscus. Id. ¶ 59. Harper admits the ”surgery was
successful.” [364 ¶ 60].
In his one-count Fourth Amended Complaint (FAC) [230], Harper alleges that
Defendants violated his Eighth Amendment rights by failing to send him to a treating
specialist on a reasonable and timely basis and failing to ensure he follows prescribed
treatment and follow up procedures. As a result, he suffers acute pain and suffering
in his left knee and right and left hips and suffers from gastrointestinal issues.
ANALYSIS
I.
Local Rule 56.1
District courts have broad discretion to enforce the local rules governing summary
judgment motions, Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014), and the
Seventh Circuit has “consistently upheld district judges’ discretion to require strict
compliance with Local Rule 56.1.” Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d
405, 414 (7th Cir. 2019) (quotation omitted). Federal Rule 56(c)(3) also requires
parties to cite to “particular parts of materials in the record” when arguing that
genuine factual disputes exist. Flynn v. FCA US LLC, 39 F.4th 946, 953 (7th Cir.
2022). This Court agrees with Defendants that Harper did not fully comply with Local
Rule 56.1, and evaluates particular facts and responses as they are pertinent to the
analysis. See, e.g., Rivera v. Guevara, 319 F. Supp. 3d 1004, 1020 (N.D. Ill. 2018).
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II.
The Eighth Amendment
The Eighth Amendment requires prison officials to provide healthcare to
incarcerated inmates who cannot obtain healthcare on their own, Howell v. Wexford
Health Sources, Inc., 987 F.3d 647, 653 (7th Cir. 2021), and imposes liability on those
who act with deliberate indifference to a substantial risk of serious harm to inmates,
Eagan v. Dempsey, 987 F.3d 667, 693 (7th Cir. 2021). A plaintiff alleging deliberate
indifference must show: (1) an objectively serious medical condition; and (2) an
official’s deliberate indifference to that condition. See id. Here, Defendants do not
dispute that Harper’s medical conditions were objectively serious.
The second prong, the only one in dispute, is subjective, requiring a plaintiff to
provide evidence that each defendant acted “with a ‘sufficiently culpable state of
mind.’” Peterson v. Wexford Health Sources, Inc., 986 F.3d 746, 752 (7th Cir. 2021)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “To establish deliberate
indifference, a plaintiff must show that the defendant ‘actually knew of and
disregarded a substantial risk of harm.’” Mitchell v. Kallas, 895 F.3d 492, 498 (7th
Cir. 2018) (quoting Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc)).
Though a plaintiff need not show intentional harm, “[n]egligence—even gross
negligence—is insufficient to meet this standard.” King v. Kramer, 680 F.3d 1013,
1018 (7th Cir. 2012). Showing deliberate indifference poses a “high hurdle” for a
plaintiff. Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020)
(internal quotation marks omitted).
III.
Defendant Jeffreys
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IDOC defendant Jeffreys argues he cannot be sued under Monell v. Department of
Social Services of City of New York, 436 U.S. 658 (1978) and also argues that Harper
failed to show any constitutional deprivation as the result of any IDOC policy.
First, there is no evidence of Jeffreys’ personal involvement in this case, which
would require that the alleged constitutional violation occurred at the defendant’s
“direction or with [his] knowledge or consent.” Mitchell, 895 F.3d at 498. However
Harper argues that by transferring him to Lawrence in 2016, Jeffreys “blocked and
made impossible Plaintiff’s access to treatment by Dr. Matthew Marcus or any other
UIC doctor who could have conducted the [hip] surgery.” [369 at 1]. Jeffreys is correct
that the Eleventh Amendment bars private suits in federal court against a state for
monetary damages. MCI Telecomm. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 336 (7th
Cir. 2000). This immunity extends to state agencies and to state employees acting in
their official capacities. Id. at 336–37 (discussing Ex Parte Young, 209 U.S. 123
(1908)). An exception applies, though, where a state official is sued in their official
capacity for an ongoing violation of federal law if the requested remedy is prospective
or declaratory relief. Id. at 345. Here, Harper does not seek damages, framing his
claim against Jeffreys as a Monell claim for prospective injunctive relief only. [369]
at 3–4; FAC ¶¶ 5, 52.
Still, Harper must show “(1) a municipal action, which can be an express policy, a
widespread custom, or an act by an individual with policy-making authority; (2)
culpability, meaning, at a minimum, deliberate conduct; and (3) causation, which
means the municipal action was the ‘moving force’ behind the constitutional injury.”
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Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 598 (7th Cir. 2019). Harper’s Monell
theories against Jeffreys are: (1) IDOC violated its own policy of not transferring
prisoners on medical hold; (2) Jeffreys is the final policy-maker in opposing Harper’s
request for a transfer; and (3) the unconstitutional consequences are so patently
obvious that Harper need not show a pre-existing pattern.
First, Harper does not cite any authority or explain how IDOC violating its own
policy amounts to an express policy or widespread practice under Monell. See Spiegel
v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019). This undeveloped and unsupported
argument is therefore waived. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th
Cir. 2012) (conclusory and underdeveloped arguments are waived); see also MBM
Holdings LLC v. City of Glendale, 843 F. App'x 5, 8 (7th Cir. 2021) (“It is the
responsibility of the litigants to raise coherent legal claims, produce factual support,
and develop reasoned arguments supported by citation to legal authority.”).
Next, as to Harper’s argument that Jeffreys is a final policy-maker for Monell
purposes, Harper has not provided evidence that a deliberate act by Jeffreys deprived
him of a constitutional right causing his constitutional injury. As an initial matter,
Harper concedes he does not know if Jeffreys was actually involved in creating IDOC
policies. JSOF ¶ 9. 5 Additionally, this Court previously denied Harper’s preliminary
injunctive motion seeking to be transferred to a different IDOC facility [352]. That
opinion explained that injunctive relief would require defendants to perform an
The Court deems JSOF ¶ 9 admitted because Harper’s response is largely legal argument,
and cites only Harper’s own preliminary injunction motion and a statement in his statement
of facts (PSOF ¶ 59) that does not reference Jeffreys. [370 ¶ 9].
5
8
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affirmative act—a request that is “cautiously viewed and sparingly issued.” Knox v.
Shearing, 637 F. App'x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of
Ohio, 130 F.3d 293, 295 (7th Cir. 1997)). Although that was a preliminary ruling,
Harper has not produced evidence on summary judgment to show that he is entitled
to this relief. He must show that Jeffreys’ act caused his constitutional injury; he
argues only that the transfer refusal “means the continuation of his pain and
suffering.” [369 at 4]. Harper has not “adduce[d] affirmative evidence sufficient to
support a jury’s verdict in [his] favor.” Berkson v. Costco Wholesale Corp., No. 18-CV2598, 2021 WL 83506, at *5 (N.D. Ill. Jan. 11, 2021).
Finally, apparently relying on an alternate widespread-practice theory, Harper
contends that the Court should find the unconstitutional consequences of the policy
are “patently obvious.” [369 at 4]. Harper does not respond to Jeffreys’ argument that
he has not shown a constitutional deprivation resulting from an IDOC policy. Indeed
Harper does not explain what IDOC policy he means or why the unconstitutional
consequences are patently obvious. Again the Court cannot construct a litigant’s
argument for him, and finds this argument undeveloped and unsupported. See MBM
Holdings LLC, 843 F. App'x at 8.
Accordingly, Harper has not raised a genuine issue of material fact about Jeffreys’
liability and summary judgment in favor of Jeffreys is warranted in this case.
IV.
Defendant Obaisi
Dr. Obaisi argues that he was not deliberately indifferent to Harper’s medical
needs, and Harper cannot recover punitive damages or seek injunctive relief from the
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Estate of Dr. Obaisi. As to punitive damages and injunctive relief, Harper does not
respond to this argument, waiving any response. [367]. 6 See Packer v. Trustees of
Indiana Univ. Sch. of Med., 800 F.3d 843, 849 (7th Cir. 2015) (“It is a well-settled
rule that a party opposing a summary judgment motion must inform the trial judge
of the reasons, legal or factual, why summary judgment should not be entered.”); see
also G & S Holdings LLC v. Cont'l Cas. Co., 697 F.3d 534 (7th Cir. 2012). 7
Dr. Obaisi next argues that no reasonable jury could find Dr. Obaisi was
deliberately indifferent to Harper in violation of the Eighth Amendment. Dr. Obaisi
argues that his care and treatment for Harper’s conditions met the standard of care.
Medical professionals generally have discretion in treatment decisions so a plaintiff
must establish that the medical professional’s acts are “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.”
Donald, 982 F.3d at 458. “The Eighth Amendment proscribes deliberate indifference
to serious medical needs of prisoners amounting to the unnecessary and wanton
infliction of pain.” Arce v. Wexford Health Sources Inc., 75 F.4th 673, 678–79 (7th Cir.
2023) (cleaned up).
In addition in his complaint Harper sought an “[a]ward [of] compensatory and punitive
damages against defendants” FAC ¶ 55. He does not pursue the claim that he is entitled to
punitive damages from any defendant; any request for punitive damages is waived.
6
The law favors Dr. Obaisi on this issue in any event. See Taylor v. Wexford Health Sources,
Inc., No. 16-CV-3464, 2022 WL 4329025, at *14 (N.D. Ill. Sept. 19, 2022); Zavala v. Obaisi,
No. 17-CV-03042, 2021 WL 1172774, at *13 (N.D. Ill. Mar. 29, 2021).
7
10
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Harper does not dispute that he needs “verifying medical evidence” that any delay
by Dr. Obaisi, and not his underlying condition, caused him harm. See Walker v.
Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002); Flournoy v. Est. of Obaisi, No. 17 CV
7994, 2020 WL 5593284, at *8 (N.D. Ill. Sept. 18, 2020). 8 Expert testimony that a
plaintiff suffered because of a delay in treatment constitutes as verifying medical
evidence. Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008). But evidence, such
as a medical record, “of a plaintiff's diagnosis and treatment, standing alone,” is
“insufficient if it does not assist the jury in determining whether a delay exacerbated
the plaintiff's condition or otherwise harmed him.” Id.
Dr. Obaisi provided expert opinions from Drs. Michael J. Goldberg and Mark R.
Hutchinson. Gastroenterologist Dr. Golberg provided a number of opinions about
Harper’s care. (Goldbert Report (Dkt. 333-6; Exh. 9)) (“Golberg Rep.”). Dr. Goldberg
is
a
licensed
medical
doctor,
board-certified
in
Internal
Medicine
and
Gastroenterology, who practices medicine at Northshore University Health System.
OSOF ¶ 17. 9 Among other things, Dr. Golberg opined to a reasonable degree of
medical, internal medicine and gastroenterology certainty that:
• Dr. Obaisi complied with the applicable standard of care in his treatment of
Mr. Harper’s medical conditions since Dr. Obaisi first began treating him at
Stateville until Harper’s transfer to Lawrence
• Dr. Obaisi’s treatment of Harper’s abdominal complaints was reasonable,
adequate and met the standard of care
Harper appears to concede Dr. Obaisi’s limited role in his response to Obaisi’s summary
judgment motion: “To be sure, [Wexford] is the party fully responsible for barring Plaintiff’s
return [to UIC]. Dr. Obaisi at least tried to get Wexford to send Plaintiff to UIC.” [367 at 1].
8
9
OSOF ¶ 17 is admitted as Harper’s response is legal argument.
11
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• Harper is not a candidate for surgical treatment or any diagnostic testing for
his hiatal hernia
• After Dr. Obaisi referred Harper for a GI consult, there was no medical reason
for Dr. Obaisi to appeal the denial, and also no evidence that the denial of the
referral after collegial review was for any reason other than lack of medical
necessity.
Id. For his part, Dr. Mark Hutchinson gave his opinions to a reasonable degree of
medical certainty based on his education, training and experience as a physician and
orthopaedic surgeon. (Hutchinson Report (Dkt. 333-11; Exh. 14)) (“Hutchinson Rep.”).
He opined, among other things, that:
• surgical intervention for Harper’s left knee was not required as of June 2018,
and there is no basis for Harper’s allegation that Dr. Obaisi failed to refer him for
surgery for his knee
• Dr. Obaisi and Wexford’s management of the left knee met the applicable
standard of care at all times
• Absent successive and sustained weight loss, which may obviate the need for
total hip arthroplasty in the first place, Mr. Harper was never a surgical
candidate for total hip arthroplasty
• Nothing that Wexford did or failed to do that caused or contributed to any
injury or pain to Mr. Harper’s bone infarct, left knee or left hip conditions
• The course of treatment prescribed to Mr. Harper…has not resulted in any
permanent injury to Harper that [h]e would not have experienced otherwise
Id. Harper does not rebut these expert opinions with any competing expert
testimony. He did not disclose his own expert to support his deliberate indifference
claim. First, although Harper made objections to Dr. Hutchinson’s opinions in his
response to Obaisi’s statement of facts, Harper does not raise any argument about
Dr. Hutchinson in his response brief. [367]. As Dr. Obaisi points out, Harper expressly
states that “Dr. Obaisi was willfully indifferent to Plaintiff’s pain and suffering from
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two objectively serious medical conditions, his abdominal pain and [Deep vein
thrombosis (DVT)].” Id. at 3 (emphasis added). Thus the Court agrees that Harper
waived his argument that Dr. Obaisi was deliberately indifferent to his orthopedic
conditions. See Packer, 800 F.3d at 849.
As to Dr. Goldberg, Harper argues that he “has no direct personal knowledge that
Dr. Obaisi was actually providing [proper care]” and “no foundation for his opinion”
and is not qualified. [367 at 2, 6]. Dr. Goldberg was disclosed as an expert, and
reviewed Harper’s medical records and relevant documents in this case. Harper does
not cite any authority that he needed to have “personal knowledge” of Harper’s care.
As for Dr. Carroll, the UIC gastroenterologist, Harper attempts to rely on him to
rebut Dr. Golberg’s testimony. However Dr. Carroll stated that his workup of Harper
was fairly unremarkable, and recommended Harper continue his present medications
from Dr. Obaisi and return to normal activity and a regular diet. (OSOF ¶¶ 31, 32)
(Harper concedes this in large part, arguing only that he was also prescribed an antispasmodic to relieve his discomfort [368] ¶ 32). 10 Even if the Court viewed Dr. Golberg
and Dr. Carroll as presenting different opinions about the appropriate care for
Harper, medical professionals’ difference of opinion does not itself establish
deliberate indifference. See Petties, 836 F.3d at 729.
Still, Harper maintains that he did not receive enough compression stockings from
Dr. Obaisi, that Dr. Obaisi did not provide all the pain medication prescribed, and
In addition, as Dr. Obaisi argues, Harper appears to improperly rely on treating doctor Dr.
Carroll as an expert when Dr. Carroll was not disclosed as such. See e.g. Beaton v. SpeedyPC
Software, 338 F.R.D. 232, 236 (N.D. Ill. 2021).
10
13
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did not carry out the treatment plan for his abdominal pain. To support his
arguments, Harper’s asserted facts contain statements that are unsupported by any
evidence or rely on Harper’s own declaration and no other evidence. E.g. PSOF ¶¶ 20,
21, 23, 33. Harper’s own account, however, does not constitute verifying medical
evidence. See Johnson v. Obaisi, No. 16 CV 4046, 2020 WL 433872, at *7 (N.D. Ill.
Jan. 28, 2020). In addition, Harper’s contention that Dr. Obaisi ignored Dr. John
Quigley’s treatment plan with regard to his leg swelling does not establish deliberate
indifference. Harper does not dispute that he received compression stockings. Indeed
Dr. Obaisi was entitled to exercise his professional judgment. See Sain v. Wood, 512
F.3d 886, 895 (7th Cir. 2008). Moreover, Harper cites little case law to support his
arguments in opposition to Obaisi’s motion. In Howell, 987 F.3d 647, cited by Harper,
the court found “no evidence that Wexford personnel refused to follow the advice of a
specialist.” Id. at 660.
In short, Harper may be right that Dr. Obaisi should have done something more
or different. But Harper does not raise an issue of fact that any action or inaction by
Dr. Obaisi proximately caused Harper’s alleged injuries. And under the Eighth
Amendment, Harper is not entitled to the “particular care of [his] choosing” and did
not offer evidence in this case to show Dr. Obaisi’s provided “grossly inadequate
medical care.” Woods v. Obaisi, No. 21-1659, 2022 WL 2113080, at *2 (7th Cir. June
13, 2022); Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (a plaintiff must show
“something approaching a total unconcern” for his health). For these reasons,
summary judgment in Dr. Obaisi’s favor is granted.
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V.
Wexford
Finally, the Court addresses Harper’s Eighth Amendment claim against Wexford.
Wexford argues that Harper’s §1983 claim fails because Harper did not establish a
constitutional deprivation, and also because he did not show he was harmed as a
result of a policy or practice reflecting deliberate indifference by Wexford. [329]
Harper counters that Wexford failed “to address the widespread pattern of its doctors
failing to carry out treatment plans.” [361].
Under Monell, 436 U.S. 658, Wexford faces liability under section 1983 only for
constitutional injuries caused by “(1) an express government policy; (2) a widespread
and persistent practice that amounted to a custom approaching the force of law; or
(3) an official with final policymaking authority.” Howell, 987 F.3d at 653; see also
Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014). A plaintiff must “offer
evidence of causation: that the unconstitutional custom, policy, or practice at the Jail
was the ‘moving force’ behind the constitutional deprivation.” Daniel v. Cook Cnty.,
833 F.3d 728, 736 (7th Cir. 2016) (cleaned up).
First, this Court has granted summary judgment to Dr. Obaisi on Harper’s Eighth
Amendment claim, and “there can be no Monell liability absent an underlying
constitutional violation.” Brown v. City of Chicago, 633 F. Supp. 3d 1122, 1151 (N.D.
Ill. 2022). Nevertheless, Harper asserts that Wexford had a custom or practice of
failing to refer “Plaintiff to an outside specialist for an unreasonable period of time,
and (2) failure to follow the recommendations of that specialist.” [361 at 10]. For
support, Harper points to “four cases”, which are his “four objectively serious medical
15
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conditions.” Id. at 2. Harper does not cite authority that this is a basis for a Monell
custom and practice claim against Wexford. Harper relies heavily on Thomas v.
Martija, 991 F.3d 763 (7th Cir. 2021), but in that case the Seventh Circuit affirmed
summary judgment in favor of Wexford. Harper does not put forth evidence that
Wexford’s alleged unconstitutional practice caused him to receive constitutionally
deficient medical care, and he does not meet the “exacting requirements of Monell.”
Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 222 (7th Cir. 2021).
Harper has failed to offer evidence to create a jury question on his Monell claim
in this case and so the Court grants summary judgment to Wexford.
CONCLUSION
For the stated reasons, the Court grants Defendants’ summary judgment motions:
Jeffreys’ motion [334], Obaisi’s motion [330], and Wexford’s motion [326] are granted.
The Clerk shall enter judgment in favor of Defendants and against Plaintiff. Civil
case terminated.
E N T E R:
Dated: September 25, 2023
MARY M. ROWLAND
United States District Judge
16
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