Zumut v. Godinez et al
MEMORANDUM Opinion and Order: Signed by the Honorable Rebecca R. Pallmeyer on 9/11/2017. Mailed notice. (etv, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
MICHAEL LEMKE, DR. SALEH OBAISI,
RICARDO TEJEDA, and SHANAL
No. 14 C 6479
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Wesam Zumut, an Illinois state prisoner, brings this action pursuant to 42 U.S.C.
§ 1983 and the Eighth Amendment to the United States Constitution. Plaintiff fractured his toe
during a basketball game at Stateville Correctional Center, and he alleges that certain prison
officials and medical providers were deliberately indifferent to serious medical needs that arose
from this incident. Plaintiff has sued Defendants Dr. Saleh Obaisi, Stateville's medical director;
Nurse Shanal Barnett, a corrections medical technician who treated Plaintiff immediately
following his injury; Michael Lemke, the warden of Stateville; and Ricardo Tejada, an assistant
Plaintiff also sued Doretta O'Brien, an assistant warden, and Sarah Mays, a
correctional medical technician, but he has moved voluntarily to dismiss the claims against
Dr. Obaisi has moved for summary judgment , arguing that Plaintiff has not proven
that he suffered from an objectively serious medical condition, that Dr. Obaisi was subjectively
aware of any serious medical condition, or that Dr. Obaisi displayed deliberate indifference to
The other Defendants (the Illinois Department of Corrections (“IDOC”)
Defendants) have also moved for summary judgment , arguing that Defendants Lemke and
Tejada had no personal involvement in Plaintiff's medical treatment and that Plaintiff lacks any
evidence that Nurse Barnett acted with deliberate indifference to Plaintiff's medical needs. For
the reasons stated below, the court grants Defendants' motions.
Plaintiff injured his foot while playing basketball in prison on July 13, 2013. (IDOC Defs.'
Local Rule 56.1 Stmt. of Uncontested Facts  (hereinafter "IDOC Defs.' 56.1") ¶ 11.) Nurse
Barnett treated Plaintiff immediately following the injury and provided him with an ice pack, a
pain reliever (Tylenol), and a crutch, but did not contact a physician or refer Plaintiff for x-rays.
(Id. ¶¶ 12–9). Four days later, after Plaintiff complained to another nurse that he was still in
pain, a physician's assistant examined Plaintiff and ordered an x-ray of his left foot.
Obaisi's 56.1 Stmt. of Undisputed Mat. Facts  (hereinafter "Obaisi 56.1") ¶ 39.) That same
day, Dr. Obaisi examined Plaintiff for the first time.
After reviewing the x-ray, Dr. Obaisi
determined that Plaintiff's fifth metatarsal bone (the long bone on the outside of the foot that
connects to the little toe) was fractured but in "good position." (Id.) A fractured bone is in "good
position" if there is no displacement of the bone that would require reduction or fixation. (Id. ¶
41.) Dr. Obaisi ordered a fiberglass cast to immobilize Plaintiff's foot; prescribed Motrin, an antiinflammatory drug, and Norco, a narcotic painkiller; and issued permits for Plaintiff to use two
crutches for six weeks and to use a low bunk and be housed on a lower floor of the prison for
six months. (Id. ¶ 39.)
Plaintiff's foot eventually healed in proper alignment, and his pain subsided, though the
healing process took longer than normal. Dr. Obaisi testified that he would have expected to
see callus 1 formation at the site of the fracture around five weeks after the injury. (Id. ¶ 51.) But
an x-ray taken on August 23, a little more than five weeks after the injury, showed no signs of
callus. (Id. ¶ 50.) Subsequent x-rays, including one taken at least eleven weeks after the injury,
still showed no signs of callus formation. (Id.) Dr. Obaisi ordered another x-ray after examining
Callus is the accumulation of calcium and protein at the site of the fracture and is
a sign that the bone is fusing together and healing. (Obaisi 56.1 ¶ 50.)
Plaintiff on October 31, a little more than three and a half months after the injury. (Id. ¶ 59.)
Because callus formation was visible on that x-ray, Dr. Obaisi authorized Plaintiff to begin partial
weight bearing and prescribed Vitamin D to help strengthen the bone. (Id. ¶ 60.) Plaintiff's cast
was removed in late November 2013, and Plaintiff testified that by January 2014, six months
after the injury, his pain level was at two to four on a scale from one to ten. (Id. ¶ 61.) In
February 2014, Plaintiff began physical therapy to rebuild the muscle strength he had lost while
his foot was immobilized in the cast. (Id. ¶ 62.)
Plaintiff complains that he received inadequate medical treatment from Nurse Barnett
and Dr. Obaisi. According to Plaintiff, his fracture was not diagnosed and properly treated until
four days after the injury, and he attributes this delay in proper treatment to Nurse Barnett's
failure to consult a qualified medical professional, who could have ordered an x-ray of Plaintiff's
leg on the day of his injury.
(Pl.'s Local Rule 56.1 Stmt. of Facts  (hereinafter "Pl.'s 56.1")
¶¶ 8, 11.) Plaintiff maintains that the record supports an inference that Nurse Barnett knew that
he had suffered a severe injury at the time she treated him, and that her failure to secure timely
and appropriate treatment for him reflects deliberate indifference. As Plaintiff asserts in an
affidavit, when Nurse Barnett examined Plaintiff immediately following his injury, his foot was
swollen, and he told her that he was in significant pain and that he had heard an unusual
popping noise in his foot at the time of the injury. (Id. ¶ 2.) By Plaintiff's account, Nurse Barnett
responded to Plaintiff's complaints merely by providing him with a single crutch and telling him
that he did not have a serious injury and should "stop crying and man up." (Id. ¶¶ 3, 7.)
Nurse Barnett disputes Plaintiff's version of events. According to her treatment notes,
Nurse Barnett did observe swelling in Plaintiff's left ankle, but Plaintiff was able to move his toes
and did not show any signs of bruising. (IDOC Defs.' 56.1 ¶¶ 13–14.) Barnett concluded that
Plaintiff's symptoms were consistent with a "rolled" ankle. (Id. ¶ 19.) Based on that diagnosis,
she gave Plaintiff an ice pack to relieve the swelling in his ankle and instructed him to keep his
leg elevated. (Id. ¶ 16.) She also provided him with twelve 325-milligram tablets of Tylenol to
relieve his pain and told him to follow up with the prison's health care unit in one week if his
symptoms worsened. (Id. ¶ 18.) Dr. Obaisi testified that Barnett's treatment of Plaintiff was
"[a]bsolutely appropriate." (Id. ¶ 20; Dep. of Dr. Saleh Obaisi (hereinafter "Obaisi Dep."), Ex. H
to IDOC Defs.' 56.1 , 41:5–7.)
With respect to Dr. Obaisi's treatment of Plaintiff, Plaintiff has two general complaints.
First, although Dr. Obaisi prescribed Norco, a narcotic painkiller, for Plaintiff on the day he first
examined him, Plaintiff faults Dr. Obaisi for the fact that Plaintiff did not actually receive a Norco
dose until approximately ten days later. (Pl.'s 56.1 ¶¶ 19–21.) Plaintiff argues that by allowing
Plaintiff to remain in pain for an extended period of time without ensuring that Plaintiff received
the prescribed painkiller, Dr. Obaisi demonstrated deliberate indifference toward his serious
medical needs. Second, Plaintiff faults Dr. Obaisi for failing to refer Plaintiff to an orthopedic
specialist. Plaintiff notes that Dr. Christopher Yenter, a physician who examined Plaintiff at St.
Joseph Medical Center, a nearby hospital, had recommended that Plaintiff follow up with an
orthopedic specialist. (Pl.'s Resp. to Obaisi 56.1  ¶ 70.) Another physician at the prison, Dr.
Ann Davis, had sent Plaintiff for emergency treatment at St. Joseph on July 26, 2013, thirteen
days following his injury, after examining Plaintiff and noting that he was in extreme pain and
had other signs of vascular compromise, such as swollen, blue toes. (Id.) Upon examination of
Plaintiff, Dr. Yenter determined there was "no clear evidence of . . . ischemia [or vascular
compromise]" and discharged him "back to Stateville with follow up with orthopedics on Monday
and further evaluation." (St. Joseph Medical Center Report of July 27, 2013, Ex. B to IDOC
Defs.' 56.1 , 207.) Plaintiff maintains that Dr. Obaisi should have heeded Dr. Yenter's
recommendation and referred Plaintiff to a specialist—that is, to "follow up with orthopedics"—
especially after it became clear that Plaintiff's healing was delayed. Dr. Obaisi responds, and
Plaintiff does not dispute, that physicians at Stateville follow traditional principles of continuity of
care, under which Dr. Davis, and not Dr. Obaisi, was the doctor responsible for following up with
Plaintiff's care after his discharge from the hospital because she was the treating physician who
had referred him for treatment at the hospital. (Obaisi 56.1 ¶ 17.) Dr. Obaisi also points out that
Plaintiff's injury eventually fully healed, and he opined that Plaintiff did not need to see an
orthopedic specialist. (Id. ¶ 48; Obaisi Dep. at 73:7–74:7.)
In addition to his complaints about the medical treatment he received, Plaintiff also
alleges that the prison's warden and assistant warden demonstrated deliberate indifference to
his serious medical condition. Plaintiff alleges that he attempted to notify Lemke and Tejada by
letter to inform them that he was in pain and was receiving suboptimal medical treatment but
that they ignored his letters. Indeed, according to Plaintiff, the way Lemke and Tejada operated
the prison's grievance procedure ensured that they would never hear complaints like Plaintiff's,
thereby demonstrating their deliberate indifference inmates who have medical conditions similar
to his. In his letters, Plaintiff complained about the care he received from Nurse Barnett, noted
that he had not received responses to previous emergency grievances, explained that he was in
in pain and that his foot was swollen and discolored, and requested to see a podiatrist. (Letter
from Plaintiff to Lemke of July 26, 2013, Ex. D to Pl.'s Third Am. Compl. [42-4], 1–3; Letter from
Plaintiff to Tejada of July 26, 2013, Ex. D to Pl's Third Am. Compl. [42-4], 7–9.) Neither Lemke
or Tejada remembers receiving a letter from Plaintiff, and there is no evidence in the record that
they did receive the letters. (IDOC Defs.' 56.1 ¶ 49.) Lemke has designated members of his
staff to review inmate grievances. (Pl.'s 56.1 ¶ 28.) Kevin Senor, one of Lemke's designees,
reviewed Plaintiff's July 26, 2013 letter, and after investigating, determined that Plaintiff "was
being seen by the healthcare unit and that he had been provided with services that he was
requesting to be seen about, his foot, and the healthcare unit had advised us that they had
taken appropriate action." (IDOC Defs.' Resp. to Pl.'s 56.1  ¶ 30; Dep. of Kevin Senor, Ex.
I to IDOC Defs.' 56.1 [82-5], 38:4–8.)
Senor concluded that the grievance was not an
emergency and sent the letter to a grievance officer, who recommended that no action be taken
because Plaintiff appeared to be receiving appropriate medical care. (Pl.'s 56.1 ¶ 31.) As for
Tejada, he is unsure whether he or his clerk, who screens Tejada's letters, ever received
Plaintiff's letter. (Id. ¶ 34.) Tejada testified that if a letter like Plaintiff's did come to his attention,
he would contact the healthcare unit to try to resolve the grievance (id.), but he also points out,
and Plaintiff does not dispute, that Tejada is not responsible for overseeing inmate medical care
or for responding to inmate grievances.
(IDOC Defs.' 56.1 ¶ 53.)
Rather, he oversees
maintenance, dietary, mail room, fire and safety, and the Weapons Task Force matters at
Statesville. (Id. ¶ 52.)
Plaintiff filed this suit pro se in August 2014, and the court recruited counsel to represent
him. Defendants have moved for summary judgment, arguing among other things that Plaintiff
has failed to produce evidence from which a jury could conclude that any Defendant was
deliberately indifferent toward Plaintiff's serious medical needs.
A court must grant summary judgment "if 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). A dispute about a material fact is genuine if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In determining whether a reasonable jury could find for Plaintiff, the court
views the evidence in the light most favorable to him, but "he nevertheless must present specific
facts showing that there is a genuine issue for trial." Aguilar v. Gaston-Camara, 861 F.3d 626,
630 (7th Cir. 2017). An inference that relies on "speculation or conjecture" is insufficient. Id. at
"A prison official may be found in violation of an inmate's Eighth Amendment right to be
free from cruel and unusual punishment if she acts (or fails to act) with deliberate indifference to
his serious medical needs." Conley v. Birch, 796 F.3d 742, 746 (7th Cir. 2015). To prove a
claim for deliberate indifference, a prisoner must satisfy an objective element and an objective
element: the prisoner must show that his medical needs or the conditions of his imprisonment
"were objectively serious enough to amount to a constitutional deprivation and that defendants
possessed a sufficiently culpable state of mind." Burton v. Downey, 805 F.3d 776, 784 (7th Cir.
2015). The subjective element of deliberate indifference "entails something more than mere
negligence." Farmer v. Brennan, 511 U.S. 825, 835 (1994). Indeed, "it approaches intentional
wrongdoing." Burton, 805 F.3d at 784. To be found deliberately indifferent, the "official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Plaintiff contends that Nurse Barnett displayed deliberate indifference toward his serious
medical needs by refusing to consult with qualified medical professionals about Plaintiff's injury,
thereby causing a delay in his treatment. The IDOC Defendants respond that Nurse Barnett
was far from indifferent toward Plaintiff's injury and that, on the contrary, she provided him
adequate medical care based on her observations of his injury. The court agrees with the IDOC
Defendants. Nurse Barnett determined that Plaintiff's symptoms—namely, his swollen ankle,
lack of bruising, and ability to move his toes—were consistent with a rolled ankle, and she
provided him with ice, a pain reliever, and a crutch. She also told him to keep his leg elevated
and to follow up for treatment if his condition worsened in a week. It is true that "receipt of some
medical care does not automatically defeat a claim of deliberate indifference." Edwards v.
Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (emphasis in original). But to sustain a claim of
deliberate indifference, the evidence must allow a fact finder to "infer the treatment was so
blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate a
condition." Id. (internal quotations marks omitted). "Disagreement between a prisoner and his
doctor, or even between two medical professionals, about the proper course of treatment
generally is insufficient, by itself, to establish an Eighth Amendment violation." Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014). Even when viewed in the light most favorable to Plaintiff, the
evidence does not support an inference that Nurse Barnett actually suspected that Plaintiff had
a fractured foot but intentionally refused to arrange for an x-ray anyway or that her treatment
was so blatantly inappropriate that it evidenced intentional mistreatment. Cf. Conley v. Birch,
796 F.3d 742, 747 (7th Cir. 2015) (evidence supported inference that doctor suspected inmate's
hand was fractured where inmate had severe swelling two days after injury, loss of function and
mobility in all fingers, and discoloration, and where nurse telephoned doctor after working hours
on Christmas Eve and described the injury as a "possible/probably injury"). Indeed, Dr. Obaisi,
the only physician in this case to opine on the treatment Nurse Barnett provided, testified that
her treatment was "absolutely appropriate." (Obaisi Dep. 41:5–7.)
In addition to Nurse Barnett's failure to consult another medical professional to obtain an
x-ray, Plaintiff points to the facts that Nurse Barnett gave him only one crutch and told him to
"stop crying and man up." But these facts are inadequate to establish an Eighth Amendment
violation. Nurse Barnett testified that she believed Plaintiff only needed one crutch because
only one leg was injured, "so he was able to ambulate with one crutch." (Dep. of Shanal
Barnett, Ex. F to IDOC Defs.' 56.1 , 31:3 – 8.) Plaintiff has not produced evidence that
Nurse Barnett's treatment decision in that instance was so inappropriate that "no minimally
competent professional would have so responded under those circumstances." Pyles, 771 F.3d
at 409. With respect to Nurse Barnett's comment that Plaintiff's injury was not serious and that
he should stop crying and "man up," the comment may have been inappropriate, but it may also
simply have reflected that she did not actually believe Plaintiff had suffered an injury more
serious than a rolled ankle. In any event, rudeness and poor bedside manner do not amount to
a constitutional injury. See Seidel v. Sheriff, No. 13 C 6164, 2016 WL 1043406, at *3 (N.D. Ill.
Mar. 16, 2016) (doctor who was dismissive of and rude about injury not deliberately indifferent
because rudeness "alone is insufficient to sustain a claim for deliberate indifference"); Brown v.
Darnold, No. CIV.A. 09-240-GPM, 2011 WL 4336724, at *4 (S.D. Ill. Sept. 14, 2011) ("While
Plaintiff's allegations that Defendant Darnold yelled at him and Defendant Clevy laughed at his
pain are disconcerting, such conduct—while rude and insensitive—does not rise to the level of
Plaintiff contends that two aspects of Dr. Obaisi's treatment support a claim for
deliberate indifference: his failure to ensure that Plaintiff received the pain medication that Dr.
Obaisi prescribed and his failure to refer Plaintiff to an orthopedic specialist for treatment.
Neither purported failure, however, constitutes deliberate indifference. There is no evidence
that Dr. Obaisi was aware that the narcotic painkiller he prescribed for Plaintiff had not been
Plaintiff argues that "[h]ad [Dr. Obaisi] looked at [Stateville's] Medication
Administration Record anytime between July 17 when he issued the prescription and 10 days
later when the drug was first administered he would have seen that Plaintiff had been deprived
of this important pain-relief medication." (Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J.
 (hereinafter "Pl.'s Mem."), 7.)
Plaintiff does not, however, provide any argument or
evidence to support the conclusion that Dr. Obaisi had an obligation to ensure that the drugs he
prescribes are actually administered. The notion that deliberate indifference is established by a
a physician's failure to investigate whether a patient received a drug is inconsistent with the
Seventh Circuit's ruling in Arnett v. Webster, 658 F.3d 742 (7th Cir. 2011). In Webster, it
appeared that an inmate's treating physician believed he had submitted a request for a
prescription drug, and failed to investigate further to see whether the inmate had received the
medication even after the inmate informed the physician months later that he had not received
Id. at 758.
The Seventh Circuit agreed with the inmate that, given his
"condition and repeated pleas for [the drug, the doctor] should have investigated further." Id.
Yet the court concluded that even though the failure to investigate "may amount to negligence,"
it did not amount to deliberate indifference because there was not enough evidence that the
physician "failed to act despite knowledge of a substantial risk of serious harm to [the inmate]."
Id. Similarly, in this case, Plaintiff has not produced evidence that Dr. Obaisi knew Plaintiff had
not received the prescribed painkiller. The delay in receiving the painkiller cannot be the basis
for a deliberate indifference claim.
Nor is there sufficient evidence from which a jury could conclude that Dr. Obaisi's failure
to refer Plaintiff to a specialist constitutes deliberate indifference.
True, "[a] jury can infer
conscious disregard of a risk from a defendant's decision to ignore instructions from a
specialist." Zaya v. Sood, 836 F.3d 800, 806 (7th Cir. 2016). But "[t]he validity of the inference
rests primarily on the contemporaneity of the communication and the defendant's decision." Id.
In this case, it is undisputed that Dr. Yenter treated Plaintiff and made a recommendation for
"follow up with orthopedics" on July 27, 2013, at a time when Plaintiff was being treated by Dr.
Davis. It is also undisputed that the first time Dr. Obaisi examined Plaintiff following Dr. Yenter's
recommendation was on September 9, nearly a month and a half after Dr. Yenter made the
recommendation, and that Plaintiff did not complain of foot problems during that examination.
(Pl.'s Resp. to Obaisi 56.1 ¶ 53.) Dr. Obaisi also explained that he did not refer Plaintiff to an
orthopedic specialist because he did not believe Plaintiff needed to see one. (Obaisi Dep. 73:7–
These circumstances do not support an inference that in deciding against referring
Plaintiff to a specialist, Dr. Obaisi consciously disregarded a serious risk. In addition, Plaintiff
cannot prove a claim for deliberate indifference without "providing evidence that the [doctor's
alleged] failure caused injury." Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013); see also
id. (noting requirement that plaintiff offer "verifying medical evidence" of causation).
undisputed that Plaintiff's injury did heal in this case, and Plaintiff has not produced any
evidence suggesting referral to an orthopedic specialist would have resulted in quicker or better
healing. Cf. Alvarez v. Wexford Health Sources, Inc., No. 13 C 703, 2016 WL 7046617, at *6
(N.D. Ill. Dec. 5, 2016) (question of fact whether Dr. Obaisi's failure to follow specialist's
recommendation of physical therapy caused harm where the physical therapy the plaintiff did
receive appeared to have resolved his issues).
Lemke and Tejada
Plaintiff maintains that if Lemke and Tejada had read the letters he sent them, they
would have been alerted to his serious medical needs, and he argues that they showed
deliberate indifference by failing to read or respond in any way to the letters.
Defendants respond that Plaintiff has failed to establish that they were actually "aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists," Farmer,
511 U.S. at 837, because neither Lemke nor Tejada actually read Plaintiff's letters or was aware
of the conditions about which he complained.
Plaintiff argues that the court "should not allow Lemke to escape liability because he
used an administrative system which made it impossible for an inmate [to] supply the warden
with the information necessary [to alert him to a serious medical need]." (Pl.'s Mem. at 11.) The
court shares the concern Plaintiff raises. In a case before another court in this district, Judge
Gottschall expressed skepticism about a warden's ability to "use the fact that he delegated
much of the review of medical grievances to administrative assistants to insulate himself from
liability for problems of which the grievances would have put him on notice." Flournoy v. Ghosh,
881 F. Supp. 2d 980, 992 (N.D. Ill. 2012). There is, however, a significant difference between
this case and Flournoy. In Flournoy, the court concluded that the evidence supported a finding
that the warden "was alerted to a systematic failure of the medical staff to promptly provide
prescriptions." Id. at 991. By contrast, there is no evidence in this case that Plaintiff's alleged
injury was the result of a systematic failure of the medical staff. As the Flournoy court itself
noted, prison wardens are "not responsible for individual incidents that occur in the day-to-day
operation of a prison, but only for systematic lapses in policies meant to protect prisoners." Id.
(citing Steidl v. Gramley, 151 F.3d 739, 741–42 (7th Cir. 1998)). As a result, without evidence
that Lemke was actually aware of Plaintiff's condition or of any systematic lapse in policies in
this case, he was entitled to rely upon the expertise of his medical personnel, and his mere
"inaction following receipt of a complaint about someone else's conduct is not a source of
liability." Estate of Miller by Chassie v. Marberry, 847 F.3d 425, 429 (7th Cir. 2017). Regarding
Tejada, Plaintiff has admitted that the assistant warden is not even responsible for overseeing
inmate medical care or responding to inmate grievances. Plaintiff nevertheless maintains that
he can proceed with a claim against Tejada because Tejada would have investigated Plaintiff's
complaints if he had received Plaintiff's letter. But the Seventh Circuit has rejected the notion
that "everyone who knows [or could have known] about a prisoner's [medical] problem must pay
damages." Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). The assistant warden, like
the warden, "is entitled to relegate to the prison's medical staff the provision of good medical
For the reasons stated above, the court grants Defendants' motions for summary
judgment  .
Date: September 11, 2017
REBECCA R. PALLMEYER
United States District Judge
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