Peters v. Baldwin et al
Filing
161
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 9/18/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants the defendants' motion for summary judgment [dkt. no. 138] as to de fendants Dr. Rozel Elazegui, Dr. Arthur Funk, and nurse Athena Rossiter with regard to the treatment of plaintiff's MRSA infection; as to defendant Dr. Arthur Davida with regard to the treatment of plaintiff's shoulder injury; as to defendants Dr. Elazegui and nurse Rossiter with regard to the treatment of plaintiff's colon polyps; and as to Wexford Health Sources, Inc., with regard to plaintiff's Monell claim. The Court otherwise denies defendants' motion. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT PETERS,
Plaintiff,
vs.
KENYON BAILEY, JOHN BALDWIN,
ELWOOD BETHEA, DR. ARTHUR
DAVIDA, DR. ROZEL ELAZEGUI,
DR. ARTHUR FUNK, ILLINOIS
DEPARTMENT OF CORRECTIONS,
NICHOLAS LAMB, JEROME
NICKERSON, RANDY PFISTER,
ATHENA ROSSITER, KEVIN
VILLEGAS, WEXFORD HEALTH
SOURCES, INC., and JON WILES,
Defendants.
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Case No. 17 C 4809
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Scott Peters, a former inmate at Stateville Correctional Center's Northern
Reception Center (NRC), has sued former and current members of the prison's medical
staff and employees of Wexford Health Sources, Inc., which provides healthcare
services at the prison (the Wexford defendants) under 42 U.S.C. § 1983. Peters alleges
that the individual Wexford defendants, Dr. Arthur Davida, Dr. Rozel Elazegui, Dr.
Arthur Funk, and nurse Athena Rossiter, all healthcare providers from whom Peters
sought medical attention, were deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment. He has also asserted a claim against Wexford itself
for maintaining a policy or custom of failing to coordinate medical treatment for inmates.
Wexford and the individual Wexford defendants have moved for summary judgment.
Facts
The following facts are undisputed except where otherwise noted. Peters was
an inmate at the NRC from June 2015 to March 2016. He says that during his
incarceration, he submitted over a hundred grievances regarding deficient medical care.
When Peters arrived at the NRC on June 26, 2015, he underwent a medical
intake screening. The intake nurse noted that Peters brought with him two crutches and
a wheelchair from a previous correctional facility. As part of the medical intake
procedure, Dr. Arthur Davida performed a physical examination of Peters. Dr. Davida is
a medical doctor who was employed by Wexford and worked at Stateville from June to
September 2015.
Wexford is a private corporation that provides healthcare services to inmates at
Illinois Department of Corrections prisons pursuant to a contract with the State of
Illinois. Wexford employs the doctors, nurses, and physician's assistants who work in
the healthcare unit at Stateville. During the physical examination performed by Dr.
Davida, Peters self-reported, among other health issues, an umbilical hernia, blood in
his stool, and a history of colon polyps.
Peters's claims in this case involve four medical conditions—a MRSA infection, a
shoulder injury, an umbilical hernia, and colon polyps/bloody stool. The parties dispute
whether each of the defendants Peters has sued actually knew of each of these
conditions and whether each was deliberately indifferent to his medical needs. More
generally, they dispute which defendants were personally involved in Peters's medical
care for each of his medical conditions.
2
A.
MRSA infection
Before July 6, 2015, while incarcerated at Stateville, Peters contracted a
methicillin-resistant staphylococcus aureus (MRSA) infection on his left buttock. On
July 6, 2015, a Wexford staff member treated Peters's MRSA infection with Bactrim, an
antibiotic. After the July 6 visit, Dr. Davida became responsible for treating Peters's
MRSA infection. The parties appear to agree that Dr. Davida was the only Wexford
defendant named in this lawsuit who was involved in Peters' medical care regarding the
MRSA infection.
On July 17, 2015, Dr. Davida examined Peters again. Peters's perirectal
abscess—a manifestation of the MRSA infection—was not responding to Bactrim. A lab
culture taken from the abscess on July 14 tested positive for MRSA and indicated that
Clindamycin, a different antibiotic, could destroy the particular strain of MRSA that
infected Peters. During the July 17 visit, Dr. Davida performed a physical examination
of Peters, prescribed Clindamycin, and ordered daily showers, daily dressing changes
with peroxide and Betadine, and ordered a follow-up visit in one week. On July 17,
Peters's infection had a one-centimeter wound, and the abscess was fifteen centimeters
in diameter.
On July 24, during a follow-up visit with Peters, Dr. Davida noted decreasing
swelling and redness on his left buttock ulcer, prescribed narcotic pain medication and a
muscle relaxer, and instructed Peters to finish out the Clindamycin prescription. The
parties disagree about the extent to which Peters's condition improved when he
followed up with Dr. Davida two weeks later, on August 6.
The Wexford defendants contend that on August 6, Peters's left buttock ulcer
3
"was much improved." Defs.' Ex. D (Davida Dep. Tr.) at 131:4-13. Peters disputes this
characterization of his wound; he contends that Dr. Davida's notes do not reflect that he
measured the ulcer at the August 6 visit. When Peters was seen by a physician
assistant's on August 21, 2015, his ulcer had grown to a "3 c[entimeter] wound." Pl.'s
Ex. 2 (Wexford Notes) at 000520. During his deposition, Dr. Davida contended that
based on the August 21 results, it was "difficult to say one way or the other whether the
wound is improving or not improving." Davida Dep. Tr. at 129:10-130:3. During the
August 21 visit, Dr. Davida again prescribed Clindamycin. On August 23, a lab culture
revealed that Peters's MRSA infection was resistant to Clindamycin, but Dr. Davida did
not modify his treatment of Peters based on this new information. On September 15,
2016, Peters filed a grievance complaining about continued pain from the infection on
his left buttock. Two additional grievances Peters filed in September and October 2015
reflect that his MRSA infection had not subsided by then.
The parties dispute whether Dr. Davida's treatment of the MRSA infection was
appropriate. The Wexford defendants contend that Peters's use of a wheelchair
explains the "poor prognosis on healing [from the MRSA infection]." Defs.' Stat. of
Facts ¶ 25. But Peters disputes that he was even using a wheelchair while he was
being treated for the MRSA infection.
B.
Shoulder injury
On December 4, 2015, Peters fell and suffered an injury to his right shoulder,
among other injuries. On that date, Dr. Arthur Funk examined Peters, ordered narcotic
pain medication, and ordered x-rays of the right shoulder. Peters remained in the
Stateville infirmary until December 16.
4
On December 7, 2015, Dr. Funk saw Peters again. The parties dispute whether
Peters's shoulder pain and mobility had improved by the time of this visit. The
defendants contend that Peters had increased movement in his shoulder and had a
continued positive response to the narcotic pain medication Dr. Funk prescribed.
Peters contends that he was not improving and that he continued to have shoulder pain
and limited shoulder mobility.
On December 11, Dr. Funk examined Peters again and recorded in his notes that
Peters's shoulder pain was decreasing. Peters contends, however, that his shoulder
was still painful at the time of this visit. On December 14, Peters saw Dr. Funk again
and reported right shoulder and right interscapular pain. Dr. Funk prescribed Tylenol 3,
a narcotic pain medication.
On December 16, 2015, Peters was scheduled to be transported for an x-ray.
The defendants contend that Peters refused to be transported. Peters says that he was
unable to climb into the van because "there [was] nothing to hold onto to climb into the
van" and that Wexford personnel failed to accommodate his stated inability to get into
the van. Wexford Notes at 000557. On that day—Dr. Funk's last day at Stateville—Dr..
Funk discharged Peters. Peters contends that he was still experiencing significant
shoulder pain and limited mobility.
On December 18, 2015, Peters received the results of his x-rays, which were
negative for a fracture. On January 7, 2016, Dr. Elazegui became Peters's treating
physician. On a medical visit that day, Peters complained to Dr. Elazegui about
shoulder pain. Peters contends that he could not complete a range of motion exam due
to "severe discomfort," but the defendants dispute this, contending that "Plaintiff refused
5
to cooperate with Dr. Elazegui's range of motion examination." Defs.' Stat. of Facts. ¶
63. Dr. Elazegui's notes state that "no signs of discomfort [were] noted" when Peters
leaned on his right shoulder and repositioned his sling, but Peters disputes this,
contending that he repeatedly reported shoulder discomfort. Wexford Notes at 000564.
C.
Umbilical hernia
In 2014, before coming to the NRC, Peters was diagnosed with an umbilical
hernia. When he arrived at Stateville in June 2015, he self-reported his hernia to Dr.
Davida during the intake physical examination. The parties dispute whether Peters's
umbilical hernia was asymptomatic and reducible 1 while he was incarcerated at
Stateville. Peters testified that during his incarceration at Stateville, his hernia
continued to grow and became non-reducible and that he consistently experienced what
he contends were hernia-related symptoms—including abdominal pain, constipation,
nausea, and vomiting.
The parties agree that Dr. Davida and Dr. Funk were personally involved in
treating Peters with regard to his hernia. They dispute whether Dr. Elazegui and nurse
Rossiter participated in treatment for the hernia.
On August 6, 2015, during a medical visit with Dr. Davida, and September 3,
2015, during a visit with an unspecified physician, Peters complained of what he
contends are hernia-related symptoms, including constipation. On September 22, 2015,
Peters complained of sharp pains in his intestines and a stabbing pain below his rib
cage. His contention in this case is that despite his repeated reports of abdominal pain,
1
An umbilical hernia is reducible if the part of the intestine protruding through the
abdominal wall can be pushed back into place.
6
the defendants took no action to treat him for the hernia. In 2018, after Peters was
transferred to a different prison, his hernia was surgically repaired.
D.
Colon polyps/bloody stool
During the intake physical examination with Dr. Davida on June 26, 2015, Peters
self-reported a history of colon polyps, 2 including a prior colonoscopy and the removal
of several benign colon polyps in 2013, as well as current issues with bloody stool and
constipation. Peters contends that Dr. Davida and Dr. Funk were both involved in his
medical care regarding colon polyps. The defendants contend that Peters's complaints
relating to bloody stool were unrelated to colon polyps and that neither Dr. Davida nor
Dr. Funk knew of or participated in treating Peters for this condition.
Peters says that he filed numerous grievances in August and September 2015
regarding bloody stool. On September 28, 2015, a Wexford physician referred Peters
to Dr. Funk "when available." Wexford Notes at 000521. Peters saw Dr. Funk on
December 4 for his shoulder injury. Peters contends that during this visit, his bloody
stool issue was not addressed. Again, his contention is that the defendants ignored his
complaints and failed to provide him with diagnostic tests or treatment for the symptoms
and condition he reported. The evidence reflects that after Peters was transferred to a
different prison, he received a colonoscopy.
Discussion
Peters filed this lawsuit on June 26, 2017. In count 1 of his third amended
complaint, he alleges that each of the Wexford defendants was deliberately indifferent
to his objectively serious medical needs in violation of the Eighth Amendment. In the
2
Colon polyps are growths of cells inside the colon or rectum.
7
same count, Peters also asserts a claim against Wexford under Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978). The defendants have
moved for summary judgment on count 1. Peters's other claims are against other
defendants, specifically the Illinois Department of Corrections and certain IDOC
employees. The Court understands that Peters has settled with those parties.
Summary judgment is appropriate if the moving party shows that there is no
genuine dispute of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); Martinsville Corral, Inc. v. Soc'y Ins., 910 F.3d 996, 998
(7th Cir. 2018). The Court views the evidence and draws all reasonable inferences in
the light most favorable to Peters, the non-moving party. 3 Cervantes v. Ardagh Grp.,
914 F.3d 560, 564 (7th Cir. 2019). To survive summary judgment, Peters must "present
specific facts establishing a material issue for trial, and any inferences must rely on
more than mere speculation or conjecture." Giles v. Godinez, 914 F.3d 1040, 1048 (7th
Cir. 2019).
A.
Eighth Amendment claim against individual defendants
The Eighth Amendment's prohibition on cruel and unusual punishment requires
3
The defendants have objected to many of Peters's responses to the
defendants' Local Rule 56.1(b)(3)(C) statements of fact, contending they are
argumentative and that he improperly added additional facts without submitting his own
statement of additional facts. Parties filing opposing motions under Local Rule 56.1 are
required to file a statement of any additional facts that require the denial of summary
judgment. See N.D. Ill. LR 56.1(b)(3). The Court declines to exercise its discretion to
ignore Peters's additional asserted facts. See Taylor v. Bd. of Educ. of City of Chi., No.
18 C 7874, 2020 WL 5076718, at *4 n.6 (N.D. Ill. Aug. 27, 2020) (Kennelly, J.) (denying
defendants' request to strike many of the plaintiff's responses to the defendants’ Local
Rule 56.1(a)(3) statement of facts on the grounds that he did not submit a statement
under Local Rule 56.1(b)(3)(C)); see also Cichon v. Exelon Generation Co., 401 F.3d
803, 809-10 (7th Cir. 2005).
8
states to provide adequate medical care to inmates. Estelle v. Gamble, 429 U.S. 97,
104 (1976); Giles, 914 F.3d at 1048-49. To prevail on a claim for violation of the Eighth
Amendment relating to medical care, Peters must show "that he suffered from (1) an
objectively serious medical condition to which (2) a state official was deliberately, that is
subjectively, indifferent." Giles, 914 F.3d at 1049. Peters must also show that the
official's deliberate indifference caused him to suffer some injury. See Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
As the Court has indicated, Peters's claims against the Wexford defendants
involve four medical conditions: a MRSA infection on Peters's left buttock; a right
shoulder injury; an umbilical hernia; and colon polyps/bloody stool. He contends that he
received grossly inadequate medical treatment for each.
1.
Objectively serious medical conditions
The first issue is whether each of Peters' conditions is objectively serious. The
Wexford defendants do not dispute that Peters's MRSA infection, umbilical hernia, and
colon polyps are objectively serious medical conditions. They dispute only whether
Peters's right shoulder injury is an objectively serious medical condition. A medical
condition is objectively serious if the condition is "one that a physician has diagnosed as
needing treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention." Knight v. Wiseman, 590 F.3d 458, 463
(7th Cir. 2009); Palmer v. Franz, 928 F.3d 560, 563 (7th Cir. 2019). It "need not be lifethreatening to be serious; rather, it could be a condition that would result in further
significant injury or unnecessary and wanton infliction of pain if not treated." Palmer,
928 F.3d at 564.
9
The defendants contend that Peters's "fall injuries," including the shoulder injury,
are "minor aches and pains or a tiny scratch." Defs.' Summ. J. Mem. at 4. But Dr. Funk
prescribed Peters with narcotic pain medication to treat the injury. Even without more, a
reasonable jury could infer from this that the shoulder injury was an objectively serious
medical condition: a doctor at Stateville determined that it necessitated medical
treatment. But there is more; Peters contend that the injury caused him ongoing pain
and limited his range of motion. A reasonable jury could find this was an objectively
serious medical condition. See Holmes v. Lochard, No. 17 C 1160, 2018 WL 5815518,
at *4 (C.D. Ill. Nov. 6, 2018) ("Plaintiff's self-described [shoulder] pain and limited range
of motion allow an inference that he [had an objectively serious medical need]"); see
also Medrano v. Smith, 161 F. App'x. 596, 598 (7th Cir. 2006) ("Medrano's back and
shoulder conditions, both of which required previous surgery and are now causing him
severe pain, obviously qualify [as serious medical needs under the Eighth
Amendment]"); Grovogel v. Racine Cty. Jail, No. 16 C 1274, 2018 WL 2135020, at *2
(E.D. Wis. May 9, 2018) ("The court finds that the plaintiff's alleged shoulder injury is a
serious medical need").
2.
Deliberate indifference
The next issue is whether Peters has presented sufficient evidence to permit a
reasonable jury to find that each Wexford defendant knew about yet deliberately
disregarded a substantial risk of harm to his health. Palmer, 928 F.3d at 564. The
Wexford defendants argue that none of them "displayed the required culpability to
sustain a claim of deliberate indifference" toward any of Peters's medical conditions and
that they are entitled to deference in their treatment decisions. Defs.' Summ. J. Mem. at
10
8. In the prison context, a medical professional is entitled to deference in treatment
decisions "unless no minimally competent medical professional would have so
responded under the circumstances at issue." McGee v. Adams, 721 F.3d 474, 481
(7th Cir. 2013). Nevertheless, "if a risk from a particular course of medical treatment (or
lack thereof) is obvious enough, a factfinder can infer that a prison official knew about it
and disregarded it." Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016). In that
situation, a "medical professional's treatment decision must be such a substantial
departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible did not base the decision on such a judgment."
Id. The Court addresses this on a condition-by-condition and defendant-by-defendant
basis.
a.
MRSA infection
First, the Wexford defendants contend that Dr. Davida's treatment of Peters's
MRSA infection met the standard of care for correctional medicine and that no
reasonable jury could find the defendants were deliberately indifferent to a substantial
risk of harm to Peters. Their argument principally relies on the testimony of one of their
experts, Dr. Kennon Tubbs. Specifically, the defendants argue that "Dr. Tubbs
reviewed Dr. Davida's medical record and deposition testimony; advised that he would
responded [sic] as Dr. Davida did if this was his patient; and he fully supported Dr.
Davida's treatment of Plaintiff, including Dr. Davida's treatment, of Plaintiff's MRSA
infection." Defs.' Summ. J. Mem. at 9.
In contrast, Peters contends that Dr. Davida knew about yet disregarded a
substantial risk of harm to his health by failing to adequately treat the MRSA infection on
11
Peters's left buttock. On August 21, about five weeks after Dr. Davida first saw Peters
for the MRSA infection, Peters was seen by a physician's assistant and prescribed
Clindamycin, an antibiotic, to treat the infection. Two days later, lab culture results
revealed that Peters's MRSA infection Peters was resistant to Clindamycin. Peters
contends that despite this, Dr. Davida did not change the course of treatment for the
MRSA infection.
There is evidence that would permit a finding that the MRSA infection continued
to persist due to the claimed ineffective treatment. In September 2015, Peters filed a
grievance complaining that he "still ha[d] an infection in [his] left hip and buttock from
whatever bit me … it keeps me in pain." Pl.'s Ex. 3 (Peters Grievances) at 000064. In
October 2015, three months after Dr. Davida first treated Peters, Peters filed a
grievance regarding the sore on his buttocks; he complained that his left buttock had
"still not healed and [was] leaking green stuff." Id. at 000066. A reasonable jury could
find that despite this, no different medication was prescribed and no further treatment
was rendered.
Based on the evidence cited by Peters, a reasonable jury could find that Dr.
Davida was deliberately indifferent to a substantial risk of harm in that he ultimately
"turn[ed] a blind eye" to Peters's MRSA infection and "persist[ed] in a course of
treatment known to be ineffective." Gentry, 65 F.3d at 561; Williams v. Obaisi, No. 17 C
3893, 2020 WL 5026352, at *5 (N.D. Ill. Aug. 25, 2020); see also Greeno v. Daley, 414
F.3d 645, 655 (7th Cir. 2005) (finding a genuine factual dispute regarding whether a
physician was deliberately indifferent to a prisoner's deteriorating medical condition by
persisting with an ineffective course of treatment).
12
b.
Right shoulder injury
Second, the Wexford defendants argue that Dr. Funk's and Dr. Elazegui's
treatment and nurse Rossiter's care of Peters's right shoulder injury met the standard of
care for correctional medicine and thus they were not deliberately indifferent to a
substantial risk of harm to Peters. Peters contends, however, that the treatment he
received was deficient and that he continued to experience shoulder pain and mobility
issues for months. He contends that as a result, he can no longer use his crutches4 and
thus requires a wheelchair.
The defendants base their arguments on the testimony of their experts, Dr.
Kennon Tubbs and Dr. Alan Loren. Specifically, they argue that Dr. Loren "determined
that Dr. Funk's conservative treatment of Plaintiff's shoulder injury was appropriate and
that Plaintiff's shoulder injury did not require an MRI" and that Dr. Tubbs "agreed with
Dr. Funk's course of treatment for Plaintiff's shoulder injury, and advised that he would
have provided similar care to Dr. Funk if this was his patient." Defs.' Summ. J. Mem. at
11. They also contend that Dr. Tubbs's testimony demonstrates the adequacy of Dr.
Elazegui's treatment of Peters and well as Rossiter's nursing care.
Peters likewise offers the testimony of an expert, Dr. Marc Itskowitz. Dr.
Itskowitz challenges the defendants' course of treatment of Peters's shoulder injury and
opines that they should have ordered an MRI, provided steroid injections, or referred
Peters to physical therapy. The defendants' experts opine that the treatments were
unnecessary.
4
Peters arrived at Stateville with two crutches and a wheelchair. Peters uses these
assistive devices because of disabilities he was diagnosed with before his incarceration.
13
Defendants' suggestion that their experts' testimony defeats Peters's claim lacks
merit. Peters has presented countervailing expert testimony. The fact that defendants
have offered experts who support their course of treatment does not entitle them to
summary judgment.
In addition, Peters's deposition testimony thwarts defendants' argument that
Peters has pointed to no evidence supporting his allegations against Dr. Funk, Dr.
Elazegui, and nurse Rossiter. Peters testified that he informed all three of these
defendants 5 about his persistent, painful shoulder condition. This is sufficient to permit
a reasonable jury to find that each of these defendants knew yet disregarded a
substantial risk to Peters's health. Peters Dep. Tr. at 109:6-11 ("Dr. Funk's the one that
wouldn't do nothing about the shoulder…[a]nd he took away my [pain] medications"),
157:20-158:12 ("[I told them at the infirmary that] [m]y knee – well my knee was
destroyed, and my shoulder was destroyed, I couldn't move it at all"), 161:9-162:2 ("Dr.
Funk gave me Tylenol 3 for about three days, and then he stopped it, maybe four days,
and then he stopped it. And then I didn't get any more until the time I left, until I got back
down to NRC"), 109:23-110:2 ("[Rossiter]'s the nurse that was harassing me about the
handicap van"); 165:3-11 ("the entire time I asked them [healthcare providers in the
infirmary] for, to find out if there's ligament damage to my shoulder").
Dr. Funk, the first medical staff member to treat Peters's shoulder injury, ordered
5
The defendants make a conclusory argument, without citing authority, that Dr.
Elazegui and nurse Rossiter cannot be held liable with regard to Peters's shoulder injury
because their interactions with him were limited in scope and short in duration. The
defendants have forfeited this point by asserting it in a cursory and unsupported
fashion. That aside, Peters has presented evidence sufficient to permit a reasonable
jury to find that Dr. Elazegui and nurse Rossiter knew of his medical needs pertaining to
the shoulder injury but ignored the need for treatment.
14
an x-ray on December 4, 2015, the day that Peters fell and presented in the Stateville
infirmary with shoulder pain. Between December 4 and December 16, Peters
complained of shoulder pain and immobility to both Dr. Funk and nurse Rossiter, who
were responsible for treating him during his confinement in the infirmary. Dr. Funk
discharged Peters on December 16, before he had undergone the x-ray, and he
provided Peters no further treatment. Although the results of Peters's x-ray were
negative, he contends that he continued to suffer shoulder pain and mobility issues after
Dr. Funk discharged him on December 16.
After Dr. Funk left Stateville on December 16, 2015, Dr. Elazegui became
Peters's treating physician. Dr. Elazegui first evaluated Peters's shoulder injury on
January 7, 2016. Peters complained of shoulder pain and limited mobility during this
visit, but Dr. Elazegui only instructed Peters to "increase activities" and prescribed him
pain killers. Peters contends that he was in pain during the January 7 visit. The
Wexford defendants dispute this, relying primarily on Dr. Elazegui's note stating that "no
signs of discomfort [were] noted at the visit." Wexford Notes at 000564. Contrary to the
defendants' suggestion, a note made by a person accused of deliberate indifference is
not conclusive evidence refuting Peters's claim. His testimony that he was in shoulder
pain during his first visit with Dr. Elazegui is sufficient to give rise to a genuine factual
dispute on this point. See id.
The defendants also argue that they are entitled to summary judgment because
whether Peters even needed an x-ray is "debatable." Defs.' Summ. J. Mem. at 11. But
Peters has offered evidence that would permit a reasonable jury to find that he reported
a persistent and painful shoulder injury. Further, Peters contends that the x-ray was not
15
sensitive enough to evaluate for soft tissue injuries he may have suffered. He argues
that even though the x-ray did not reveal the cause of his symptoms, Dr. Funk "never
followed up, performed further diagnostic treatment, or prescribed any additional
treatment." Pl.'s Resp. at 5. As a result, Peters says, his shoulder pain continued.
Peters's expert, Dr. Itskowitz, has opined that the "[b]ecause Wexford staff failed
to run appropriate diagnostic tests, the full extent of [Peters's] shoulder injury is not
known." Pl.'s Ex. 6 (Dr. Itskowitz Report) at 10. Dr. Itskowitz opined that magnetic
resonance imaging (MRI) could have detected a subtle fracture or soft tissue damage, a
steroid injection could have relieved Peters's pain, or a referral for physical therapy or
orthopedics would have been appropriate upon Peters's discharge from the infirmary.
See id. at 9.
The Court finds that the evidence presented by Peters, including reasonable
inferences, would permit a reasonable jury to find that further testing and treatment
regarding his shoulder pain was necessitated and that the failure to follow up
constituted deliberate indifference. The issue of whether Peters needed an x-ray or any
further treatment is reserved for the jury. See Greeno, 414 F.3d at 655 ("The possibility
that [the defendants] did not do more for Greeno because they thought he was
malingering and did not really have a severe medical need is an issue for the jury").
c.
Umbilical hernia
Third, the Wexford defendants argue that none of them displayed the required
culpability to sustain Peters's claim of deliberate indifference toward the umbilical hernia
because their treatment complied with the applicable standard of care for correctional
medicine.
16
During Peters's intake physical examination on June 26, 2015, he informed Dr.
Davida that he had an umbilical hernia. Dr. Davida documented the hernia in Peters's
medical records on that date. Peters asserts that during his incarceration at the NRC,
his hernia was "inflamed," "growing," and he was unable to "push it back in." Peters
Dep. Tr. at 125:17-20. During medical visits on August 6, 2015 and September 3, 2015,
Peters alleges that he complained of hernia-related symptoms, including blood in the
stool and constipation.
On September 22, 2015, Peters filed a grievance complaining of sharp pains in
his intestines and a stabbing pain below his rib cage. And he says that when he was
confined to the infirmary in December 2015 after his shoulder injury, he experienced a
hernia attack, in other words, severe pain from the area of the hernia. Peters contends
that the defendants should have treated him for the pain and/or evaluated the hernia for
surgical repair. It is noteworthy that in 2018, after Peters was transferred from the NRC
to Menard Correctional Center, his hernia was surgically repaired. Peters argues that
the delay in treatment for his hernia pain amounted to deliberate indifference.
The defendants dispute Peters's argument that he experienced hernia issues at
all; they contend that his hernia was "asymptomatic during his entire incarceration at
Stateville." Defs.' Summ. J. Mem. at 11. The defendants also cite Dr. Tubbs's and Dr.
Loren's expert reports to back their contention that Peters's complaints did not reflect
hernia pain because of the location where he reported pain and because umbilical
hernias "rarely cause" abdominal pain, nausea, vomiting, and constipation. Id.
The defendants' arguments do not provide a basis for entry of summary
judgment. Peters has produced sufficient evidence of complaints he made to each of
17
the four defendants regarding issues that a reasonable jury could find are connected to
his umbilical hernia. As for defendants' experts' opinions, "rarely" does not mean never.
Whether Peters's symptoms were hernia-related, based on their location or based on
the pain that hernias of this type may typically cause, is a disputed factual issue to be
determined by a jury.
Peters has presented evidence from his deposition testimony, grievances he
filed, and hernia-related complaints in his medical record that would permit a reasonable
jury to find that he complained of hernia-related pain to all four Wexford defendants in
the course of medical treatment that each of them provided to him. Peters Dep. Tr. at
106:15-21 ("Davida was the original doctor I saw upon arriving at NRC…I had hernia
problems, and he wasn't taking care of it"); 115:15-19 ("[Davida] wouldn’t address my
stomach hernia"); 107:4-7 ("[Elazegui]'s another one that would not take care of my
hernia issues"); 166:22-167:9 ("I was asking [Dr. Funk] for something to help [with the
hernia attack on Dec. 14, 2015] and he [yelled at me and told me to get out of his
sight]"); 109:23-110:9 ("I was having a hernia attack basically in the infirmary, and I
couldn't get [Rossiter] to help me"); 121:19-24 "[I showed the cookie bag of bloody
feces] to [Rossiter] once, I believe, I believe... and that's the one I believe was attributed
to the hernia.").
The defendants also appear to contend that Peters's hernia must have been
asymptomatic because the surgical and pathology report following his 2018 hernia
removal surgery at Menard Correctional Center revealed that his umbilical hernia was
not strangulated. (When a hernia is strangulated, the part of the intestine affected by
the hernia loses blood supply.) But evidence that the hernia was not strangulated when
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it was removed in 2018 is not fatal to Peters's claim given the evidence that he suffered
hernia-related pain in August, September, and December 2015—three years earlier—
and that this persisted due to the absence of treatment by the defendants. See
Johnson v. Wexford Health Source, Inc., No. 17 C 3213, 2020 WL 2128735, at *3 (N.D.
Ill. May 5, 2020) ("delaying treatment of a non-life threatening, but painful, condition for
nonmedical reasons can constitute deliberate indifference … even if the delay in
treatment does not exacerbate the injury"). A reasonable jury could find that the
defendants were deliberately indifferent to Peters's umbilical hernia because "the
surgery, which was ultimately performed, was unnecessarily delayed in the face of
worsening symptoms and ongoing complaints of pain." Id.
In short, Peters has presented sufficient evidence to permit a reasonable jury to
find in his favor against each of the Wexford defendants on his deliberate indifference
claims regarding treatment of his hernia.
d.
Colon polyps/bloody stool
The final medical condition at issue in this case is Peters's colon polyps and
bloody stool. The defendants contend that they did not display the required culpability
to sustain a claim of deliberate indifference because their treatment complied with the
standard of care for correctional medicine.
During Peters's intake physical examination on June 26, 2015, he informed Dr.
Davida that he had a history of colon polyps and that he was currently suffering from
bloody stool. Dr. Davida documented these conditions in Peters's medical records on
that date. Peters contends that while he was incarcerated at the NRC, he consistently
suffered bloody stool, which he argues is a symptom consistent with colon polyps.
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During medical visits on August 6, 2015, September 3, 2015, and September 28, 2015,
Peters complained of bloody stool. In response to these complaints, the treating
physician (who is not a defendant in this case) referred Peters to Dr. Funk "when
available." Wexford Notes at 000521. Peters asserts that he filed at least fifteen
grievances asking to see a doctor regarding his bloody stool problem.
Peters contends that despite his complaints to Dr. Davida regarding bloody stool,
Dr. Davida did not follow up or treat this condition while treating Peters for MRSA in
August and September 2015. Peters also claims that Dr. Funk did not address his
bloody stool-related medical issues when he saw Peters for the shoulder injury on
December 4, 2015. And Peters's expert, Dr. Itskowitz, has opined that the defendants
failed to monitor and treat Peters's colon polyps.
In April 2018, after transferring to Menard Correctional Center, Peters underwent
a colonoscopy. The colonoscopy was negative for colon cancer and colon polyps. The
Wexford defendants rely on this to contend that Peters cannot sustain a claim based on
failure to treat him for colon polyps while he was incarcerated at the NRC.
Peters argues that because the defendants performed no diagnostic tests
relating to these matters while he was incarcerated at the NRC, there is no basis to
conclude that his complaints of abdominal pain, blood in his stool, and constipation
were unrelated to colon polyps. Furthermore, Peters's expert, Dr. Itskowitz, has opined
that the Wexford staff failed to treat Peters's bloody stool problem and thereby risked
him suffering from not only colon polyps, but also other serious symptoms, such as
rectal bleeding, abdominal pain, constipation, and diarrhea. See Dr. Itskowitz Report at
7-8. Peters's numerous grievances show that he did make complaints regarding many
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of these medical issues, including rectal bleeding, constipation and other
gastrointestinal symptoms. Furthermore, Peters explained in one grievance regarding
his colon polyps that he had a family history of colon cancer, which, Dr. Itskowitz
opines, increases the chance that any colon polyps Peters had could become
malignant. See id. at 7.
The Wexford defendants point to Dr. Tubbs's and Dr. Loren's expert reports to
refute Peters's complaints of colon polyps. They contend that Peters's complaints of
bloody stool "were not related to colon polyps" and that "it was not medically indicated
for any of the treatment providers at Stateville NRC to ordered [sic] a colonoscopy for
Plaintiff." Defs.' Summ. J. Mem. at 12.
Whatever merit the defendants' arguments may have regarding colon polyps in
particular, they miss the mark with regard to the symptoms Peters reported. Although
Peters's April 2018 colonoscopy was negative for colon polyps, that does not absolve
the defendants from conducting tests or treating him regarding bloody stool, which could
have resulted from colon polyps or from other significant medical conditions. Peters has
shown that there is a genuine dispute regarding the Wexford defendants' deliberate
indifference to his painful symptoms, including blood in his stool, which caused him
significant pain. The Wexford defendants have not demonstrated otherwise. A
reasonable jury could find that Peters suffered harm because the individual Wexford
defendants delayed and failed to adequately treat his symptoms.
e.
Totality of Peters's care
The defendants contend that "the totality of the medical care received by this
Plaintiff does not support an inference of deliberate indifference by any Wexford
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Defendant." Defs.' Summ. J. Mem. at 12. The Court disagrees. "Viewing the entire
record," Peters has identified "significantly probative evidence that the defendants knew
of a serious medical risk" to him and that "the defendants disregarded such a risk."
Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir. 1999). For
this reason, Peters has shown sufficient evidence of deliberate indifference—more fully
discussed above—to avoid summary judgment. See id.
B.
Peters's Monell claim
Peters's claim against Wexford is based on the theory of municipal liability
described in the Monell case, which the Seventh Circuit has "held applies in § 1983
claims brought against private companies acting under color of state law." Walker v.
Wexford Health Sources, Inc., 940 F.3d 954, 966 (7th Cir. 2019). To survive summary
judgment on his claim against Wexford, Peters must point to evidence that would permit
a reasonable jury to find "(1) an express policy that causes a constitutional deprivation
when enforced; (2) a widespread practice that is so permanent and well-settled that it
constitutes a custom or practice; or (3) an allegation that the constitutional injury was
caused by a person with final policymaking authority." Spiegel v. McClintic, 916 F.3d
611, 617 (7th Cir. 2019).
Peters contends that the delays in effective treatment were part of a widespread
policy or practice to help meet Wexford’s cost-cutting goals. But Peters has cited no
evidence of this other than his own experience. See Shields v. Ill. Dep't of Corrs., 746
F.3d 782, 796 (7th Cir. 2014) (affirming summary judgment where plaintiff could only
point to his own experiences and finding “[s]uch isolated incidents do not add up to a
pattern of behavior that would support an inference of a custom or policy, as required to
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find that Wexford as an institution/corporation was deliberately indifferent to Shields’s
needs”); Williams, 2020 WL 5026352, at *6–7 (discussing Shields); cf. Davis v. Carter,
452 F.3d 686, 695 (7th Cir. 2006) (denying summary judgment where, in addition to
personal experience, plaintiff offered jail employee testimony about systematic delays in
treatment and delays inherent in treatment procedures). Though there are certainly
cases in which a single plaintiff's experiences might be sufficient to allow a reasonable
inference of a policy or custom, see generally Board of County Commissioners of Bryan
County v. Brown, 520 U.S. 397, 409 (1997), this is not such a case. See Grieveson v.
Anderson, 538 F.3d 763, 774 (7th Cir. 2008) ("it is necessarily more difficult for a
plaintiff to demonstrate an official policy or custom based only on his own experience").
Wexford is entitled to summary judgment on Peters's Monell claim.
Conclusion
For the foregoing reasons, the Court grants the defendants' motion for summary
judgment [dkt. no. 138] as to defendants Dr. Rozel Elazegui, Dr. Arthur Funk, and nurse
Athena Rossiter with regard to the treatment of plaintiff's MRSA infection; as to
defendant Dr. Arthur Davida with regard to the treatment of plaintiff's shoulder injury; as
to defendants Dr. Elazegui and nurse Rossiter with regard to the treatment of plaintiff's
colon polyps; and as to Wexford Health Sources, Inc., with regard to plaintiff's Monell
claim. The Court otherwise denies defendants' motion.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: September 18, 2019
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