Averkamp v. Dixon et al

Filing 123

MEMORANDUM Opinion and Order: For the reasons stated in the accompanying Memorandum Opinion and Order, Dr. Elazegui's motion for summary judgment, R. 106 , is granted. The Court thanks plaintiff's counsel for excellent advocacy on behalf of Mr. Averkamp. Signed by the Honorable Thomas M. Durkin on 4/11/2022. Mailed notice. (ecw, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KYLE A. AVERKAMP,
Plaintiff,

No. 17 C 8491

v.

Judge Thomas M. Durkin

C/O SAMUEL DIXON; C/O STUART
KESSLER; C/O TYLER SOBIN; DEBRA
MCCALLUM, R.N.; ROBIN ROSE; AND DR.
ROZEL ELAZEGUI,
Defendants.
MEMORANDUM OPINION AND ORDER
Kyle Averkamp sued Dr. Rozel Elazegui, the former medical director at
Sheridan Correction Center, under 42 U.S.C. § 1983, alleging a violation of his Eighth
Amendment rights. Averkamp’s claim stems from the medical care he received while
incarcerated at Sheridan. Now before the Court is Elazegui’s motion for summary
judgment, R. 106. That motion is granted.
Background
The following facts are undisputed except where otherwise indicated. On
November 6, 2016, Averkamp was physically attacked while incarcerated at
Sheridan. He was first taken to Valley West Community Hospital and transferred to
the OSF Healthcare St. Anthony Center emergency room. DSOF ¶ 8.1 Averkamp was

References to Elazegui’s Rule 56 statement of facts will be cited as “DSOF.”
References to Averkamp’s statement of facts will be cited as “PSOF.” References to
Averkamp’s responses to Elazegui’s statement of facts will be cited as “PR.”
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seen by Dr. Emily Wilczak in the OSF trauma department. Id. at ¶ 9. Imaging showed
multiple right-sided facial fractures, and Dr. Wilczak requested a consult with a
plastic surgeon. Id. The next day, Averkamp was seen by Dr. Sarah Hagarty, a plastic
surgeon. Id. at ¶ 10. Hagarty reviewed Averkamp’s scans and determined the
fractures warranted surgery. Id. Averkamp was discharged on November 7, 2016
pending surgery to allow his swelling to reduce. Id. Upon discharge, he received a
recommendation for Tramadol, a Schedule IV narcotic in a category of drugs known
as opioid analgesics. Id. at ¶ 12.
Hagarty performed the surgery on Averkamp on November 17, 2016. DSOF ¶
18. The surgery went well, and Averkamp was discharged the next day. Id. Upon
discharge, he was prescribed ten pills of hydrocodone-acetaminophen to be taken
every six hours as needed. Id. Hydrocodone-acetaminophen is commonly known as
Norco. It belongs to the same group of drugs as Tramadol—opioid analgesics. Hagarty
testified during her deposition that she normally prescribes either Norco or Tramadol
for the type of surgery Averkamp had, noting, as to the drugs’ comparable effects on
pain, they are “about the same level.” Id. at ¶ 20.
Elazegui first saw Averkamp on November 19, 2016. Id. at ¶ 22. Rather than
prescribing Norco, Elazegui prescribed Tramadol and Tylenol to be taken three times
per day for ten days. Id. The parties agree the Tramadol dose prescribed by
Elazegui—100 mg—is the maximum allowable dose. Id. at ¶ 23. The parties also

References to Elazegui’s responses to Averkamp’s statement of facts will be cited as
“DR.”
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agree the combination of Tramadol and Tylenol has the same pain control effects as
Hydrocodone and Acetaminophen (Norco), as both combine an opioid and
acetaminophen. Id. at ¶ 24.
On November 23, 2016, Averkamp had a follow-up appointment with Hagarty
and was seen by Elazegui upon returning to Sheridan. He complained of blurry vision,
and Elazegui requested an urgent evaluation from an ophthalmologist. Id. at ¶ 27.
Elazegui performed a physical examination, noting minimal swelling around the
incision and normal pupil reaction and movement. Id. Elazegui determined
Averkamp should continue with his medications as prescribed.
Elazegui next saw Averkamp on November 27, 2016. Id. at ¶ 30. Averkamp
complained of lightheadedness and vomiting. Elazegui examined him and saw no
current signs of dizziness or distress and continued with the Tramadol and Tylenol.
Id. On November 30, 2016, Averkamp reported that his dizziness and nausea was
improving. Id. at ¶ 31. Still, Elazegui ordered that Averkamp see an optometrist. Id.
On December 4, 2016, Averkamp reported he had a migraine the day before.
Id. at ¶ 35. Elazegui performed a detailed physical and neurological examination
which yielded normal results. Id. Averkamp does not dispute that, at this point,
Elazegui did not believe Averkamp was experiencing symptoms of a concussion. Id.
On December 8, 2016, Averkamp was seen by Hagarty at OSF Plastic Surgery
clinic. She recommended a three-month follow up appointment and a follow-up with
a trauma specialist to manage any possible concussive symptoms. Id. at ¶ 36.
Averkamp objects to this statement of fact, denying “that Defendant has cited any

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admissible evidence to support the propositions” in it. PR ¶ 36. But this is essentially
the basis of Averkamp’s argument—that Hagarty recommended he be seen by a
trauma specialist. Indeed, he relies on this recommendation throughout his entire
response. It appears, even though he made a vague objection, that it is undisputed
that Hagarty recommended an appointment with a trauma specialist.
On December 9, 2016, Dr. Obaisi, another doctor at the prison, requested a
referral to a trauma specialist, based on Hagarty’s recommendation. DSOF ¶ 39. The
appointment was scheduled for January 10, 2017. Id. In the meantime, Elazegui saw
Averkamp five more times. On December 11, Averkamp told Elazegui his nausea and
vomiting had resolved, and informed him of his history of migraines which predated
his injuries. Id. at ¶ 40. Elazegui ordered Averkamp to continue with the Tramadol
and Tylenol. Id. On December 14, 2016, Averkamp complained of headaches and
occasional dizziness. Id. at ¶ 41. Elazegui performed various neurological exams, all
of which were normal. Id. The nausea and vomiting had apparently resolved by
December 21, 2016, when Elazegui saw Averkamp again. Id. at ¶ 43. It was at this
appointment that Elazegui diagnosed Averkamp’s headaches as post-concussive
headaches, and prescribed Amitriptyline, an antidepressant used to treat postconcussive headaches. Id. Elazegui saw Averkamp again on December 28, 2016, and
January 8, 2017. At the January 8 appointment, Elazegui noted that Averkamp had
an upcoming appointment with the trauma specialist. Id. ¶ 45.
On January 10, 2017, the date Averkamp was scheduled to see the trauma
specialist, during a phone call between Sheridan Healthcare Unit Administrator

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Robin Rose and OSF Nurse Patricia Smith, the appointment was cancelled. Id. at
¶¶46, 47.2
On January 15, 2017, Averkamp reported that his headaches had been
improving. Id. at ¶ 49. Elazegui ordered an x-ray of Averkamp’s jaw to make sure
none of the surgical implants had been displaced, and continued the Tramadol (at a
lower dosage) for another seven days. Id. Elazegui then saw Averkamp again on
January 22 (headaches continued to decrease, current pain management was
continued) and January 25 (headaches returned, Elazegui ordered the Amitriptyline
to be resumed “ASAP”). Id. at ¶¶ 50-51. On March 9, Averkamp requested a refill of
Imitrex, a migraine medication prescribed by Obaisi. Dr. Elazegui refilled the
prescription. Id. at ¶ 53.
The headaches continued, and whenever Averkamp complained of them,
Elazegui adjusted the prescribed medications in attempts to address the issue. See
id. at ¶ 54 (prescribing migraine medication Propranolol for three weeks on April 17);

Averkamp objects to consideration of any information from Robin Rose’s affidavit
because it does not contain the words “under penalty of perjury.” R. 107-5; R. 110 at
8. Elazegui argues the Rose declaration is admissible because it was provided under
oath, but nonetheless submitted an amended Rose declaration, signed and dated in
October 2021, which is identical to her previous declaration but now includes the
language “under penalty of perjury.” This is acceptable. See Trapaga v. Central States
Joint Bd. Local 10, 2007 WL 1017855, at *6 (noting the plaintiff could have rendered
its submitted affidavits admissible by re-filing amended versions with the
appropriate language regarding penalty of perjury). See also Hernandez v. Helm,
2019 WL 5922233, n.6 (N.D. Ill. Nov. 12, 2019) (considering affidavits at summary
judgment even without the required perjury language). And indeed, Averkamp
responded to the substance of the Rose declaration in his response. R. 110 at 8-9. For
reasons explained infra at n.4, however, the parts of the Rose declaration which rely
on hearsay were not considered by the Court in deciding the instant motion.
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¶ 55 (prescribing migraine medication Inderal LA for two weeks on May 18); ¶ 56
(changing the Inderal LA prescription to Inderal IR, an equivalent migraine
medication, when he learned Inderal LA was not available on May 19); ¶ 57
(prescribing Excedrin for two weeks on May 26). May 26, 2017 was Averkamp’s last
appointment with Elazegui.
Upon his release from IDOC, Averkamp sought treatment from a family
practice physician at Northern Illinois Medical Center who referred him to a
neurologist. PSOF ¶ 24. The neurologist examined Averkamp in February and March
2019, ordered a CT scan, and prescribed Pamelor, an antidepressant and nerve-pain
medication, which Averkamp says mitigated his pain. Id.
Averkamp brought this action in 2017. In his second amended complaint, filed
on January 8, 2021 with the assistance of counsel, he alleged three counts. Count II
is the only remaining count, alleging Elazegui was deliberately indifferent to his
serious medical needs when he failed to administer proper pain medication and
denied appropriate proper post-operative care. R. 80 at 9.
Legal Standard
Summary judgment is appropriate “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). To defeat summary judgment, a nonmovant must produce more than
a “mere scintilla of evidence” and come forward with “specific facts showing that there
is a genuine issue for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d

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887, 894 (7th Cir. 2018). The Court considers the entire evidentiary record and must
view all evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Horston v. Pobjecky, 883 F.3d 941, 948 (7th Cir.
2018). The Court does not “weigh conflicting evidence, resolve swearing contests,
determine credibility, or ponder which party’s version of the facts is most likely to be
true.” Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021)
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248.
Analysis
“Prison officials violate the Eighth Amendment’s proscription against cruel
and unusual punishment when they display ‘deliberate indifference to serious
medical needs of prisoners.’” Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A deliberate indifference claim
has both objective and subjective components. Id. at 653. “To satisfy the objective
component, a prisoner must demonstrate that his medical condition is ‘objectively,
sufficiently serious.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The
subjective component requires proof that the defendant knew of and disregarded an
“excessive risk to inmate health.” Id.
I.

Serious Medical Need
It is undisputed that the attack leading to Averkamp’s surgery caused serious

harm and warranted urgent medical attention. Elazegui does not make any argument

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that Averkamp’s condition was not serious during the relevant time period following
the attack. The Court assumes then, for the sake of this motion, that a jury could
reasonably find that Averkamp’s post-surgery migraines, other headaches, nausea,
and occasional blurry vision constituted an objectively serious medical need. See
Gutierrez v. Peters, 111 F.3d 1364, 1370 (7th Cir. 1997) (citing Estelle, 429 U.S. at
107) (explaining that the “serious medical need” standard encompasses “medical
conditions far less critical than ‘life-threatening.’”).
II.

Sufficiency of Treatment
The remaining question is whether a jury could reasonably find that Elazegui’s

response to Averkamp’s medical condition constituted deliberate indifference. The
deliberate indifference standard is akin to the criminal recklessness standard. See
Farmer, 511 U.S. at 839-840. Mere negligence will not support liability under an
Eighth Amendment claim. See Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
Rather, a prisoner’s medical treatment violates the Eighth Amendment only where it
is “blatantly inappropriate.” Greeno, 414 F.3d at 654. This can be established through
evidence that the prisoner was “literally ignored” or that the treatment was such that
“no minimally competent professional would have so responded under those
circumstances. Johnson v. Obaisi, 2020 WL 433872, at *6 (N.D. Ill. Jan. 28, 2020)
(citing Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011) and Pyles v. Fahim, 711 F.3d
403, 409 (7th Cir. 2014)). Accordingly, a plaintiff must show more than simple
medical malpractice. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th
Cir. 2016). A disagreement between a prisoner and his doctor, or even between two

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medical professionals, about the proper course of treatment generally is insufficient,
by itself, to establish deliberate indifference. Greeno, 414 F.3d at 653.
In addition to the high standard for a deliberate indifference claim, the
defendant must be “personally responsible” for an Eighth Amendment violation. See
Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir. 2017). Section 1983 liability cannot be
premised on a theory of respondeat superior. Kinslow v. Pullara, 538 F.3d 687 (7th
Cir. 2008). Thus, Elazegui cannot be held liable for any alleged mistreatment purely
by virtue of being Sheridan’s medical director. He must have actively participated in
the complained-of conduct, or at the very least facilitated, approved, condoned, or
willingly turned a blind eye to it. Rasho, 856 F.3d at 478.
A. Appointment with a Trauma Specialist
Averkamp argues Elazegui’s failure to schedule a follow-up appointment with
a trauma specialist constitutes deliberate indifference. The parties do not dispute
that Elazegui did not personally cancel the trauma specialist appointment. 3
Averkamp argues the personal involvement requirement is still met because Elazegui
did not reschedule the appointment. But Elazegui, at the time the trauma

Parts of the Rose declaration, in which Rose provides context for the appointment’s
cancellation, go into detail as to the substance of the phone call with nurse Smith.
These portions of the declaration are based on hearsay and thus the Court may not
consider them. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). The
parties seem to agree, however, that it was not Elazegui who either made or cancelled
the appointment, and even without the inadmissible portions of the declaration, that
fact is established in Elazegui’s testimony as well as the prison medical records
showing Obaisi made the appointment. DSOF ¶61 (referencing R. 107-10; DSOF ¶
39). Averkamp makes no argument to the contrary and focuses instead on the failure
to reschedule.
3

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appointment was cancelled, had personally met with Averkamp at least six times,
and was entitled to rely on his own medical judgment as to what treatment was
necessary.
Elazegui made the determination that he could manage Averkamp’s postconcussive symptoms on his own as a general practitioner. R. 118 at 8. It was within
his medical discretion to do so. He testified as to his reasoning for not making a second
referral to a trauma specialist—he conducted multiple objective tests and found the
physical and neurological results to be normal. Id. at 11. Averkamp argues he should
have received an MRI or CT scan, but those are “simply diagnostic tool[s], and the
decision to forego diagnostic tests is ‘a classic example of a matter for medical
judgment.’” Pyles, 771 F.3d at 409 (quoting Estelle, 429 U.S. at 107)). See also Dean
v. Wexford Health Sources, Inc., 2021 WL 5230855, at * 63 (N.D. Ill. Nov. 10, 2021)
(“Nowhere in the cited testimony did [the defendant] testify that he consciously opted
against what he knew was the best treatment. [The plaintiff] cannot establish
deliberate indifference simply by citing to things [the defendant] did not do.”).
In total, Elazegui did not make the initial referral for a trauma specialist—Dr.
Obaisi did. He did not cancel the appointment. Exercising his medical discretion, he
promptly conducted a thorough examination and recorded the basis for his
determination that a new referral to a trauma specialist was not necessary.
Averkamp has not provided any fact showing (or even alleging) that the failure to
follow-up with a trauma specialist caused him harm. In fact, he testified that he did
not know if any doctor said Elazegui’s course of treatment caused harm. DSOF ¶ 80.

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He did not submit evidence from which a jury could reasonably find that Elazegui’s
exercise of medical judgment departed significantly from accepted professional
norms. See Roe, 561 F.3d at 857-58. Indeed, Averkamp received a CT scan from the
neurologist he saw upon his release from Sheridan, but he provides no argument that
the CT scan found something that Elazegui missed because he failed to provide one.
The record clearly supports a finding that Elazegui’s course of treatment in opting
not to make a trauma referral was not blatantly inappropriate. Greeno, 414 F.3d at
654.
B. Choice of Medication
Averkamp also takes issue with Elazegui’s choice of medication in treating
Averkamp and his decision not to prescribe Norco, as Hagarty recommended. But
Elazegui’s choice of medication does not constitute deliberate indifference.
Averkamp’s complaint is that he received Tramadol instead of Norco. He does not
dispute the fact that Hagarty—who he spends significant time arguing is the
specialist who should have been relied on—testified that she essentially uses
Tramadol and Norco interchangeably. DSOF ¶ 58. This alone is fatal to Averkamp’s
claim, as Hagarty’s testimony confirms that Elazegui’s course of treatment was
within the medical standard of care, and thus a reasonable jury could not find that
“no minimally competent professional” would have prescribed Tramadol and Tylenol
rather than Norco. See Johnson, 2020 WL 433872 at *6.
Moreover, every time that Averkamp complained that his medications were
not helping, Elazegui responded by changing the medications—he did this at least

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four times in six months. DSOF ¶¶ 54-57. There is no deliberate indifference where
a provider prescribes new medications or changes the doses of existing medications
to respond to an inmate’s pain complaints. Pyles, 771 F.3d at 412. Averkamp does not
suggest what medication should have been given to him, and although the neurologist
he saw after his release prescribed Pamelor, he has not provided any evidence that
any doctor said Pamelor was the medication which should have been given in the first
place. The only doctors the parties rely on instead say the medication he was given
(Tramadol) was equivalent to the one Hagarty initially suggested. When that didn’t
help, Elazegui continued to try alternative options in an effort to help Averkamp. And
the medications did help him on numerous occasions, when he reported lessening
headaches and resolved blurry vision. See, e.g., DSOF ¶ 49 (reporting improved
headaches). The fact that Elazegui did not “cure” Averkamp of his post-surgical pain
is not deliberate indifference. See Snipes v. Deltella, 95 F.3d 586, 591 (7th Cir. 1992)
(“To say the Eighth Amendment requires prison doctors to keep an inmate pain-free
in the aftermath of proper medical treatment would be absurd.”).
In summary, assuming the evidence is sufficient to show that Averkamp was
suffering from a serious medical need during the recovery from his assault, no
reasonable jury could find that Elazegui was deliberately indifferent to it. There is no
evidence that he ignored an excessive risk to Averkamp’s health—the record makes
clear he exercised his medical discretion and provided attentive, thorough care to

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Averkamp during his incarceration. Elazegui is therefore entitled to summary
judgment.4
Conclusion
For the foregoing reasons, Dr. Elazegui’s motion for summary judgment, R.
106, is granted. The Court thanks plaintiff’s counsel for excellent advocacy on behalf
of Mr. Averkamp.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: April 11, 2022

Because Averkamp’s claim fails as a matter of law, the Court need not consider the
parties’ arguments regarding punitive damages.
4

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