Thomas v. Pfister et al

Filing 129

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 8/24/2021. (PDF with signature). Mailed notice. (mgh,)

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 1 of 15 PageID #:856

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Donzell Thomas,
Plaintiff,
v.
Randy Pfister, et al.
Defendants.

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) No. 18-cv-4311
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Memorandum Opinion and Order
Plaintiff Donzell Thomas brings the instant action claiming
that he received constitutionally inadequate medical care because
he was denied sufficiently tinted eyewear for his injured, lightsensitive eye while an inmate at Stateville Correctional Center
(“Stateville”).

Defendant Timothy Fahy, O.D., has moved for

summary judgment [115].

For the reasons that follow, Dr. Fahy’s

motion is granted in part and denied in part.
I.
Due to a gunshot injury sustained in 1984, Mr. Thomas suffers
from optic nerve damage.

ECF No. 119-1 at 19:13-18.

A symptom of

that damage is that one of Mr. Thomas’s pupils is larger than the
other, which causes Mr. Thomas to be hypersensitive to light.
No. 119-2 at 111:15-21, 113:4-7.

ECF

Light sensitivity, if left

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untreated, can result in headaches and discomfort for the patient.
Id. at 148:7-10.

There is no pharmaceutical or surgical fix for

light sensitivity--rather, the treatment is to wear tinted or
Transitions (photochromic) lenses “to cut down the amount of
ultraviolet light and some of the normal light entering” the eye.
Id. at 112:13-23.
To treat his injury, Mr. Thomas wore wire-frame Transitions
lenses until he became incarcerated with the Illinois Department
of Corrections (“IDOC”).

ECF No. 119-1 at 21:9-22:5.

In 2011,

Mr. Thomas’s glasses were replaced with consistently tinted Eagleframe glasses, which he received while at Stateville. Id. at 22:211, 150:20-23.

Unfortunately, however, those glasses were broken

during an institutional “shakedown” in or around 2013--both arms
snapped and the lenses became scratched to the point of limiting
visibility.

Id.

at 14:21-24; 129:8-9; 152:4-7.

Mr. Thomas

contends that he complained about his broken glasses, including to
prison

optometrists,

starting

2013,

but

was

unsuccessful

in

obtaining a replacement pair. ECF No. 7 ¶¶ 18-19. In the meantime,
although

tape

is

technically

considered

prison

contraband

at

Stateville, Mr. Thomas was able to tape the arms onto his glasses
and continue wearing them, except during an approximately sixmonth period in 2018, when the tape was confiscated and he was
unable to obtain replacement tape.
132:11-133:6; 152:8-15.
2

ECF No. 119-1 at 130:10-11;

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 3 of 15 PageID #:858

Dr. Fahy, an optometrist, first began working for Wexford
Health

Sources,

Inc.

(“Wexford”),

the

private

company

that

provides inmate medical care at Stateville and other prisons, in
October 2016.

ECF No. 125 ¶ 2.

On December 5, 2016, Mr. Thomas

visited Dr. Fahy, and Dr. Fahy prescribed Mr. Thomas a pair of
large Nate-frame (hard-frame) glasses with “Transitions grey”
lenses which he noted was for “UV protection / photophobia.”
No. 119-2 at 115.
glasses,

ECF

Mr. Thomas did not immediately receive those

however.

At

Stateville,

prescriptions

for

both

Transitions lenses and “Nate” hard-frame glasses must be sent for
collegial review to the medical director of Wexford. Id. at 38:1839:4, 66:11-67:23.
On or about December 22, 2016, the optometry nurse, Kara
Matakiewicz, showed Dr. Fahy an email from Bill Shevlin with
Stateville Intelligence.

ECF No. 125 ¶ 6.

Mr. Shevlin had been

asked whether Mr. Thomas and a list of other inmates who had been
prescribed hard Nate frames and/or Transitions lenses would be
able

to

order

considerations.

those
Id.

glasses

in

light

of

prison

security

He replied, “We do not approve of the plastic

frames because there is metal inside the frame.

The transition

lenses do not apply here since the inmates are locked in their
cells for 23 hours a day, also this can constitute in concealment
of their identity.”

ECF No. 119-2 at 117 (emphasis in original).

3

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On January 11, 2017, after seeing this email and without
setting

up

another

appointment

with

Mr.

Thomas

or

otherwise

informing him, Dr. Fahy changed Mr. Thomas’s prescription to a
standard rubber “Eagle”-frame pair of glasses with clear plastic
lenses, citing “safety issues” with the previous prescription.
ECF No. 119-2 at 116, 118.

Those glasses were delivered to Mr.

Thomas, but he returned them on May 31, 2017 because (1) they were
not tinted or Transitions lenses, and (2) they were too small to
fit his face.

ECF No. 125 ¶ 20.

When Mr. Thomas returned the

glasses, Dr. Fahy’s notes indicate that he offered to order Mr.
Thomas a larger rubber frame with clear lenses, but Mr. Thomas
declined. ECF No. 119-2 at 120. Mr. Thomas denies that he declined
the larger glasses.

ECF No. 119-1 at 55:5-9.

Dr. Fahy’s notes

also indicate that he offered Mr. Thomas Solar Rolz, which are
made of a thin, tinted, rollable plastic and can be worn underneath
a pair of glasses.
23.

ECF No. 119-2 at 120; ECF No. 119-2 at 80:3-

Solar Rolz are commonly handed out at the eye doctor after a

patient’s pupils have been dilated.

Id. at 80:3-11.

Mr. Thomas

declined the Solar Rolz because he still had possession of his
taped and scratched prescription tinted glasses from 2011, which
he judged to be more helpful than the Solar Rolz would be.

ECF

No. 119-1 at 56:6-14.
On September 18, 2017, Dr. Fahy examined Mr. Thomas again,
and noted that he presented with photophobia, or light sensitivity.
4

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 5 of 15 PageID #:860

ECF No. 119-2 at 121.

He filled out a medical services referral

and report requesting Transitions grey lenses for Mr. Thomas’s
photophobia.
director

Id. at 133. On October 25, 2017, the Wexford medical

approved

Transitions

collegial review.

lenses

Id. at 134.

for

Mr.

Thomas

after

a

Dr. Fahy prescribed Mr. Thomas

large-frame “Eagle Master” rubber glasses with “Transitions grey”
lenses on November 6, 2017.

Id. at 122.

The order went through

and the new glasses were sent to Stateville on November 13.

ECF

No. 125 ¶ 29.
On June 21, 2018, Mr. Thomas initiated the instant lawsuit.
ECF No. 1.

On July 23, 2018, Mr. Thomas saw Dr. Fahy again.

No. 119-2 at 124.

ECF

Dr. Fahy’s notes provide that Mr. Thomas

reported photophobia even with the new glasses because the lenses
were not darkening.

Id.

He wrote, “Patient reports photophobia

in all lighting,” and “Patient states that new spectacle lenses
‘do not darken in sunlight.’
lighting; constant wear.”

Patient requests tint for indoor

Id. (emphasis in original).

Dr. Fahy

thought it was possible the lenses were defectively manufactured,
but

because

Mr.

Thomas

did

not

bring

the

glasses

appointment, Dr. Fahy was unable to inspect them himself.
126:18-127:13.

to

the

Id. at

A few months later, however, on October 31, 2018,

a correctional officer was able to bring Mr. Thomas’s spectacles
to the clinic.

Id.

Dr. Fahy brought the glasses outside so they

could be illuminated by direct sunlight, and he observed the
5

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 6 of 15 PageID #:861

glasses darken to what he guessed was approximately 60% light
blockage.

Id. at 125.

On January 7, 2019, Mr. Thomas again came to see Dr. Fahy,
complaining again about photophobia with his current glasses.
at 126.

Dr. Fahy’s notes provide:

Id.

“indoor lighting does not

activate PGX [photo grey extra transitional lenses] enough to
provide relief for patient.”

Id. at 134:19-135:3; 126.

Dr. Fahy

prescribed eye drops, but did not address Mr. Thomas’s chief
complaint regarding his glasses.

Id. at 137:2-16.

On June 19, 2019, this court denied in part Wexford’s and Dr.
Fahy’s motions to dismiss.
2019,

Dr.

Fahy

recalls

ECF No. 54.
that

the

Soon thereafter, in July

Stateville

facility

medical

director, Dr. Henze, came to tell him personally that they had
just gotten “approval for Mr. Thomas to have a Nate frame, which
is a plastic, more sturdy frame . . . .

And he was going to get

his permanently-tinted lenses.” ECF No. 119-2 at 62:12-16, 141:1219.

Dr. Fahy filled out an optical prescription order on July 31,

2019 for tinted hard Nate-frame spectacles for Mr. Thomas.
128.

Id. at

Mr. Thomas received those glasses in 2019 and has been

satisfied with them.

ECF No. 119-1 at 59:6-16.
II.

“Summary judgment is proper if the moving party ‘shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’”
6

McDaniel v. Progress

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 7 of 15 PageID #:862

Rail Locomotive, Inc., 940 F.3d 360, 367 (7th Cir. 2019) (quoting
Fed. R. Civ. P. 56(a)).

“We ‘consider all of the evidence in the

record in the light most favorable to the non-moving party, and we
draw all reasonable inferences from that evidence in’ that party’s
favor.”

Id. (citing Bunn v. Fed. Deposit Ins. Corp. for Valley

Bank Ill., 908 F.3d 290, 295 (7th Cir. 2018)).
Mr. Thomas sued Dr. Fahy both in his individual capacity and
in his official capacity as an employee of Wexford, “which is
tantamount to a claim against Wexford.”

ECF No. 54 at 8.

I turn

first to the individual-capacity claim.
“Deliberate indifference to a prisoner’s serious medical
needs may constitute cruel and unusual punishment under the Eighth
Amendment.”

Hildreth v. Butler, 960 F.3d 420, 425 (7th Cir. 2020)

(citing Campbell v. Kallas, 936 F.3d 536, 544-45 (7th Cir. 2019)).
“To determine if the Eighth Amendment has been violated in the
prison medical context, we perform a two-step analysis, first
examining whether a plaintiff suffered from an objectively serious
medical condition, and then determining whether the individual
defendant
Petties

was
v.

deliberately

Carter,

836

indifferent

F.3d

722,

to

727-28

that
(7th

condition.”
Cir.

2016).

Negligence or recklessness is not enough; a prison official acts
with deliberate indifference when “an official actually knew of
and disregarded a substantial risk of harm.”
omitted).
7

Id. at 728 (emphasis

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 8 of 15 PageID #:863

Here,

Dr.

Fahy

does

not

argue

that

Mr.

Thomas

suffering from an objectively serious medical condition.

was

not

He does

contend, however, that Mr. Thomas does not offer any “verifying
medical evidence” that the delay in his receiving sufficiently
tinted glasses1 caused him any harm.

ECF No. 117 at 7.

It is true

that Mr. Thomas must “place verifying medical evidence in the
record to establish the detrimental effect of delay in medical
treatment.”

Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.

2008) (emphasis removed) (citing Langston v. Peters, 100 F.3d 1235,
1240 (7th Cir. 1996)).
evidence.

Here, however, the record includes such

Dr. Fahy observed personally that one of Mr. Thomas’s

Dr. Fahy points out that Mr. Thomas was newly in possession of
the rubber-frame Transitions glasses Dr. Fahy prescribed at the
time he initiated the lawsuit in 2018, and Mr. Thomas averred in
the complaint that the lenses did not transition “at all.” ECF
No. 7 ¶ 36.
As the litigation progressed, Mr. Thomas changed
course and began asserting that the glasses transitioned to some
extent, but they did not transition sufficiently to meet his needs.
Dr. Fahy argues that by failing to amend his complaint to that
effect, Mr. Thomas forfeited the argument. ECF No. 117 at 2-4. I
disagree. Medical records from approximately the time the lawsuit
was initiated in summer 2018 suggest that Mr. Thomas did not
believe then that the lenses transitioned--and Dr. Fahy had not
yet tested them by holding them up to the sunlight. ECF No. 1192 at 124-25. While it is true that a plaintiff may not amend his
complaint through a brief in opposition to a motion for summary
judgment, “that caselaw is entirely beside the mark where (as here)
the facts have been fully developed through discovery and a party
is then really engaged in nothing more than the essential
equivalent of amending the pleadings to conform to the evidence.”
Umar v. Johnson, 173 F.R.D. 494, 503 (N.D. Ill. 1997); see also
Ash v. Wallenmeyer, 879 F.2d 272, 274 (7th Cir. 1989) (“The federal
rules do not contemplate that parties will amend their pleadings
to reflect new information obtained in the discovery process.”).
1

8

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pupils was more dilated than the other, which he noted correlates
to light sensitivity.

ECF No. 119-2 at 111:17-21, 113:4-7, 121.

Mr. Thomas complained that lack of access to the spectacles he
needed to correct his light sensitivity caused dry eyes and
migraines.

See, e.g., ECF No. 119-1 at 62:22-63:5.

Dr. Fahy

admitted that Mr. Thomas complained to him about headaches, and
that headaches are a symptom of untreated light sensitivity.
No. 119-2 at 183:1-7.

ECF

And Dr. Fahy also testified that subjective

complaints of headaches and discomfort are the only possible
evidence of photophobia-induced migraines:
objective signs.

“Nothing as far as

Wouldn’t be able to look into a patient’s eye

and see repercussions from [light] exposure.”

Id. at 148:7-13.

Accordingly, there is evidence in the record that the delay in
treatment “unnecessarily prolonged and exacerbated” Mr. Thomas’s
migraine-related pain.

See Grieveson, 538 F.3d at 779 (citing

Williams v. Liefer, 491 F.3d 710, 715-16 (7th Cir. 2007)).
is sufficient.

That

See, e.g., id. (issues of fact precluded summary

judgment where prison delayed inmate’s medical treatment 1.5 days
after learning he had broken nose).
Dr. Fahy next argues he was not deliberately indifferent to
Mr. Thomas’s medical needs.

First, Dr. Fahy contends that each

and every pair of glasses he prescribed to Mr. Thomas--including
the

pair

with

clear

ultraviolet (“UV”) light.

lenses--included

protection

ECF No. 117 at 5.

That argument is not

9

against

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 10 of 15 PageID #:865

well taken.

There is no evidence in the record that UV protection

alone would have been sufficient to treat Mr. Thomas.

Dr. Fahy

himself said in his deposition that the recommended treatment for
Mr. Thomas’s condition would be “getting something like darker
tint or Transitions lenses to cut down the amount of ultraviolet
light and some of the normal light entering [the eye].”
119-2 at 112:13-19 (emphasis added).

ECF No.

Moreover, Dr. Fahy’s notes

reflect that Mr. Thomas complained that the Transitions lenses Dr.
Fahy

prescribed--which

had

UV

protection--did

sufficiently “to provide relief” from his headaches.

not

darken

Id. at 126.

Dr. Fahy testified generally that he “had no reason to not believe”
Mr. Thomas’s complaints of headaches and light sensitivity.

Id.

at 105:20-22.
Dr. Fahy also contends that IDOC prevented him from ordering
Transitions or tinted lenses for Mr. Thomas because of security
concerns.

ECF No. 117 at 5-6.

Mr. Thomas disputes that IDOC

prevented him from having the eyeglasses he sought, and claims
that security informed him that he was eligible to receive tinted
or Transitions spectacles.

See ECF No. 119-1 at 12:18-14:12.

There is evidence in the record, however, that there were security
considerations at play--for example, the December 2016 email in
which Mr. Shevlin stated that Stateville Intelligence did not
approve of hard “Nate” frames and Transitions lenses, which could
pose a security risk.

ECF No. 125 ¶ 6.
10

Despite these security

Case: 1:18-cv-04311 Document #: 129 Filed: 08/24/21 Page 11 of 15 PageID #:866

concerns,

however,

Mr.

Thomas

was

issued

tinted

glasses

at

Stateville in 2011, he obtained Transitions lenses in late 2017
following a Wexford collegial review, and he received his current
pair

of

tinted

Nate-frame

spectacles

in

2019.

Taking

all

reasonable inferences in favor of Mr. Thomas, as I must at summary
judgment, the fact that Mr. Thomas was able to obtain tinted and
hard-framed glasses at Stateville three times over a period of
eight years suggests that despite any general security policies to
the contrary, Wexford was able to prescribe and obtain tinted
and/or hard-framed glasses for inmates if necessary.

Accordingly,

a question of fact remains as to whether Mr. Thomas’s treatment
delay can be attributed to IDOC’s security concerns.
Finally, Dr. Fahy argues that Mr. Thomas cannot show that Dr.
Fahy was the proximate cause of any injury.

ECF No. 117 at 7-8.

Specifically, Dr. Fahy points to Mr. Thomas’s refusal to accept
the Solar Rolz that Dr. Fahy offered to Mr. Thomas on May 31, 2017.
See ECF No. 119-2 at 120.

Because Mr. Thomas refused the Solar

Rolz, he contends, Mr. Thomas was the intervening cause of his own
harm, and Dr. Fahy cannot be subject to liability.

See Broadfield

v. Williams, 768 F. App’x 544, 548-49 (7th Cir. 2019) (medical
officer was not liable for inmate’s injury after inmate stopped
taking prescribed medication).
But questions of fact remain regarding whether Mr. Thomas’s
refusal of the Solar Rolz caused his injury.
11

Solar Rolz are made

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of a flimsy, rollable plastic, and a jury could find that they
would have offered Mr. Thomas nothing but a temporary fix--one
that he did not need at that moment because he already had a
temporary fix, his broken tinted glasses, waiting for him in his
cell.

See ECF No. ECF No. 119-1 at 56:6-14.

Moreover, by the

time Mr. Thomas refused the Solar Rolz, it had already been more
than five months since Mr. Thomas’s initial visit with Dr. Fahy,
and Dr. Fahy had already changed his initial order for Transitions
lenses.

Even if the Solar-Rolz refusal cuts off liability in May

2017, in other words, Mr. Thomas may be able to show deliberate
indifference before that point.
Accordingly, a jury could find that Dr. Fahy knew of Mr.
Thomas’s

photophobia

and

headaches,

knew

the

serious, and nevertheless refused him treatment.

condition

was

I decline to

grant summary judgment on the individual-capacity claim against
Dr. Fahy.
III.
Mr. Thomas also brought a § 1983 claim against Dr. Fahy in
his official capacity as an employee of Wexford.

There is no

respondeat superior liability for the actions of an employee of a
private corporation acting under the color of state law.

Howell

v. Wexford Health Sources, Inc., 987 F.3d 647, 653 (7th Cir. 2021)
(citing Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 786
(7th Cir. 2014)).

Instead, to support his claim, Mr. Thomas “must
12

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show that the violation was caused by (1) an express . . . 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.”

Id. (citing Monell v. Dep’t of Social

Servs., 436 U.S. 658, 690-91 (1978)).
Dr. Fahy argues that Mr. Thomas has not established that there
is any Wexford policy, custom, or practice that caused Mr. Thomas’s
injuries.

Mr. Thomas made no attempt to respond or defend his

official-capacity claim in his brief in response to Dr. Fahy’s
motion for summary judgment; accordingly, the official-capacity
clam is waived.

See Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th

Cir. 2018).
Even if it had not been waived, however, summary judgment
would have been appropriate on the official-capacity claim.
the

complaint,

Mr.

Thomas

alleged

that

Wexford’s

relevant

policies, practices, and customs included:
A) A

failure

to

properl[y]

examine

prisoners[’]

continued need for assistive equipment in accordance
with established policies;
B) Failure

to

properly

train,

supervise,

discipline,

monitor, counsel and otherwise control staff in the
provision of reasonable accommodations to disabled
prisoners[;] and

13

In

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C) Failure to accommodate prisoners with medical care
that treats and/or alleviates pain, discomfort and
stress through the care of Stateville’s health care
staff and/or outside visits when necessary.
ECF No. 7 ¶ 53.

I have seen no evidence in the record, however,

of any such widespread custom or practice beyond the circumstances
of Mr. Thomas’s own experience.

“One instance of purported

deliberate indifference is not enough to support Monell liability
resting on a practice or policy.”

Johnson v. Wexford Health

Source, Inc., No. 17-cv-3213, 2020 WL 2128735, at *4 (N.D. Ill.
May 5, 2020) (citing Thomas v. Cook Cnty. Sheriff’s Dep’t, 604
F.3d 293, 303 (7th Cir. 2010)); accord Robinson v. Wexford Health
Sources, Inc., No. 16-cv-6185, 2019 WL 7290849, at *2 (N.D. Ill.
Dec. 30, 2019) (collecting cases).
Mr. Thomas did assert during his deposition that Wexford had
a policy and practice of limiting care to inmates in an effort to
cut costs.

See ECF No. 119-1 at 44:14-45:24.

But Mr. Thomas’s

evidence for that is scant--he claims that in 2016, Dr. Fahy told
him that Nurse Matakiewicz had told Dr. Fahy that Mr. Thomas could
not have the lenses he wanted because Wexford had a practice of
cost cutting.

ECF No. 125 ¶¶ 13-14.

He also claims that another

nurse named Amy told him that Wexford had a cost-cutting policy.
ECF No. 119-1 at 44:22-45:9.

This evidence is properly excluded

14

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as hearsay.2
widespread

And in any event, when attempting to establish a

custom

through

indirect

proof,

“a

‘plaintiff

must

introduce evidence demonstrating that the unlawful practice was so
pervasive

that

acquiescence

on

the

part

of

apparent and amounted to a policy decision.’”

policymakers

was

Dixon v. Cnty. of

Cook, 819 F.3d 343, 348 (7th Cir. 2016) (citation omitted).

Mr.

Thomas falls short of this standard.
For the foregoing reasons, the motion for summary judgment
[115] is granted in part and denied in part.

Summary judgment is

granted as to the official-capacity claim against Dr. Fahy, but
the case may continue against Dr. Fahy in his individual capacity.

ENTER ORDER:
________________________
Elaine E. Bucklo
United States District Judge

Dated: August 24, 2021

I cannot consider the evidence as non-hearsay statements of an
opposing party’s agent or employee under Federal Rule of Evidence
801(d)(2)(D) because, at minimum, it is not clear that Nurse
Matakiewicz and Nurse Amy were employed by Wexford. See ECF No.
119-2 (Fahy Dep.) at 48:18-49:4 (stating that he is not sure if
Nurse Matakiewicz is employed by IDOC or Wexford, and that some
nurses are employed by the state and others by Wexford); see also
Hildreth, 960 F.3d at 428 (upholding decision to exclude affidavit
under Federal Rule of Evidence 801(d)(2)(D) because plaintiff
“failed to show that the nurses who allegedly made the[] statements
were employed by Wexford, and he failed to confirm that the
statements were made within the scope of employment”).
2

15