Poole v. Aguinaldo et al
Filing
164
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 3/27/2024: Defendants Tomaras, Jaburek, and Norman's motions for summary judgment, 129 , 138 , are granted. Defendant Dr. Aguinaldo's motion for summary judgment, 133 , is granted in part, denied in part; plaintiff's claim for unnecessarily prolonged pain from August 17 to August 30, 2017, survives against Dr. Aguinaldo. [For further detail see attached order.] A status hearing is set for 4/16/24 at 9:30 a.m. in Courtroom 1919. Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AHMAD POOLE,
Plaintiff,
No. 20 CV 14
v.
EVARISTO AGUINALDO, TINA TOMARAS,
DEREK JABUREK, and ALPHONSO
NORMAN,
Judge Manish S. Shah
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Ahmad Poole was an inmate at Stateville Correctional Center when
his cellmate attacked him and fractured his neck. Defendant Derek Jaburek escorted
Poole to the facility’s health care unit, where Poole was seen by defendants Nurse
Tina Tomaras and Dr. Evaristo Aguinaldo. Poole complained of severe neck pain but
did not receive an x-ray for eight days. Thirteen days after the altercation, Poole saw
Stateville’s medical director, and was escorted to an outside hospital by defendant
Alphonso Norman for further imaging and surgery. Poole brought a claim against
defendants for violations of his Eighth Amendment right against cruel and unusual
punishment due to defendants’ alleged deliberate indifference to Poole’s neck injury.
According to Poole, this indifference resulted in delayed treatment, unnecessary pain,
and a worse surgical outcome. Defendants now move for summary judgment.
I.
Legal Standard
Summary judgment is warranted if there are no genuine disputes of material
fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“‘Material facts’ are facts that ‘might affect the outcome of the suit,’ and a dispute as
to those facts is ‘genuine’ if ‘the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Hunter v. Mueske, 73 F.4th 561, 565 (7th Cir.
2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court
need consider only the cited materials, but it may consider other materials in the
record. Fed. R. Civ. P. 56(c)(3). The non-moving party is given “the benefit of
conflicting evidence and any favorable inferences that might be reasonably drawn
from the evidence.” Runkel v. City of Springfield, 51 F.4th 736, 741 (7th Cir. 2022).
II.
Local Rule 56.1 and Evidentiary Issues
A.
Poole’s Grievances
Poole supports several of his statements of fact and responses with two
grievances he submitted to Stateville in August and September 2017, which detail
the events at issues in this lawsuit. See [148] ¶ 30; [149] ¶¶ 16, 29, 32, 40, 42, 47, 62,
65, 68; [150] ¶¶ 7, 12–13, 42–43, 45, 55, 66, 69, 70; [157] ¶¶ 9, 14, 16, 20–21, 23– 27;
[158] ¶¶ 9, 14, 16, 20–21, 23– 27; [162] ¶¶ 9, 14, 16, 20–21, 23– 27. 1 Defendants object
to Poole’s grievances as hearsay, rendering the factual assertions unsupported by
admissible evidence. See id. But while Poole’s grievances are indeed hearsay, the
statements contained therein are matters within his personal knowledge and
admissible at trial. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(c)(4). Many of the factual
assertions at issue are also supported by Poole’s deposition testimony. . Defendants
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of citations
to depositions, which use the deposition transcript’s original page number. When a document
has numbered paragraphs, I cite to the paragraph, for example [1] ¶ 1.
1
2
questioned Poole about the grievances during his deposition, and he testified that he
wrote them on the dates specified. [147-2] at 24:23–26:8; see Am. Securit Co. v.
Hamilton Glass Co., 254 F.2d 889, 893 (7th Cir. 1958) (holding affiant competence
and admissibility to be important because “summary judgment procedure lacks the
safeguard of cross-examination.”). At the summary-judgment stage, a court may
consider any evidence that would be admissible at trial; it “need not be admissible in
form, but must be admissible in content.” Wheatley v. Factory Card & Party Outlet,
826 F.3d 412, 420 (7th Cir. 2016).
B.
Poole’s Testimony
Defendants argue that an “inmate cannot dispute the validity of medical
records and entries therein without any contrary evidence, and uncorroborated
testimony is insufficient to defeat summary judgment.” [131] at 5 (citing Myers v.
McAuley, 2003 WL 22232830, at *11 (N.D. Ill. Sept. 16, 2003); Cowan v. Glen Brook
Sec. Servs., Inc., 123 F.3d 438, 446 (7th Cir. 1997)); [159] at 10 (same). Not so. A
plaintiff’s self-serving testimony can create a material factual dispute, so long as
plaintiff’s testimony is admissible. See Hill v. Tangherlini, 724 F.3d 965, 968 & n. 1
(7th Cir. 2013) (“Deposition testimony, affidavits, responses to interrogatories, and
other written statements by their nature are self-serving. … [T]he term ‘self-serving’
must not be used to denigrate perfectly admissible evidence through which a party
tries to present its side of the story at summary judgment.”) (cleaned up). And
although the Seventh Circuit stated in Cowan that “[p]laintiff’s own uncorroborated
testimony is insufficient to defeat [defendant]’s motion for summary judgment,” 123
F.3d at 446, in a later decision, the court qualified that statement, noting that the
3
testimony at issue in Cowan was not insufficient because it was “self-serving,” but
rather it “fail[ed] to thwart summary judgment because [it was] not based on personal
knowledge as required by … Rule 56(e),” Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.
2003).
Poole’s testimony—regarding matters within his personal knowledge like his
symptoms and his interactions with defendants—is admissible evidence that may be
sufficient to defeat summary judgment. Defendants remain free to attack the
credibility and weight of Poole’s uncorroborated testimony at trial.
C.
Dr. Davis’s Expert Testimony
Defendants challenge the qualifications and methodology of Poole’s expert, Dr.
John Davis. The credibility of the factual underpinning of Dr. Davis’s analysis and
the correctness of his conclusions are a matter to be determined by the trier of fact.
Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000). But courts have a
“gatekeeping function focuse[d] on an examination of the expert’s methodology,” and
whether the expert is qualified in the relevant field. Id. at 718.
Dr. Aguinaldo argues that Dr. Davis is “not a spine surgeon, has not performed
a spine operation, never performed a cervical fusion surgery, [and] has no training in
the performance of a spinal surgery.” [159] at 12. Therefore, Dr. Aguinaldo argues
that Dr. Davis is not qualified to opine as to the effects of delay on Poole’s injury and
surgical outcome. Id.
For a witness to be considered an “expert,” Fed. R. Evid. 702 requires that
person to be qualified as such “by knowledge, skill, experience, training, or
education.” To be admissible, “a medical expert’s ultimate opinion must be grounded
4
in the scientific process and may not be merely a subjective belief or unsupported
conjecture.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589–90 (1993)).
Dr. Davis opines that Poole’s surgical outcome may have been better if Dr.
Aguinaldo’s treatment was different. [147-19] at 4 (“Earlier intervention for Mr.
Poole’s injury may well have improved his postoperative outcome.”), 5 (“Poole’s
outcome would have been better had his initial encounters with Dr. Aguinaldo been
different.”). Dr. Davis is a licensed physician, board certified in Internal Medicine,
practicing as a hospitalist. [147-19] at 2. He describes his position as an inpatient
primary care physician. [147-18] at 13:4–21. A generalist can be qualified to testify
about specialized subjects if they have the adequate education, skill, and training to
reach their conclusions. United States v. Truitt, 938 F.3d 885, 889–90 (7th Cir. 2019);
see also Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (collecting cases where
generalists were competent to opine on issues specialists typically treat). But Dr.
Davis is not a spine surgeon and has no specific expertise or training in spinal
injuries. [147-18] at 14:1–17. His opinion on Poole’s surgical outcome is based on his
general knowledge that delays in treatment of unstable joints can cause chronic
damage such as osteoarthritis and other issues “down the line … if things aren’t
taken care of in an expedited manner.” [147-18] at 127:19–128:12. While Dr. Davis is
qualified to speak on the general effects of delays in treatment, his knowledge as a
general practitioner does not provide a foundation for him to answer whether Poole’s
surgical outcome would be different had Dr. Aguinaldo treated him differently. See,
5
e.g., Gayton, 593 F.3d at 618 (affirming exclusion of generalist’s opinion that specific
drugs could have saved plaintiff’s life because he did not have specialized cardiac or
pharmacological knowledge). Therefore, Dr. Davis’s opinion on Poole’s surgical
outcome is excluded.
Dr. Aguinaldo also argues that Dr. Davis cannot provide an opinion as to
whether Poole’s neck injury worsened because Dr. Davis did not review imaging of
Poole’s neck. [159] at 13. But Dr. Davis only opined that a failure to expedite imaging
and to stabilize a neck injury can lead to further injury. [147-19] at 5. Dr. Davis is
qualified to discuss whether there was a risk of further injury. Similarly, Dr. Davis
opines that “the delay in diagnosis and treatment likely caused Mr. Poole
unnecessary pain as a c-collar is both protective (to prevent worsening of the injury)
and therapeutic (as immobilizing the injury helps reduce pain).” [147-19] at 4.
Determining whether a c-collar can protect a neck injury and lessen pain does not
require knowledge beyond Dr. Davis’s general medical knowledge and primary care
practice. Dr. Davis is qualified to opine on these issues.
Dr. Davis also opines that Dr. Aguinaldo breached the standard of care. [14719] at 4. Dr. Aguinaldo argues that Dr. Davis cannot opine on the standard of care
because in deposition Dr. Davis could not provide its legal definition. [159] at 3. But
Dr. Davis is not an attorney. He is qualified to speak on the medical standard of care,
which he defined as “the level at which a physician should complete an evaluation of
a patient, be it starting from the initial discussion, complaint, H&P, subjective
whatever you have, all the way through physical exam to treatment to diagnostics.”
6
[147-18] at 16:3–17. Dr. Davis is in a similar medical position as Dr. Aguinaldo. Both
treat a wide variety of injuries and do not specialize in a specific area of medicine. As
such, Dr. Davis is qualified to opine on whether Dr. Aguinaldo followed a general
practitioner’s standard of care for patients presenting neck injuries.
III.
Facts
On August 17, 2017, plaintiff Ahmad Poole’s cellmate attacked him, grabbed
Poole’s hair, thrashed Poole around, and then put him in a headlock. [162] ¶ 1, [1472] at 65:6–16. 2 Correctional officers arrived and stopped the attack, pushing both
Poole and his cellmate to the ground. [162] ¶ 2. An officer placed Poole in handcuffs,
and when he picked Poole up, Poole felt “like a building fell on [his] neck.” [162] ¶ 3;
[147-2] at 73:11–13. Poole was concerned about his neck and immediately told the
correctional officers about his pain. [162] ¶ 4. While Defendant Jaburek escorted
Poole to the healthcare unit, Poole told Jaburek about his severe neck pain,
explaining to Jaburek that he felt his neck popping with every step he took. [162] ¶ 5.
The facts are largely taken from Poole’s responses to defendants’ Local Rule 56.1
statements, [148], [149], [150], and defendants’ responses to Poole’s 56.1 statement of
additional facts, [157], [158], [162], where both the asserted fact and the opposing party’s
responses are set forth in one document. Any fact not properly controverted is admitted. N.D.
Ill. Local R. 56.1(e)(3); see Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). I
disregard all immaterial facts as to each defendant. I disregard all legal conclusions in
statements and responses. See [149] ¶¶ 23–25; [150] ¶¶ 60–63, 80; [157] ¶¶ 70–76. I ignore
all facts included in statements or responses that are not supported by the parties’ evidence.
N.D. Ill. Local R. 56.1(d)(2), (e)(3); see [148] ¶ 43; [149] ¶ 7; [157] ¶¶ 6, 15, 56; [158] ¶ 6; [162]
¶¶ 6, 16–17, 31. Where the parties dispute facts and both rely on admissible evidence, I set
forth both sides’ facts, drawing inferences in favor of Poole. See [149] ¶¶ 15–16, 19, 21–23,
25–27, 29, 33–35, 40, 58, 60, 65, 67; [150] ¶¶ 7–8, 12–13, 16, 17, 36, 38, 42–43, 50, 55, 64–70,
77; [157] ¶¶ 23, 25, 27, 53–55, 57; [158] ¶¶ 8–10, 21–22; [162] ¶ 8. Many of Dr. Aguinaldo’s
statements of fact and responses are not “concise” paragraphs as required by Local Rule 56.1,
see, e.g., [150] ¶¶ 7, 16, 64; [157] ¶¶ 70–72, 74–76, but I use my discretion to still consider
those facts in the record, Fed. R. Civ. P. 56(c)(3).
2
7
Jaburek placed Poole in a bullpen outside of the healthcare unit, where Poole waited
for thirty to sixty minutes. 3 [162] ¶ 6.
The parties dispute what happened during Poole’s medical treatment.
According to Poole, after he complained about his neck pain, an officer went into the
healthcare unit to get medical staff. [158] ¶ 8. Defendant Nurse Tomaras came to the
bullpen. Id. Poole told Tomaras about the altercation, the popping sounds when he
moved his neck, severe pain when holding his head up, a feeling of misalignment, and
an electrical current along his neck. [158] ¶ 9. Poole says Tomaras ignored his
complaints, told Poole he needed stitches for a cut near his eye from the attack, and
then returned to the healthcare unit. Id.
Tomaras denies that she interacted with Poole that day. [158] ¶ 8, [149] ¶ 17.
There is no chart or medical progress note that Poole was seen by Tomaras. [149]
¶ 18. Tomaras remembers Poole coming to the healthcare unit that day but has no
recollection of going to the bullpen to see Poole. [149] ¶ 17.
Poole was then seen by Nurse Carnahan, who performed triage, took Poole’s
vitals, and immediately referred Poole to be seen by defendant Dr. Evaristo
Aguinaldo. [149] ¶ 19.
The parties contest how long Poole was in the bullpen before he saw Dr. Aguinaldo. Poole
testified that he waited in the bullpen approximately two and a half hours, [162] ¶ 7, but also
admits that he waited thirty minutes to an hour, see, e.g., [147-4] at 4; [148] ¶¶ 7, 18–19.
Evidence “so internally inconsistent or implausible on its face that a reasonable fact finder
would not credit it” cannot establish a genuine dispute of material fact at summary judgment.
Melton v. Tippecanoe Cnty., 838 F.3d 814, 819 (7th Cir. 2016). Therefore, I credit defendants’
timeline that Poole was seen within an hour of the fight. See [149] ¶¶ 7, 18–19.
3
8
The parties dispute what happened during this exam. Dr. Aguinaldo testified,
relying on his medical notes, that he performed a full physical and neurological
examination of Poole, including palpating of his neck, observing Poole’s head posture,
testing the sensation and integrity of Poole’s hand to determine weakness or
numbness, checking Poole’s upper extremity reflexes and range of motion, and
completing a sensory and motor neurological examination, axial loading tests, and
Spurling compression test. [150] ¶ 7.
In contrast, Poole testified that he complained to Dr. Aguinaldo about his neck
pain but was told that there was “nothing wrong” with him and to “stop faking.” [1472] at 82:7–12. Dr. Aguinaldo did not physically examine him, but only asked Poole to
move his thumb and index finger. [150] ¶ 7, [157] ¶ 13. Poole then inquired about
getting x-rays or seeing someone about his neck because of the pain. [147-2] at 82:16–
20. Dr. Aguinaldo replied that Poole should “stop being a baby.” Id.
After the exam, Dr. Aguinaldo charted his positive findings and objective
observations, stitched Poole’s cheek laceration, ordered Tylenol 500mg, and
scheduled an x-ray of Poole’s neck. [157] ¶ 14. Dr. Aguinaldo did not provide or order
any bracing to stabilize Poole’s neck. [157] ¶ 15.
Jaburek escorted Poole to segregation. [162] ¶ 16. Poole’s Tylenol was
confiscated before he had taken a dose. [162] ¶ 17. The next day, Poole filed an
emergency grievance due to his lack of pain medication. [147-4] at 2–3.
Poole testified that he saw Tomaras again two days after the injury, to change
his stitches dressing. [158] ¶ 21. Poole told her about his neck pain, and how he could
9
not sleep, eat, bathe, or keep his head up. Id. Tomaras ignored his complaints and
“shooed [him] away like … a dog.” Id. Poole was sent back to segregation without
further medical treatment. Id. Tomaras has no recollection of this interaction, and
there are no medical records documenting it. Id.
On August 21, 2017 (four days after the cellmate attack), Poole had a followup appointment with Dr. Aguinaldo. [150] ¶ 12. The medical records do not indicate
that Poole complained about his neck pain. Id. Poole testified he did tell Dr. Aguinaldo
that he was in pain, and Dr. Aguinaldo dismissed his complaint, again accusing Poole
of faking and being a baby. [147-2] at 90:15–23. Poole also had bloodwork done that
day, during which he complained to two nurses about his pain and about not receiving
an x-ray yet. [157] ¶ 23. The next day, Poole received an x-ray pass, but his x-ray was
canceled. [157] ¶ 24.
Poole saw Dr. Aguinaldo again on August 24, 2017, to have his stitches
removed. [157] ¶ 25. The medical records again do not indicate that Poole complained
about his neck pain, but Poole testified that he did, and that Dr. Aguinaldo similarly
dismissed his complaints. [150] ¶ 13.
Poole received an x-ray eight days after the injury and then returned to
segregation. [157] ¶ 26. The x-ray report indicated that Poole had a cervical spine
anterior subluxation but not that he had a neck fracture. [150] ¶¶ 15–16.
Poole met Dr. Aguinaldo again about the x-ray results on August 28, 2017.
[150] ¶ 16. The parties again dispute whether Poole complained about his neck at this
10
appointment. [150] ¶ 16; [157] ¶ 27. Dr. Aguinaldo scheduled Poole for a consult with
Stateville’s medical director two days later. [150] ¶ 16.
The medical director reviewed Poole’s x-ray films, called an outside hospital to
send Poole off-site, and gave Poole a neck brace. [162] ¶¶ 29–30. The director told
nurses to get Poole a wheelchair and said they were going to call an ambulance to
transfer Poole. [162] ¶ 31. Instead, defendant Officer Norman and another officer
escorted Poole through three checkpoints, down a flight of stairs, in handcuffs, waist
chains, and ankle chains. [162] ¶ 32. They placed Poole in a van, without buckling his
seatbelt, and transported him to a hospital while still in restraints. [162] ¶ 33.
At the hospital, Poole received a CT scan and then transferred to another
hospital for a higher level of care where an MRI revealed a neck fracture. [157] ¶¶ 37–
39. Poole was immediately placed in a Miami J Collar. [157] ¶ 40. Within a week,
Poole underwent surgery for cervical fusion. [157] ¶ 41. Poole continues to have neck
pain, limited mobility, and difficulty sleeping. [157] ¶ 44.
Poole brought this case against Dr. Aguinaldo and Tomaras for denial of
medical care and against Jaburek and Norman for failure to intervene in violation of
the Eighth Amendment. [82] (operative complaint). Defendants now move for
summary judgment. [129], [133], [138].
IV.
Analysis
The Eighth Amendment “protects prisoners from prison conditions that cause
‘the wanton and unnecessary infliction of pain,’” including “grossly inadequate
medical care.” Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)) (citing Estelle v. Gamble, 429 U.S. 97, 103–04
11
(1976)). To prevail on a claim of constitutionally inadequate medical care, an inmate
must demonstrate (1) there was “a risk of harm to the plaintiff that is so objectively
serious as to be excessive;” (2) the defendant knew of the risk; (3) “the defendant’s
response to the risk [was] so inadequate as to constitute disregard of (or deliberate
indifference toward) the risk;” and (4) the defendant’s deliberate indifference caused
the plaintiff’s injury. Hunter, 73 F.4th at 565.
Defendants do not dispute that Poole suffered a serious medical condition. See
[131] at 7; [135] at 2; [139] at 2–3. Instead, defendants argue that they did not know
of the risk, that their response was not deliberately indifferent, and that their actions
did not cause or exacerbate Poole’s injury or pain.
A.
Aguinaldo’s Motion for Summary Judgment
Knowledge of the risk
A plaintiff must establish that an “official knows of and disregards an excessive
risk to inmate health” or that “the official is both aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he draws
the inference.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Dr. Aguinaldo argues there is no
evidence that he was aware of Poole’s neck fracture, so no jury could possibly find
that he knew Poole was at substantial risk of harm. [135] at 6.
This argument misses the point. Poole does not argue that Dr. Aguinaldo
should have known about his neck fracture upon examining him or based on the
radiology report. Instead, Poole argues that Dr. Aguinaldo was aware of and
12
consciously disregarded the risk that Poole had a serious neck injury considering the
altercation, Poole’s pain, and his symptoms. [147] at 20.
The parties agree that Poole saw Dr. Aguinaldo on August 17, 2017, after a
physical altercation with his cellmate and complained of neck pain. [150] ¶ 7. Dr.
Aguinaldo has acknowledged that recent neck trauma, ongoing pain, pain so
excessive that a patient cannot hold their head up without using their hands,
restricted movement of the neck, and electric shocks in the neck are cause for concern.
[147-16] at 64:11–66:2. Poole presents evidence that he told Dr. Aguinaldo that he
was experiencing these symptoms on multiple occasions. [157] ¶¶ 13, 25, 27, 46. At
their initial visit, Dr. Aguinaldo ordered x-rays and painkillers. [157] ¶ 14. Based on
Poole’s evidence, a reasonable jury could infer that Dr. Aguinaldo was aware of the
risk that Poole had a serious neck injury and was in pain.
Deliberate indifference
Considering Dr. Aguinaldo’s knowledge that Poole might have a severe neck
injury and ongoing pain, the question becomes whether Dr. Aguinaldo’s failure to
rush x-rays, to stabilize Poole’s neck, and to change Poole’s pain protocol “reflected
an exercise of medical judgment or a complete abandonment thereof.” See Dean v.
Wexford Health Sources, Inc., 18 F.4th 214, 242 (7th Cir. 2021).
Deliberate indifference is a subjective standard, requiring that a defendant
consciously disregard an excessive risk to inmate health or safety. Id. at 241. In the
inadequate medical care context, medical malpractice, negligence, or even gross
negligence is not enough to establish deliberate indifference. Johnson v. Dominguez,
5 F.4th 818, 825 (7th Cir. 2021). But a plaintiff need not show purposeful conduct. Id.
13
Medical professionals are afforded “a great deal of deference in their treatment
decisions.” Id. When a plaintiff’s claim focuses on a medical professional’s treatment
decision, “the decision must be so far afield of accepted professional standards as to
raise the inference that it was not actually based on a medical judgment.” Id.
The parties dispute how Dr. Aguinaldo responded to Poole’s injury. According
to Dr. Aguinaldo and his expert, Dr. Aguinaldo met the applicable community
standard of care during Poole’s clinic visits based on his education, training, and
experience as a general practitioner. [135] at 8; [150] ¶ 60. Dr. Aguinaldo argues that
after a standard exam of Poole to rule out cervical spine injury, he had no suspicion
of neurological compromise or fracture—there was no urgent need for x-rays,
stabilization, or referral to a hospital for advanced imaging. [135] at 6–8; [150] ¶¶ 64–
65. In subsequent follow-ups, Poole never raised issues with his neck or pain. [150]
¶¶ 12–13, 16. Poole’s x-ray report indicated that he had a subluxation, so Dr.
Aguinaldo scheduled Poole for a timely consult with Stateville’s medical director.
[150] at 17; [135] at 7. Crediting Dr. Aguinaldo’s evidence, a jury could reasonably
find that Dr. Aguinaldo was not deliberately indifferent to Poole’s risk of harm.
But Poole testified that his interactions with Dr. Aguinaldo went very
differently. Poole immediately told Dr. Aguinaldo about his neck pain. [157] ¶ 13. Dr.
Aguinaldo did not examine Poole’s neck, instead he only asked Poole to move his
fingers. [157] ¶ 13. At every subsequent interaction with Dr. Aguinaldo, Poole told
him that he was in pain. [157] ¶¶ 25, 27, 46. Dr. Aguinaldo repeatedly ignored these
14
complaints and told Poole that he was “faking” and “being a baby.” See [147-2] at
82:16–20, 83:17–23, 90:13–23; [157] ¶¶ 13, 25, 27.
Poole argues that Dr. Aguinaldo’s failure to expedite imaging and to stabilize
his neck was “substantial departure” from the standard of care considering the
evident risk that Poole had a neck fracture. [147] at 21–22. Expert testimony that a
defendant’s “chosen course of treatment” represented “a substantial departure from
accepted medical judgment” could permit a jury inference of deliberate indifference.
See Williams v. Mary Diana Schwarz, P.A., No. 15-cv-1691, 2018 WL 1961143, at *6–
7 (N.D. Ill. Apr. 26, 2018). 4 Dr. Davis opined that Dr. Aguinaldo breached the
standard of care for neck injuries. [147-19] at 4.
Dr. Aguinaldo testified that when a patient presents with neck pain, a proper
exam includes observing the neck, palpation of the cervical vertebrae, having them
rotate their neck sideways and extend it, and completing a neurological exam. [1475] at 99:3–100:8. But according to Poole, Dr. Aguinaldo did none of this. [157] ¶ 13.
Dr. Aguinaldo also acknowledged that neck injuries can be serious, and the
best practice for patients presenting with a neck injury is to provide a neck brace and
send them to the hospital. [157] ¶¶ 50–51. Dr. Aguinaldo recognized that recent neck
trauma, pain for multiple days, pain so excessive that a patient cannot hold their
Dr. Aguinaldo argues that Williams does not support this assertion and that Poole failed to
provide support for this argument. He is incorrect. Williams recognizes that while “a mere
‘difference of opinion among physicians on how an inmate should be treated cannot support
a finding of deliberate indifference,’” an expert’s “characterization of Defendant’s chosen
course of treatment as a substantial departure from accepted medical judgment presents far
more than a simple disagreement regarding treatment options.” 2018 WL 1961143, at *7
(quoting Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006)).
4
15
head up without using their hands, restricted movement of the neck, and electric
shocks in the neck are cause for concern. [147-16] at 64:11–66:2. Poole testified that
he told Dr. Aguinaldo he was experiencing all these symptoms of a serious neck
injury, but Dr. Aguinaldo did not stabilize his neck, did not order expedited imaging,
or send him to the hospital. [157] ¶¶ 13, 25, 27.
If a jury credits Poole’s testimony, Dr. Davis’s opinion about the appropriate
care, and Dr. Aguinaldo’s testimony of how he should have approached a neck injury,
it could reasonably find that Dr. Aguinaldo “knew better than to make the medical
decisions that [he] did” and so acted with deliberate indifference to Poole’s medical
needs. See Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016) (en banc).
Poole also argues that he did not receive constitutionally adequate and
reasonable pain control. [147] at 22. The Eighth Amendment does not require that
Poole be kept literally “pain free.” See Snipes v. Detella, 95 F.3d 586, 592 (7th Cir.
1996). But if a jury credits Poole’s testimony, they could reasonably find that Dr.
Aguinaldo was deliberately indifferent to Poole’s pain. Poole testified he complained
to Dr. Aguinaldo of severe pain at every encounter. [157] ¶¶ 13, 25, 27, 46. Instead of
treating Poole’s pain, Dr. Aguinaldo refused to believe Poole, insulted, and belittled
him. [147-2] at 82:16–20, 83:17–23, 90:13–23. A reasonable jury could infer that Dr.
Aguinaldo knew Poole’s pain management regime was not working and was
deliberately indifferent to Poole’s medical needs. See Greeno v. Daley, 414 F.3d 645,
655 (7th Cir. 2005) (persisting in a course of treatment known to be ineffective can
support inference of deliberate indifference).
16
Whether deliberate indifference caused injury
Dr. Aguinaldo argues that no jury could find that his care, even assuming that
Poole’s characterization is correct, was the proximate cause of Poole’s injuries. [135]
at 10. When considering the causation element in 42 U.S.C. § 1983 cases, courts “look
to general principals of causation from tort law.” Hunter, 73 F.4th at 567–68.
Although causation is typically a question to be decided by the jury, summary
judgment can be granted when no reasonable jury could find that defendant was a
proximate cause of plaintiff’s injuries. Id. at 567–68.
According to Dr. Aguinaldo’s expert, nothing that Dr. Aguinaldo did, or failed
to do, nor any delay in treatment caused or exacerbated Poole’s injury or pain. [150]
¶ 80. But Dr. Davis opined that the delay in diagnosis and treatment likely caused
Poole unnecessary pain. [147-19] at 4. Poole also testified that Dr. Aguinaldo
dismissed his complaints of pain, leaving Poole in severe pain while waiting for an xray without any neck stabilization. [157] ¶¶ 13, 25, 27. Based on Poole’s evidence, a
reasonable jury could find Poole’s ongoing pain was a foreseeable injury of Dr.
Aguinaldo’s deliberate indifference. See Hunter, 73 F.4th at 568. Dr. Davis cannot,
however, provide admissible expert testimony about whether Dr. Aguinaldo’s
treatment exacerbated Poole’s spinal injury, so Poole does not have any evidence to
defeat summary judgment on causation as to that part of his claim.
The genuine issue of fact over Poole’s pain precludes summary judgment. See
Morish v. United States, 653 F.3d 522, 529 (7th Cir. 2011) (“In a case of dueling
experts, such as this one, it is left to the trier of fact, not the reviewing court, to decide
how to weigh the competing expert testimony.”). A reasonable jury, crediting Poole’s
17
evidence, could find that Dr. Aguinaldo’s failure to expedite imagining, to stabilize
Poole’s neck, and to provide adequate pain management unnecessarily left Poole in
serious pain for days. Dr. Aguinaldo’s motion for summary judgment, [133], is denied.
B.
Tomaras’s Motion for Summary Judgment
The parties dispute whether Tomaras was ever involved in Poole’s medical care
for his neck injury. Poole testified that Tomaras came to the bullpen after he asked
officers to go to the healthcare unit to get him immediate medical attention. [158] ¶ 8.
Poole says he told Tomaras of his severe neck pain, electrical currents running up his
neck, popping sounds in his neck, a feeling of misalignment, and that he had to hold
his head up with his hands. [158] ¶ 9. Poole testified that he also saw Tomaras on
August 19 to have his dressing changed. [158] ¶ 21. Poole again told Tomaras about
his neck pain, and inability to sleep, eat, wash himself, or keep his head up. Id.
Tomaras ignored his complaints and “shooed [him] away like a dog.” Id.
Tomaras argues these interactions never happened. [131] at 3. While Tomaras
had an independent recollection that Poole was at the medical unit on August 17, she
does not remember performing a physical assessment of him and there are no medical
records reflecting she did. [149] ¶¶ 46–47. Tomaras disputes that she interacted with
Poole on August 19, and there is no medical record that Tomaras saw Poole. [158]
¶¶ 21–22. If a jury credits Tomaras’s evidence, she could not have known of the risk
of harm to Poole or acted deliberately indifferent to it. At summary judgment,
however, it’s Poole’s admissible version of events that controls.
Crediting Poole’s evidence, a reasonable jury could not find that Tomaras acted
with deliberate indifference on August 17. Poole has produced no evidence as to what
18
Tomaras should have done differently that day as Poole was already at the healthcare
unit waiting to see a doctor. See Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027,
1034 (7th Cir. 2019) (affirming summary judgment where plaintiff argued he should
have received better treatments for back pain but failed to provide “evidence of what
the ‘better’ treatments were and whether they would have been effective … leav[ing]
a jury entirely to its own imagination about what could have been done. Such
unmitigated speculation cannot defeat summary judgment”). In contrast, Dr.
Aguinaldo’s expert opined that Tomaras could not have referred Poole to a specialist,
ordered diagnostic imaging, medically diagnosed, or made a treatment plan for Poole.
[149] ¶ 64.
As for August 19, crediting Poole’s testimony, a reasonable jury could find that
Tomaras acted with deliberate indifference when she ignored Poole’s symptoms and
did not follow up with a doctor. Tomaras was aware of Poole’s ongoing pain and the
ineffectiveness of the recommended pain medications, yet Tomaras did not consult
Dr. Aguinaldo regarding whether further examination or a change in medications
was necessary. Instead, Tomaras “shooed [Poole] away like a dog,” [158] ¶ 21,
delaying his treatment. Whether delay in treatment “is tolerable depends on the
seriousness of the condition and the ease of providing treatment.” Smith v. Knox Cnty.
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). Poole told Tomaras of symptoms—severe
neck pain and his inability to hold his head up without supporting it—that even a
layperson would understand to present a serious medical need. While Tomaras could
not have referred Poole to a specialist, ordered diagnostic imaging, medically
19
diagnosed, or made a treatment plan for Poole, [149] ¶ 64, she could have easily
contacted Dr. Aguinaldo about Poole’s symptoms. Based on Poole’s evidence, a jury
could conclude that Tomaras was deliberately indifferent to Poole’s risk of harm.
That said, for a delay in treatment to be actionable under the Eighth
Amendment, a “plaintiff must also provide independent evidence that the delay
exacerbated the injury or unnecessarily prolonged pain.” Petties, 836 F.3d at 730–31
(citing Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004) (finding hours of needless
suffering can constitute harm)). Poole offers no evidence that Tomaras’s deliberate
indifference caused his injury to worsen, affected his surgical outcome, or affected his
pain. Accordingly, Tomaras’ motion for summary judgment, [129], is granted.
C.
Jaburek and Norman’s Motion for Summary Judgment
When an inmate sues prison employees who are not medical staff, “deliberate
indifference can be shown with evidence that those employees ignored or interfered
with a course of treatment prescribed by a physician.” McDonald v. Hardy, 821 F.3d
882, 888 (7th Cir. 2016) (citing Estelle, 429 U.S. at 104–05 (explaining that deliberate
indifference can be “manifested by … prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once
prescribed.”)).
Poole presents no evidence that Jaburek denied or delayed Poole’s access to
medical care. On the day of the fight, Poole told Jaburek about his neck pain while
Jaburek escorted Poole to the medical center. [148] ¶¶ 17–18. Considering the
altercation and Poole’s complaints, a reasonable jury could find that Jaburek knew
that Poole was at serious risk of harm. Poole argues that Jaburek disregarded his
20
serious medical needs by leaving Poole alone in the healthcare unit’s bullpen
immediately after his injury and doing nothing to help him receive medical care. [147]
at 26 (citing [162] ¶ 5). But Jaburek escorted Poole to the healthcare unit immediately
after his fight, and Poole admits that he was seen by medical staff within an hour.
[148] ¶ 8, 18, 21, 27.
Poole also presents evidence that his pain medication was taken away when
Jaburek took Poole to segregation. [162] ¶ 17. The pain medication was in Poole’s
clothes, which were confiscated prior to being put in segregation. Id. But Poole did
not complain to Jaburek that his pain medications were taken away. [147-2] at 85:20–
23. No reasonable jury could find that Jaburek intentionally interfered with Poole’s
pain prescription or delayed his access to healthcare.
A jury also could not reasonably find that Norman intentionally interfered with
or delayed Poole’s medical care. Poole argues that Norman disregarded the medical
director’s orders to get Poole a wheelchair and to call for an ambulance. [147] at 26–
27 (citing [162] ¶ 31). Instead, Norman escorted Poole through three checkpoints and
down a flight of stairs in handcuffs, waist chains, and ankle chains. [162] ¶ 32. He
placed Poole in a prison van for transport. [162] ¶ 33. Poole argues that Norman’s
interference with the medical director’s orders is itself sufficient to preclude summary
judgment. [147] at 27. Norman’s actions do not rise to a constitutional violation.
While Norman may not have transported Poole in the way the medical director
originally requested, he still followed instructions to take Poole to the hospital right
away.
21
Even if a reasonable jury could find Jaburek and Norman were deliberately
indifferent, Poole presents no evidence that these actions caused him any injury.
Defendants Jaburek and Norman’s motion for summary judgment, [138], is granted.
V.
Conclusion
Defendants Tomaras, Jaburek, and Norman’s motions for summary judgment,
[129], [138], are granted. Defendant Dr. Aguinaldo’s motion for summary judgment,
[133], is granted in part, denied in part; plaintiff’s claim for unnecessarily prolonged
pain from August 17 to August 30, 2017, survives against Dr. Aguinaldo.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: March 27, 2024
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