Donald v. Varga et al.

Filing 45

MEMORANDUM Opinion and Order: For the reasons set forth below, defendants motion for summary judgment 32 is granted. Plaintiffs motion for extension of time to respond to defendants reply 41 is denied because FED. R. CIV. P. 56 does not provide for a response to the reply. Plaintiffs motion for attorney representation 42 is denied. This case is terminated. Signed by the Honorable Philip G. Reinhard on 6/19/2019:mailed notice(pg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Maurice Donald (#N-70687),
Plaintiff,
v.
John Varga, et al.,
Defendants.

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Case No. 17 C 50368
Judge Philip G. Reinhard

ORDER
For the reasons set forth below, defendant’s motion for summary judgment [32] is granted.
Plaintiff’s motion for extension of time to respond to defendant’s reply [41] is denied because FED.
R. CIV. P. 56 does not provide for a response to the reply. Plaintiff’s motion for attorney
representation [42] is denied. This case is terminated.
STATEMENT-OPINION
Plaintiff Maurice Donald, presently in state custody at Dixon Correctional Center, brought
this action pro se pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant nurse Kristina
Mershon provided him with inadequate medical care in violation of his constitutional rights. 1
Before the court is defendant’s motion for summary judgment [32].
Because plaintiff is proceeding pro se, defendant served him with a “Notice to Pro Se Litigant
Opposing Motion for Summary Judgment” as required by Local Rule 56.2. [37]. This notice
explained how to respond to defendant’s summary judgment motion and Rule 56.1 statement and
cautioned plaintiff that the court would deem defendant’s factual contentions admitted if he failed to
follow the procedures delineated in Local Rule 56.1.
Plaintiff failed to respond to defendant’s undisputed facts. Instead, plaintiff submitted an
answer to defendant’s motion for summary judgment. [38]. Plaintiff’s answer generally disputes
defendants’ version of events but does not directly respond to the statements of fact with citations to
the record. The court thus considers defendant’s properly supported statements of fact to which
plaintiff did not properly respond, admitted. The court considers plaintiff’s answer to defendant’s
motion but not any contested facts included therein.
At the initial screening of plaintiff’s case, under 28 U.S.C. §§ 1915(e)(2) and 1915A(a), the court dismissed plaintiff’s
state law negligence claim against defendant Nauncan without prejudice and with leave to refile before the Court of
Claims and dismissed plaintiff’s claims against defendants Varga and Wexford Health Care Services for failure to state
a claim. See [7]. Defendant Kristina Mershon is the only remaining defendant.

1

FACTS
Plaintiff is an inmate in the custody of the Illinois Department of Corrections at Dixon
Correctional Center in Dixon, Illinois. (Def. St. of Facts, Dkt. 34, ¶ 1.) Defendant is a nurse
practitioner employed by Wexford Health Sources, Inc. at Dixon. (Id. at ¶ 2.) She is licensed by the
state of Illinois as a board-certified family nurse practitioner and was licensed while treating plaintiff.
(Id.)
On May 1, 2017, plaintiff was housed in building 26, cell 46. (Id. at ¶ 3.) Sometime around
noon, plaintiff was climbing down from the top bunk when his left foot went downwards onto an
exposed screw. (Id. at ¶¶3-4.) Plaintiff pulled his left foot off the screw, asked his cellmate to call
correctional staff as he noticed that his foot was bleeding, and an officer came to plaintiff’s cell to
take plaintiff to the health care unit. (Id. at ¶ 4.) At the health care unit plaintiff saw a registered
nurse (not defendant) who completed an offender injury report. (Id. at ¶ 5.)
The nurse took plaintiff’s vital signs and noted that he had an approximately 1-inch wide
puncture wound to the bottom of his left foot with minimal bleeding and noted that the puncture
wound was not deep. (Id. at ¶ 6.) According to the injury report, the nurse cleansed the wound,
planned for an x-ray of his foot, and referred plaintiff to defendant for further treatment. (Id.)
Later on May 1, 2017, defendant Mershon examined plaintiff’s left foot and noted the
presence of a puncture wound, and an x-ray of plaintiff’s left foot indicated there was no foreign
object still in plaintiff’s foot. (Id. at ¶ 7.) Defendant Mershon prescribed plaintiff a two week “layin” so he would not have to go to the yard or work. (Id. at ¶ 8.) Defendant Mershon also gave plaintiff
a permit so that he could wear shower shoes for two weeks to help keep pressure off his foot while it
was healing. (Id.) Defendant Mershon also gave plaintiff a two-week low bunk permit so he would
not have to climb to a top bunk while his foot healed. (Id. at ¶ 9.) She also ordered daily dressing
changes for plaintiff’s left foot and instructed the nursing staff to use bulky dressings, and to avoid
using adhesive dressings. (Id.) Defendant also scheduled plaintiff for a return visit in two weeks.
(Id.) Plaintiff also received a three-day supply of Levaquin 500mg, as a prophylactic antibiotic. (Id.)
Defendant did not believe that crutches were medically necessary for plaintiff at the time. (Id.
at ¶ 10.) He was walking under his own power and reported no difficulties. (Id.) However, when
plaintiff returned on May 2, 2017, complaining of pain, she provided him with crutches. (Id at ¶ 12.)
On May 1, 2017, defendant Mershon also did not believe that prescription pain medication was
necessary, and plaintiff did not request any. (Id. at ¶ 11.)
Plaintiff underwent dressing changes every day for a month. (Id. at ¶13.) During his daily
dressing changes, the nursing staff would look at plaintiff’s foot to see if it was bleeding, or if there
was any pus, and would spray his foot with a wound cleaner and tape it back up. (Id.)
On May 6, 2017, plaintiff returned to the health care unit and saw a registered nurse for a
complaint of pain in his left foot and a request for pain medication. (Id. at ¶ 15.) The nurse’s note
2

indicates that on that date plaintiff’s puncture wound was healing with scant drainage. (Id.) The
nurse also noted that he was using a set of crutches to ambulate and noted that she planned to continue
plaintiff’s dressing changes and provided him with Tylenol for his pain. (Id.)
On May 8, 2017, plaintiff returned to the health care unit and saw a nurse for a complaint of
on-going pain in the bottom of his left foot. (Id. at ¶ 16.) According to the May 8, 2017, note, the
bottom of plaintiff’s left foot showed no redness, no swelling, and no drainage. (Id.) The note
indicates that plaintiff was using crutches and that plaintiff was provided with a prescription for
Ibuprofen 200mg 1-2 tabs, three times per day as needed, for three days to address his complaints of
foot pain. (Id.)
On May 12, 2017, plaintiff returned to the health care unit and saw a nurse for a complaint of
on-going pain in the bottom of his left foot. According to the medical notes, the puncture wound to
the bottom of plaintiff’s left foot was scabbed over without drainage or odor. (Id. at ¶ 17.) Plaintiff
returned to the health care unit again on May 13, 2017 and saw a nurse for further treatment of his
puncture wound. (Id at ¶ 18.) The nurse noted that plaintiff’s puncture wound was scabbed, healing
well, had scant drainage, and showed no signs or symptoms of infection. (Id.) Plaintiff was instructed
to avoid putting increased pressure on the site of the puncture. (Id.) On May 14, 2017, plaintiff again
saw a nurse for further treatment of his puncture wound. (Id. at ¶ 19.) At that time, the nurse noted
that plaintiff’s wound was dry and healing well, and no drainage was noted, and plaintiff continued
to use crutches to walk. (Id.)
On May 15, 2017, defendant saw plaintiff for a follow-up appointment regarding the puncture
wound to the bottom of his left foot and plaintiff reported that the puncture wound in his foot was
improving. (Id. at ¶ 20.) He also reported some continued pain while walking. (Id.) Defendant
Mershon examined plaintiff’s left foot and noted that the puncture wound was healing well with no
surrounding erythema (redness) or open areas. (Id. ¶ 21.) She noted that the puncture wound had a
scab over it, that plaintiff had full range of motion in his left foot and ankle, and that his circulatory,
motor, and sensory functions (“CMS”) in his foot were intact. (Id.) Plaintiff’s foot was not infected
at that time. (Id.) Defendant assessed plaintiff with a puncture wound that was healing. (Id. at ¶
22.)
At the May 15, 2017, appointment, defendant scheduled plaintiff for a follow-up appointment
on May 30, 2017. (Id. at ¶ 23.) She also ordered crutches for plaintiff to help him ambulate, a “layin” permit so he did not have to go to work or the yard, continued his low-bunk permit for two weeks,
and continued his permit for shower shoes for an additional two weeks. (Id.) She also gave plaintiff
an anti-fungal cream for his foot at that time and instructed him that he needed to put pressure on his
foot and wound to avoid creating a permanent problem with his foot. (Id. at ¶ 24.) Finally, she
ordered a continuation of daily dressing changes, and ordered plaintiff to return if he had any new or
worsening symptoms. (Id.)
Between May 16, 2017, and May 28, 2017, plaintiff saw medical personnel for further
treatment of his puncture wound. (Id. at ¶¶ 25, and 27-38.) At each of these medical visits, the
medical records note that the wound was closed and there was no drainage, except that on May 22,
3

2017, the nurse noted a “scant” amount of drainage. (Id.) Plaintiff continued to receive prescribed
pain medications: ibuprofen and Tylenol. (Id. at ¶ 27.) At times, plaintiff reported that his pain was
decreasing or that it “didn’t really hurt.” (Id. at ¶¶ 29-30.) At other times, plaintiff described his foot
as “still tender” or painful when he put pressure on it. (Id. at ¶¶ 33-34.) At no time during the period
between May 16, 2017, and May 28, 2017, was there any sign of infection. (Idi. at ¶¶ 25-38.) During
this time-period, plaintiff continued to walk to the commissary and to the law library twice a week.
(Id. at ¶ 26.)
On May 30, 2017, defendant saw plaintiff for a follow-up appointment regarding the puncture
wound to the bottom of his left foot. (Id. at ¶39.) At that time, plaintiff reported that he was near full
weight bearing on his left foot and was using his crutches sparingly, and that the tenderness in his
foot had improved. (Id.) Defendant Mershon examined the bottom of plaintiff’s left foot and noted
that a scab smaller than 0.5 cm remained on the bottom of his left foot. (Id. at ¶ 40.) She noted that
plaintiff had some tenderness distal to the scab and that there was no discharge from the wound, and
that his circulatory, motor, and sensory functions (“CMS”) in his left foot were intact. (Id.)
On May 30, 2017, defendant discontinued plaintiff’s crutches to encourage him to put more
weight on his left foot to assist the healing process. (Id. at ¶ 42.) She also noted that plaintiff could
return to work, continued his low bunk permit for six months and instructed him to follow-up as
needed. (Id.) As of May 30, 2017, defendant did not notice any signs or symptoms of an infection
in the bottom of plaintiff’s left foot. (Id. at ¶43.) As such, no further antibiotics appeared necessary.
(Id.)
According to the medical records, plaintiff complained of extreme pain in his foot on June 8,
2017, but there was no sign of infection. (Pl. Answer, Dkt. 38-1, p. 20.) Plaintiff’s wound became
infected on June 12, 2017, and plaintiff was treated by medical personnel (not defendant) with Keflex,
Motrin, and with wound care to clean out the infection. (Id. at p. 21.) Treatment continued through
June 18, 2017, when the medical records indicate “wound resolved.” (Id. at p. 27.)
Defendant Mershon did not see plaintiff for any treatment of his left foot between May 30,
2017, and November 26, 2017. (Def. St. of Facts, Dkt. 34, ¶ 44.) On November 26, 2017, she
evaluated plaintiff for his request to renew his low bunk permit. (Id.) On physical exam, she noted
that plaintiff had a scar to the bottom of his foot from a puncture wound and found no medical reason
why plaintiff needed a low bunk permit. (Id.)
On May 25, 2017, plaintiff filed a grievance regarding the medical care he received for the
wound in his foot and for ongoing pain. (Pl. Answer, Dkt. 38-1, pp. 59-61.) Plaintiff’s grievance
also complained of a foot fungus. (Id.) Plaintiff submitted his grievance on May 25, 2017, and he
received a response on June 23, 2017. (Id.) Plaintiff appealed the response on August 25, 2017,
which the warden reviewed, and then plaintiff submitted the grievance to the ARB in Springfield on
September 11, 2017. The ARB in Springfield determined that the grievance was not submitted to
them in a timely fashion. (Id. at p. 62.

4

SUMMARY JUDGMENT STANDARD
On summary judgment, defendant argues: (1) plaintiff failed to exhaust his administrative
remedies prior to filing suit; (2) plaintiff has failed to establish that he suffered from an objectively
serious medical condition; and (3) plaintiff has failed to establish that defendant was deliberately
indifferent to his injury. 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). A genuine dispute as to any material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In determining summary judgment motions, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007). The party seeking summary judgment has the burden of
establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). After “a properly supported motion for summary judgment is made, the adverse
party ‘must set forth specific facts showing that there is a genuine issue for trial.’” Anderson, 477
U.S. at 250 (citation omitted). If the non-moving party “‘fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial,’ summary judgment must be granted.” Blow v. Bijora, Inc., 855 F.3d 793, 797-98
(7th Cir. 2017) (citation omitted).
“[A] district court is entitled to decide [a summary judgment] motion based on the factual
record outlined in the [Local Rule 56.1] statements.” Koszola v. Bd. of Educ. of Chi., 385 F.3d 1104,
1109 (7th Cir. 2004) (third alteration in original) (internal quotation marks omitted); Stevo v. Frasor,
662 F.3d 880, 886-87 (7th Cir. 2011) (“Because of the high volume of summary judgment motions
and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that
district judges are entitled to insist on strict compliance with local rules designed to promote the
clarity of summary judgment filings.”). Plaintiff’s status as a pro se litigant does not excuse him from
complying with Local Rule 56.1. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have
never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423
Fed. Appx. 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se litigants, they may
nonetheless require strict compliance with local rules.”).
ANALYSIS
I.

Exhaustion of administrative remedies

Initially, defendant argues that plaintiff failed to exhaust his administrative remedies prior to
filing suit because he did not file a grievance naming defendant. The Prison Litigation Reform Act
(PLRA) states: “No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This
requirement “is ‘mandatory’” and “a court may not excuse a failure to exhaust.” Ross v. Blake, 136
S. Ct. 1850, 1856 (2016).
5

To exhaust administrative remedies, an inmate must use “‘all steps that the agency holds out,’
and he must ‘do[ ] so properly (so that the agency addresses the issues on the merits).’” Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002));
Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016). “Grievances are intended to ‘[allow prisons]
to address [issues] before being subjected to suit, [reduce] litigation to the extent complaints are
satisfactorily resolved, and [improve] litigation that does occur by leading to the preparation of a
useful record.’” Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (quoting Jones v. Bock, 549 U.S.
199, 219 (2007)).
The grievance procedures for Illinois prisoners are set out in 20 Ill. Admin. Code § 504.800,
et seq. An Illinois prisoner has sixty days from the date of the incident to submit a grievance. 20 Ill.
Admin. Code § 504.810. “The Grievance Officer shall consider the grievance and report his or her
findings and recommendations in writing to the Chief Administrative Officer. . . . The Chief
Administrative Officer shall review the findings and recommendation and advise the offender of his
or her decision in writing.” 20 Ill. Admin. Code § 504.830(e).
“If, after receiving the response of the Chief Administrative Officer, the offender still believes
that the problem, complaint or grievance has not been resolved to his or her satisfaction, he or she
may appeal in writing to the (Illinois Department of Corrections) Director. The appeal must be
received by the Administrative Review Board within 30 days after the date of the (CAO’s) decision.”
20 Ill. Admin. Code § 504.850(a). The ARB may interview witnesses and/or examine records at its
discretion to address the appeal. § 504.850(c). “The Administrative Review Board shall submit to the
Director a written report of its findings and recommendations. The Director shall review the findings
and recommendations of the Board and make a final determination of the grievance within six months
after receipt of the appealed grievance.” § 504.850(d)-(e).
A prisoner need not specify by name each person against whom he addresses his grievance.
Turley v. Catchings, No. 03 C 8491, 2004 WL 2092008, at *3 (N.D. Ill. Sep. 15, 2004) (Norgle, J.).
The PLRA statute “does not require a prisoner to have named a prospective defendant in his
grievance, even if the prospective defendant was known to the prisoner when the grievance was
written. A prisoner can ‘object intelligibly to some asserted shortcoming’ without naming or blaming
anyone; he might, for example, simply complain to the warden that he hasn't been fed for two days.”
Murray v. Artz, No. 02 C 8407, 2002 WL 31906464, at *4 (N.D. Ill. Dec. 31, 2002) (Kennelly, J.)
The court recognizes that the Illinois Administrative Code does require inmates to provide
“the name of each person who is the subject of or who is otherwise involved in the complaint.” 20 Ill.
Admin. Code § 504.810(c). However, the purpose of the requirement is to put prison officials on
notice of an issue at the prison; failure to include named defendants in a grievance is “a mere technical
defect” where the inmate sufficiently describes the alleged wrongdoing to allow prison officials a fair
opportunity to respond. Kyles v. Beaugard, No. 15 CV 8895, 2017 WL 4122708, at *8 (N.D. Ill. Sept.
18, 2017) (St. Eve, J.) (quoting Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011)).

6

The record in this case establishes that plaintiff filed a grievance on May 25, 2017, in which
he complained about ongoing pain and about the quality of the medical care he received for the injury
to the bottom of his foot on May 1, 2017. He also mentions the fact that he had developed a foot
fungus in the grievance. Defendant, in her motion, states that plaintiff failed to exhaust his
administrative remedies because he failed to name defendant in the (or any) grievance. However, the
Seventh Circuit has made clear that a plaintiff need not name the defendant in the grievance, so long
as the grievance raises the issue which is the subject of the lawsuit. Maddox, 655 F.3d at 722.
Plaintiff’s May 25, 2017, grievance clearly raises the medical issue that underlies this suit.
Exhaustion is an affirmative defense and the burden is on the defendant to prove by a
preponderance of the evidence that an administrative remedy was available to the plaintiff and that
the plaintiff failed to exhaust that remedy, Jones v. Dart, No. 14 C 1929, 2016 WL 1555588, at *2
(N.D. Ill. Apr. 18, 2016) (Kendall, J.) (collecting cases). Defendant has not met her burden.
Accordingly, the court declines to grant summary judgment on this issue.
II.

Deliberate indifference to an objectively serious medical condition

Defendant also argues that plaintiff cannot establish that he suffered from an objectively
serious medical condition, or that defendant was deliberately indifferent to his medical condition. A
prisoner seeking to prove a constitutional violation under § 1983 for denial of medical care must
establish “both an objective and a subjective component.” Pittman ex rel. Hamilton v. County of
Madison, Ill., 746 F.3d 766, 775-76 (7th Cir. 2014). First, “the harm that befell the prisoner must be
objectively, sufficiently serious and a substantial risk to his or her health or safety.” Collins v.
Seeman, 462 F.3d 757, 760 (7th Cir. 2006). Second, he must be able to prove that the “defendants
were deliberately indifferent to the substantial risk.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 832
(1994)).
“An objectively serious medical condition is one that ‘a physician has diagnosed as needing
treatment’ or that is so obviously serious ‘that even a lay person would easily recognize the necessity
for a doctor’s attention.’” McDonald v. Hardy, 821 F.3d 882, 888–89 (7th Cir. 2016) (quoting Knight
v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)). “[A] medical condition that significantly affects an
individual’s daily activities[,] or the existence of chronic and substantial pain” can be an objectively
serious medical condition. Hayes v. Snyder, 546 F.3d 516, 523 (7th Cir. 2008).
The record establishes that plaintiff suffered a puncture wound to the bottom of his left foot
on May 1, 2017. He was taken to the health care unit, examined by defendant, X-rayed, prescribed
an antibiotic, a two-week “lay-in” so he would not be required to work or go to the yard, shower shoes
to keep pressure off the wound, and a two-week low bunk permit. Defendant also ordered daily
dressing changes and scheduled plaintiff for a two-week follow-up appointment. The following day,
based on plaintiff’s complaints of pain, defendant authorized plaintiff to receive crutches. The record
clearly establishes that plaintiff’s puncture wound was “diagnosed as needing treatment,” McDonald
821 F.3d at 888-89, and constituted an objectively serious medical condition. Thus, defendant’s
argument fails.
7

However, plaintiff must also establish the second, subjective, component: deliberate
indifference. Pittman ex rel. Hamilton, 746 F.3d at 775-76. Here, defendant’s argument succeeds.
The subjective element requires a sufficiently culpable state of mind, “something akin to criminal
recklessness.” Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir. 2006). Neither medical malpractice,
nor negligence, nor even gross negligence equates with deliberate indifference. Johnson v. Doughty,
433 F.3d 1001, 1013 (7th Cir. 2006). A defendant must have known the plaintiff was suffering a
serious medical condition and deliberately taken inadequate steps to address the condition. “That the
prisoner received some treatment does not foreclose his deliberate indifference claim”, but to be
actionable, the treatment received must have been “‘so blatantly inappropriate as to evidence
intentional mistreatment likely to seriously aggravate his condition.’” Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011) (citing Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).
It is well established that medical professionals may choose from “a range of acceptable
courses based on prevailing standards in the field.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.
2008); (citing Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“the Constitution is not a medical
code that mandates specific medical treatment.”)). Thus, “[a] medical professional is entitled to
deference in treatment decisions unless ‘no minimally competent professional would have so
responded under those circumstances.’” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (quoting
Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008)). “The federal courts will not interfere with a
doctor’s decision to pursue a particular course of treatment unless that decision represents so
significant a departure from accepted professional standards or practices that it calls into question
whether the doctor actually was exercising his professional judgment.” Id. This means that
“[d]isagreement between a prisoner and his doctor, or even between two medical professionals, about
the proper course of treatment generally is insufficient, by itself, to establish an Eighth Amendment
violation.” Pyles, 771 F.3d at 409.
The record establishes that defendant prescribed a course of treatment for plaintiff including
a prophylactic antibiotic, daily dressing changes, follow-up appointments, a low-bunk permit, a twoweek “lay-in,” shower shoes, and crutches. She prescribed pain medication on several occasions, and
although plaintiff complained of ongoing pain, during the period of May 1, 2017, to May 28, 2017,
the medical records establish that plaintiff’s level of pain seem to have been improving. Defendant
saw plaintiff on three occasions: May 1, 2017, May 15, 2017, and May 30, 2017. On May 15, 2017,
she continued plaintiff’s treatment and prescriptions for dressing changes, “lay-in,” low-bunk permit,
shower shoes, and crutches. She also gave him a medication for the foot fungus he had contracted.
She also scheduled him for a follow-up appointment on May 30, 2017.
On May 30, 2017, defendant examined and treated plaintiff, finding that the wound was
scabbed over and healing. It had shrunk to .5 centimeters and showed no signs of infection. Plaintiff
reported that the pain had improved, and he was near full weight bearing on the foot. She discontinued
his crutches and authorized him to return to work. While plaintiff complained of pain in the wound
on June 8, 2017 and developed an infection in the wound and saw medical personnel on June 12,
2017, he received medical treatment from non-defendant medical personnel and the medical records
indicate that the infection was resolved by June 18, 2017. After May 30, 2017, defendant did not see
plaintiff again until November 26, 2017, when he requested a renewal of his low-bunk permit.
8

The court looks to the “totality of an inmate’s medical care when considering whether that
care evidences deliberate indifference to serious medical needs.” Petties v. Carter, 836 F.3d 722, 728
(7th Cir. 2016) (en banc). Based on the totality of the care provided to plaintiff in the month after his
injury, no reasonable jury could find that defendant Mershon was deliberately indifferent to plaintiff’s
serious medical condition.
Plaintiff, in his response, attempts to take issue with the medical records, alleging that they
have been falsified (Dkt. 38, pp. 2-3.) Plaintiff’s allegation of falsification is based on largely
unsupported argument, but in one instance he asserts that that evidence of the falsification of the
record involves the fact that the medical record has entries in two different handwritings. (Id. at p. 3,
¶ E.) Plaintiff’s assertions of falsification of the medical records in this case are argumentative and
conclusory, and the court finds that the presence of two different handwritings does not establish
falsification, it merely shows that two different people wrote in the medical note. Regardless,
plaintiff’s contention that one or a few of the medical records are inaccurate does not change the fact
that the totality of the care provided to plaintiff by defendant and other medical personnel belies any
claim of deliberate indifference. Accordingly, defendant Mershon’s motion for summary judgment
is granted.
III.

Plaintiff’s motions and correspondence

Plaintiff has filed a motion for leave to file a response to defendant’s reply. [41]. The motion
is denied. The Federal Rules of Civil Procedure do not provide for briefing beyond the reply to the
response to the motion. The court finds that the record is clear and any response by plaintiff would
not change the outcome of the case.
Plaintiff’s renewed motion for appointment of counsel [42] is likewise denied. 2 “There is no
right to court-appointed counsel in federal civil litigation,” Olson v. Morgan, 750 F.3d 708, 711 (7th
Cir. 2014), but the court may request that an attorney represent an indigent litigant on a volunteer
basis under 28 U.S.C. § 1915(e)(1). In deciding whether to recruit counsel, the court must engage in
a two-step analysis: (1) has the plaintiff made a reasonable attempt to retain counsel on his own or
been effectively precluded from doing so; and, if so, (2) given the factual and legal complexity of the
case, does the plaintiff appear competent to litigate the matter himself. Pruitt v. Mote, 503 F.3d 647,
654-55 (7th Cir. 2007) (en banc). The court finds that plaintiff is unsuccessful at this stage of the
litigation “not because his claim [is] complex or beyond his capabilities to litigate, but because he
cannot establish that…defendant ‘knew of a substantial risk of harm to [his health] and disregarded
the risk.’” DaSilva v. Rymarkiewicz, __ Fed. App’x. __, 2019 WL 2486700, at * 3 (7th Cir. 2019).
And plaintiff cannot establish a “reasonable likelihood that the presence of counsel would have made
a difference in the outcome of the litigation.” Pruitt, 503 F.3d at 659 (emphasis omitted).

The court denied plaintiff’s first motion for attorney representation at the screening stage. See [7]. There, the court
found that based on plaintiff’s filings, he appeared capable and pleaded no mental or physical illness that might have
prevented him from proceeding on his own. Id.

2

9

Finally, the court acknowledges plaintiff’s correspondence regarding issues he may have with
monies taken from his trust fund account but finds that the issue is unrelated to the underlying claim
in this case and plaintiff must avail himself of the grievance system available at Dixon Correctional
Center to resolve any issues he may have regarding monies taken from his trust fund account.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment [32] is granted.
Plaintiff’s deliberate indifference to medical needs claim is dismissed with prejudice. Plaintiff’s
motions [41] and [42] are denied for the reasons given in this opinion. Given that there are no
remaining claims or defendants in this action, the case is dismissed in its entirety. Final judgment
shall enter.
If plaintiff wishes to appeal, he must file a notice of appeal with this court within thirty days
of the entry of judgment. See FED. R. APP. P. 4(a)(1). If plaintiff appeals, he will be liable for the
$505.00 appellate filing fee regardless of the appeal’s outcome. See Evans v. Ill. Dep’t of Corr., 150
F.3d 810, 812 (7th Cir. 1998). If the appeal is found to be non-meritorious, plaintiff could be assessed
a “strike” under 28 U.S.C. § 1915(g). If a prisoner accumulates three “strikes” because three federal
cases or appeals have been dismissed as frivolous or malicious, or for failure to state a claim, the
prisoner may not file suit in federal court without pre-paying the filing fee unless he is in imminent
danger of serious physical injury. Ibid. If plaintiff seeks leave to proceed in forma pauperis on
appeal, he must file a motion for leave to proceed in forma pauperis in this court. See FED. R. APP.
P. 24(a)(1).
Plaintiff need not bring a motion to reconsider this court’s ruling to preserve his appellate
rights. However, if plaintiff wishes the court to reconsider its judgment, he may file a motion under
Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days
of the entry of this judgment. See FED. R. CIV. P. 59(e). The time to file a motion pursuant to Rule
59(e) cannot be extended. See FED. R. CIV. P. 6(b)(2). A timely Rule 59(e) motion suspends the
deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See FED. R. APP. P.
4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and, if seeking relief
under Rule 60(b)(1), (2), or (3), must be filed no more than one year after entry of the judgment or
order. See FED. R. CIV. P. 60(c)(1). The time to file a Rule 60(b) motion cannot be extended. See
Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an appeal until the Rule
60(b) motion is ruled upon only if the motion is filed within 28 days of the entry of judgment. See
FED. R. APP. P. 4(a)(4)(A)(vi).
Date: 06/19/2019

ENTER:
____________________________________________
United States District Court Judge
Docketing to Mail Notices. (LC)

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