Tran v. Illinois Department of Corrections et al

Filing 88

ORDER granting 82 Motion for Summary Judgment brought by Defendant Alfonso David. The Clerk of Court will enter judgment in this case. Signed by Judge G. Patrick Murphy on 5/10/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LANG VO TRAN, IDOC # R04817,
Plaintiff,
vs.
ILLINOIS DEPARTMENT
CORRECTIONS, et al.,
Defendants.

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CIVIL NO. 09-302-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on a motion for summary judgment brought by Defendant
Alfonso David (Doc. 82). Plaintiff Lang Vo Tran, a prisoner in the custody of the Illinois
Department of Corrections (“IDOC”) who currently is serving a sentence of sixteen years’
imprisonment for home invasion and aggravated battery, brings this action pursuant to 42 U.S.C.
§ 1983 for alleged deprivations of his constitutional rights by persons acting under color of state law.
As will be discussed in more detail presently, Tran claims that he has been unlawfully denied
adequate medical care by IDOC personnel, in violation of the Eighth Amendment. It appears from
the record that Tran first entered IDOC custody in 2000. Between January 18, 2002, and
June 24, 2008, Tran was incarcerated in the Menard Correctional Center (“Menard”), where
he received medical treatment from Dr. Adrian D. Feinerman, Dr. Mikhail Magdel, and
Dr. Lisa Gales. It appears that during Tran’s incarceration in Menard, Tran was diagnosed as
suffering from an inguinal hernia. Between June 25, 2008, and October 7, 2008, Tran was
incarcerated in the Pontiac Correctional Center (“Pontiac”), where he received medical treatment
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from Dr. Sylvia Mahone. Between October 8, 2008, and October 20, 2009, Tran was incarcerated
in the Shawnee Correctional Center (“Shawnee”), where Tran received medical treatment from
David, a physician working at Shawnee. On October 21, 2009, Tran was transferred to the
Pinckneyville Correctional Center (“Pinckneyville”), where he received medical treatment from
Dr. Olukunle Obadina. Currently, Tran again is incarcerated in Shawnee. By order entered
February 10, 2011, the Court dismissed Obadina as a Defendant in this action by reason of Tran’s
failure to effect service of summons on Obadina. See Doc. 64. By order entered March 1, 2011, the
Court dismissed Feinerman, Magdel, Gales, and Mahone as Defendants in this action by reason of
Tran’s failure to exhaust administrative remedies as to his claims against those parties, as is required
under 42 U.S.C. § 1997e(a). See Doc. 66. In the same order the Court held that Tran could proceed
on his claims against David during the period from October 9, 2008, until December 8, 2008. See id.
David, the last remaining Defendant in this case, now seeks summary judgment as to Tran’s
Eighth Amendment claim against him.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, generally at any time until thirty
days after the close of discovery in a case, “[a] party may move for summary judgment, identifying
each claim or defense – or the part of each claim or defense – on which summary judgment is
sought.” Fed. R. Civ. P. 56(a). The rule provides further that “[t]he court shall grant summary
judgment 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. The court should state on the record the reasons for
granting or denying the motion.” Id. Under Rule 56, “[a] party asserting that a fact cannot
be . . . genuinely disputed must support the assertion by . . . citing to particular parts of materials in
the record . . . or showing that the materials cited do not establish the . . . presence of a genuine
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dispute[.]” Fed. R. Civ. P. 56(c)(1)(A)-(B). The rule provides also that “[t]he court need consider
only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
With respect to affidavits and declarations, the rule provides that “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). In considering a summary judgment motion, a court must
draw all reasonable inferences in the light most favorable to the non-moving party. See Miller v.
Herman, 600 F.3d 726, 733 (7th Cir. 2010); Smith v. Severn, 129 F.3d 419, 425 (7th Cir. 1997).
On summary judgment a court may not make credibility determinations or weigh the evidence,
because these are tasks for a jury. See Morfin v. City of E. Chicago, 349 F.3d 989, 999
(7th Cir. 2003); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). “Our role is not to weigh the
evidence in search of a preponderance as would a jury, but it is instead the more restrictive function
of determining if the evidence in support of the verdict is substantial; a mere scintilla of supporting
evidence will not suffice.”

Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994)

(emphasis in original). Finally, in evaluating a motion for summary judgment, “[t]he court has one
task and one task only: to decide, based on the evidence of record, whether there is any material
dispute of fact that requires a trial.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507
(7th Cir. 2010).
It is well settled, of course, that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976)). As the United States Court of Appeals for the Seventh Circuit has instructed,
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“[t]he Eighth Amendment to the Constitution of the United States proscribes the infliction of ‘cruel
and unusual punishments.’ The amendment imposes upon prison officials the duty to ‘provide
humane conditions of confinement,’ including the obligation to provide medical care to those whom
[they have] incarcerated[.]” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (quoting Farmer v.
Brennan, 511 U.S. 825, 832 (1994)). A prisoner raising a claim for deliberate indifference to his or
her serious medical needs must satisfy two requirements. The first requirement compels the prisoner
to satisfy an objective standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently
serious[.]’” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Thus,
“a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of
life’s necessities[.]’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The second
requirement demands that the prisoner satisfy a subjective standard: “[A] prison official must have
a ‘sufficiently culpable state of mind,’” one that amounts to “‘deliberate indifference’ to inmate
health or safety[.]” Id. (quoting Wilson, 501 U.S. at 297). In the Seventh Circuit, “[a]n objectively
serious medical need,” the Seventh Circuit Court of Appeals has explained, “is ‘one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.’” Wynn v. Southward, 251 F.3d
588, 593 (7th Cir. 2001) (quoting Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810
(7th Cir. 2000)) (quotation omitted).

Additionally, “[d]eliberate indifference ‘is more than

negligence and approaches intentional wrongdoing’ . . . . [D]eliberate indifference is
‘essentially a criminal recklessness standard, that is, ignoring a known risk.’”

Johnson v.

Snyder, 444 F.3d 579, 585 (7th Cir. 2006) (quoting Collignon v. Milwaukee County, 163 F.3d
982, 988 (7th Cir. 1998)).
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In this case, as noted, Tran was first diagnosed as suffering from an inguinal hernia in 2006
while he was incarcerated in Menard. No doctors at Menard or Pontiac recommended surgery for
Tran’s condition. At David’s deposition in this case on August 30, 2011, he explained in layman’s
terms what an inguinal hernia is:
Well, inguinal hernia – an inguinal, means it’s in the inguinal area, the groin. There’s
a defect at birth, there’s a defect, there’s an opening there in what we call the
inguinal. That’s supposed to close off for several weeks from birth and as the person
grows into adult, adulthood, this defect sometimes with constant pressure can – can
give way and open up, and when they do depending on the size, will – the abdominal
contents or any fat can protrude there, and once it protrudes out, that’s what we call
inguinal hernia.
Doc. 82-2 (Deposition of Alfonso David) at 8.

Thus, an inguinal hernia that is neither

incarcerated nor strangulated can be manually reduced. It is undisputed that during the period
relevant to this case, Tran’s inguinal hernia was reducible. David saw Tran twice during the relevant
time period, first on October 20, 2008, and again on November 17, 2008. David’s notes from his
October 2008 examination of Tran, which were read by David at his deposition in this case, state
as follows:
Q. . . . It’s pages – they’re Bates stamped. IDOC Bates stamps 332 to 344. Doctor,
I think you already have those in the records you already brought with you, but do
you recognize these documents?
A. Yes. Yes, I do.
Q. And these are the outpatient records from Shawnee Correctional Center.
A. Yes.
Q. Turning your attention to the first page which is IDOC 332, could you first
confirm for me these are your notes?
A. Dated October 20, yes.
Q. So you wrote these notes?
A. Yes.
Q. Okay. Could you read your notes to me, please?
A. Related right inguinal hernia times two years. ADL [activities of daily living] is
not effected. O[bjective assessment], abdomen negative except for a golf size mass
right groin that disappears with manipulation or – or when he lays down.
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Assessment, small easy reducible right inguinal hernia. Plan, advise follow up PRN
[pro re nata, that is, as necessary].
Id. at 11. David also read his notes from the November 2008 examination of Tran:
A. November 17th, 2008, 1:30 p.m., S[ubjective assessment], right inguinal mass
that goes to right scrotum about size of orange for years. His activities of daily living
are not compromised. O[bjective assessment], orange fruit size right scrotum mass
that disappears with slight manipulation, non tender, no redness, no swelling
of tissues. A[ssessment], is easily reducible right inguinal hernia. P[lan], advise
regard – regarding complications that strangulation and incarceration and report to
health care unit as soon – ASAP, follow up PRN.
Id. at 14. David also testified that he did not recommend surgery to repair Tran’s hernia because the
hernia was reducible, was neither incarcerated nor strangulated, and the risks of surgery outweighed
the benefits:
Q. Could you describe what the risks of a surgery to remove a hernia are?
A. There are several. One is infection, any surgical procedure can – you can have
infection. Another one would be they can develop hematoma, a large hematoma,
another one would be they can endure – cause injury to the nerve in that area, another
one would be recurrence of the hernia.
Id. at 15.

Tran’s hernia was surgically repaired on October 26, 2010, while Tran was at

Pinckneyville. Dr. Kevin Barnett, a private physician to whom Tran was referred for surgery on
Tran’s hernia, explained at his deposition in this case on October 24, 2011, “I think in the referral
note the reason for referral, it said that the patient [Tran] was complaining of some new discomfort.”
Doc. 82-6 (Deposition of Kevin Barnett) at 7. Barnett’s operative report concerning Tran explains
also that Tran’s hernia “was causing [Tran] discomfort and increasing in size. I recommended repair.
I explained the risks of bleeding, infection, injury to cord or cord structures, injury to nerve or nerve
structures, recurrence, postoperative pain, possibly chronic pain. [Tran] understood these risks and
wished to proceed.” Doc. 82-7 at 7.

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For his part, Tran argues that David displayed deliberate indifference by: rescheduling two
appointments with Tran; underestimating the size of Tran’s hernia; ignoring Tran’s complaints of
pain and difficulty eating as a result of his hernia; failing to recommend a consultation by a surgeon
with Tran; and failing to prescribe Tran pain medication and a hernia belt. It is apparent that the
dispute between Tran and David is essentially a quarrel about the appropriateness and efficacy of the
course of treatment selected by David, and in particular whether David should have ordered surgery
for Tran. However, a prisoner’s quarrels about the course of treatment selected by the prisoner’s
health care providers and the effectiveness of that treatment are not actionable as violations of the
Eighth Amendment. “The Constitution is not a medical code that mandates specific medical
treatment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (brackets omitted). Thus, for
purposes of establishing an Eighth Amendment claim, “[m]edical decisions that may be
characterized as ‘classic examples of matters for medical judgment,’ such as whether one course of
treatment is preferable to another, are beyond the Amendment’s purview. Such matters are questions
of tort, not constitutional law.” Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (quoting
Estelle, 429 U.S. at 107) (brackets omitted). See also Ciarpaglini v. Saini, 352 F.3d 328, 331
(7th Cir. 2003) (when, “[a]t best, [a prisoner] alleges a disagreement with medical professionals
about his needs,” then the prisoner “does not state a cognizable Eighth Amendment claim under the
deliberate indifference standard of Estelle[.]”); Garvin v. Armstrong, 236 F.3d 896, 898
(7th Cir. 2001) (“A difference of opinion as to how a condition should be treated does not give rise
to a constitutional violation.”). Given that, as is clear from the record, Tran’s inguinal hernia was
neither incarcerated nor strangulated at the time relevant to this case, the Court cannot say that the
treatment decisions at issue represented “such a substantial departure from accepted professional
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judgment, practice, or standards as to demonstrate that [a medical provider] did not base the
decision[s] on such a judgment.” Estate of Cole v. Fromm, 94 F.3d 254, 262 (7th Cir. 1996). Also,
deliberate indifference is “something approaching a total unconcern for [a prisoner’s] welfare in the
face of serious risks, or a conscious, culpable refusal to prevent harm[.]” Duane v. Lane, 959 F.2d
673, 677 (7th Cir. 1992) (citations omitted). This total disregard for a prisoner’s safety is “the
functional equivalent of wanting harm to come to the prisoner.” McGill v. Duckworth, 944 F.2d
344, 347 (7th Cir. 1991). Drawing all reasonable inferences in Tran’s favor, the evidence adduced
by Tran shows, at most, possible negligence by David in treating Tran. However, “[m]edical
malpractice in the form of an incorrect diagnosis or improper treatment does not state an
Eighth Amendment claim.” Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997). See also
Walker v. Peters, 233 F.3d 494, 499 (7th Cir. 2000) (“A doctor might be careless . . . and this
carelessness may constitute malpractice. But malpractice alone is not enough to meet the
constitutional standard.”); Snipes, 95 F.3d at 590 (“[T]he Eighth Amendment is not a vehicle for
bringing claims for medical malpractice.”). In this case, where the essential dispute is merely a
difference of opinion between Tran and David about the proper course of treatment for Tran, and the
evidence reflects at best mere negligence by David in his treatment of Tran, the Court will grant
summary judgment for David.1

1. Because the Court finds that David’s conduct does not rise to the level of deliberate indifference
to Tran’s serious medical need, it is unnecessary for the Court to address David’s argument that he
was not personally involved in a deprivation of Tran’s constitutional rights, such as is necessary to
establish liability under 42 U.S.C. § 1983. See Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248
(7th Cir. 1994) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)) (“Section 1983
creates a cause of action based on personal liability and predicated upon fault; thus, liability does not
attach unless the individual defendant caused or participated in a constitutional deprivation.”). In
an earlier order in this case, the Court struck the portion of David’s summary judgment motion
asserting a defense of qualified immunity as untimely. See Doc. 84.
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To conclude, David’s motion for summary judgment (Doc. 82) is GRANTED.
The Clerk of Court will enter judgment in this case.
IT IS SO ORDERED.
DATED: May 10, 2012

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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