Mack v. Gordinez et al

Filing 118

MEMORANDUM & ORDER. For the reasons explained herein, Defendants' Motion for Summary Judgment (Doc. 94 ) is GRANTED. All settings are cancelled, all other motions are moot. The Clerk is DIRECTED to enter final judgment. Signed by Chief Judge Michael J. Reagan on 1/20/2015. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HENRY L. MACK,
Plaintiff,
vs.
SAMUEL NWAOBASI,
MAGID FAHIM, and
JOHN SHEPHERD,
Defendants.

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Case No. 12-cv-0986-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:

Pro se Plaintiff Henry Mack is currently in custody at the DeKalb County
(Illinois) Jail. On September 11, 2012, he filed this § 1983 civil rights claim, broadly
alleging deliberate indifference to various medical conditions in violation of the
Eighth Amendment's proscription against cruel and unusual punishments. Several
Defendants were dismissed on § 1915A threshold review, several more because
Plaintiff did not exhaust administrative remedies against them, and Plaintiff's
claims against Defendants Nwaobasi, Fahim, and Shepherd survived. The case is
before the Court on those Defendants' Motion for Summary Judgment (Doc. 94).
Plaintiff has responded (Doc. 101), Defendants have replied (Doc. 106), and the
motion is ripe for ruling. For the reasons explained below, the Court GRANTS (Doc.
94) Defendants' Motion for Summary Judgment.
FACTUAL BACKGROUND 1

Because this case is at the summary judgment stage, the Court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, Plaintiff.

1

Plaintiff filed suit in September 11, 2012, alleging (for purposes relevant here)
Defendants acted with deliberate indifference in treating rectal bleeding and pain in
Plaintiff's hips and shoulder. Specifically, Plaintiff complained of a delay in treating
pain in his hips and providing him with a low bunk permit, a delay in treating his
complaints of blood in his stool, and a failure to treat pain in his shoulder caused by a
fall on July 15, 2011.
Plaintiff had transferred to Menard Correctional Center on March 18, 2009
(Doc. 95-1, 9). Prior to arriving at Menard, Plaintiff had suffered from arthritis in
his hips due to a gunshot wound sustained in the late 1980s (Doc. 1 at ¶¶ 17-18).
Plaintiff was seen by Defendant Nwaobasi on March 3, 2011, for his hip pain (Doc.
95-1 at 11-12; 95-2 at ¶ 2). At that time, Plaintiff explained his history of pain in his
hips, including the previous gunshot wound and bone graft he had received as a part
of his treatment (Id.). Nwaobasi ordered x-rays for Plaintiff's hips (Id. at p. 12; 95-2
at ¶ 2). Nwaobasi further prescribed Plaintiff Motrin (i.e., ibuprofen) and a muscle
relaxer called Robaxin (Doc. 95-2 at ¶ 2; 95-1 at 13; 95-5 at 1).
Plaintiff saw Defendant Fahim on March 31, 2011 (Doc. 95-1 at 13–14; Doc.
95-5 at 2–3). Fahim read the results of Plaintiff's X-rays, noting narrowing of the
joint spaces in Plaintiff's hips (Doc. 95-5 at 2–3; 95-3 at ¶ 2). The X-ray also noted
moderate osteoarthritis in both hips (Doc. 95-5 at 2). Fahim provided Plaintiff with
a low bunk permit and prescribed Mobic (a non-sterodial anti-inflammatory pain
medication) as Plaintiff indicated that Motrin upset his stomach (Doc. 95-5 at 3; 95-3
at ¶ 2; 95-1 at 14–15). Dr. Fahim also performed an abdominal exam; his findings
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were normal (Doc. 95-3 at ¶¶ 2-3). Plaintiff testified that he also informed Fahim
about blood in his stool, and that Fahim told him that it was probably caused by
hemorrhoids. Fahim directed Plaintiff to drink more fluids (Doc. 95-1 at 15–16).
Plaintiff, complaining of blood in his stool, saw Nwaobasi again on April 22,
2011 (Doc. 95-2 at ¶ 3; 95-5 at 4). Plaintiff informed Nwaobasi he had no family
history of colon cancer (Doc. 95-1 at 19). Nwaobasi ordered stool sample tests and
directed Plaintiff to follow up with him in three months (Doc. 95-1 at 19; 95-2 at ¶ 3).
The stool samples tested negative for blood (Doc. 95-2 at ¶ 3; 95-5 at 5). Plaintiff
followed up with Nwaobasi on July 28, 2011. At that time, Nwaobasi performed a
rectal exam and found no palpable mass (Doc. 95-2 at ¶ 4; 95-5 at 6). Nwaobasi
changed his pain prescription back to Ibuprofen to see if that solved his stomach
problems, and ordered another stool sample (Id.). Plaintiff never submitted that
stool sample. Nwaobasi ordered another sample on August 18, 2011 (Doc. 95-2 at ¶
5; 95-5 at 7). The August 2011 sample returned positive for blood in the stool (Doc.
95-5 at 8).
Meanwhile, Plaintiff was seen by a nurse practitioner named Kohring for his
shoulder injury. She ordered an X-ray (Doc. 95-5 at p.7). However, Plaintiff was
sent to Stateville on a writ from August 26, 2011 to September 21, 2011, and could
not, therefore, receive the X-ray (Doc. 95-1 at 27; 95-2 at ¶ 7).

When Plaintiff

returned to Menard Correctional Center, Nwaobasi noted in his chart that the X-ray
had not been performed and ordered another. He also ordered a colonoscopy and
upper endoscopy for the blood in Plaintiff's stool (Doc. 95-2 at ¶ 8; 95-5 at 10).
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X-rays were performed on Plaintiff's shoulder on October 3, 2011 (Doc. 95-5 at 10).
The X-ray noted a slight down-sloping acromion, which a Dr. Yousuf noted was
possibly from a rotator cuff impingement (Doc. 95-5 at 11). Defendant Shepherd
met with Plaintiff on October 18, 2011, and showed Plaintiff exercises to alleviate the
impingement (Doc. 95-4 at ¶ 3; 95-5 at 15).
On October 4, 2011, Plaintiff saw Defendant Shepherd (Doc. 95-4 at ¶ 2; 95-5
at 12). Shepherd diagnosed Plaintiff with possible gastroesophageal reflux disease
(GERD) and prescribed Prilosec (Doc. 95-5 at 12). Shepherd also ordered a blood
test to test for the H. Pylori bacteria (which causes ulcers); that test came back
negative (Id. at 12, 14). Shepherd ordered an upper endoscopy and colonoscopy for
Plaintiff, who submitted to both tests on October 20, 2011 (Id. at 12, 16). Biopsies
were taken (Id. at p. 16). The colonoscopy showed Plaintiff had diverticulosis coli
which can cause rectal bleeding (Id. at 16-17; 95-3 at ¶ 4). The gastroenterologist
performing the colonoscopy recommended a high fiber diet (Id at p. 17). Plaintiff's
other biopsies came back normal (Id. at 19; 95-4 at ¶ 4).
Plaintiff next saw Defendant Nwaobasi on November 10, 2011. Nwaobasi
read Plaintiff's colonoscopy results (finding that he had diverticulosis coli) but he
could not read the gastroenterologist's recommendations (Doc. 95-5 at 21; 95-2 at ¶
10; 95-1 at 31). Nwaobasi made a note to clarify the recommendations but renewed
Plaintiff's prescription for ibuprofen, and further prescribed Flexeril for his hip pain
(id.; 95-2 at ¶ 11; 95-1 at 31). Plaintiff saw Defendant Shepherd on November 18,
2011, and Shepherd explained the results of the colonoscopy (Doc. 95-5 at 22; 95-4 at
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¶ 5; 95-1 at 32). He advised Plaintiff to lose weight and increase his fiber and water
intake, as he believed that this was the appropriate remedy for his condition (id.).
LEGAL STANDARDS

1. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment.
Summary judgment should be granted 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." Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012) (citing FED. R. CIV. P.
56(a)). A genuine issue of material fact remains "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly

Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
Summary judgment has been described as the "put up or shut up moment" in
the case, at which "the non-moving party is required to marshal and present the
court with the evidence she contends will prove her case"—evidence on which a
reasonable jury could rely. Porter v. City of Chi., 700 F.3d 944, 956 (7th Cir. 2012)
(citing Goodman v Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010)). In
assessing a summary judgment motion, the district court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the non-moving
party (here, Plaintiff). Anderson, 699 F.3d at 994; Righi v. SMC Corp., 632 F.3d
404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
But the district court may not resolve issues of credibility when deciding a summary
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judgment motion: "Those are issues for a jury at trial, not a court on summary
judgment." Williams v. City of Chi., 733 F.3d 749, 752 (7th Cir. 2013).

2. Deliberate Indifference Standard
The Supreme Court has declared that a prison official's "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)).
To prevail on such a claim, a plaintiff must first show that his condition was
"objectively, sufficiently serious" and that the "prison officials acted with a
sufficiently culpable state of mind." Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir.
2005) (citations and quotation marks omitted). The parties do not dispute that
Plaintiff's hip pain, shoulder pain, and rectal bleeding were serious medical
conditions. Instead, they only argue that they were not deliberately indifferent to
those conditions.
The second prong of the deliberate indifference analysis requires that a
prisoner show that prison officials acted with a sufficiently culpable state of mind,
namely,

deliberate

indifference.

Negligence,

gross

negligence,

"recklessness" as that term is used in tort cases, is not enough.

or

even

Duckworth v.

Franzen, 780 F.2d 645, 653 (7th Cir. 1985); Shockley v. Jones, 823 F.2d 1068, 1072
(7th Cir. 1987). A Plaintiff must demonstrate that the officials were "aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists," and that the officials actually drew that inference. Greeno, 414 F.3d at 653.
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"Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence,... and a fact finder may conclude that a prison official knew
of a substantial risk from the very fact that the risk was obvious."

Farmer v.

Brennan, 511 U.S. 825, 842 (1994) (citations omitted). An inmate does not have to
prove that his complaints of pain were "literally ignored," only that "the defendants'
responses to it were so plainly inappropriate as to permit the inference that the
defendants intentionally or recklessly disregarded his needs." Hayes v. Snyder, 546
F.3d 516, 524 (7th Cir. 2008) (quoting Sherrod v. Lingle , 223 F.3d 605, 611 (7th Cir. 2000)).
The Seventh Circuit has noted that the standard is "a high hurdle … because
it requires a 'showing as something approaching a total unconcern for the prisoner's
welfare in the face of serious risks.'" Rosario v. Brawn, 670 F.3d 821-22 (7th Cir.
2012) (quoting Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006)). "Even if the
defendant recognizes the substantial risk, he is free from liability if he 'responded
reasonably to the risk, even if the harm ultimately was not averted.'" Gayton v.

McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825,
843 (1994)).
ANALYSIS
The Eighth Amendment does not require that a prisoner receive unqualified
access to health care, or to demand specific care. Johnson v. Doughty, 433 F.3d
1001, 1013 (7th Cir. 2006); Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). The
record before the Court does not support an inference that Defendants acted with
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deliberate indifference to any serious medical problems.

1. Hip Pain
Defendants argue that they are entitled to summary judgment on Plaintiff's
deliberate indifference claim for his hip pain because they adequately treated his
pain. Defendants point out that Plaintiff was prescribed pain medication and that
X-rays of his hips were taken. Those showed moderate osteoarthritis and bullet
fragments (Doc. 95-5 at 2; 95-3 at ¶ 2; 95-1 at 14-15; 95-2 at ¶ 11). As a result of the
X-rays, the Defendants continued to provide Plaintiff with pain medication and
provided Plaintiff with a low bunk permit. There is no evidence that any of the
doctors were in any way deliberately indifferent or continued with an ineffective
course of treatment that could rise to that level. Compare Kelley v. McGinnis, 899
F.2d 612, 616 (7th Cir. 1990) (deliberate indifference when doctor continues with
treatment knowing it to be ineffective); Greeno v. Daley, 414 F.3d 645, 654 (7th Cir.
2005); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (case survived summary
judgment where evidence suggested doctor had not identified effective pain
medication or the cause of tooth pain, but refused to refer to seek obvious alternative
of referring inmate to dentist); with Arnett v. Webster, 658 F.3d 742, 759 (7th Cir.
2011) (not deliberately indifferent when took measures to address the pain by
providing medication, even if ineffective, in the short time as record didn't show that
"no minimally competent professional would have provided this regime of
treatment"); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013)
(not deliberately indifferent when inmate examined often, X-rays taken, and
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medications prescribed). Instead, the evidence indicates that the doctors provided
Plaintiff with pain medication and consistently sought to diagnose his pain, to
include the use of X-rays.
Plaintiff does not deny that Defendants provided him with treatment for his
hip pain. In fact, Plaintiff does not dispute the treatment that was provided, and
agrees that his moderate osteoarthritis was treated properly (Doc. 101 at pp. 5-6).
Instead, Plaintiff argues that Defendants did not provide him any treatment for the
bullet fragments in his hip. However, there is nothing in the record that indicates
that the pain medication prescribed to Plaintiff was not also a proper treatment for
the bullet fragments which remained in Plaintiff's hip from a past injury. Nor has
Plaintiff indicated what treatment should have been provided for this injury. The
evidence in the record indicates that Defendants provided him with pain medication
and a low bunk permit for his hip pain. The medical records do not distinguish
between medication provided for his osteoarthritis and the bullet fragments (both of
which presumably caused him some pain), nor is there any indication that separate
treatment for the bullet fragments should have been provided. Thus, the Court
finds no evidence of deliberate indifference as to Defendants.
Finally, Plaintiff also argues that Defendants were deliberately indifferent
because they did not provide him with a low gallery permit. However, there is no
evidence that Plaintiff needed a low gallery permit in addition to the low bunk
permit. The evidence in the record indicates that Plaintiff was provided with a low
bunk permit, as well as with pain medication and a muscle relaxer for his hip pain.
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There is no indication that a low gallery permit would have eased his hip pain, and in
any event, that level of specificity in his treatment is beyond the pale of what the
Eighth Amendment requires (Doc. 89-3 at ¶ 5). Accordingly, the Court GRANTS
Defendants' motion for summary judgment as to Plaintiff's hip pain.

2. Rectal Bleeding
The Court also finds that Defendants are entitled to summary judgment re:
Plaintiff's rectal bleeding.

The record shows Defendants sought to identify the

source of Plaintiff's rectal bleeding and provide Plaintiff with a proper course of
treatment.

That they did not treat it with 100% accuracy gives no rise to a

constitutional violation. See Berry, 604 F.3d at 441 ("Neither medical malpractice
nor mere disagreement with a doctor's medical judgment is enough to prove
deliberate indifference.").
Medical records indicate Defendant Fahim first saw Plaintiff for rectal
bleeding, performed a physical exam which was unable to locate any issues, and
advised Plaintiff to drink plenty of water (as Fahim thought the bleeding was caused
by hemorrhoids) (Doc. 95-3 at ¶3; 95-1 at 15–16; 95-3 at ¶ 3). Defendant Nwaobasi
performed an abdominal exam and ordered a stool sample to find the cause of
Plaintiff's rectal bleeding (Doc. 95-2 at ¶ 3; 95-5 at 4). When no bleeding was found
in the stool sample, Nwaobasi again performed an exam looking for masses; none
were found, and he ordered another stool sample (Doc. 95-2 at ¶ 4; 95-5 at 6). He
also changed Plaintiff's pain medication for his hip, believing the medication to be
the source of his bleeding (id.). When the stool sample revealed blood, Nwaobasi
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ordered a colonoscopy and endoscopy.
Defendant Shepherd saw Plaintiff for his rectal bleeding and prescribed
Prilosec, thinking that Plaintiff might have gastroesophageal reflux disease (Doc.
95-4 at ¶ 2; 95-5 at 12). He also ordered a blood test to test for pylori bacteria and
ordered an upper endoscopy and colonoscopy. Those tests ultimately revealed that
Plaintiff had diverticulosis coli—pouches in the colon which can cause rectal bleeding
(Doc. 95-4 at ¶¶ 2, 4; 95-5 at 12, 14, 16-17). The gastroenterologist recommended
Plaintiff eat a high fiber diet, and Shepherd advised Plaintiff to both increase his
fiber and fluids, as well as to lose weight (Doc. 95-5 at 17; 95-4 at ¶ 5).
The record indicates that Defendants were not deliberately indifferent to
Plaintiff's rectal bleeding. This is not a case where Defendants continued with an
ineffective course of treatment. Instead, they regularly monitored Plaintiff, seeing
him on various occasions from March to November 2011, provided him with different
medications to treat the bleeding, performed several different tests to identify the
source of his bleeding, and ultimately directed him to change his diet in order to
alleviate the problem. The Court finds no evidence that the Defendants acted with
deliberate indifference to Plaintiff's rectal bleeding.
Plaintiff's argument that Defendants should somehow be liable because they
did not prescribe him with a fiber supplement falls far short. Shepherd advised
Plaintiff to lose weight and increase his water and fiber intake to alleviate his rectal
bleeding. That Plaintiff was later prescribed a fiber supplement (by a doctor at
Dixon Correctional Center), and that that supplement has helped Plaintiff's rectal
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bleeding, is of little consequence to the instant analysis.

Defendant Shepherd

testified in an affidavit that he recommended a change in diet over supplements
because there are side effects to supplements, including abdominal pain and
diarrhea (Doc. 106-1 at ¶ 2).

Even if negligent, medical reasons for a medical

decision do not permit Eighth Amendment liability. Shepherd believed that there
were adequate fiber options in the prison cafeteria to increase Plaintiff's fiber before
prescribing fiber supplements (Id. at ¶ 3). As mentioned above, Plaintiff is not
entitled to choose specific treatment, nor does a disagreement with the doctor's
treatment constitute deliberate indifference. Forbes v. Edgar, 112 F.3d 262, 267
(7th Cir. 1997); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003).

Further,

there is no evidence that the choice to pursue diet changes before prescribing fiber
supplements is so far afield of professional norms of treatment as to give rise to
deliberate indifference. Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008).
In fact, the gastroenterologist also recommended a high fiber diet—not
supplements—in his report. The evidence indicates that Shepherd sought to control
Plaintiff's diverticulosis coli with his diet before prescribing fiber supplements.
Such decisions "as [to] whether one course of treatment is preferable to another [as is
this case here], are beyond the [Eighth] Amendment's purview." Snipes v. DeTella,
95 F.3d 586, 591 (7th Cir. 1996). Thus, the Court finds that none of the Defendants
were deliberately indifferent to Plaintiff's rectal bleeding.

3. Shoulder Pain
As to Plaintiff's shoulder, the record only indicates that Plaintiff received
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constitutionally adequate treatment for that pain. He first saw Nurse Practitioner
Kohring on August 27, 2011, and X-rays were ordered. While there was a delay in
Plaintiff receiving those X-rays, the delay was due to Plaintiff being on a writ to
Stateville Correctional Center from August 31, 2011, to September 21, 2011 (Doc.
95-2 at ¶ 7). Defendant Nwaobasi again ordered X-rays for Plaintiff's shoulder once
he learned that the X-rays ordered by Kohring had not yet been taken (Doc. 95-2 at ¶
8). The X-rays revealed that Plaintiff's shoulder blade might be impinging on his
rotator cuff. Plaintiff then saw Defendant Shepherd, who went over the X-ray and
showed Plaintiff exercises to help alleviate the impingement (Doc. 95-4 at ¶ 3; 95-5 at
13, 15).

Both Shepherd and Nwaobasi continued to provide Plaintiff with pain

medication.

There is no evidence Defendants were deliberately indifferent to

Plaintiff's injury. As with his hip and rectal bleeding, Plaintiff received continuous,
adequate care that included various diagnostic tools and treatment options.
Defendant Shepherd diagnosed the injury and provided Plaintiff with exercises to
help the pain, and both Shepherd and Nwaobasi continued to provide Plaintiff with
pain medication for his pain in general.

Any delay in a diagnosis was due to

Plaintiff's transfer to Stateville, and nothing in the record suggests any sort of grand
scheme by Defendants to effectuate a transfer with the purpose of ignoring Plaintiff's
medical concerns.

The Court finds no evidence of a significant delay by the

Defendants. Accordingly, the Court finds no evidence of deliberate indifference as to
Plaintiff's shoulder injury.
CONCLUSION
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The Court finds that Defendants Fahim, Nwaobasi, and Shepherd are entitled
to summary judgment on Plaintiff's claims for deliberate indifference regarding his
hip pain, shoulder pain, and rectal bleeding.

The Court GRANTS Defendants'

Motion for Summary Judgment (Doc. 94). As no claims remain for trial, the Court
DIRECTS the clerk to enter final judgment.
IT IS SO ORDERED.
DATED: January 20, 2015

s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge
United States District Court

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