Harper v. Santos et al
Filing
74
ORDER GRANTING 40 Motion for Summary Judgment filed by Defendants Venerio M Santos and Terri Dean. This action is DISMISSED with prejudice. Signed by Judge Nancy J. Rosenstengel on 3/30/15. (mah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATHANIEL HARPER,
Plaintiff,
vs.
VENERIO M. SANTOS and
TERRI DEAN,
Defendants.
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Case No. 12-CV-1188-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On November 19, 2012, Plaintiff Nathaniel Harper filed a Complaint related to
the medical care he received while incarcerated at the Centralia Correctional Center
(“Centralia”) beginning in December 2010. In particular, Plaintiff alleges that
Defendants Santos and Dean (along with other medical providers) were deliberately
indifferent to his medical needs as they related to a condition that necessitated surgery
and significant post-surgical care. On January 17, 2013, Plaintiff’s claims were screened
pursuant to 28 U.S.C. § 1915A (Doc. 6), and he was permitted to proceed on one count
of deliberate indifference to serious medical needs against Dr. Santos and Nurse Dean.
Defendants moved for summary judgment on May 6, 2014 (Doc. 40). Plaintiff, through
counsel, responded on February 9, 2015 (Doc. 72).
FACTUAL BACKGROUND
All facts are construed in a light most favorable to Plaintiff. Miller v. Gonzalez,
761 F.3d 822, 826 (7th Cir. 2014). On December 3, 2010, Plaintiff presented at the Health
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Care Unit (“HCU”) with complaints of stomach pain (Nathaniel Harper Deposition pp.
18-19, 21-22 Doc. 40-2). He was seen by a nurse who diagnosed constipation; she told
Plaintiff there was nothing that could be done and sent him back to his cell (Harper
Dep. p. 22). On the morning of December 4, 2010, Plaintiff returned to the HCU.
(Harper Dep. P. 18). Plaintiff was still experiencing vomiting and significant stomach
pain and “couldn’t deal with the pain” (Harper Dep. pp. 18, 22). He was once again
returned to his cell with a diagnosis of constipation (Id.). Later that same day, Plaintiff
returned to the HCU with “sharp abdominal pains” (Harper Dep. pp. 19-20). On
December 5, 2010, Plaintiff again presented to the HCU. This time, however, he was
seen by Dr. Santos and subsequently transported to the emergency room at St. Mary’s
Good Samaritan Hospital (“St. Mary’s”) to rule out a small bowel obstruction (Harper
Dep. p. 23). Plaintiff testified that he was twice returned to his cell after complaining
about abdominal pain and cramps (Harper Dep. p. 21).
At his deposition, Plaintiff testified that the nurse who returned him to his cell on
December 3 and 4, 2010, was Defendant Dean:
Q:
[D]o you remember the names of any of the nurses who saw you
before you went to the hospital, at the jail, or at the prison . . . ?
A.
Terri Dean, she turned around and seen me. She’s the one that told
me – her and this other nurse was the ones that turned around
telling me this here, and she’s the one that turned around and was
orchestrating all of this, and telling me ain’t nothing could happen
or whatever.
(Harper Dep. p. 23).
Plaintiff also indicated that when he presented at the HCU with his condition,
the nurses there (three of them), “kept laughing, telling me . . . it was just constipation,
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and there’s nothing they can do, and I had to wait it out” (Harper Dep. p. 18). Finally,
Plaintiff testified that an x-ray was not taken of his abdomen before he was transported
to St. Mary’s.
Medical records reveal that when Plaintiff presented to the HCU on December 3,
2010, he was physically examined. The nurse, C. Podergois, indicated that he had
generalized abdominal pain, bowel signs “present x4,” vomiting, but no diarrhea (Doc.
72-2, p. 2). Plaintiff was not referred to the doctor. Instead, he was told to rest, avoid
some over-the-counter medication, and return to the HCU if the symptoms persist (Id.).
When Plaintiff returned the next morning, nausea and vomiting were noted, and a
physical examination revealed mild pain upon palpation (Doc. 72-2, p. 4). Plaintiff was
referred to Dr. Santos by Nurse C. Kracht (Id.).
There is no dispute that Dr. Santos issued a “telephone order to have Mr. Harper
admitted to the Health Care Unit for Observation” (Venerio Santos Affidavit, ¶ 3, Doc.
40-3). It appears that Plaintiff was admitted to the HCU that morning as indicated in an
“Offender Infirmary Progress Notes” signed by Nurse J. Wesselmann (Doc. 72-2, p. 6).
Further infirmary progress notes for December 4, 2010, reveal that Plaintiff was checked
at 3:05 p.m., and he continued to complain of cramping and abdominal pain (Doc. 72-2,
p. 7). At 7:35 p.m., Plaintiff complained of “sharp pains,” and at 11:00 p.m., Plaintiff
apparently relayed that he had not eaten in two to three days and that his condition
started three to four days ago (Doc. 72-2, p. 9). Dr. Santos examined Plaintiff on
December 5, 2010, and ordered an x-ray of Plaintiff’s abdomen (Santos Aff. ¶ 4). While
there is some dispute as to whether an x-ray was taken and when Dr. Santos viewed the
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x-ray, it is undisputed that at 10:05 a.m., Plaintiff was sent to St. Mary’s in order to rule
out a small bowel obstruction (Doc. 72-2, p. 11). 1
While at St. Mary’s, Plaintiff underwent a total of nine surgeries for a small
bowel obstruction and complications from that surgery. The complications included
“infections, pneumonia, peritonitis, and dehydration” (Santos Aff. ¶ 6). On January 12,
2011, Plaintiff returned to Centralia with a colostomy bag. In the St. Mary’s “Discharge
Summary,” Plaintiff’s medications included Tylenol 650 mg every six hours as needed
and Vicodin 500mg/5mg every six hours for pain. (Doc. 72-2, pp. 15-16). Plaintiff was
further advised to drink plenty of fluids, to continue activities as tolerated, and to have
a regular diet with more oral fluids (Doc. 72-2, pp. 15-16).
In addition, while at St. Mary’s, Plaintiff underwent a nephrology consultation
after it was discovered that he had a “hypodense lesion in the left upper pole of the
kidney” that was “suspicious for renal cell carcinoma” (Doc. 72-2, pp. 15-16). The
Discharge Summary recommended that Plaintiff undergo a renal ultrasound every
three months. The note further indicates: “However, patient will be followed by
primary care physician, and he will decide about the renal mass” (Id.).
Upon Plaintiff’s return to prison on January 12, 2011, he was housed in the HCU
for observation. It is undisputed that Dr. Santos examined Plaintiff on thirty one
separate occasions between January 13, 2011, and April 13, 2011 (Santos Aff. ¶ 12).
While Nurse Dean disputes that she treated or even saw Plaintiff from December 3
through 5, 2010, she attests that she assessed him thirty times between January 12, 2011,
1
An x-ray report reveals that it was viewed on December 5, 2010, by Dr. K. Wong and that a report was
generated on December 7, 2010 (Doc. 40-8, p. 2).
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and April 4, 2011 (Terri Dean Affidavit, ¶¶ 3-4, 11, Doc. 40-4). It is also undisputed that
during that time period, nurses in the HCU checked on Plaintiff 358 times. Plaintiff
testified that during this time period, his complaints of pain were ignored, he was not
provided adequate nutrition, his IV line became clotted, he was “antagonized” by
Nurse Dean, and Dr. Santos failed to adequately monitor his kidney issues.
Pain Medication
It is undisputed that Dr. Santos discontinued Plaintiff’s Vicodin prescription on
January 12, 2011, upon his return to Centralia (Doc. 40-14, p. 4)). But Plaintiff continued
receiving Tylenol 650mg every six hours as needed. On January 13, 2011, Plaintiff’s
Tylenol was modified to a “500 mg 1-2 tab” every six hours as needed (Id.). 2 On January
26, 2011, Plaintiff’s Tylenol prescription was modified to 500 mg 1-2 tabs as needed
twice daily (Id.). On February 7, 2011, Plaintiff also was prescribed Indocin 500 mg three
times a day as needed for pain for ten days (Doc. 40-7, p. 6). Tylenol was discontinued
on February 9, 2011. Three days later, however, on February 12, 2011, it was represcribed at 650 mg every six hours as needed for five days (Id. pp. 7-8). Plaintiff’s
medical records reveal that Tylenol was prescribed at 1000 mg on that same day, at 5:30
p.m. (Doc. 40-14, p. 24). On February 21, 2011, Plaintiff was then prescribed Motrin 600
mg every four hours as needed for five days (Id. p. 9). The Motrin was discontinued on
February 26, 2011, and Tylenol 500 mg every four hours as needed was prescribed (Id.
p. 10).
2
Dr. Santos stated that he prescribed Tylenol at 1000 mg on January 13, 2011–-presumably two tabs of 500
mg Tylenol (Santos Aff. ¶ 8). Plaintiff does not dispute the records or evidence regarding his pain
medication. In his statement of facts, Plaintiff only highlights the pain medication he received from
January 11, 2011, to January 13, 2011, arguing that it was ineffective to combat his pain.
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Plaintiff testified that “[f]or as long as I was up there [in HCU], I begged Dr.
Santos, I begged him to turn around and do something about the pain that I was having
and to do something about weight loss” (Harper Dep. p. 70). Plaintiff further states that
the pain medication “weren’t working at all” and that he just “wanted the pain to stop”
(Harper Dep. p. 77). The medical records reveal that Plaintiff sought pain medication on
January 12, 2011, January 13, 2011 (at 8:00 a.m.), January 23, 2011, February 21, 2011,
and February 22, 2011 (Doc. 40-14). The records also reveal either no complaints or
indications that Plaintiff was feeling better almost every single day while Plaintiff was
in the HCU.
Nutrition
Plaintiff further testified that he complained to Dr. Santos about being “hungry
all the time” (Harper Dep. p. 72). He accused Dr. Santos of letting him die. Plaintiff
further stated that he could “feel [his] body leaving [his] spirit,” but that Dr. Santos,
upon hearing this, merely “threw his head up and walked out” (Id. p. 72-73). At one
point, Plaintiff discovered that he could tolerate eggs. But when he asked to “just skip
all the rest of this [food] stuff” and only receive eggs, Dr. Santos said no (Harper Dep. p.
72). Plaintiff admitted, however, that he had trouble holding down food after the
surgery and that Dr. Santos changed his diet in order to alleviate the vomiting (Harper
Dep. p. 73). Medical records indicate that Plaintiff complained of weakness and
throwing up on January 14, 2011, and January 16, 2011, and he was noted as appearing
thin and frail on this date (Doc. 40-14, pp. 6, 8). Plaintiff complained of starving on
January 17, 2011; “fading away” on January 24, 2011; and “I don’t think I’m going to
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make it” on January 25, 2011 (Id. p. 9, 13, 14). As noted above, other entries indicate no
complaints, some complaints of nausea and vomiting, and other indications that
Plaintiff was tolerating various food well. The record further reveals that changes in
Plaintiff’s diet were made including a pureed diet, “fibersource” drinks, clear liquids,
double trays, Ensure, and increased fluids.
I.V. and Blood Clot
It is undisputed that at some point in February, the I.V. site in Plaintiff’s arm
started to bleed (Harper Dep. p. 49). Nurse Dean checked the site, cleaned the area,
stopped the bleeding, and re-taped the I.V. to prevent it from moving (Harper Dep. pp.
50-51). On February 12, 2011, Plaintiff complained that the site was hurting, and the I.V.
was removed by another nurse (Doc. 40-14, p. 24). The area around the I.V. site showed
“signs of phlebitis with tenderness to touch, heat, and swelling” (Id.). On February 14,
2011, Plaintiff was sent to St. Mary’s to evaluate the I.V. site; he was diagnosed with a
DVT/blood clot and treated. Plaintiff states that “St. Mary’s Hospital” told him the clot
was the result of a dirty syringe (Harper Dep. p. 51).
Nurse Dean’s Interactions with Plaintiff
It is undisputed that Nurse Dean confiscated a pillow that Plaintiff used to
elevate his leg in order to alleviate some pain from gout (Harper Dep. pp. 90-91). In
addition, on one occasion, Plaintiff requested she empty his colostomy container; Nurse
Dean refused and walked out of the room (Harper Dep. p. 91).
Plaintiff’s Kidney Condition
As noted above, during Plaintiff’s stay at St. Mary’s, it was advised that he
should receive an ultrasound of his kidney every three months. It is undisputed that an
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ultrasound was conducted on April 6, 2011 (Santos Aff. ¶ 14), three months after
Plaintiff’s return to Centralia and just before colostomy reversal surgery. The report
indicates: “Left upper pole solid approximately 8 cm size tumor suspicious for
malignancy such as a renal cell carcinoma” (Doc. 40-10, p. 2). And it is undisputed that
Dr. Santos monitored Plaintiff’s kidney through blood and urine tests, which have all
been negative. The tests, including BUN, Creatinine, and urinalysis were completed on
May 9, 2011, October 23, 2011, October 30, 2012, and February 21, 2013 (Santos Aff.
¶ 16).
Plaintiff has “not shown any signs or symptoms of kidney disease such as
abnormal lab values, blood in his urine, or flank pain” (Santos Aff. ¶ 17). At some point
in 2012, Plaintiff attempted to discuss his kidney issue with Dr. Santos and asked when
he would get an ultrasound, to which Dr. Santos “screamed ‘Never!’” and “said he
would not do anything because it was ‘only’ a cyst on [Plaintiff’s] kidney” (Harper Aff.
¶ 4, Doc. 72-2, pp. 46-47).
DISCUSSION
A. Legal Standard for Summary Judgment
Summary judgment is proper only if the moving party can demonstrate Athat
there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law. FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422
F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins.
Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of
establishing that no material facts are in genuine dispute; any doubt as to the existence
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of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th
Cir. 2004).
A moving party is entitled to judgment as a matter of law where the non-moving
party “has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. The Seventh Circuit has stated that
summary judgment is “the put up or shut up moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to accept its version of the
events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
B. Analysis
Prison physicians are liable under the Eighth Amendment for cruel and unusual
punishment if they are deliberately indifferent to an inmate’s serious medical need.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on a deliberate indifference
claim, there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex
rel. Nyman v. Winnebago County, 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must
demonstrate that his medical condition was “objectively, sufficiently serious.” Greeno v.
Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation marks omitted).
Second, the plaintiff must demonstrate that the “prison officials acted with a sufficiently
culpable state of mind,” meaning that the prison officials knew that the prisoner’s
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medical condition posed a serious risk to the prisoner’s health, but they consciously
disregarded that risk. Greeno, 414 F.3d at 653; Holloway v. Delaware Cnty. Sheriff, 700 F.3d
1063, 1073 (7th Cir. 2012).
1. Serious Medical Need
A serious medical condition is one “that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would perceive
the need for a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007).
The following circumstances could constitute a serious medical need: “The existence of
an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” Hayes v.
Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008) (quoting Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997)).
Defendants do not contest the first prong of the deliberate indifference analysis–that Plaintiff had a serious medical condition. Thus, the issue presented by the
summary judgment motion is whether Defendants were deliberately indifferent to
Plaintiff’s serious medical condition.
2. Deliberate Indifference
A prisoner must show that prison officials acted with a sufficiently culpable state
of mind, namely, deliberate indifference. “Deliberate indifference to serious medical
needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’” Estelle,
429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “The infliction of
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suffering on prisoners can be found to violate the Eighth Amendment only if that
infliction is either deliberate, or reckless in the criminal law sense.” Duckworth v.
Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence, gross negligence, or even
“recklessness” as that term is used in tort cases, is not enough. Id. at 653; Shockley v.
Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). Put another way, the 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. “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).
A plaintiff 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 546 F.3d at 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir.
2000)). “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, 511 U.S. at 843).
Plaintiff’s concerns boil down to a simple claim: he underwent major surgery
that necessarily resulted in pain and the inability to keep down food, and he wanted the
pain relieved, he wanted to be able to eat without vomiting, and he wanted caring and
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compassionate healthcare providers. While these are not unreasonable expectations, the
evidence reveals that Defendants did not act with deliberate indifference to his serious
medical needs. At most, Plaintiff may have shown that Defendants were negligent in
attending to his needs and that they were not sympathetic to his dramatic statements of
impending death. But Plaintiff has not shown that Defendants violated the United
States Constitution in their care and treatment of his medical conditions.
a. Dr. Venerio Santos
Plaintiff argues that Dr. Santos was deliberately indifferent because he failed to
manage Plaintiff’s pain, allowed him to starve, and failed to properly evaluate his
kidney condition.
Although Plaintiff was prescribed Vicodin at St. Mary’s, the prescription was
discontinued by Dr. Santos in favor of increased milligrams of Tylenol. Dr. Santos
stated that “[t]his amount of pain medication should be sufficient to help the patient but
sometimes, healing simply takes time” (Santos Dep. ¶ 8). Plaintiff’s entire argument
revolves on the discontinuation of Vicodin. According to him, Dr. Santos’s
discontinuation of the Vicodin prescribed by his surgeon is deliberate indifference.
Specifically, Plaintiff argues that a prison doctor’s disregard of an outside
specialist’s instructions is sufficient to survive a motion for summary judgment on a
claim of deliberate indifference, citing Gil v. Reed, 381 F.3d 649, 661-64 (7th Cir. 2004). In
Gil, the plaintiff was specifically instructed that he should “not take Tylenol III because
of constipating effects” after surgery for rectal prolapse. Id. at 662. Nonetheless, a doctor
at the penal institution discontinued the alternative, Vicodin, and instead prescribed
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Tylenol III, in part because Vicodin was not “part of the Bureau of Prison’s national
formulary.” Id. The plaintiff suffered from severe constipation, pain, bleeding, and the
inability to urinate as a result of this switch. Id. The Seventh Circuit found that the
failure to “provide the treatment ordered by the specialist” created a genuine issue of
material fact on deliberate indifference that would preclude summary judgment. Id. The
Court went on to say that the test for deliberate indifference is “a subjective one: the
prison official must act or fail to act despite his knowledge of a substantial risk of
serious harm.” Id. at 664.
Gil is distinguishable. In that case, a specialist specifically instructed that certain
medication should not be given to the inmate because of known adverse effects. In this
case, Vicodin was listed as a “Medication” on Plaintiff’s discharge summary from St.
Mary’s, but there is no notation that the medication was necessary for Plaintiff’s
recovery. Dr. Santos continued another medication, Tylenol, which was prescribed by
the specialist, and discontinued Vicodin in lieu of an increased dose of Tylenol. There is
no evidence that Vicodin could not be substituted for a higher dose of Tylenol. That is,
there is no showing that “’the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on such a
judgment.’” Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008) (quoting Collignon v.
Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998)).
To support a claim of deliberate indifference, a prisoner is not required to show
that he was “literally ignored.” Greeno v. Daley, 414 F.3d 645, 653-654 (7th Cir. 2005).
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Deliberate indifference can be shown where a plaintiff received “some treatment” but
that the treatment was “’so blatantly inappropriate as to evidence intentional
mistreatment likely to seriously aggravate’ his condition.” Id. (quoting Snipes v. DeTella,
95 F.3d 586, 592 (7th Cir. 1996)). Thus, a jury could find deliberate indifference where a
defendant’s “obdurate refusal” to change a “course of treatment despite [ ] repeated
reports that the medication was not working and [Plaintiff’s] condition was getting
worse” is shown. Id.
Plaintiff points out that he requested pain medication at 4:00 p.m. on January 12,
2011, and 8:00 a.m. the following day. These requests are not inconsistent with the
medication ordered. On January 12, 2011, Plaintiff was prescribed 650 mg of Tylenol
every six hours as needed; on January 13, 2011, he was prescribed up to 1000 mg of
Tylenol every four hours as needed. That Plaintiff merely asked for pain medication is
not evidence that his pain was not being relieved by the medication offered. Plaintiff
also indicated in his deposition that “I don’t think anyone would have had that type of
pain with the right type of medication” during his recovery and that it was “just too
much pain” (Harper Dep. p. 79). Plaintiff’s speculation that he was not given the right
type of medication is just that, speculation--there is no evidence that Vicodin would
have been such a superior choice in pain management that the failure to prescribe it was
deliberate indifference. Plaintiff even admitted that “as time went by, the pain became
less as your body healed” (Harper Dep. p. 78). There is no evidence from which a jury
could find that Dr. Santos ignored a substantial risk of harm.
In addition, Plaintiff argues that Dr. Santos failed to provide adequate nutrition
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in the face of his starvation complaints. Plaintiff specifically complains that he was not
given eggs exclusively, even though he told Dr. Santos that he could eat them without
vomiting. The record reveals that after Plaintiff’s surgery he looked thin and frail and
he was having significant problems eating food without nausea and vomiting—not
surprising in light of the type of surgery Plaintiff underwent. The evidence also reveals,
however, that Plaintiff was cleared to eat regular food (and there is no question that he
was given food to eat) by his surgeon. When Plaintiff informed the nursing staff and Dr.
Santos that he was having trouble with the food provided, he was given various
accommodations including protein drinks, meal replacement drinks, and additional
food. That Plaintiff was not given specific food on request does not offend the Eighth
Amendment. The Eighth Amendment does not entitle a prisoner to “demand specific
care” nor does it entitle Plaintiff to the “best care possible.” Forbes v. Edgar, 112 F.3d 262,
267 (7th Cir. 1997). See also Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). The
evidence reveals that Plaintiff was routinely given a regular diet, and his meals were
supplemented in order to assure adequate nutrition.
Plaintiff finally argues that Dr. Santos has failed (and presumably is failing) to
manage his kidney issue. In particular, Plaintiff argues that Dr. Santos failed to conduct
ultrasounds every three months are required by his surgeon. As noted above, Plaintiff’s
surgeon advised an ultrasound every three months but indicated that Plaintiff would
follow-up with his primary care doctor, “and he will decide about the renal mass.”
Thus, there was no directive that Plaintiff must receive an ultrasound, a specific type of
evaluation, every three months. It is undisputed that Plaintiff was given an ultrasound
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in April 2011 that was “suspicious” for “renal cell carcinoma.” Since then, Plaintiff’s
kidney condition has been monitored with urine and blood tests. There is no showing
that these tests are inappropriate or that they are a substantial departure from accepted
professional practice. There is also no showing that an additional ultrasound would
effectively “catch” issues that the urine and blood tests would not. Again, Plaintiff is not
entitled to the treatment of his choice.
b. Nurse Terri Dean
Plaintiff claims that Nurse Dean was deliberately indifferent by failing to treat
him when he first presented to the HCU with stomach pain, by confiscating his pillow,
by failing to empty his colostomy container, and by generally antagonizing Plaintiff
during his recovery.
Plaintiff first argues (in his brief) that Nurse Dean turned Plaintiff away at least
four times while he complained of intense pain. As noted above, Plaintiff’s deposition
indicates that he was turned away twice by the HCU. 3 The medical records reveal that
he was turned away once, on December 3, 2010. 4 Regardless of the number of times he
was “sent [ ] back to his cell to suffer,” a jury could only find that he was treated for his
complaints, just not in a manner than Plaintiff wanted (presumably immediate transfer
for surgery). It is undisputed that when he appeared at the HCU for treatment, he was
physically examined each time by a nurse (according to the records, Nurse Pedergois on
December 3, 2010, Nurses Kracht, Wesselmann, Shuker, and Maloy on December 4,
3
While this Court must accept all facts in a light most favorable to Plaintiff, it is not required to accept all
of Plaintiff’s arguments that misconstrue the evidence.
4 Of course, Nurse Dean denies that she saw or examined Plaintiff on December 3 through December 5,
2010.
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2010, and Nurse Baggett on December 5, 2010) and given a treatment plan. That Nurse
Dean did not examine him or admit him, or even that she laughed at him, may show
that she was not compassionate; however, in light of the treatment that Plaintiff did
receive, is not an indication that she was deliberately indifferent. 5
An inference to be drawn from Plaintiff’s deposition is that Nurse Dean
somehow managed the other nurses and made the ultimate decision to send Plaintiff
back to his cell without any effective treatment. But there is no evidence of such a
supposition. Specifically, there is no evidence that Nurse Dean was a managing nurse or
in any position of authority such that she could dictate the actions of other nurses.
There is likewise no showing that she could overrule or bypass the decisions of other
nurses. Based on the evidence before the Court, no jury would find deliberate
indifference regarding Plaintiff’s care prior to surgery.
Plaintiff also complains that Nurse Dean aggravated him by confiscating a
pillow, failing to empty his colostomy container upon request, and otherwise mocking
his inability to walk. 6 Thus, Plaintiff argues, “Dean actively sought to divest him of the
most basic comforts.” As noted above, that Nurse Dean may not have been a
compassionate nurse is not the touchstone of a deliberate indifference claim. These
claims require no further comment.
5 To the extent that Plaintiff argues that either Nurse Dean or Dr. Santos were deliberately indifferent
because they did not effectively manage their staff, such a claim in non-cognizable because there is no
respondeat superior liability in § 1983 actions. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
6 In his brief, Plaintiff does not argue that Nurse Dean was deliberately indifferent in the treatment of his
DVT/blood clot related to the I.V. The evidence reveals that Nurse Dean treated Plaintiff by cleaning and
re-attaching the I.V., when it started bleeding. There is no competent evidence that she was responsible
for the blood clot or that she failed to appropriately care for the I.V. site.
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CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment filed by
Defendants Venerio M. Santos and Terri Dean (Doc. 40) is GRANTED, and this action
is DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment in
favor of Defendants and against Plaintiff.
IT IS SO ORDERED.
DATED: March 30, 2015
s/ Nancy J. Rosenstengel____________
NANCY J. ROSENSTENGEL
United States District Judge
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