Gills v. Funk et al

Filing 252

MEMORANDUM AND OPINION, GRANTING IN PART AND DENYING IN PART 223 MOTION for Summary Judgment filed by J Shepard, Fuentes, Wexford Health Sources, S Nwaobasi, John Coe, Robert Shearing. Signed by Magistrate Judge Donald G. Wilkerson on 2/21/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JARYAN GILLS,

)
)
)
Plaintiff,
)
)
v.
)
)
JOHN COE, M.D., WEXFORD HEALTH
SOURCES, FE FUENTES, M.D., SAMUEL )
NWAOBASI, M.D., ROBERT SHEARING, )
M.D., JOHN SHEPHERD, M.D., and LOUIS )
)
SHICKER, M.D.,
)
)
Defendants.

Case No. 3:13-cv-791-DGW

MEMORANDUM AND OPINION
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion for Summary Judgment filed by Defendants
John Shepherd, M.D., Robert Shearing, M.D., Samuel Nwaobasi, M.D., Fe Fuentes, M.D., John
Coe, M.D., and Wexford Health Sources, Inc. on November 21, 2016 (Doc. 223). For the reasons
set forth below, the Motion is GRANTED IN PART AND DENIED IN PART.
PROCEDURAL BACKGROUND
Plaintiff Jaryan Gills, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), initiated this lawsuit on August 5, 2013 pursuant to 42 U.S.C. §1983 alleging his
constitutional rights were violated. Plaintiff’s first two complaints (his original complaint and his
first amended complaint), were dismissed without prejudice for their failure to state a viable claim
against any named defendant (see Docs. 7 and 13). At the direction of the Court, Plaintiff filed a
second amended complaint that was screened pursuant to 28 U.S.C. § 1915A. In his second
amended complaint, Plaintiff alleges that officials at Stateville Correctional Center, Menard
Page 1 of 20

Correctional Center, and Lawrence Correctional Center failed to adequately address his
complaints of pain related to his inguinal hernia and bullet fragments lodged in his body.
Following the screening of Plaintiff’s complaint, he was allowed to proceed on a claim of
deliberate indifference against Defendants Arthur Funk, Nikki Malley, Warden Harrington,
Warden Atchison, Dr. John Coe, Debbie Denning, Charles Fasano, Dr. Fuentes, S.A. Godinez,
Pam Grubman, S. Nwaobasi, Jaclyn O’Day, Reynolds, N. Saneth, Dr. Robert Shearing, J.
Shephard, and Louis Shicker (see Doc. 16). Plaintiff was also allowed to proceed against
Defendant Wexford Health Sources for allegedly implementing policies and practices denying
Plaintiff medical care (see id.).
Subsequently, the Court sought to assign counsel to represent Plaintiff in this matter noting
that discovery was more complex than anticipated due to the number of defendants and the fact
that Plaintiff was transferred from an institution where at least some of the alleged actions took
place. Accordingly, Attorney Robert H. Fredian was assigned as counsel for Plaintiff in this
matter on January 8, 2016 (see Docs. 165 and 172). On January 28, 2016, Defendant Funk was
dismissed without prejudice due to Plaintiff’s failure to exhaust his administrative remedies as to
his claim against this Defendant prior to filing his lawsuit (see Doc. 183). Recently, Defendants
Atchison,

Denning,

Fasano,

Godinez,

Grubman,

Harrington,

Malley,

O’Day,

and

Reynolds-Thompson were dismissed on motion by Plaintiff (see Docs. 234 and 245).
Following the parties’ consent to the Magistrate Judge, this matter was referred, in its
entirety, to the undersigned on September 12, 2016 and a new schedule was entered.

In

accordance with the Amended Scheduling Order, Defendants Coe, Shearing, Fuentes, Nwaobasi,
Shepherd, and Wexford filed a motion for summary judgment (Doc. 223) that is now before the
Court. Plaintiff, through counsel, filed his timely response objecting to Defendants’ motion on
Page 2 of 20

December 21, 2016 (Doc. 226). Defendants filed a reply that will be considered in accordance
with the Court’s January 30, 2017 Order (Doc. 239).
FACTUAL BACKGROUND
Plaintiff’s claims in this matter relate to medical treatment, or alleged lack thereof, for his
inguinal hernia and lodged bullet fragments while Plaintiff was incarcerated at Menard
Correctional Center (“Menard”) and Lawrence Correctional Center (“Lawrence”).
Plaintiff was transferred to Menard on June 11, 2011 and, soon after his arrival, it was
noted that Plaintiff suffered from a left inguinal, reducible hernia (Plaintiff’s Medical Records,
Doc. 224-2, p. 2). Defendant Dr. Nwaobasi first examined Plaintiff’s hernia on August 3, 2011,
noting Plaintiff complained of pain related to his hernia (Deposition of Dr. Samuel Nwaobasi,
Doc. 226-2, p. 17; see Doc. 224-2, p. 3). Following a physical examination of Plaintiff in the cell
house, Defendant Nwaobasi assessed his hernia as being “partially reducible,” meaning that
although his hernia could be pushed in, it would come out again (Doc. 226-2, pp. 17, 19; see Doc.
224-2, p. 3). Defendant Nwaobasi did not address Plaintiff’s pain issue during his examination,
which, he admits, he should have done (Doc. 226-2, p. 18). Plaintiff was seen again by Defendant
Nwaobasi on August 4, 2011 so that he could be examined in the healthcare unit (id. at p. 19). At
this examination, Plaintiff indicated that his hernia was causing him pain in his groin down to his
scrotum (Doc. 226-2, p. 20; Doc. 224-2, p. 4). Defendant Nwaobasi diagnosed Plaintiff with a
reducible, left direct 1 inguinal hernia and advised Plaintiff to avoid strenuous exercises and
activities (id.). Defendant Nwaobasi also prescribed Motrin for Plaintiff to take as needed and
indicated he should be reassessed in six months (Doc. 226-2, p. 21; Doc. 224-2, p. 4).

1

At his deposition, Defendant Nwaobasi testified that a direct hernia refers to a hernia where the
bowel is pushing directly through the abdominal wall (see Doc. 226-2, p. 20).
Page 3 of 20

Plaintiff was next seen for complaints of his hernia on November 3, 2011 by Dr. Krieg
(who is not a defendant in this lawsuit) (Deposition of Dr. John Shepherd, Doc. 226-3, p. 15; see
also Doc. 224-2, p. 5). Dr. Krieg noted Plaintiff had been complaining of his left inguinal hernia
since 2009 (id.). Dr. Krieg assessed Plaintiff with a left inguinal hernia and indicated that his plan
was to refer Plaintiff to a surgeon (Doc. 226-3, p. 16; Doc. 224-2, p. 5). In accordance with Dr.
Krieg’s plan, Defendant Dr. Shepherd presented Dr. Krieg’s request for surgery in Collegial
Review on November 10, 2011 (Doc. 226-3, p. 16; see Doc. 224-2, p. 7). During the Collegial
Review (which is also synonymous with Utilization Management), Dr. Baker and Defendant
Shepherd discussed Dr. Krieg’s examination and it was determined that Plaintiff’s hernia would be
managed conservatively with activity restrictions and NSAIDs, and Defendant Shepherd would
reassess Plaintiff in a “few months” and re-present his case if needed (Doc. 226-3, p. 16; Doc.
224-2, p. 7). Defendant Shepherd then examined Plaintiff on November 21, 2011, making an
objective finding that the hernia was small and “easily reducible” (Doc. 226-3, p. 17; see Doc.
224-2, p. 8). Defendant Shepherd recommended Plaintiff take Motrin as needed and indicated
Plaintiff should be reassessed in two months (id.).
Plaintiff was again examined by Defendant Shepherd on January 19, 2012 wherein it was
noted that Plaintiff had a history of left inguinal hernia for three years (Doc. 226-3, p. 18; see Doc.
224-2, p. 9). After examining Plaintiff, Defendant Shepherd described Plaintiff’s hernia as
“nonscrotal” with “no incarceration, no strangulation” and recommended that Plaintiff not engage
in any heavy lifting, weightlifting or excessive sports (id.). Defendant Shepherd prescribed
Plaintiff 400 milligrams of Motrin to take as needed for pain; however, Defendant Shepherd
testified that Plaintiff did not specifically complain about any pain or discomfort he was
experiencing and Defendant Shepherd did not ask if Plaintiff was experiencing pain (id.).
Page 4 of 20

Plaintiff was not examined by Defendant Shepherd after January 19, 2012.
The next time Plaintiff’s hernia was assessed was on June 2, 2012 by Defendant Nwaobasi
(Doc. 226-2, p. 22; see Doc. 224-2, p. 10). Defendant Nwaobasi noted that Plaintiff’s hernia was
“reducible but tender” and issued Plaintiff a low bunk permit and reissued Plaintiff’s prescription
for Motrin (Doc. 226-2, p. 23; see Doc. 224-2, p. 10). Defendant Nwaobasi never recommended
Plaintiff for surgery as he only recommends surgery for patients whose hernia is incarcerated or
strangulated (Doc. 226-2, pp. 23-24). On August 27, 2012, Plaintiff was examined by a nurse
practitioner for a follow-up appointment for his hernia (see Doc. 224-2, p. 11).

At this

appointment, the nurse practitioner noted that Plaintiff’s hernia was “small” and mildly tender
with palpation (id.). Plaintiff’s Motrin was reordered and he was reeducated on the plan for
conservative treatment (id.). Plaintiff was seen by a physician, Defendant Dr. Fuentes, on
October 19, 2012 at which time Plaintiff presented with a history of left hernia pain for the past
four years (Deposition of Dr. Fe Fuentes, Doc. 226-4, p. 10; see Doc. 224-2, p. 12). Defendant
Fuentes examined Plaintiff, noting an objective finding of a reducible, left inguinal hernia (id.).
Defendant Fuentes issued Plaintiff a prescription for 400 milligrams of Motrin three times a day as
needed and indicated he should be reexamined in four months (id.). Defendant Fuentes testified
that she would not have prescribed Motrin “as needed” if Plaintiff described his pain as severe
(Doc. 226-4, p. 10). Defendant Fuentes did not review any of Plaintiff’s medical records prior to
examining him on October 19, 2012 (id. at p. 11). Plaintiff saw Defendant Fuentes on one more
occasion on January 15, 2013, at which time Defendant Fuentes again noted Plaintiff’s subjective
complaint of left inguinal hernia for four years with pain (Doc. 226-4, p. 11; see Doc. 224-2, p. 13).
Defendant Fuentes conducted a physical examination and diagnosed Plaintiff with a “reducible
left inguinal hernia,” renewed Plaintiff’s prescription for Motrin, and indicated he was to return as
Page 5 of 20

necessary (id.). Defendant Fuentes testified that Plaintiff’s hernia did not increase in size in the
time between his October, 2012 and January, 2013 appointments; however, Defendant Fuentes
never measured Plaintiff’s hernia (Doc. 226-4, p. 13).
Plaintiff was not seen for complaints related to his hernia by any medical personnel at
Menard between his appointment with Defendant Fuentes on January 15, 2013 and his transfer to
Lawrence on April 24, 2013 (Deposition of Dr. John Coe, Doc. 226-5, p. 12; see, generally, Doc.
224-2). However, prior to his transfer to Lawrence, Plaintiff wrote two letters to the Medical
Director at Menard, Defendant Dr. Shearing, complaining about the medical treatment for his
hernia and lodged bullet fragments (see Docs. 226-10 and 226-11). Defendant Shearing only
recalls receiving one letter written by Plaintiff dated February 20, 2013 (Deposition of Dr. Robert
Shearing, Doc. 226-6, p. 8). In his February 20, 2013 letter, Plaintiff recites what he perceives as
failures in the medical treatment he received at Menard for treatment of his inguinal hernia.
Plaintiff specifically addresses the fact that he did not have a support belt and was only being
provided Ibuprofen, which, he asserts, was not effective in treating his severe, constant pain (Doc.
226-11, p. 3). Plaintiff further explains that the staff was “fully aware of [his] condition and
constant severe pain,” but he could not get surgery because the State does not have any money (id.
at p. 4). Plaintiff asks Defendant Shearing to use his authority and seek approval of surgery to
treat his hernia (id.). Defendant Shearing responded to Plaintiff’s letter on March 13, 2013
indicating that he reviewed Plaintiff’s medical records and, with respect to Plaintiff’s medical
treatment for his inguinal hernia, Defendant Shearing writes that “[Plaintiff] ha[s] been examined
many times and the hernia has always been reducible” and “[i]n the event the hernia becomes
non-reducible in the future, surgery may be indicated. However, for now there is no medical
necessity for surgery” (Doc. 226-12, p. 2).
Page 6 of 20

It is undisputed that while at Menard Plaintiff received the following prescription orders
for Motrin: August 4, 2011, Motrin 400 mg three times a day for two months, ordered by
Defendant Dr. Nwaobasi; November 10, 2011, Motrin 400 mg three times a day for two months, as
needed, ordered by Dr. Shepherd; January 19, 2012, Motrin 400 mg twice a day for two months, as
needed, ordered by Dr. Shepherd; March 31, 2012, Motrin 400 mg four times a day for three
months, as needed, ordered by a nurse practitioner; June 2, 2012, Motrin 400 mg three times a day
for two months, ordered by Defendant Dr. Nwaobasi; August 27, 2012, Motrin 400 mg three times
a day for two months, as needed, ordered by a nurse practitioner; October 19, 2012, Motrin 400 mg
three times a day for four months, ordered by Defendant Dr. Fuentes; January 15, 2013, Motrin
400 mg three times a day for one month, ordered by Defendant Dr. Fuentes (see Affidavit of
Robert Shearing, M.D., Doc. 224-8, pp. 1-2). It is further undisputed that Plaintiff was issued 400
mg tablets of Motrin, based on his requests for refills of his prescription, on the following dates in
the following amounts: August 6, 2011 – 90 tablets; November 18, 2011 – 30 tablets; December
15, 2011 – 30 tablets; January 22, 2012 – 30 tablets; April 3, 2012 – 30 tablets; June 5, 2012 – 90
tablets; July 24, 2012 – 33 tablets; August 29, 2012 – 30 tablets; October 22, 2012 – 90 tablets;
January 17, 2013 – 90 tablets (see id. at pp. 2-3).
As mentioned above, Plaintiff was transferred to Lawrence on April 24, 2013 (Doc. 226-5,
p. 12; see Doc. 224-2, p. 17). Soon thereafter, on May 12, 2013, Plaintiff was seen by Dr. Butalid
(who is not named as a defendant) regarding his left inguinal hernia and retained bullet fragments
(Doc. 226-5, p. 14; Doc. 224-2, p. 18). Dr. Butalid described Plaintiff’s hernia as reducible,
advised Plaintiff to avoid lifting and straining, and ordered Tylenol as needed and a hernia belt for
support (Doc. 226-5, p. 15; see Doc. 224-2, p. 18). Per Defendant Dr. Coe’s orders, Plaintiff’s
hernia belt was ordered on May 14, 2013 (see Doc. 224-2, p. 19). Plaintiff was then examined by
Page 7 of 20

Defendant Coe the following day (see id. at p. 20). Following an examination, Defendant Coe
found that Plaintiff’s left inguinal hernia was easily reducible, mildly tender, and came down to the
external ring, indicating that the hernia was approximately three or four centimeters between the
internal and external rings (Doc. 226-5, p. 16; see Doc. 224-2, p. 20). Defendant Coe prescribed
Plaintiff stool softeners, but did not prescribe pain medication as Dr. Butalid had provided a
prescription for pain medication a few days prior (Doc. 226-5, p. 16). Defendant Coe did not
consider Plaintiff a surgical candidate on this date as his hernia was easily reducible and could be
managed with a hernia belt (id.). On July 2, 2013, Plaintiff was issued a hernia belt (see Doc.
224-2, p. 21). Plaintiff’s hernia was next evaluated on December 30, 2013 by Defendant Coe
(Doc. 226-5, p. 17; see Doc. 224-2, p. 22). Defendant Coe noted that the hernia was reducible, but
did not provide any additional directives concerning treatment or management for Plaintiff’s
hernia (id.).
Plaintiff’s hernia was not examined again until December 11, 2014 when he presented at
nurse sick call (see Doc. 224-2, pp. 23-32). Plaintiff testified that during this time he attempted to
see a physician and submitted requests for medical care, but “nobody was doing anything,” which
Plaintiff attributed to an issue he was having with a correctional officer at that time (Doc. 226-1,
pp. 17-18). When Plaintiff was able to visit the healthcare unit on December 11, 2014 for an
assessment of his hernia, he noted his pain was at an “8” on scale of one to ten (see Doc. 224-2, p.
32). Plaintiff also indicated that the hernia belt was not helping (id.). Plaintiff was not referred
to see Defendant Dr. Coe (id.). On December 16, 2014, a nurse practitioner performed a routine
chart review of Plaintiff’s medical record and renewed his permit for a hernia belt, ordered
medication for constipation, and declined to renew Plaintiff’s permit for a low bunk (Doc. 226-5,
p. 20; see Doc. 224-2, p. 33). Plaintiff’s hernia was not examined again until he was transferred to
Page 8 of 20

Stateville on February 2, 2015 (Deposition of Dr. Saleh Obaisi, Doc. 226-7, p. 12). Dr. Obaisi, a
physician at Stateville, examined Plaintiff on May 4, 2015 during which time Plaintiff complained
of a left inguinal hernia that had been present since 2009 (id. at p. 13). Following a physical
examination, Dr. Obaisi (who is not named as a defendant), diagnosed Plaintiff with an
uncomplicated reducible left inguinal hernia and prescribed Plaintiff Motrin 400 milligrams twice
a day for thirty days (id. at pp. 13-14). Despite his findings that the hernia was reducible and
“uncomplicated,” Dr. Obaisi referred Plaintiff for surgery based on his belief that Plaintiff may be
released from prison soon and many inmates “don’t either seek medical care or they don’t know
how to seek medical care,” so he wanted to help him out so he can “go and work and start his life
out there” (Doc. 226-7, p. 14). Surgery was approved and Plaintiff underwent surgical treatment
for his hernia on September 1, 2015 (id. at p. 15).
At his deposition, Plaintiff testified that throughout the approximately five year period in
which he was receiving medical treatment for his left inguinal hernia while incarcerated, his
quality of life was greatly impacted as he was not able to sleep comfortably, having to hold onto
his hernia to stop the throbbing and pain, and he had difficulty making a bowel movement (Doc.
226-1, p. 23).

Moreover, Plaintiff indicated that he was constantly in pain that became

progressively worse throughout the years (id.). Plaintiff testified that he complained of severe
pain to each of his treating physicians (id.) and a review of Plaintiff’s medical records indicates
that complaints of pain were noted on August 3, 2011, August 4, 2011, November 3, 2011, January
12, 2012, August 27, 2012, October 19, 2012, December 25, 2013, December 28, 2013, December
11, 2014 (see Doc. 224-2, pp. 3-5, 9, 11-12, 22, 32). Also at his deposition, Plaintiff indicated
that although he could walk and did so for his job as a laundry porter at Lawrence, he could not
work out or do push-ups (Doc. 226-1, p. 24).
Page 9 of 20

LEGAL STANDARDS
Summary Judgment Standard
Summary judgment is proper only if the moving party can demonstrate that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 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 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 a 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).
Eighth Amendment Deliberate Indifference
The Supreme Court has recognized that “deliberate indifference to serious medical needs
of prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim, Plaintiff must show first
Page 10 of 20

that his condition was “objectively, sufficiently serious” and second, 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).
With regard to the first showing, the following circumstances could constitute a serious
medical need: “[t]he 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)); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005) (“A serious
medical need 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.”).
A prisoner must also 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 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. A plaintiff does not have to prove that his complaints were “literally
ignored,” but only that “the defendants’ responses were so plainly inappropriate as to permit the
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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)).
DISCUSSION
Defendants Shepherd, Shearing, Nwaobasi, Fuentes, Coe, and Wexford (“the Wexford
Defendants”) do not deny that an inguinal hernia and retained bullet fragments may be objectively
serious medical needs in certain circumstances; as such, they do not set forth an argument as to the
objective requirement that Plaintiff’s medical conditions are “serious.” For clarity, the Court
finds that Plaintiff’s hernia was a serious medical condition in that it necessitated regular
evaluation and treatment by medical professionals and caused Plaintiff severe pain and
significantly affected his daily activities. See Hayes, 546 F.3d at 522-23. However, the Court
does not find that Plaintiff’s retained bullet fragments were a “serious medical need” within the
bounds of the Eighth Amendment. Notably, at his deposition, Plaintiff explained that the bullet
fragments sometimes felt numb and would itch a lot, but he never attributed the bullet fragments to
constant or severe pain (Doc. 226-1, p. 16). Plaintiff’s medical records also fail to evidence that
he made any complaints to medical personnel that the retained bullet fragments were causing him
chronic or severe pain (see generally Doc. 224-2). As such, the Court finds there is simply
insufficient evidence in the record to establish that the retained bullet fragments constituted a
serious medical need. Accordingly, insofar as Plaintiff’s claim of deliberate indifference relates
to the medical treatment, or lack thereof, for his retained bullet fragments, said claim is
DISMISSED WITH PRJEUDICE.
Although Defendants apparently concede that Plaintiff’s left inguinal hernia was, or could
be, a serious medical condition, they contend that they were not deliberately indifferent to said
condition, pointing to the totality of care Plaintiff received and arguing there is no evidence that
Page 12 of 20

Defendants knew there was a serious risk to Plaintiff’s health and consciously disregarded that risk
so as to inflict cruel and unusual punishment on Plaintiff. More specifically, Defendants assert
that Plaintiff was not harmed as there is no evidence that he complained of severe pain and
Plaintiff’s hernia was regularly monitored and he was provided pain medication. Defendants aver
that conservative treatment was appropriate as Plaintiff’s hernia was consistently assessed as
reducible, non-incarcerated, and minimally symptomatic. The Court considers said argument as
it applies to each of the Wexford Defendants as set forth below.
1. Dr. Samuel Nwaobasi
Defendant Dr. Nwaobasi saw Plaintiff three times over a ten-month period: August 3,
2011, August 4, 2011, and June 2, 2012. At both his August 3 and August 4, 2011 examinations,
Plaintiff complained about the pain caused by his hernia. Noting that Plaintiff’s hernia was
painful, but reducible, Defendant Nwaobasi advised Plaintiff to avoid strenuous exercise and
prescribed him Motrin 400 milligrams for two months.

Approximately ten months later,

Defendant Nwaobasi again assessed Plaintiff’s hernia and prescribed a similar course of treatment,
advising Plaintiff to avoid strenuous exercise and prescribing Motrin 400 milligrams. Plaintiff
asserts that he complained of severe pain to Defendant Nwaobasi, but to no avail, as he persisted in
his conservative course of treatment.
While is well-established that “[a] prisoner’s dissatisfaction with a doctor’s prescribed
course of treatment does not give rise to a constitutional claim unless the medical treatment was
“blatantly inappropriate.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (citing Greeno, 414
F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)), this Circuit also
recognizes that a doctor’s persistence in a course of treatment known to be ineffective may violate
the Eighth Amendment. Greeno, 414 F.3d at 655 (finding that a genuine issue of material fact
Page 13 of 20

existed as to whether a physician was deliberately indifferent to a prisoner’s deteriorating medical
condition by continuing to persist with a course of treatment that had been ineffective) see also
Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (stating that “medical personnel cannot
simply resort to an easier course of treatment that they know is ineffective”). The question here,
then, is whether Defendant Nwaobasi’s conservative course of treatment was within the
boundaries of accepted standards or practices or whether it constituted an obdurate refusal to alter
the course of said treatment over a ten-month period, causing Plaintiff to unnecessarily experience
severe pain and discomfort. The Court finds that, when viewing the evidence in a light most
favorable to Plaintiff, a reasonable jury could conclude the latter. As such, Defendant Dr.
Nwaobasi is not entitled to summary judgment on Plaintiff’s claim of deliberate indifference.
2. Dr. John Shepherd
Defendant Dr. Shepherd examined Plaintiff on two occasions: November 21, 2011 and
January 19, 2012. During his examinations, Defendant Shepherd determined Plaintiff’s hernia
was reducible with no incarceration or strangulation. Defendant Shepherd provided the same
general course of treatment following both examinations, prescribing Motrin 400 milligrams and
recommending that Plaintiff not engage in heavy lifting. Although Plaintiff’s medical records do
not specifically indicate that he complained about pain at these appointments, Plaintiff testified at
his deposition that he complained of severe pain to each of his physicians, which would
necessarily include Defendant Shepherd.

The Court also notes that Defendant Shepherd’s

January 19, 2012 examination note indicated Plaintiff’s hernia had been present for three years
and, at his deposition, Defendant Shepherd testified that aside from reviewing a note on Plaintiff’s
medical records made by Dr. Krieg in November, 2011 indicating he would be referred to a
surgeon, he did not review any of Plaintiff’s prior records for complaints and treatment for his
Page 14 of 20

inguinal hernia (Doc. 226-3, p. 15).
Again, with respect to Defendant Shepherd, the Court finds there is a question of fact as to
whether this Defendant’s prescribed course of conservative treatment was within the boundaries of
accepted standards or practices or whether it constituted an obdurate refusal to alter said course of
treatment, particularly because Plaintiff had clearly indicated his hernia had been present for three
years. As such, the Court finds that, when viewing the evidence in a light most favorable to
Plaintiff, a reasonable jury could find that Defendant Shepherd doggedly persisted in a course of
treatment that was ineffective.
3. Dr. Fe Fuentes
Defendant Dr. Fuentes examined Plaintiff’s hernia on two occasions: October 19, 2012 and
January 15, 2013. Defendant Fuentes noted that Plaintiff complained about pain during his two
examinations and also noted that Plaintiff’s hernia had been present for four years. Finding that
Plaintiff’s hernia was reducible, Defendant Fuentes prescribed 400 milligrams of Motrin on both
occasions.

Defendant Fuentes did not review any of Plaintiff’s medical records prior to

examining him. Plaintiff asserts that he complained of severe pain to Defendant Fuentes, but to
no avail, as this Defendant continued to provide the same conservative treatment he had been
receiving.
The same question of fact that applies to the actions of Defendants Nwaobasi and Shepherd
applies to Defendant Fuentes. Specifically, there is a question of whether Defendant Fuentes’
course of conservative treatment was within the boundaries of accepted standards or practices or
whether it constituted an obdurate refusal to alter said course of treatment, especially in light of the
fact that Plaintiff clearly indicated his hernia had been present for four years and was causing him
severe pain. Further, insofar as Defendant Fuentes (as well as the other Wexford Defendants),
Page 15 of 20

rely on their prescription of Motrin to address Plaintiff’s complaints of pain to absolve them from
a finding a deliberate indifference, the Court finds said argument unavailing. As Plaintiff testified
at his deposition, “[t]he pills weren’t helping. They weren’t doing nothing [sic]. I was getting the
same results … getting over-the-counter medication [was] not helping” (Doc. 226-1, p. 18). As
such, the Court finds that, when viewing the evidence in a light most favorable to Plaintiff, a
reasonable jury could find that Defendant Fuentes doggedly persisted in a course of treatment that
was ineffective.
4. Dr. Robert Shearing
Defendant Dr. Shearing never examined Plaintiff; however, in his position as the Medical
Director at Menard, Defendant Shearing received, and responded to, a letter written by Plaintiff
complaining about his medical care. In his February 20, 2013 letter, Plaintiff recites what he
perceives as failures in the medical treatment he received at Menard for treatment of his inguinal
hernia. Plaintiff specifically addresses the fact that he does not have a support belt and is only
being provided Ibuprofen, which is not effective in treating his severe, constant pain. Plaintiff
asks Defendant Shearing to use his authority and seek approval of surgery to treat his hernia.
Defendant Shearing responded to Plaintiff’s letter on March 13, 2013 indicating that he reviewed
Plaintiff’s medical records and, with respect to Plaintiff’s medical treatment for his inguinal
hernia, Defendant Shearing writes that “[Plaintiff] ha[s] been examined many times and the hernia
has always been reducible” and “[i]n the event the hernia becomes non-reducible in the future,
surgery may be indicated. However, for now there is no medical necessity for surgery.”
Although Defendant Shearing never examined Plaintiff, he obtained actual knowledge of
Plaintiff’s serious medical condition, and attendant complaints of severe, constant pain.
Defendant Shearing reviewed Plaintiff’s medical records and provided a response, as set forth
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above. Notably, however, Defendant Shearing failed to address Plaintiff’s complaints regarding
his pain and Plaintiff’s assertion that he did not have a support belt. These complaints were
merely pushed aside, as Defendant Shearing simply noted that Plaintiff had been “examined many
times” and there is “no medical necessity for surgery.” As Defendant Shearing wholly failed to
address the specific complaints set forth in Plaintiff’s letter, and merely “rubber stamped” the
treatment regimen Plaintiff had been receiving for his hernia for the past eighteen months, there is
an issue of fact as to whether Defendant’s actions constituted an approval of unconstitutional
treatment. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015). As such, summary
judgment shall not be granted for Defendant Shearing.
5. Dr. John Coe
Defendant Coe examined Plaintiff’s hernia on two occasions over a seven month period:
May 15, 2013 and December 30, 2013. At each examination, Defendant Coe determined that the
hernia was reducible and, as such, generally continued with the conservative course of treatment
that had been prescribed by medical personnel for the previous two years. Defendant Coe,
however, did provide Plaintiff with a prescription for a stool softener and ensured Plaintiff
received a hernia belt. Plaintiff avers that as with the other physicians named as Defendants in
this action, he complained of severe pain to Defendant Coe, but to no avail as Defendant persisted
in his conservative course of treatment to address Plaintiff’s hernia and attendant pain.
Again, with respect to Defendant Coe, the Court finds there is a question of fact as to
whether this Defendant’s prescribed course of conservative treatment was within the boundaries of
accepted standards or practices or whether it constituted an obdurate refusal to alter said course of
treatment, particularly in light of the fact that at the time Defendant Coe first examined Plaintiff his
medical records would have indicated his hernia had been present for approximately five years.
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As such, the Court finds that, when viewing the evidence in a light most favorable to Plaintiff, a
reasonable jury could find that Defendant Coe doggedly persisted in a course of treatment that was
ineffective.
6. Wexford Health Sources, Inc.
Plaintiff’s deliberate indifference claim against Wexford is premised on its alleged policy
or practice of refusing to approve surgical repairs for hernias unless it is incarcerated or
strangulated, without regard for an inmate’s pain or inhibition of daily activities.
As articulated by the Seventh Circuit, where a private corporation has contracted to
provide essential government services, such as health care for prisoners, said private corporation
cannot be held liable under § 1983 unless the constitutional violation was caused by an
unconstitutional policy or custom of the corporation itself.

Shields v. Illinois Dept. of

Corrections, 746 F.3d 782, 789 (7th Cir. 2014); see also Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978). Accordingly, in order for a plaintiff to recover from
Wexford, he must offer evidence that his injury was caused by a Wexford policy, custom, or
practice of deliberate indifference to medical needs, or a series of bad acts that together raise the
inference of such a policy. Id. at 796. Also, a plaintiff pursuing a policy or practice claim must
show that policymakers were aware of the risk created by the custom or practice and must have
failed to take appropriate steps to protect the plaintiff. Thomas v. Cook County Sheriff’s Dept.,
604 F.3d 293, 303 (7th Cir. 2009).
Defendant Wexford contends that it is entitled to judgment as a matter of law on Plaintiff’s
deliberate indifference claim as it has no cost-containment policy, protocol, or practice, either
written or unwritten, directing that inmates with hernias be denied surgery. Moreover, according
to the affidavit of Joe Ebbitt, the Director of Risk Management, HIPAA Compliance, and Legal
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Affairs for Wexford, Wexford has no policy, protocol, or practice that determines medical
treatment or medical decisions and it is Wexford’s policy that physicians should order the
treatment and/or medication they believe is necessary based on their medical judgment, following
an assessment of the inmate’s medical and physical condition (Affidavit of Joe Bennett, Doc.
224-11, ¶¶ 6-7). Defendant Wexford further points to the deposition testimony of the Defendant
physicians wherein they indicated they used their medical judgment in determining whether
patients required referral for surgery.
Plaintiff, however, asserts that Wexford has a policy of denying surgical intervention for
inmates with reducible hernias and points to the deposition testimony of some of Plaintiff’s
treating physicians. Notably, at his deposition, Defendant Coe responded to Plaintiff’s counsel’s
inquiry regarding the Wexford policy as it related to inguinal hernias and recommendation for
surgery that “if the hernia was reducible, not particularly large, and you could manage it with a
hernia belt, that a hernia surgery was not needed” (Doc. 226-5, p. 16). Defendant Shearing also
indicated that Wexford had a policy that unless a hernia is strangulated or incarcerated it is not
medically necessary to surgically repair it (Doc. 226-6, p. 11).
Based on the evidence set forth above, it is apparent that there is a genuine issue in dispute
as to whether Wexford had a policy or practice directing their physicians that hernias should only
be surgically repaired if they are strangulated or incarcerated, without regard to the pain the inmate
is experiencing or the limitations on daily activities it may cause. Said issue is certainly material
to Plaintiff’s claim of deliberate indifference against Wexford and, if there was such a policy, it
would certainly follow that Plaintiff’s injury (i.e. enduring needless pain for approximately five
years) could be attributed to said policy, which would be an obvious risk of denying surgical
intervention for inmates who have hernias. For these reasons, the Court finds that Defendant
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Wexford has failed to show it is entitled to judgment as a matter of law. Accordingly, Plaintiff’s
deliberate indifference claim against Defendant Wexford shall proceed.
Qualified Immunity
In their motion for summary judgment, Defendants assert they are also entitled to dismissal
on the basis of qualified immunity; however, their memorandum in support of their motion
provides no argument regarding this issue.

As such, the Court finds they have failed to

adequately assert qualified immunity and summary judgment on said basis will not be awarded.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed by Defendants John
Shepherd, M.D., Robert Shearing, M.D., Samuel Nwaobasi, M.D., Fe Fuentes, M.D., John Coe,
M.D., and Wexford Health Sources, Inc. on November 21, 2016 (Doc. 223) is GRANTED IN
PART AND DENIED IN PART. Plaintiff’s claim of deliberate indifference related to the
medical treatment for his retained bullet fragments is DISMISSED WITH PREJUDICE.
Plaintiff shall proceed on his deliberate indifference claim against Defendants Coe, Wexford,
Fuentes, Nwaobasi, Shearing, Shepherd, and Shicker for their failure to provide adequate medical
care for his hernia, in violation of the Eighth Amendment.
IT IS SO ORDERED.
DATED: February 21, 2017

DONALD G. WILKERSON
United States Magistrate Judge

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