Gevas v. Shearing et al

Filing 318

ORDER GRANTING in part and DENYING in part 213 Motion for Summary Judgment filed by Defendants Jeremy Butler, Robert Shearing, and Wexford Health Sources Inc. Specifically, summary judgment is DENIED as to J. Butler and Dr. Shearing on Count 1, bu t GRANTED in their favor on Count 2. Summary judgment is GRANTED in favor of Wexford on Counts 3 and 4; those Counts are DISMISSED with prejudice in their entirety. Count 6 is DISMISSED without prejudice as to all Defendants. Signed by Judge Nancy J. Rosenstengel on 3/29/16. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID C. GEVAS,
Plaintiff,
vs.
DR. ROBERT SHEARING,
WEXFORD HEALTH SOURCES, INC.
JEREMY BUTLER,
RONALD SKIDMORE,
NICKI MALLEY, KIMBERLY BUTLER,
and RICHARD HARRINGTON,
Defendants.

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Case No. 14-CV-134-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court is the Motion for Summary Judgment filed by
Defendants Jeremy Butler, Robert Shearing, and Wexford Health Sources Inc.
(“Wexford”), on June 12, 2015 (Doc. 213).
INTRODUCTION
Plaintiff David Gevas, an inmate in the Illinois Department of Corrections at
Stateville Correctional Center, filed a pro se civil rights action pursuant to 42 U.S.C.
§ 1983 on February 6, 2014. Plaintiff alleged that he was temporarily transferred to
Menard Correctional Center for two weeks in August and September 2013, and during
that time, he was deprived of various prescription medications and other items,
including Neurontin for chronic pain in his left leg, Motrin for chronic pain in his left
shoulder, Flomax for an enlarged prostate and urination problems, Blink lubricating eye

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drops, multi-purpose solution for contact lenses, and a contact lens case. Plaintiff further
alleged that as a result of these deprivations he suffered pain in his leg and shoulder,
nausea, vomiting, insomnia, muscle jerking, frequent and uncontrollable urination,
headaches, and the inability to see. He claimed that he made written and verbal requests
for the items and to see a doctor, but those requests were denied by Defendants Jeremy
Butler and Ronald Skidmore, who are both nurses at Menard. He further claimed that
his grievances and complaints were ignored by Defendant Nicki Malley, the Health Care
Unit Administrator; Kimberly Butler, the Assistant Warden; and Richard Harrington,
the Warden. Plaintiff believes that the medications were denied in retaliation for a
previous lawsuit and in an effort by Defendant Wexford to save money. Plaintiff also
believes that a portion of any money saved was funneled to Defendant Robert Shearing,
a doctor at Menard.
The Court conducted a threshold review of Plaintiff’s complaint under 28 U.S.C.
§ 1915A (Doc. 5). Following that review, Plaintiff was permitted to proceed on six
counts:
Count 1: Eighth Amendment deliberate indifference claim against
Defendants J. Butler, Skidmore, Malley, Shearing, K. Butler, and
Harrington for refusing to provide Plaintiff with previously-prescribed
medications and denying him access to a doctor;
Count 2:
Fourteenth Amendment equal protection claim against
Defendants J. Butler, Skidmore, Malley, Shearing, K. Butler, and
Harrington for refusing to provide Plaintiff with prescription medications
based on his status as a prisoner on temporary transfer to Menard from his
home institution;
Count 3:
Eighth Amendment deliberate indifference claim and
Fourteenth Amendment equal protection claim against Wexford for
promulgating a policy, practice, and custom of denying prescription

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medication to inmates on temporary transfer away from their home
institution;
Count 4: First Amendment retaliation claim against Wexford for denying
Plaintiff his necessary prescription medications because he previously filed
a lawsuit against Wexford;
Count 5: Negligence claim under Illinois law against Defendants Malley,
K. Butler, and Harrington for neglecting their duty to respond to Plaintiff’s
requests for prescription medications and to see a doctor;
Count 6:
Medical malpractice claim under Illinois law against
Defendants Shearing, J. Butler, Skidmore, and Malley for refusing to
provide Plaintiff with his prescription medications or an examination by a
doctor.
On June 12, 2015, Nurse Jeremy Butler, Dr. Robert Shearing, and Wexford filed
their motion for summary judgment on Counts 1, 2, 3, 4, and 6 (Doc. 213). They argue
that Plaintiff presents no evidence to support his claims, and they also argue that they
are entitled to qualified immunity (Docs. 213, 214). After a number of extensions of time,
Plaintiff finally filed his response on November 30, 2015 (Doc. 301). Defendants did not
file a reply brief.
FACTUAL BACKGROUND
This is not a comprehensive recitation of all of the facts of this case; instead, the
facts are limited to those relevant to the pending motion for summary judgment. The
facts are undisputed except where noted.
Plaintiff was temporarily transferred from Stateville to Menard from August 21,
2013, to September 4, 2013. The medical records show that when Plaintiff arrived at
Menard on August 21st, he was screened at intake by nurses Christi Rayburn (who is not
a Defendant) and Defendant Jeremy Butler (see Doc. 214-1, p. 1; Doc. 214-4, ¶5).

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According to Plaintiff, at the time of his transfer, he had prescriptions for Neurontin,
Motrin, Flomax, Depakote, Remeron, Benadryl, and Blink eye drops (see Doc. 214-3, p. 3).
This information is corroborated by the Health Status Transfer Summary form, with two
exceptions: the summary does not indicate that Plaintiff was taking Motrin, but it does
indicate

that

he

was

taking

an

additional

medication

that

he

did

not

mention—Hytrin—which is used to treat prostate issues (Doc. 214-1, p. 1; Doc. 214-2,
¶¶5, 14).1 Plaintiff also testified that he wore soft contacts, for which he needed solution
and a case (Doc. 214-3, p. 3).
During the intake assessment, Plaintiff first saw Nurse Butler (Doc. 214-3, p. 8).
Nurse Butler states that he performed the “psychiatric portion of the intake assessment”
(Doc. 214-4, ¶5). However, there are no notes on the transfer summary from Nurse
Butler (see Doc. 214-1, p. 1). There is also no other document in the record that reflects
Nurse Butler’s contact with Plaintiff on August 21st (see Doc. 214-1). But it is undisputed
that there was contact (see Doc. 214-3, p. 8; Doc. 214-4). Plaintiff testified at his deposition
that he told Nurse Butler what medications he was taking, including the dosages, and
told him that he was wearing contact lenses and needed solution and eye drops (Doc.
214-3, pp. 5–6).
Plaintiff then saw Nurse Rayburn, who performed the physical examination
portion of the intake assessment (see Doc. 214-1, p. 1; Doc. 214-3, p. 8). She noted on the
transfer summary that Plaintiff was oriented, his physical appearance was appropriate,

While the intrasystem transfer summary form indicates what medications Plaintiff was taking, it does
not indicate what conditions those medications were prescribed to treat (see Doc. 214-1, p. 1). It seems to
the Court that an inmate’s current and chronic medical issues and conditions is the type of information
that should always be included in the transfer summary.
1

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he was wearing his contacts, and he had no complaints of pain or discomfort (Id.).
Plaintiff testified that he told Nurse Rayburn about the medications he was taking (Doc.
214-3, p. 8). She referred Plaintiff to be seen at a nurse sick call (Doc. 214-1, p. 1).
Once the intake assessment was completed, a nurse contacted Dr. Robert
Shearing, the Medical Director at Menard (Doc. 214-2, ¶9). Dr. Shearing prescribed
Hytrin, Remeron, Depakote, and Benadryl for Plaintiff (Doc. 214-1, p. 20; Doc. 214-2, ¶9).
Dr. Shearing did not re-prescribe the Neurontin, Motrin, Flomax, or the Blink eye drops.
He also did not provide Plaintiff with contact solution or a case.2 Plaintiff testified that
he had been taking Neurontin for “quite some time” for pain in his left leg caused by a
nerve issue in his back (Doc. 214-3, pp. 3, 4, 5). Plaintiff took the Motrin for pain in his left
shoulder that stems from being stabbed in 2008 (Id. at p. 6). Plaintiff took the Flomax for
an enlarged prostate (Id. at p. 7). And he needed the eye drops in order to wear his
contacts for the required amount of time, and the solution and case to store his contacts
at night (Doc. 5).
As Dr. Shearing tells it, “[m]edications from prior correctional centers are not
‘automatically’ renewed or continued upon arrival at a new facility” (Doc. 214-2, ¶15).
Instead, according to a Wexford official, “the decision whether to renew, discontinue, or
charge medications when an inmate is transferred is left to the professional discretion of
the treating physician at the new facility” (Doc. 214-5, ¶8). Dr. Shearing explains that
“painkillers, especially more potent ones like Neurontin . . . will only be re-prescribed”
2 There is no indication in the record as to how inmates are supposed to obtain contact solution and a
contact case at Menard. More specifically, it is not clear whether a doctor must order those supplies.
Plaintiff seems to think that a doctor must prescribe them. And, in fact, his medical records show that a
contact case was prescribed to him by a physician after he returned to Stateville (Doc. 214-1, p. 22). Dr.
Shearing does not dispute that he is the individual responsible for providing contact solution and a contact
case to inmates who need them at Menard (see Doc. 214-2).

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after the inmate has been evaluated by a doctor to ensure that the medication and dosage
are still appropriate and the medication is not being abused or misused (Doc. 214-2,
¶¶15, 16). It is undisputed that Plaintiff did not receive Neurontin for his leg pain during
his entire stay at Menard. Plaintiff testified that the Neurontin reduced his leg pain to a
one or a two; without it, his pain was between a seven and a ten (Doc. 214-3, p. 4).
As for the Flomax, Dr. Shearing explains that Flomax and Hytrin are similar
medications with very similar effects; they are both used to treat prostate issues (Doc.
214-2, ¶¶5, 14). At the time, Hytrin was on the prescription formulary, but Flomax was
not (Id. at ¶14). Therefore, barring a reason for using Flomax over Hytrin, Hytrin would
have been prescribed because there is “a preference for utilizing formulary medications
over non-formulary medications” (Id.). The Hytrin was dispensed to Plaintiff for the first
time on August 23rd (Doc. 214-1, p. 13). Plaintiff testified that he immediately gave it
back because he had previously been on Hytrin and it did not work (Doc. 214-3, p. 7). Dr.
Shearing claims that he did not have access to Plaintiff’s entire medical chart because
only a short version is sent upon transfer, so he did not know that Hytrin was previously
ineffective for Plaintiff (Doc. 214-2, ¶ 12). The Hytrin was never dispensed to Plaintiff
again, and there is no indication that Plaintiff received Flomax or any other drug to treat
his prostate issues during his entire stay at Menard (see Doc. 214-1, pp. 13–16). Without
the Flomax, Plaintiff testified that he frequently urinated and could not fully empty his
bladder, which led to painful straining in an attempt to force the urine out and urine
dribbling onto his clothes after he finished going to the bathroom (Doc. 214-3, p. 7).
Plaintiff further testified that he experienced “a lot of frustration, hopelessness, and

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helplessness” (Id.).
Dr. Shearing presumably did not re-prescribe Motrin to Plaintiff because it was
not listed as one of Plaintiff’s current medications on the transfer summary (see Doc.
214-1, p. 1). Plaintiff was nevertheless able to obtain a blister pack of Motrin on August
24th from Nurse Ronald Skidmore (Doc. 214-3, p. 6; Doc. 301-3, p. 13). Taking his normal
prescription dosage, Plaintiff ran through the Motrin in about three days, and he was not
given any more (Doc. 214-3, p. 6). Without the Motrin, Plaintiff rated his shoulder pain
between a seven and a ten, and stated that he had difficulty sleeping and showering (Id.).
Dr. Shearing did not provide an explanation as to why he did not re-prescribe the
eye drops (see Doc. 214-2.). Another physician eventually prescribed the eye drops on
August 28th, but Plaintiff claims that he never received them (Doc. 214-2, ¶6; Doc. 214-1,
p. 20; Doc. 214-3, p. 10). Plaintiff’s claim is corroborated by the medication
administration records, which do not indicate that the eye drops were ever dispensed to
Plaintiff (Doc. 214-1, pp. 13, 15).
Finally, Dr. Shearing states that he did not provide Plaintiff with contact solution
or a contact case because he was unaware that Plaintiff wore contacts (Doc. 214-2, ¶18). It
is undisputed that Plaintiff never received solution or a case during his entire stay at
Menard. Plaintiff testified that he left his contacts in as long as he could, but he
eventually had to take them out (Doc. 214-3, p. 10). Without solution and a case, the
contacts dried out, and Plaintiff was unable to wear them (Id.). Plaintiff testified that
without his contact lenses, he “suffered in pain” (Id. at p. 10). He further testified, “I
could not see, couldn’t read. I was just basically left to sit there in my cell without the

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ability to read or see properly” (Id.).
Plaintiff believes that Dr. Shearing refused to prescribe his medications in order to
save money. Specifically, Plaintiff claims that he was told by both Nurse Butler and
Nurse Skidmore that Dr. Shearing has a practice of discontinuing medications,
particularly non-formulary medications, prescribed at another facility in order to save
money, of which he receives a percentage (Doc. 214-3, pp. 10, 16). Dr. Shearing states,
however, that as the facility medical director, he “had the discretion to prescribe the
medications [he] deemed most appropriate for [his] patients whether they are formulary
or not” (Doc. 214-2, ¶13). He also asserts that he “did not receive a ‘percentage of the
money saved’ by using formulary versus non-formulary medications” (Id. at ¶20; Doc.
214-5, ¶6). In fact, he “did not receive any kind of financial incentive for discontinuing
inmate medications, utilizing less expensive medications or otherwise ‘saving money’ on
inmate medications” (Doc. 214-2, ¶19; Doc. 214-5, ¶5).
According to Dr. Shearing, inmates were instructed to use the sick call process if
they felt they needed medications other than the ones that were prescribed for them
(Doc. 214-2, ¶17). “If the inmate follows the proper steps, sick call usually takes place
within just a few days of arrival” (Id.). The medical records show that, at his initial
evaluation on August 21st, Nurse Rayburn indicated that Plaintiff would be scheduled
to be seen at sick call (Doc. 214-1, p. 1). The medical records also indicate that Plaintiff
was seen at nurse sick call by Nurse Skidmore on August 24th, where he complained
that he needed his Flomax and Neurontin (Doc. 214-1, p. 3).3 Plaintiff also testified that

The medical record from the sick call indicates that Plaintiff complained he needed his “Flonase,
Neurontin and Tramadol” (Doc. 214-1, p. 3). Plaintiff indicated at his deposition that he asked for

3

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he saw Nurse Butler on the night he arrived at Menard when Nurse Butler dispensed
medication to him, and he asked Nurse Butler about the missing Neurontin, Motrin,
Flomax, eye drops, contact solution, and contact case (Doc. 214-3, p. 9). Plaintiff further
testified that he saw Nurse Butler on at least two other occasions and that each time he
would “talk to him concerning, you know, what was going on, begging him, you know,
to get me to see a doctor” (Doc. 214-3, p. 11–12). For his part, Nurse Butler says that he
“recall[s] specifically telling [Plaintiff] that [he] would process another nurse sick call
request form immediately if [Plaintiff] would fill out the form. [Plaintiff] would not fill it
out. [Plaintiff] proceeded to yell at me using profane and vulgar language” (Doc. 214-4,
¶8). Plaintiff denies this exchange (Doc. 301-1, p. 8). It is undisputed that Plaintiff was
never taken to the Health Care Unit or seen by a physician during the two weeks that he
was at Menard (see Doc. 214-1).
DISCUSSION
The standard applied to summary judgment motions under Federal Rule of Civil
Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows
that there is no genuine dispute as to any material fact and that the moving
party is entitled to judgment as a matter of law. A “material fact” is one
identified by the substantive law as affecting the outcome of the suit. A
“genuine issue” exists with respect to any such material fact . . . when “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” On the other hand, where the factual record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party, there is nothing for a jury to do. In determining whether a genuine
issue of material fact exists, we view the record in the light most favorable
to the nonmoving party.
Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).
“Flomax,” but Nurse Sidmore mistakenly wrote down “Flonase” (Doc. 214-3, p. 16).

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A. Count 1: Deliberate Indifference
In Count 1, Plaintiff alleges that Nurse Butler and Dr. Shearing were deliberately
indifferent to his medical needs when they refused to provide him with previously
prescribed medications and denied him access to a doctor, causing him to suffer pain
and physical discomfort, in violation of the Eighth Amendment.
In order to prevail on a claim for deliberate indifference to a serious medical need,
there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex rel.
Nyman v. Winnebago Cnty., 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,” namely deliberate indifference. Greeno, 414 F.3d at 653.
1. Serious medical need
The Seventh Circuit has defined a serious medical condition as “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, 512-513 (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.”).
Defendants concede that Plaintiff’s prostate condition was a serious medical
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condition (Doc. 214, p. 12). Defendants also do not dispute that Plaintiff’s leg and
shoulder pain constituted a serious medical need (see id. at pp. 15–16). Defendants do,
however, dispute that Plaintiff’s vision problem was serious enough for Eighth
Amendment purposes (Id. at p. 14).
The Seventh Circuit has stated that a “need for prescription glasses could
conceivably constitute a serious medical need.” Franklin v. McCaughtry, 110 F. App’x
715, 721 (7th Cir. 2004) (citing Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996)). However,
the glasses must be needed for something more than a “very slight visual impairment.”
Tormasi v. Hayman, 452 F. App’x 203, 206 (3d Cir. 2011).4 Glasses needed for more
severe visual impairments, such as significantly blurred vision, double vision, or loss of
depth perception, constitutes a serious medical need.5
Here, Defendants argue that two weeks without contact lenses cannot rise to the
level of a serious medical need because “[it] caused no pain. It caused no serious harm”
(Doc. 214, p. 14). However, this argument ignores Plaintiff’s testimony that, without his
contacts, he “suffered in pain. [He] could not see, couldn’t read. [He] was just basically
left to sit there in a cell without the ability to read or see properly” (Doc. 214-3, p. 10).
4

See McIntosh v. Malueg, Case No. 09-C-1106, 2011 WL 3684777, at *6 (E.D. Wis. Aug. 23, 2011) (“The need
for glasses, especially reading glasses, is not per se a serious medical need.”); Lavin v. Hulick, Case No.
09-cv-477-MJR, 2010 WL 2137250, *6 (S.D. Ill. May 27, 2010) (inmate failed to state a claim based on
three-week deprivation of glasses when he did not allege any physical injury due to his lack of glasses; he
was simply inconvenienced in that he was unable to read); Dobbey v. Randle, Case No. 11-CV-0146, 2013
WL 4821027, at *5 (N.D. Ill. Sept. 10, 2013) (finding that the lack of eyeglasses did not constitute serious
medical condition where there was no severe impairment to inmate’s ability to read, write, or see).
5 See Tormasi, 452 F. App’x at 206 (inmate established serious medical need when his vision was
“significantly blurred” without glasses, which caused dizziness and imbalance and resulted in injuries,
including a broken jaw, from walking into objects or falling); Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir.
1996) (inmate stated Eighth Amendment claim where he alleged that his glasses were necessary to avoid
double vision and a loss of depth perception resulting from a head injury, and that without his glasses he
suffers loss of vision, headaches, and injuries from falling or walking into objects); Dobbey, 2013 WL
4821027 at *5 (“Courts have determined that a lack of glasses results in an objectively serious medical
condition when it significantly affects a prisoner’s ability to see.”)

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Plaintiff did not give any further details, which is not entirely unexpected given that
Plaintiff is a prisoner with no legal experience who is representing himself, and he did
not receive any further prompting from defense counsel. For example, defense counsel
could have easily asked Plaintiff how many days he went without his contacts; what, if
anything, he could see without his contacts; how severe his pain was and whether it was
constant or intermittent; whether he suffered from headaches, dizziness, or loss of
balance; or whether he bumped into anything, fell, or otherwise injured himself because
he didn’t have his contacts. But defense counsel did not ask Plaintiff a single follow-up
question (see Doc. 214-3). Defense counsel also did not submit Plaintiff’s optometry
records or any other documentation to shed light on the extent of Plaintiff’s vision
problem. Consequently, the Court is left with only Plaintiff’s testimony that he suffered
in pain, could not see, and could not read. This testimony is not very specific, but
viewing it in a light most favorable to Plaintiff and drawing all reasonable inferences in
his favor, a jury could nevertheless conclude that his vision problem was severe enough
that the lack of contacts constituted a serious medical need.
In sum, a reasonable jury could find that Plaintiff’s prostate problems, shoulder
pain, leg pain, and the lack of contacts constituted serious medical conditions.
Accordingly, the Court will consider whether Nurse Butler and Dr. Shearing acted with
deliberate indifference with respect to those conditions.
2. Defendant’s state of mind
In order to show that prison officials acted with a sufficiently culpable state of
mind, the plaintiff must put forth evidence that the prison officials knew that the

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prisoner’s medical condition posed a serious health risk, but they consciously
disregarded that risk. Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir.
2012). “This subjective standard requires more than negligence and it approaches
intentional wrongdoing.” Id.; accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)
(“Deliberate indifference is intentional or reckless conduct, not mere negligence.”);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (“[N]egligence, even gross
negligence does not violate the Constitution.”)
In order for a medical professional to be held liable under the deliberate
indifference standard, he or she must respond in a way that is “so plainly inappropriate”
or make a decision that is “such a substantial departure from accepted professional
judgment, practice, or standards,” that it gives rise to the inference that they
intentionally or recklessly disregarded the prisoner’s needs. Holloway, 700 F.3d at 1073;
Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008) (quoting Sherrod v. Lingle, 223 F.3d 605,
611 (7th Cir. 2000)). In other words, a prison medical professional is “entitled to
deference in treatment decisions unless no minimally competent professional would
have so responded under those circumstances.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011) (quoting Sain, 512 F.3d at 894–95). See also Holloway, 700 F.3d at 1073 (“There is not
one ‘proper’ way to practice medicine in prison, but rather a range of acceptable courses
based on prevailing standards in the field.” (quoting Jackson v. Kotter, 541 F.3d 688, 697
(7th Cir. 2008))).
Here, a jury could find that Nurse Butler’s actions were plainly inappropriate.
There is evidence that Nurse Butler knew that Plaintiff was taking Neurontin and

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Flomax and needed contact supplies. There is also evidence that Nurse Butler knew
Plaintiff was not receiving those medications or supplies and, as a result, Plaintiff was
frustrated and in pain. Nurse Butler claims that he responded to Plaintiff’s complaints by
telling Plaintiff to submit a request for a sick call, but Plaintiff refused. Plaintiff denies
this exchange took place. He claims Nurse Butler did not take any action and essentially
ignored his complaints. This is a classic swearing contest, the resolution of which would
require the Court to make credibility determinations and weigh the competing
testimony. However, on summary judgment the Court cannot decide who to believe; it is
up to the jury to decide whose version of events is more credible. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986). Consequently, Nurse Butler is not entitled to
summary judgment on Count 1.
A jury could also find that Dr. Shearing’s actions were plainly inappropriate.
With respect to Plaintiff’s prescription for Flomax, Dr. Shearing substituted the Flomax
for Hytrin when Plaintiff arrived at Menard. Dr. Shearing explained that Flomax is a
non-formulary drug and is only prescribed over Hytrin when there is a specific reason
for doing so (Doc. 214-2, ¶14). But Dr. Shearing made no effort to discern whether there
was a specific reason that Plaintiff was taking Flomax instead of Hytrin. He did not
speak to Plaintiff, much less examine him; had he done so, Plaintiff undoubtedly would
have informed him that Hytrin had been ineffective for him in the past. At most, Dr.
Shearing reviewed “an abbreviated set” of Plaintiff’s medical records, but the Court has
no idea what exactly that included (see Doc. 214-2, ¶12). These facts, when viewed in a
light most favorable to Plaintiff, suggest that Dr. Shearing made the decision to

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substitute Plaintiff’s Flomax with Hytrin based on little, if any, information about
Plaintiff or his medical history. A reasonable jury could find that Dr. Shearing’s actions
surpassed mere negligence and entered the realm of deliberate indifference.
With respect to Plaintiff’s prescription for Neurontin, he was taking 900 mg of
Neurontin twice a day at the time of his transfer to Menard (Doc. 214-1, p. 1). It was
listed as one of Plaintiff’s “chronic long-term” medications, and his prescription was for
a six-month supply (Id.). Yet when Plaintiff arrived at Menard, Dr. Shearing
discontinued his prescription for Neurontin. Dr. Shearing explained that
Medications from prior correctional centers are not “automatically”
renewed or continued upon arrival at a new facility. This is particularly
true with painkillers, especially more potent ones like Neurontin. . . .
[P]ainkillers, particularly narcotics, will only be re-prescribed after the
medical director or another physician has had an opportunity to evaluate
the transferring inmate. The purpose of evaluating a patient prior to
renewing or continuing a pain medication is to ensure that the specific
medication and dosage are still appropriate for the patient and that the
medication is not being abused or otherwise misused.
(Doc. 214-2, ¶¶15, 16).
At first blush, this explanation seems perfectly reasonable. But closer
consideration raises some serious questions. First, Neurontin is not a painkiller in the
traditional sense of the word, meaning it is not a narcotic or opioid pain reliever like
codeine, fentanyl, hydrocodone, oxycodone, morphine, or tramadol.6 It is not even a
controlled substance.7 Instead, it is an anti-convulsant drug used to control seizures that

Medline Plus, Pain Medication—Narcotics, https://www.nlm.nih.gov/medlineplus/ency/article/
007489.htm (last updated May 3, 2015).
7 Pfizer, Neurontin U.S. Medication Guide, http://labeling.pfizer.com/ShowLabeling.aspx?id=630 (last
updated Sept. 2015).
6

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is also prescribed off-label for chronic, neuropathic pain.8 Based on these facts, it is not
self-evident that Neurontin has a high potential for abuse or misuse, and Defendants do
not elaborate on their suggestion that it does (see Doc. 214).9
Second, it strikes the Court as odd that Dr. Shearing does not want to prescribe
Neurontin until he examines an inmate, but he has no qualms about discontinuing it
without ever seeing, or even speaking to, the inmate. Neurontin is not a medication that
is used on an as-needed basis for run-of-the-mill aches and pains.10 As a matter of fact,
Plaintiff was taking it twice daily on a long-term basis to control his chronic pain. One
would think that a physician would be reticent to abruptly stop long-term
pharmaceutical treatment without any warning to the patient. That is particularly true in
this instance where the labeling information for Neurontin warns that stopping the
medication suddenly can cause serious adverse reactions so it should be discontinued
gradually over a minimum of one week.11
Those concerns aside, and assuming it was appropriate for Dr. Shearing to

Medline Plus, Gabapentin, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html (last
revised July 15, 2011). Neurontin is a brand name for Gabapentin. Medline Plus, Neuralgia,
https://www.nlm.nih.gov/medlineplus/ency/article/001407.htm (last revised July 27, 2014).
9 Neither the Medline Plus entry for gabapentin or the Mayo Clinic’s entry for gabapentin make any
mention of the potential for abuse. See Medline Plus, Gabapentin, https://www.nlm.nih.gov/
medlineplus/druginfo/meds/a694007.html (last revised July 15, 2011); Mayo Clinic, Gabapentin,
http://www.mayoclinic.org/drugs-supplements/gabapentin-oral-route/ description/drg-20064011 (last
updated Dec. 1, 2015). The entry on Drugs.com indicates that Gabapentin “does not exhibit affinity for
benzodiazepine, opiate . . . or cannabinoid 1 receptor sites,” but “a small number of postmarketing cases
report Gabapentin misuse and abuse among individuals “taking higher than recommended doses . . . for
unapproved uses.” Drugs.com, Neurontin, http://www.drugs.com/pro/ neurontin.html (last visited
March 28, 2016).
10 See Mayo Clinic, Gabapentin, http://www.mayoclinic.org/drugs-supplements/gabapentin-oral-route/
description/drg-20064011 (last updated Dec. 1, 2015).
11 Pfizer, Neurontin U.S. Medication Guide, http://labeling.pfizer.com/ShowLabeling.aspx?id=630 (last
updated Sept. 2015). See also Medline Plus, Gabapentin, https://www.nlm.nih.gov/medlineplus/
druginfo/meds/a694007.html (last revised July 15, 2011) (“If you suddenly stop taking gabapentin . . . you
may experience withdrawal symptoms such as anxiety, difficulty falling asleep or staying asleep, nausea,
pain, and sweating.”)
8

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abruptly discontinue Plaintiff’s Neurontin pending an examination, he is still not
entitled to summary judgment. Dr. Shearing does not dispute that he knew Plaintiff
suffered from chronic pain. He discontinued Plaintiff’s prescription for Neurontin but
did not take any steps to address the pain that Plaintiff would undoubtedly experience
without the Neurontin. For example, there is no evidence that Dr. Shearing made any
effort to schedule Plaintiff for an examination or otherwise checked on Plaintiff. In fact,
Dr. Shearing freely admits he never saw Plaintiff while Plaintiff was at Menard (Doc.
214-2, ¶7). There is also no evidence that Dr. Shearing provided any alternative pain
reliever to Plaintiff. These facts, when viewed in a light most favorable to Plaintiff,
suggest that Dr. Shearing simply left Plaintiff to suffer. A reasonable jury could very
easily conclude this was a blatantly inappropriate medical decision.
As for Plaintiff’s prescription eye drops, they were plainly listed on the
intrasystem transfer summary form, yet Dr. Shearing did not renew this prescription
when Plaintiff arrived at Menard, and Dr. Shearing offered absolutely no explanation as
to why he made this decision (see Doc. 214; Doc. 214-2). With respect to the contact
solution and contact case, Dr. Shearing indicated that he did not prescribe or provide
these items because he was unaware that Plaintiff wore contacts (Doc. 214-2, ¶). 12
However, Nurse Rayburn wrote on the intrasystem transfer summary form that Plaintiff
“has contacts” (Doc. 214-1, p. 1). Thus, it appears that Dr. Shearing either did not review
that form in determining what medications and supplies Plaintiff needed, or he ignored
12

There is no indication in the record as to how inmates are supposed to obtain contact solution and a
contact case. More specifically, it is not clear whether a doctor must order those supplies. Plaintiff seems to
think that a doctor must prescribe them. And, in fact, his medical records show that a contact case was
prescribed to him by a physician after he returned to Stateville (Doc. 214-1, p. 22). Dr. Shearing does not
dispute that he is the individual responsible for providing contact solution and a contact case to inmates
who need them at Menard (see Doc. 214-2).

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what it said. If Dr. Shearing read the form but simply missed seeing that Plaintiff wore
contacts, his failure to prescribe the contact supplies would be mere negligence. If Dr.
Shearing failed to review the form altogether, however, or if he reviewed it but simply
ignored what it said, then a jury could conclude that Dr. Shearing’s actions surpassed
mere negligence and entered the realm of deliberate indifference. It is up to a jury to
determine what happened and whether it constituted deliberate indifference.
For these reasons, the Court concludes that Nurse Butler and Dr. Shearing are not
entitled to summary judgment on Count 1. In light of this conclusion, the Court must
address Defendants’ argument that they are protected by qualified immunity.
“Generally, qualified immunity protects government agents from liability when their
actions do not violate ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d
906, 914 (7th Cir. 2011) (citing Purvis v. Oest, 614 F.3d 713, 720 (7th Cir. 2010)). “It protects
‘all but the plainly incompetent or those who knowingly violate the law.’” Burritt v.
Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). In determining whether Defendants are entitled to qualified immunity, the
Court must ask two questions: (1) whether the facts, taken in the light most favorable to
Plaintiff, show that Defendants violated a constitutional right; and (2) whether that
constitutional right was clearly established at the time of the alleged violation.
Hernandez, 634 F.3d at 914 (citing Saucier v. Katz, 533 U.S. 194, 201, 202 (2001)).
Defendants’ discussion on qualified immunity focused entirely on whether the
defense is available to private medical providers like Nurse Butler and Dr. Shearing

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(Doc. 214, pp. 22–24). Defendants obviously assert that they are entitled to invoke
qualified immunity, but the Court doubts that is true. See Currie v. Chhabra, 728 F.3d 626,
632 (7th Cir. 2013) (noting that it was inclined to hold that medical personnel employed
by a private company and contracted to provide medical care to inmates are
categorically barred from asserting qualified immunity, but declining to definitively
decide the issue); but see Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 794 (7th Cir. 2014)
(stating in dicta that “private prison employees are barred from asserting qualified
immunity from suit under § 1983”), cert. denied, 135 S. Ct. 1024 (2015). See also McCullum
v. Tepe, 693 F.3d 696, 701 (6th Cir. 2012) (holding that a doctor providing psychiatric
services to inmates at a state prison is not entitled to assert qualified immunity).
Even if Defendants are, in fact, entitled to invoke qualified immunity, they have
not explained why the defense is applicable. Accordingly, the Court declines to address
whether Defendants are protected by qualified immunity. Raghunathan v. Holder, 604
F.3d 371, 378 (7th Cir. 2010) (“[S]tating blankly what one’s argument is and
actually arguing a position are different things.”); United States v. Holm, 326 F.3d 872, 877
(7th Cir. 2003)(“[I]t is not the obligation of this court to research and construct the legal
arguments open to parties.”). It is also worth mentioning that the Court cannot imagine
how Defendants would be able to convincingly argue that Plaintiff’s rights were not
clearly established when it has long been held that jail personnel cannot simply ignore or
unreasonably delay requests for medical attention and must respond appropriately. See,
e.g., Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (“Even a few days’ delay
in addressing a severely painful but readily treatable condition suffices to state a claim of

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deliberate indifference.”); Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011) (finding that
“[a]llegations of refusal to provide an inmate with prescribed medication or to follow the
advice of a specialist can also state an Eighth Amendment claim”); Johnson v. Doughty,
433 F.3d 1002, 1013 (7th Cir. 2006) (noting that “medical personnel cannot simply resort
to an easier course of treatment that they know is ineffective”).
In sum, Nurse Butler and Dr. Shearing are not entitled to summary judgment on
Count 1 or on the issue of qualified immunity.
B. Count 2: Equal Protection
In Count 2, Plaintiff alleges that Nurse Butler and Dr. Shearing violated his right
to equal protection when they treated inmates on a temporary transfer to Menard
differently than other inmates with regard to the delivery of medical care.
To state an equal protection claim, a plaintiff must establish that a state actor
treated him differently from others similarly situated because of his membership in a
particular class and that the state actor did so purposefully. DeWalt v. Carter, 224 F.3d
607, 618 (7th Cir. 2000) (citing Washington v. Davis, 426 U.S. 229, 239-42 (1976)).
Discriminatory purpose “implies that the decision[-]maker singled out a particular
group for disparate treatment and selected his course of action at least in part for the
purpose of causing its adverse effects on the identifiable group. Shango v. Jurich, 681 F.2d
1091, 1104 (7th Cir. 1982) (citation omitted).
Plaintiff has presented no evidence to support this claim. Specifically, Plaintiff has
not pointed to any inmates arriving at Menard on a non-temporary basis who were
treated differently than he was treated. Plaintiff also has not put forth any evidence that

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Nurse Butler or Dr. Shearing singled out inmates temporarily housed at Menard for
disparate treatment. Because Plaintiff’s equal protection claim is wholly unsupported by
any evidence, Dr. Shearing and Nurse Butler are entitled to summary judgment.
C. Count 3: Policy and Practice
In Count 3, Plaintiff alleges that Wexford, as a corporation, violated his Eighth
and Fourteenth Amendment rights. Under controlling precedent, a private corporation
that contracts to provide essential government services can be held liable under § 1983,
but not under a theory of respondeat superior. Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789
(7th Cir. 2014), cert. denied, 135 S. Ct. 1024 (2015). The corporation can only be held liable
if “the constitutional violation was caused by an unconstitutional policy or custom of the
corporation itself.” Id.; see also Monell v. Dep’t of Social Serv. of N.Y.C., 436 U.S. 658 (1978).
In other words, the plaintiff must “show the existence of an official policy or other . . .
custom that not only causes but is the moving force behind the deprivation of
constitutional rights.” Teesdale v. City of Chicago, 690 F.3d 829, 833-834 (7th Cir. 2012)
(quotation marks and citations omitted).
Plaintiff claims that Wexford had a policy, which was implemented through Dr.
Shearing, of denying prescription medication to inmates on temporary transfer away
from their home institution. There is simply no evidence, however, that Wexford was the
“moving force” behind the decision to discontinue Plaintiff’s prescriptions. A Wexford
official submitted an affidavit stating that “[t]he decision as to which medications are
renewed, discontinued or changed when an inmate is transferred to a new facility is left
to the professional discretion of the treating physician at that facility” (Doc. 214-5). And

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Dr. Shearing stated in his own affidavit that he “was not following any particular . . .
Wexford policy or procedure when determining which medications to prescribe for
[Plaintiff]” (Doc. 214-2, ¶13). Plaintiff did not put forth any competent evidence to refute
these affidavits. Plaintiff asserts that Dr. Shearing discontinued his medications at the
behest of Wexford, but it is clear from Plaintiff’s deposition testimony that this assertion
is based on pure speculation and there is not any direct or circumstantial evidence to
support it (see Doc. 214-3, p. 11). A plaintiff’s speculation is insufficient to defeat a
motion for summary judgment. McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir. 2003).
To the extent that Plaintiff may also be arguing that Wexford has policies
regarding costs, apportionment of profits, and financial incentives that led to the
deprivation of constitutional rights, Plaintiff has not put forth any competent evidence to
support his argument, and it is directly refuted by the affidavits from the Wexford
official and Dr. Shearing (Doc. 214-2; Doc. 214-5).
In sum, no reasonable jury could conclude that Plaintiff’s alleged constitutional
injuries were caused by a Wexford policy, and Wexford is entitled to summary judgment
on Count 3.
D. Count 4: Retaliation
In Count 4, Plaintiff claims that Wexford denied him adequate medical care in
retaliation for filing lawsuit and grievances against the corporation and its employees
who are not parties to this action. At the summary judgment stage, a prisoner has the
initial burden to make out a prima facie case of retaliation by showing that: “(1) he
engaged in activity protected by the First Amendment; (2) he suffered a deprivation

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likely to deter such activity; and (3) the First Amendment activity was at least a
motivating factor in the decision to impose the deprivation.” Hawkins v. Mitchell, 756
F.3d 983, 996 (7th Cir. 2014) (citing Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir.
2012)).
Defendants do not make any argument related to the first and second elements;
instead they focus on whether Plaintiff has satisfied the third element of his prima facie
case (see Doc. 214, pp. 20–21). They argue that Plaintiff has not set forth any evidence
showing that Dr. Shearing or Nurse Butler knew of his lawsuit or grievance history, that
anyone made them aware of it, or that anyone acting on behalf of Wexford somehow
influenced his care because of it (Id.). The Court agrees.
The medical decisions in this case were made by Dr. Shearing and Nurse Butler.
Both men attest that during the time Plaintiff was at Menard, they had no knowledge or
information that he had filed previous lawsuits against Wexford, its employees, or
IDOC employees (Doc. 214-2, ¶10; Doc. 214-4, ¶9). They also didn’t know about any
grievances or complaints from Plaintiff regarding his medical care at other facilities
(Doc. 214-2, ¶10; Doc. 214-4, ¶9). They further attest that no one from Wexford or the
IDOC instructed them to treat Plaintiff differently because of previously filed lawsuits
and grievances (Doc. 214-2, ¶11; Doc. 214-4, ¶11).
In rebuttal, Plaintiff points to a letter written by his attorneys in a different
matter dated May 10, 2013, that stated that Plaintiff was not getting his medication at
Stateville (Doc. 301-3, pp. 21-22). Plaintiff argues that this letter was located in his
medical file and that Dr. Shearing and Nurse Butler would have seen it. This argument

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is pure speculation—speculation that the letter was in his medical file, speculation that
the letter was in the abbreviated file sent to Menard,13 and speculation that Nurse
Butler and Defendant Shearing saw the letter—which is insufficient to survive a motion
for summary judgment. McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir. 2003).
Because there is no evidence that Dr. Shearing and Nurse Butler knew of
Plaintiff’s litigation and grievance history, it could not have been a motivating factor in
their decisions regarding Plaintiff’s medical care. Consequently, Wexford is entitled to
summary judgment on Count 4.
E. Count 6: Medical Malpractice
Count 6 is Plaintiff’s medical malpractice claim under Illinois law. In the Court’s
threshold Order, Plaintiff was instructed that he had to submit an affidavit and
certificate of merit as required by Illinois law in order to pursue his medical malpractice
claim (Doc. 5). 735 ILL.COMP.STAT. § 5/2-622(a). Plaintiff was warned that Count 6
would be dismissed if Plaintiff did not file the required documents (Doc. 5). On April
17, 2014, Plaintiff filed an affidavit indicating that he made a request for his medical
records but that he has not received them (Doc. 9). The fact that Plaintiff’s medical
records were not produced to him by the deadline did not excuse him from submitting
a certificate of merit; it simply gave him more time to do so. 735 ILL.COMP.STAT.
§ 5/2-622(a)(3). Almost two more years have gone by since then, however, and Plaintiff
still has not submitted the required certificate of merit. Accordingly, Count 6 against
Defendants Shearing, Butler, Skidmore, and Malley is dismissed without prejudice.
13

Both Dr. Shearing and Nurse Butler attest that, when inmates are temporarily transferred on court
writs, their entire medical record is usually not transferred with them. Only an abbreviated medical record
is sent. (Docs. 214-2, ¶12; Doc. 214-4, ¶12).

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CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment filed by
Jeremy Butler, Robert Shearing, and Wexford on June 12, 2015 (Doc. 213) is GRANTED
in part and DENIED in part. Summary judgment is DENIED as to Nurse Butler and Dr.
Shearing on Count 1 (deliberate indifference claim), but GRANTED in their favor on
Count 2 (equal protection claim). Summary judgment is GRANTED in favor of Wexford
on Count 3 (deliberate indifference and equal protection claims) and Count 4 (retaliation
claim). Additionally, Count 6 (medical malpractice claim) is DISMISSED without
prejudice as to all Defendants
This case will proceed on the following counts against the Defendants as specified
in each count:
Count 1: Eighth Amendment deliberate indifference claim against
Defendants J. Butler, Skidmore, Malley, Shearing, K. Butler, and
Harrington for refusing to provide Plaintiff with previously-prescribed
medications and denying him access to a doctor;
Count 2:
Fourteenth Amendment equal protection claim against
Defendants Skidmore, Malley, K. Butler, and Harrington for refusing to
provide Plaintiff with prescription medications based on his status as a
prisoner on temporary transfer to Menard from his home institution; and
Count 5: Negligence claim under Illinois law against Defendants Malley,
K. Butler, and Harrington for neglecting their duty to respond to Plaintiff’s
requests for prescription medications and to see a doctor.

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The Court is mindful that certain claims disposed of in this Order are also
asserted against other, non-moving Defendants. Those claims will be addressed when
the Court takes up the Motion for Summary Judgment filed by Defendants Butler,
Malley, Harrington, and Skidmore on November 30, 2015 (Doc. 303).
IT IS SO ORDERED.
DATED: March 29, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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