Smith v. Harrington et al
Filing
167
ORDER GRANTING in part and DENYING in part Defendants' Motion for Summary Judgment (Doc. 125 ). Signed by Judge Staci M. Yandle on 6/2/2017. (tfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRIN N. SMITH, B78535,
Plaintiff,
v.
RICHARD HARRINGTON,
GAIL WALLS,
ANGELA CRAIN,
DR. FE FUENTES,
DR. S. NWAOBASI and
WEXFORD HEALTH
SOURCES, INC.,
Defendants.
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Case No. 3:14-cv-01150-SMY-RJD
MEMORANDUM AND ORDER
Plaintiff Tyrin Smith is an inmate at Menard Correctional Center (“Menard”), a
maximum security prison in the Illinois Department of Corrections (“IDOC”). Smith claims that
prison officials at Menard provided him inadequate medical treatment for his severe
hemorrhoids. From 2010 through 2014, Smith was examined on multiple occasions at the
Menard Health Care Unit (“HCU”) for his hemorrhoid related issues. He was finally taken to an
outside hospital for surgery in March 2014. Smith asserts that he should have undergone surgery
sooner, and that the delay unnecessarily prolonged his pain.
Smith filed suit on October 23, 2014 (Doc. 1). The Complaint was screened pursuant to
28 U.S.C. § 1915A (Doc. 7). In the screening order, Judge Gilbert found that Smith articulated
a colorable Eighth Amendment deliberate indifference to serious medical needs claim against Dr.
Fe Fuentes (Menard Physician), Dr. S. Nwaobasi (Menard Physician), Gail Walls (Menard
Nursing Supervisor), Angela Crain (Menard Health Care Unit Administrator) and Richard
Harrington (Menard Warden). Smith subsequently filed an Amended Complaint (Doc. 92)
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which adds a Monell claim against Wexford Health Sources, Inc. (“Wexford”), a private
contractor that provides healthcare services to IDOC inmates. Wexford, Dr. Fuentes and Dr.
Nwaobasi now seek summary judgment (Doc. 125).
The motion is opposed (Docs.
147,148,149). For the following reasons, the motion is GRANTED in part and DENIED in
part.
BACKGROUND
Plaintiff Tyrin Smith entered IDOC custody in December 2006 and was transferred to
Menard in June 2010 (Smith Deposition, Doc. 148-2, p. 2). Smith first began to experience
hemorrhoid problems in late 2009/mid 2010. Id. at p. 3. On July 26, 2010, Smith was examined
by a Corrections Medical Technician (“CMT”) with hemorrhoid related complaints (Doc. 148-7,
p. 15). The CMT prescribed Colace, a stool softener, and recommended that Smith apply warm
compresses and Dibucaine ointment to the affected area. Id. The CMT also counseled Smith on
hemorrhoid management (i.e., clean rectal area properly, increase fluid and fiber intake, keep
physically active to prevent constipation). Id. Smith testified at his deposition that neither the
stool softeners nor the Dibucaine ointment provided any relief (Doc. 148-2, p. 3).
Smith’s medical records indicate that he was next examined on the gallery (at his cell
house as opposed to the health care unit) on December 21, 2010 for continued complaints of
hemorrhoids (Doc. 148-7, p. 17). The records note, “inmate states Colace and Dibucaine not
work [sic]”. Id.
On December 29, 2010, Smith was examined by Dr. Fahim in the HCU (Doc. 148-7, p.
18). Dr. Fahim’s notes state, “Rectal exam[,] good tone[,] no ext[ernal] hemorrhoid , int[ernal]
hemorrhoid at 12:00 o’clock, prostate feels firm[,] one nodule large on left side, guaiac [positive]
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[.]” Id. Dr. Fahim prescribed Preparation H, Colace and arranged for a follow up prostate
ultrasound examination. Id.
The hemorrhoid condition was not improving and on February 12, 2011, Smith was
examined by a nurse practitioner in the HCU who prescribed an Anusol suppository (Doc. 148-2,
p. 5). On March 2, 2011, Smith was examined by Dr. Fuentes who noted that the prostate
ultrasound exam was normal, but that Smith was still having problems with hemorrhoids and
external hemorrhoids were present (Doc. 148-7, p. 19).
Smith was scheduled for another
examination on March 22, 2011, but the examination was terminated because he declined to
provide the co-pay
The next day, Smith was examined by Dr. Nwaobasi at the asthma “Chronic Clinic”
(Doc. 148-1, p. 9). Dr. Nwaobasi treated Smith’s asthma, but the two also discussed the
hemorrhoid problems (Doc. 148-9). According to Smith, he asked Dr. Nwaobasi if surgery was
an option to treat his hemorrhoids and Dr. Nwaobasi told him that he would not be approved for
surgery due to security and monetary reasons. Id. However, at his deposition, Dr. Nwaobasi
denied that this conversation took place. Id.
After several examinations for unrelated medical issues a CMT’s notes from June 14,
2011 state that Smith needed a renewal of his prescriptions for suppositories, Colace and
Dibucaine (Doc. 126-3, p. 18). Dr. Nwaobasi examined Smith on June 18, 2011 and renewed the
hemorrhoid medications (Doc. 126-3, p. 19).
Dr. Nwaobasi noted, “[History] of external
prolapsed hemorrhoids. Needs the medications for his hemorrhoids.” Id.
On July 25, 2011, Dr. Fahim examined Smith for his hemorrhoid related complaints and
issued prescriptions for Preparation H and Colace (Doc. 126-3, p. 20). Smith was examined by a
CMT for a renewal of his prescriptions on October 17, 2011 (Doc. 126-3, p. 25).
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Smith returned to the HCU for an examination by Dr. Fuentes on November 2, 2011
(Doc. 126-3, p. 27). Dr. Fuentes states in her notes that Smith was “complaining of hemorrhoids
for 1 ½ years, noticed prolapsing of hemorrhoids [illegible] [with] occ. bleeding.” Id. She
performed a rectal examination and diagnosed Smith as having external hemorrhoids. Id. At the
conclusion of the examination, Dr. Fuentes prescribed hot sitz baths, Anusol suppositories and
Colace. Id. She also directed Smith to exercise more and to increase his water and fiber intake.
Id.
On November 16, 2011, Smith was again examined by Dr. Fuentes for hemorrhoid issues
(Doc. 126-3, p. 28). Smith complained that he could feel the hemorrhoids when he strained in
the bathroom. Id. Dr. Fuentes did not observe any external hemorrhoids, but prescribed Anusol
suppositories and Colace. Id. Smith returned to the HCU for another examination with Dr.
Fuentes on December 14, 2011 (Doc. 126-3, p. 30). Dr. Fuentes performed a rectal examination
and observed an external hemorrhoid. Id. Smith told Dr. Fuentes that he would like to have
surgery to correct the problem, but she told him that his hemorrhoids could be treated with
suppositories. Id.
Due to prison security issues, Smith was unable to be seen for a follow up examination
until January 24, 2012 (Doc. 126-3, pp. 31-32). On that date, Smith was examined by Nurse
Practitioner Pollion (Doc. 126-3, pp. 32). He told Nurse Pollion that he was still experiencing
some bleeding and that the hemorrhoids protruded during bowel movements. Id. Nurse Pollion
directed Smith to “continue Colace” and arranged for lab work. Id. Smith spoke to a nurse on
February 23, 2012 and requested a renewal of his medications (Doc. 126-3, p. 34).
Smith was re-examined by Nurse Pollion on February 29, 2012. Id. Pollion noted that
Smith has a “[history] of prolapsed hemorrhoids” and “still wants surgery to fix problem.” Id.
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She also renewed his prescriptions for Colace and Dibucaine. Id. Smith spoke to a CMT
regarding his hemorrhoid problems on June 26, 2012 (Doc. 126-4, p. 4). According to the
CMT’s notes, Smith was not examined on that date. Id.
Smith injured his back and neck in early January 2013 (Doc. 126-4, p. 9). He was
examined in the HCU by Dr. Nwaobasi for back related pain on January 23, 2013 and May 15,
2013 (Doc. 126-4, p. 10, 14). Dr. Nwaobasi prescribed Motrin (ibuprofen), Neurontin and
Robaxin (a muscle relaxant). Id.
On August 17, 2013, Smith was examined by a CMT on the gallery for hemorrhoid
related issues (Doc. 126-4, p. 18). Smith complained that the hemorrhoids were protruding from
his rectum. Id. He also complained of severe pain and bleeding. Id. The CMT arranged for
Smith to be seen at the HCU and on August 26, 2013, he was examined by a Nurse Practitioner
(Doc. 126-4, p. 19). Smith told the Nurse Practitioner that he suffered from “long term”
hemorrhoids that were at times prolapsed and that he would like treatment to have them
removed. Id. The Nurse Practitioner prescribed Anusol suppositories, Dibucaine and referred
him to see Dr. Shearing. Id.
Smith was examined by Dr. Shearing on September 6, 2013 (Doc. 126-4, p. 20). Dr.
Shearing’s notes state that Smith had experienced hemorrhoids for the past three years and that
Smith “wants surgery[.]” Id. Dr. Shearing diagnosed “chronic mild hemorrhoids,” noted that
there was no need for surgery and recommended Smith “continue current meds.” Id.
After several examinations unrelated to hemorrhoids (asthma related exams on October 8,
2013 and February 11, 2013 and a cold exam on February 26, 2014), Smith was seen by a CMT
on February 16, 2014, complaining of severe pain, bleeding and protruding hemorrhoids (Doc.
126-4, p. 25). The CMT referred Smith for a follow up examination, and on March 10, 2014,
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Smith was examined by Nurse Practitioner Moldenhauer (Doc. 126-4, p. 26).
Nurse
Moldenhauer observed a “protruding hemorrhoid” and issued prescriptions for Dibucaine,
Anusol, Colace and Tylenol. Id. Nurse Moldenhauer also issued a referral to Dr. Trost “ASAP.”
Id. On March 18, 2014, Moldenhauer renewed Smith’s prescriptions and scheduled him to be
seen by Dr. Trost (Doc. 126-4, p. 27).
Smith was examined by Dr. Trost on March 24, 2014 (Doc. 126-4, p. 28). According to
Dr. Trost’s notes from the examination, he observed “painful looking, large, thrombosed,
prolapsed hemorrhoid, bleeding … Will transfer for emergent care” (Doc. 126-4, p. 28). Smith
was taken to Chester Memorial Hospital later that day (Doc. 148-2, p. 9). Upon arrival, the staff
prepped Smith for surgery. Id. However, it was decided that Smith should not undergo surgery
that day, and he was taken back to the Menard HCU. Id.
Smith stayed in the HCU that night and was driven back to Chester Memorial Hospital
the next day (March 25, 2014). Id. At Chester Memorial, Smith was examined by Dr. Scott
Hinze (Doc. 148-5, p. 16). Dr. Hinze’s notes state:
On exam today I performed a rectal exam and he has several large engorged
hemorrhoidal cushions with corresponding inflammation. At this point in time I am
going to start him on Analpram, Hydrocortison cream at 2.5%, Pramoxine cream 1 %
applied four times per day, high fiber diet of around 50 grams per day and Vicodin 325
one to two po q. four hours prn pain [sic]. Follow up in the office in one week. If this
doesn’t start to get better, we will may [sic] just have to end up looking at going to
surgical excision in an effort to control his symptoms.
Id. In an affidavit attached to Smith’s response to the instant motion, Dr. Hinze states, “Mr.
Smith’s hemorrhoid condition on March 25, 2014, was one of the worst conditions of
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hemorrhoids I have seen during my career as a doctor [and] I have treated around 100 cases of
hemorrhoids [.]” (Doc. 148-4, p. 1).
When Smith returned to Menard, Dr. Fuentes informed him that she was not going to fill
the prescriptions issued by Dr. Hinze (Doc. 148-2, p. 9). As a result, Smith did not receive the
special high fiber diet, cream or Vicodin prescribed by Dr. Hinze. Id.
During her deposition, Dr. Fuentes testified that she did not issue the prescriptions,
stating “[w]hen we have prescriptions that we receive from another – from a medical furlough, it
doesn’t necessarily mean we have to follow all of it. Based on our discretion, we prescribe
medications that we think will be almost similar to what they have – what the physician has
prescribed.” (Doc. 148-7, p. 9). Dr. Fuentes also testified that Vicodin was not available at
Menard and that she prescribed Tylenol instead. Id. However, Dr. Trost testified that Vicodin
was in fact available (Doc. 148-3, p. 11).
Dr. Trost noted in the medical files that on March 27, 2014, the Wexford “Collegial
Review” approved Smith for a hemorrhoidectomy (hemorrhoid removal) (Doc. 126-4, p. 36).
On April 2, 2014, Smith was escorted from Menard to Murphysboro, Illinois to be examined by
Dr. Robert Brewer (Doc. 148-5, p. 20). Dr. Brewer noted that other than the hemorrhoids and a
previous gunshot wound, Smith was generally healthy. Id. Dr. Brewer examined Smith and
scheduled the hemorrhoidectomy (Doc. 148-5, p. 22). Nurse Moldenhauer examined Smith later
that day when he returned to Menard (Doc. 126-4, p. 25).
The hemorrhoidectomy was performed on April 4, 2014, by Dr. Brewer (Doc. 148-5, pp.
25-27). Smith was placed under a general anesthetic and an “extremely prominent prolapsed
hemorrhoid on the right anterior area” was removed (Doc. 148-5, p. 30). Three other less
prominent hemorrhoids were also removed. Id. The hemorrhoid tissue was sent to a pathologist
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for biopsy and the pathologist concluded that “[t]here is no evidence of malignancy” (Doc. 1485, p. 31).
The day after the surgery, Smith was examined by Dr. Nwaobasi (Doc. 126-4, p. 39).
Dr. Nwaobasi arranged for Smith to be admitted to the third floor of the HCU and prescribed
suppositories, Colace and Tylenol #3. Id. After three days of Tylenol #3, Smith was to receive
Motrin. Id. Smith testified at his deposition that he was sore for a month or so after the surgery,
but has felt fine since June 2014 (Doc. 148-2, p. 13).
DISCUSSION
Pursuant F.R.C.P. 56, “[t]he Court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” “The evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct.
2505, 2513, 91 L. Ed. 2d 202 (1986). However, to survive summary judgment, “the nonmoving
party must show evidence sufficient to establish every element that is essential to its claim and
for which it will bear the burden of proof at trial.” Diedrich v. Ocwen Loan Servicing, LLC, 839
F.3d 583, 591 (7th Cir. 2016) (quoting Life Plans, Inc. v. Sec. Life of Denver Ins. Co., 800 F.3d
343, 349 (7th Cir. 2015)).
The Supreme Court has held that prisoners have an Eighth Amendment right to “adequate
food, clothing, shelter, and medical care[.]” Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct.
1970, 1976, 128 L. Ed. 2d 811 (1994). As such, the “deliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251
(1976) (internal cite and quote omitted).
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To prove an Eighth Amendment claim that prison officials provided inadequate medical
care, a plaintiff must demonstrate: (1) that he suffered from a serious medical need; and (2) that
the defendants were deliberately indifferent to it. Harper v. Santos, 847 F.3d 923, 927 (7th Cir.
2017) (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). 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 perceive the need for a doctor's attention.”
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
“Deliberate indifference” is a state of mind in which the prison official defendant
“knows of and disregards an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at
837, 114 S. Ct. at 1979. It is a higher level of wrongdoing than ordinary negligence. See
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (“[d]eliberate indifference is not
medical malpractice; the Eighth Amendment does not codify common law torts”). Deliberate
indifference may be established by evidence that the defendant chose a “blatantly inappropriate”
course of treatment or one that unnecessarily prolonged pain. Petties v. Carter, 836 F.3d 722,
730 (7th Cir. 2016).
Dr. Fuentes and Dr. Nwaobasi
Here, there can be no question but that Smith’s hemorrhoidal condition was an
objectively serious condition. The only question is whether these defendants were deliberately
indifferent to it. Drs. Fuentes and Nwaobasi both treated Smith and noted external hemorrhoids
on examination.
Additionally, they were both aware of the prolonged nature of Smith’s
condition and his persistent complaints of pain. Nevertheless, they failed to refer Smith for
surgery or further evaluation. Although these physicians last examined Smith approximately 2
years before his surgery in 2014, whether the treatment course each chose unnecessarily
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prolonged Smith’s pain and was “blatantly inappropriate” is a question of fact for the jury.
Therefore, summary judgment shall be DENIED as to Dr. Fuentes and Dr. Nwaobasi.1
The Wexford Monell Claim
Pursuant to Monell v. Dep't of Soc. Servs. of City of N.Y., local governmental units (such
as municipalities or counties) may be subject to § 1983 liability if the alleged constitutional
deprivation was the result of an unconstitutional policy or custom. 436 U.S. 658, 690, 98 S. Ct.
2018, 2035–36, 56 L. Ed. 2d 611 (1978). The Supreme Court’s holding in Monell has been
expanded so that § 1983 claims may be brought against private corporations and their employees
based on an unconstitutional corporate policy or custom. Shields v. Illinois Dep't of Corr., 746
F.3d 782, 790 (7th Cir. 2014). Moreover, as the Seventh Circuit recently noted, “[t]he critical
question under Monell, … is whether a municipal (or corporate) policy or custom gave rise to the
harm (that is, caused it), or if instead the harm resulted from the acts of the entity's agents.”
Glisson v. Indiana Dep't of Corr., 849 F.3d 372, 379 (7th Cir. 2017).
Here, Smith asserts that Wexford has a policy or custom of emphasizing cost of care over
quality of care, and that this resulted in the delay in receiving the hemorrhoidectomy. However
Smith provides scant evidence that such a policy or custom exists. He merely notes that on one
occasion, Dr. Nwaobasi told him that he would not receive surgery due to “security and
monetary reasons.” But in order to establish a Monell claim against a correction facility’s
healthcare provider, a plaintiff must present sufficient evidence so that a “trier of fact could find
systemic and gross deficiencies in staffing, facilities, equipment, or procedures in a detention
center's medical care system.” Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016) (internal
quote omitted).
1
These two Defendants also argue that they are entitled to qualified immunity, but qualified immunity is
inapplicable to private prison employees in § 1983 actions. Shields v. Illinois Dep't of Corr., 746 F.3d 782, 794 (7th
Cir. 2014).
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Smith has not made such a showing. “A mere scintilla of evidence is not enough to
require the submission of an issue to the jury.” Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct.
231, 233, 74 L. Ed. 720 (1930). Dr. Nwaobasi’s isolated remark provides an insufficient
evidentiary basis upon which to present the Monell claim to a jury. Rather, the evidence in the
record indicates that the decision not to perform the hemorrhoidectomy sooner was the result of
the individual decision makers at Menard, and not a Wexford corporate policy or custom
prioritizing cost over care. Thus, summary judgment shall be GRANTED in favor of Wexford.
IT IS SO ORDERED.
DATED: June 2, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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