Jones v. Pinckneyville Correctional Center et al
Filing
90
ORDER DENYING 65 Motion for Summary Judgment filed by Dr. Vipin Shah and GRANTING 76 Motion for Summary Judgment filed by Defendants Donald Gaetz and Christine Brown. Defendants Gaetz and Brown are DISMISSED with prejudice.The only claim remaining in this lawsuit is Plaintiff's deliberate indifference claim against Defendant Dr. Vipin Shah. By separate order, counsel will be recruited to assist Jones at trial. Signed by Judge Nancy J. Rosenstengel on 3/27/17. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEVERT J. JONES,
)
)
Plaintiff,
)
)
vs.
)
)
DONALD GAETZ, CHRISTINE BROWN, )
and VIPIN SHAH,
)
)
Defendants.
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Case No. 3:15-CV-25-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Levert J. Jones, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his Eighth
Amendment rights were violated while he was incarcerated at Pinckneyville Correctional
Center (“Pinckneyville”). More specifically, Jones alleges that prison and medical personnel
at Pinckneyville denied him surgery for removal of his colostomy bag.
Following a screening of the complaint pursuant to 28 U.S.C. § 1915A, Jones was
allowed to proceed on a deliberate indifference claim against Dr. Vipin Shah, Pinckneyville
Nursing Director Christine Brown, and the former Pinckneyville Warden, Donald Gaetz.
This matter is currently before the Court on the motions for summary judgment filed
by Defendant Dr. Shah (Doc. 65) and Defendants Gaetz and Brown (Doc. 76). The Court has
considered the briefs and all of the evidence submitted by the parties and, for the reasons set
forth below, the Motion for Summary Judgment filed by Defendant Dr. Shah is denied, and
the Motion for Summary Judgment filed by Defendants Gaetz and Brown is granted.
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FACTUAL BACKGROUND
The claims in this matter stem from an incident on June 23, 2013, in which Jones was
shot in the back by a security guard during a “snatch and grab” attempt (Doc. 66-3, p. 11).
The bullet entered Jones’s body in the right lower quadrant (at the pubic bone) and exited
above his left buttock in his lower back (Doc. 66-2, ¶13; Doc. 66-5, p. 1). Jones was taken to
Advocate Good Samaritan Hospital (“Good Samaritan Hospital”) and underwent
emergency surgery, which entailed a small bowel and sigmoid resection, appendectomy,
proctoscopy, and formation of a colostomy (Doc. 66-2, ¶13; see Doc. 66-5, pp. 1-2). Jones
claims he was told by his surgeon following surgery that he should return in three to six
months for a colostomy reversal surgery, because his colostomy was not permanent (Doc.
66-3, pp. 13-14; Doc. 75, p. 13, ¶9). There are no notations, however, regarding any required
follow-up procedure or follow-up instructions in the records from Good Samaritan Hospital
(see generally Doc. 66-5).
Jones was discharged from Good Samaritan Hospital on June 28, 2013, and he was
held at DuPage County Jail until he was placed into IDOC custody at Stateville Correctional
Center (“Stateville”) on December 12, 2013 (Doc. 66-2, ¶¶14-15; Doc. 66-3, pp. 14-15).
Approximately one month later, Jones was transferred from Stateville to Centralia
Correctional Center (“Centralia”) (Doc. 66-3, p. 30; see Doc. 66-7, p. 1). Dr. Venerio Santos,
the Medical Director at Centralia, requested copies of Jones’s medical records from Good
Samaritan Hospital on at least two occasions (see Doc. 66-8; Doc. 66-9). 1 It is not clear when
(or if) the records were ever sent (or received). On August 25, 2014, however, Dr. Santos
Jones was transferred to Stateville for a brief period of time between Dr. Santos’s first request on May 21, 2014,
and his second request on July 30, 2014.
1
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requested a consult for a colostomy reversal, and the procedure was denied on September 2,
2014, by Dr. Garcia “during collegial discussion with Dr. Santos” (see Doc. 66-7, pp. 5-6).
Jones was transferred to Pinckneyville on September 9, 2014 (Doc. 66-2, ¶16;
Doc. 66-3, p. 10; see Doc. 66-7, p. 7). On September 24, 2014, Jones was seen by a nurse and
referred to a physician about having a colostomy reversal (Doc. 66-2, ¶18; see Doc. 66-7, p. 8).
Defendant Dr. Shah saw Jones on September 26, 2014, and noted that the wound
surrounding Jones’s stoma for his colostomy bag was clean (Doc. 66-2, ¶19; see Doc. 66-7, p.
9). The Court is unable to decipher any of Dr. Shah’s other notes from this appointment (see
Doc. 66-7, p. 9), but Jones attests that he told Dr. Shah that his surgeon indicated his
colostomy “could and should” be reversed in three to six months (Doc. 75, p. 14, ¶16).
Jones testified that Defendant Dr. Shah was “[t]he most person I ever talked to”
regarding his request for a colostomy reversal and indicated that Dr. Shah told him that
“unless it’s an emergency, we cannot do it” (Doc. 66-3, p. 18). Defendant Dr. Shah attests that
during the time he has treated Jones, the colostomy site has remained stable and
asymptomatic, and it is functioning with no problems (Doc. 66-2, ¶20). There are no other
medical records before the Court, however, which reflect any further examinations of Jones’s
colostomy by Dr. Shah. Dr. Shah further attests that the records from Jones’s surgeon do not
indicate that the colostomy could be reversed, and most colostomies are permanent (Id. at
¶¶21-25). There is also no medical indication that a reversal of Jones’s colostomy is necessary
at this time and, as such, the procedure would be considered elective (Id.). Jones attests,
however, that his colostomy causes frequent abdominal pain, and it has led to significant
weight gain, high blood pressure, and severe mental anguish, including depression and
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anxiety (Doc. 66-3, pp. 19, 32; Doc. 75, p. 15, ¶19). Jones also indicates that he has been told
that if he has the colostomy too long, it will become permanent (Doc. 66-3, p. 25).
In addition to complaining about his colostomy and seeking a reversal from Dr. Shah,
Jones also asserts that he wrote letters and grievances to Defendant Gaetz, and he spoke with
Gaetz a couple of times, informing him that he needed a colostomy reversal and the medical
personnel at Pinckneyville were not doing their jobs (Doc. 66-3, pp. 21-23). Defendant Gaetz
never responded to Jones’s letters or grievances and never followed up after he lodged his
oral complaints (Id. at pp. 23-24). Jones could not definitively recall if he wrote any letters to
Christine Brown, nor could he remember when he sent the letters; he also did not provide
any testimony about the contents of the supposed letters (Id. at pp. 25-26). But Brown is the
Director of Nursing at Pinckneyville, and Jones regularly informed the nurses that he
needed a colostomy reversal (Id. at pp. 25-26). Jones also attests that Brown would have
received his request slips seeking a colostomy reversal, but ignored his complaints (Doc. 82,
p. 1, ¶1).
LEGAL STANDARDS
Summary Judgment Standard
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
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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).
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 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). A serious medical need includes “an injury that a reasonable
doctor or patient would find important and worthy of comment or treatment; . . . a medical
condition that significantly affects an individual’s daily activities; or . . . 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.”).
Second, a plaintiff must demonstrate that the “prison officials acted with a
sufficiently culpable state of mind,” namely deliberate indifference. Greeno, 414 F.3d at 653.
To do so, a plaintiff must put forth evidence that the prison officials knew that the prisoner’s
medical condition posed a serious risk to the prisoner’s health, and they consciously
disregard that risk. Holloway, 700 F.3d at 1073. “This subjective standard requires more than
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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.”). A plaintiff does not have to prove that his
complaints were “literally ignored,” however, but only that “the defendants’ responses were
so plainly inappropriate as to permit the inference that the defendants intentionally or
recklessly disregarded his needs.” Hayes, 546 F.3d at 524 (quoting Sherrod v. Lingle, 223 F.3d
605, 611 (7th Cir. 2000)).
DISCUSSION
Defendants Shah, Gaetz, and Brown all assert that they are entitled to judgment as a
matter of law. The Court will first address whether Jones has an objectively serious medical
need, and then address each defendant’s subjective state of mind.
1. Serious Medical Need
Dr. Shah contends that summary judgment in his favor is appropriate because Jones
has failed to provide any evidence or testimony that he has a serious medical need. Dr. Shah
urges the Court to accept his (rather inarticulate) argument that Jones’s colostomy does not
qualify as such because it was functioning with no problems, and Jones’s complaints were
limited to stomach pain and abnormal bowel movements. The doctor’s argument misses the
mark.
As set forth above, a serious medical need is one that is “worthy of comment or
treatment” or “significantly affects an individual’s daily activities” Hayes, 546 F.3d at 522-23
(quotation omitted). A colostomy is when one end of an individual’s large intestine is
brought through a surgically-created hole to the outside of the abdomen and stitched down
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in order to allow the individual’s fecal matter to drain into a bag attached to the individual’s
body. 2 Obviously, there are risks inherent in a colostomy, including but not limited to,
irritation, infection, and herniation. Without a doubt, a colostomy requires a doctor’s
attention on occasion and significantly affects an individual’s daily activities. See Williams v.
Erickson, 962 F.Supp.2d 1038, 1042 (N.D.Ill. 2013) (concluding that daily management of a
colostomy bag constitutes a serious medical need). Jones also has asserted that his colostomy
causes frequent abdominal pain, and it has led to significant weight gain, as well as high
blood pressure and severe mental anguish, including depression and anxiety, conditions
which may be deemed serious medical needs that require a doctor’s attention. Accordingly,
the Court finds that Jones’s colostomy constitutes a serious medical need.
2. Deliberate Indifference—Dr. Shah
Dr. Shah contends that summary judgment in his favor is appropriate because there
is no evidence that he was deliberately indifferent in his treatment of Jones’s colostomy and
his handling of his request for a reversal procedure. The doctor claims that his examinations
of Jones’s colostomy site revealed that it is stable and asymptomatic, and therefore, a
reversal would be considered an elective procedure. Consequently, Defendant Dr. Shah
characterizes Jones’s complaints as mere disagreements with his treatment decisions, which
he asserts is not sufficient to state a claim for deliberate indifference.
Prisoners are not entitled to receive “unqualified access to healthcare”; instead, they
are only entitled to “adequate medical care.” Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063,
1073 (7th Cir. 2012) (citations omitted). Furthermore, “[t]here is not one ‘proper’ way to
Colostomy, JOHNS HOPKINS MEDICINE,
http://www.hopkinsmedicine.org/healthlibrary/test_procedures/gastroenterology/colostomy_92,p07727/
(last visited Mar. 26, 2017).
2
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practice medicine in prison, but rather a range of acceptable courses based on prevailing
standards in the field.” Id. (quoting Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008)). It 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). Federal courts will not interfere with a doctor’s decision to pursue a particular
course of treatment unless that decision represents “such a substantial departure from
accepted professional judgment, practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such a judgment.” Holloway, 700 F.3d at
1073 (quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)). A physician’s treatment
decision is based on professional judgment if it is fact-based with respect to the particular
inmate, the severity and stage of his condition, the likelihood and imminence of further
harm, and the efficacy of available treatments. Roe v. Elyea, 631 F.3d 843, 860 (7th Cir. 2011)
(citing Collingon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show
that the professional disregarded the need only if the professional’s subjective response was
so inadequate that it demonstrated an absence of professional judgment, that is, that no
minimally competent professional would have so responded under those circumstances.”)).
When viewing the evidence before the Court in the light most favorable to Jones and
drawing all inferences in his favor, the Court finds there is a question of fact as to whether
Dr. Shah exercised his professional judgment with regard to Jones’s request for colostomy
reversal. Indeed, the record is bereft of any evidence that Dr. Shah actually considered
Jones’s request despite Jones’s protestations that his surgeon indicated his colostomy could
and should be reversed. The only medical record pertaining to Jones’s colostomy indicates
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simply that the wound surrounding his stoma was clean. And while Dr. Shah submitted an
affidavit indicating that he reviewed the records from Jones’s surgeon, he did not indicate
when that review took place. And that review is not memorialized in any fashion in the
medical records. Dr. Shah also did not address whether he reviewed Jones’s medical records
from the IDOC prior to denying his request for a colostomy reversal. Notably, Dr. Santos at
Centralia sought a referral for a colostomy reversal, which suggests the procedure was
possible and could have, or should have, been considered. Finally, there is simply no
evidence before the Court that Jones’s colostomy is permanent. Indeed, Defendant Shah
attests there are various factors that determine whether a colostomy may be reversed,
including how much bowel remains and whether the patient has any co-morbidities that
would be a contraindication for surgery. But Dr. Shah does not indicate how these factors
apply to Jones.
In sum, there is no evidence that Dr. Shah made any effort to investigate the nature of
Jones’s colostomy or whether a colostomy reversal was possible. Consequently, a reasonable
factfinder could conclude that Dr. Shah’s decision not to pursue a colostomy reversal for
Jones was not “fact-based” or based on professional judgment, and therefore, Dr. Shah acted
with deliberate indifference. As such, Defendant Dr. Shah is not entitled to judgment as a
matter of law.
3. Deliberate Indifference—Warden Donald Gaetz
Defendant Gaetz asserts he is entitled to judgment as a matter of law because the
record is not sufficient to establish that he had the requisite personal involvement to hold
him liable under Section 1983. More specifically, Defendant Gaetz explains that he could not
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be personally responsible for the constitutional deprivations alleged in Jones’s complaint
because he was not the Warden at Pinckneyville during Jones’s incarceration there.
Liability under Section 1983 is predicated on a defendant’s personal involvement in
the alleged constitutional violation. Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003)
(citations omitted). To be personally responsible, an official “must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye.” Knight v. Wiseman, 590 F.3d 458,
463 (7th Cir. 2009) (quoting Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006). Notably,
according to the affidavit of Dessie Staley, an Executive Secretary III working directly for the
Warden of Pinckneyville since March 2000, Defendant Gaetz was the Warden at
Pinckneyville from December 2, 2011 to September 30, 2013 (Affidavit of Dessie Staley, Doc.
77-2, ¶¶ 1-3). Jones was not transferred to Pinckneyville, however, until September 9, 2014. If
Defendant Gaetz was not physically at Pinckneyville at the time of Jones’s incarceration,
then he could not possibly have been personally involved in Jones’s alleged constitutional
deprivation.
In his response to Defendant Gaetz’s motion for summary judgment, Jones does not
address this glaring issue with his claim against this defendant (see Docs. 80 and 82). While
ordinarily a district court is not to evaluate the credibility or persuasiveness of evidence at
the summary judgment stage, “a court is not required to stand helpless just because a litigant
tenders something that purports to create a disputed factual issue.” United States v. Kitsos, 770
F.Supp. 1230, 1237 (N.D. Ill. 1991). Indeed, the Supreme Court has held that “[i]f the
evidence is merely colorable or is not significantly probative, summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citation omitted). Other
courts have indicated that “even on summary judgment the district court should not credit
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testimony that is inherently incredible,” Simms v. Reiner, 419 F.Supp. 468, 475 (N.D. Ill. 1976),
or “irrefutably contradicted by documentary evidence,” Stewart v. RCA Corp., 790 F.2d 624,
628 (7th Cir. 1986), such as Jones’s testimony here with regard to Defendant Gaetz. Given the
indisputable evidence that Defendant Gaetz left his position as the Warden at Pinckneyville
almost a year before Jones arrived there, the Court finds that Jones’s testimony describing
the complaints he made to Defendant Gaetz is “inherently incredible.”
Without any other evidence to support his version of events, no reasonable factfinder
could find for Jones. Consequently, Defendant Gaetz is entitled to judgment as a matter of
law on Jones’s claim of deliberate indifference, and he shall be dismissed from this action
with prejudice.
4. Deliberate Indifference—Christine Brown
Defendant Brown also contends that she is entitled to judgment as a matter of law,
because the record fails to support a finding of personal involvement in Jones’s alleged
constitutional deprivations. The Court agrees. While personal involvement can be somewhat
broad, including those who “know about the conduct and facilitate it, approve it, condone it,
or turn a blind eye,” Knight, 590 F.3d at 463 (quotation omitted), there is no evidence in the
record, even when viewing it in the light most favorable to Jones, that Defendant Brown was
notified of, or had some involvement in, denying Jones’s colostomy reversal request.
At his deposition, Jones indicated that he named Defendant Brown in this lawsuit
because he had been “telling the nurses [he needed a colostomy reversal]” upon his arrival
at Pinckneyville and he heard “she was over the staff” (Doc. 66-3, p. 25). But this testimony
does not indicate that Brown caused or participated in the constitutional deprivation.
Instead, this testimony suggests Jones is trying to hold Brown liable simply by virtue of her
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position. But Section 1983 “does not establish a system of vicarious responsibility.” Burks v.
Raemisch, 555 F.3d 592, 593 (7th Cir. 2009).
Jones also testified that he never had any conversations with Defendant Brown about
his condition, but he may have sent her letters (Doc. 66-3, p. 26). He could not remember
when the letters were sent, however, and he did not provide any information on the contents
of the letters. This amounts to nothing more than “a scintilla of evidence,” which is
insufficient to defeat summary judgment, because no reasonable jury could find in his favor
based on this evidence alone. Black Agents & Brokers Agency, Inc. v. Near N. Ins. Brokerage, Inc.,
409 F.3d 833, 836 (7th Cir. 2005) (“The production of only a scintilla of evidence, however, is
insufficient to defeat a summary judgment motion.” (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986))); Szymanski v. Rite-Way Lawn Maint. Co., 231 F.3d 360, 364 (7th Cir.
2000) (“[A] party will be successful in opposing summary judgment only when they present
definite, competent evidence to rebut the motion.”); Dale v. Lappin, 376 F.3d 652, 655–56 (7th
Cir. 2004) (Jones who offered concrete details in a sworn statement submitted enough to
defeat summary judgment, whereas vague assertions are not sufficient to create a genuine
issue of fact).
Finally, in response to Defendant Brown’s motion for summary judgment, Jones
explains that Brown would have received his request slips wherein he sought a colostomy
reversal and, as such, she had knowledge of what was taking place (Doc. 82, p. 1). This
argument is pure speculation, which is insufficient to survive a motion for summary
judgment. Stephens v Erickson, 569 F.3d 779, 786 (7th Cir. 2009); McCoy v. Harrison, 341 F.3d
600, 604 (7th Cir. 2003).
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While the Court is mindful of Jones’s argument, he has failed to provide sufficient
evidence for a reasonable jury to conclude that Defendant Brown had notice of Jones’s
complaints regarding his colostomy and request for a reversal procedure. The medical
records include no documentation concerning Defendant Brown and the Offender Requests
attached to his responses to Defendant’s motion were submitted prior to his incarceration at
Pinckneyville (Docs. 80 and 82). For these reasons, Defendant Brown is entitled to judgment
as a matter of law on Jones’s claim of deliberate indifference, and she shall be dismissed
from this action with prejudice.
CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment filed by
Defendant Dr. Vipin Shah (Doc. 65) is DENIED, and the Motion for Summary Judgment
filed by Defendants Donald Gaetz and Christine Brown (Doc. 76) is GRANTED. Defendants
Donald Gaetz and Christine Brown are DISMISSED with prejudice.
The only claim remaining in this lawsuit is Plaintiff’s deliberate indifference claim
against Defendant Dr. Vipin Shah. By separate order, counsel will be recruited to assist Jones
at trial.
IT IS SO ORDERED.
DATED: March 27, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
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