Thomas v. Shah et al

Filing 95

ORDER DENYTING 82 Motion for Summary Judgment filed by Plaintiff; GRANTING 84 Motion for Summary Judgment filed by Defendant. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant Mark Hodge and against Plaintiff Farris Thomas and to close this case. Signed by Judge Nancy J. Rosenstengel on 9/18/2017. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FARRIS THOMAS,
Plaintiff,
vs.
MARK HODGE,
Defendant.

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Case No. 3:15-cv-34-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court are cross Motions for Summary Judgment filed by
Plaintiff Farris Thomas (Doc. 82) and Defendant Mark Hodge (Warden) (Doc. 84). For
the reasons set forth below, Thomas’s motion is denied, and Warden Hodge’s motion is
granted.
INTRODUCTION
Thomas filed this action alleging various medical providers at Menard
Correctional Center (“Menard”) exhibited deliberate indifference to his serious medical
condition, an inguinal hernia. In September 2016, this Court found that each of those
medical providers was entitled to summary judgment because no reasonable jury would
find any of them acted with a sufficiently culpable state of mind. (Doc. 80).
Thomas also alleged that Mark Hodge, who was at the relevant time the Warden
of Menard, was deliberately indifferent to his medical needs. Warden Hodge did not
seek summary judgment at the same time as the other defendants. Because the other

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defendants were granted judgment on the same medical condition that forms the basis
for Thomas’s claim against Warden Hodge, however, the parties were directed to inform
the Court why judgment should not be entered in his favor also. See FED. R. CIV. P.
56(f)(1) (permitting judgment in favor of a nonmoving defendant upon notice and an
opportunity to respond). Thomas’s claim against Warden Hodge is now before the Court
for consideration.
BACKGROUND
On February 5, 2013, Thomas’s hernia was determined to be non-reducible, and
he was approved for a surgical evaluation by Dr. Pontius. (Doc. 63-5, p. 5; Doc. 63-2,
p. 12). Dr. Pontius recommended surgery on February 14, 2013; however, surgery was
denied by Dr. Garcia later that month. (Doc. 63-2, p. 14).
On February 28, 2013, Thomas submitted an emergency grievance based on the
denial of surgery. (Doc. 82, p. 7). Warden Hodge found the grievance was not an
emergency and directed Thomas to file a “grievance in the normal manner.” (Doc. 82,
p. 7). As instructed, on March 11, 2013, Thomas submitted a non-emergency grievance
setting forth the same complaint. (Doc. 82, pp. 8-9). After finding out from the health
care unit that a follow-up ultrasound had shown the hernia was reducible and surgery
was not warranted, the grievance officer recommended Thomas’s grievance be denied.
(Doc. 82, p. 10). Warden Hodge concurred with the recommendation on July 5, 2013.
(Doc. 82, p. 10).
Thomas submitted another emergency grievance six weeks later, this time
elaborating on the pain he was suffering. (Doc. 82, p. 11). Again, emergency review was
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denied by Warden Hodge. (Doc. 82, p. 11). While Thomas subsequently submitted the
grievance to his counselor (Doc. 82, p. 11), he has not provided any additional
documentation or evidence that he also submitted the document to his grievance officer.
A few months later, on September 7, 2013, Thomas spoke with Warden Hodge
while he was on an inspection tour of the yard. (Doc. 82, p. 4). Thomas “explained that
he was denied surgery and was going through severe pain with his hernia and
left-testical [sic].” (Doc. 82, p. 4). In response, Thomas alleges Warden Hodge stated:
“They are not gonna pay for a surgery if it’s not life-threatening.” (Doc. 82, p. 4). The
Warden, who does not recall speaking to Thomas, denies that he would have made such
a statement to an inmate. (Doc. 85-2, p. 1).
An “unscheduled inspection report” authored by Warden Hodge on the same
day as the alleged conversation between Warden Hodge and Thomas states: “Eight
house was on the yard and I spoke to several offenders regarding multiple issues. These
will be followed up on Monday with my HCUA and CSS.” (Doc. 82, p. 12). Thomas had
no further interaction with the Warden with respect to his hernia.
Repair surgery was subsequently approved in the summer of 2014 (Doc. 63-2,
p. 37), and Thomas underwent the surgery on September 5, 2014 (Doc. 63-2, p. 44).
DISCUSSION
Generally, a prison official cannot be found liable under the Eighth Amendment
unless the official knows of and disregards an excessive risk to an inmate’s health or
safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and must also draw the inference. Farmer v.
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Brennan, 511 U.S. 825, 837 (1994). Thus, without more, the Warden’s denial of Thomas’s
grievance alone does not establish liability under 42 U.S.C. § 1983.
Deliberate indifference may be found, however, where a government official
knows about unconstitutional conduct and facilitates, approves, condones, or “turn[s] a
blind eye” to it. Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (citing Vance v. Peters, 97
F.3d 987, 992–93 (7th Cir. 1996). An inmate’s correspondence to a prison administrator
may establish a basis for finding deliberate indifference where that correspondence
provides sufficient knowledge of a constitutional deprivation and the official fails to
investigate, and if necessary, rectify the unconstitutional condition. Vance, 97 F.3d at 993.
In other words, prisoner requests for relief that fall on “deaf ears” may evidence
deliberate indifference. Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997). Deliberate
indifference can also be shown where the risk from a course of treatment—or a lack of
treatment—is obvious enough that a factfinder could infer that defendant knew about
the risk, yet disregarded it. Estate of Simpson v. Gorbett, 863 F.3d 740, 747 (7th Cir. 2017)
(citing Petties v. Carter, 863 F.3d 722, 729 (7th Cir. 2016)).
Here, the Warden did not ignore or disregard Thomas’s complaints. While the
Warden found his initial grievance did not present an emergency (Doc. 82, p. 7), when
Thomas submitted a regular grievance, his claim was investigated (Doc. 82, p. 10).1
Further, that investigation involved the grievance officer contacting the healthcare unit
1

The second emergency grievance was also denied after a finding by Warden Hodge that the grievance
did not constitute an emergency. (Doc. 82, p. 11). While the record reflects Thomas resubmitted that
grievance to his counselor through the non-emergency grievance process, there is no evidence he ever
submitted it to the grievance counselor. As a result, nothing in the record supports a finding that the
second grievance ever came before Warden Hodge, and thus it cannot be the basis for a finding of
deliberate indifference.

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and learning that a subsequent ultrasound had found the hernia was retractable and
therefore Thomas was not a surgical candidate. (Doc. 82, p. 10). Wardens, and other
non-medical staff, are “entitled to defer to the judgment of jail health professionals” as
long as they do not ignore complaints. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).
Indeed, “the law encourages non-medical security and administrative personnel at jails
and prisons to defer to the professional medical judgments of the physicians and nurses
treating the prisoners in their care without fear of liability for doing so.” Id. Thus, the
record indicates Warden Hodge did not turn a blind eye to Thomas’s complaints, but
rather investigated them. The fact that Thomas later required surgery is not sufficient for
a factfinder to infer the original medical assessment was wrong, or that Warden Hodge
was somehow deliberately indifferent because he should have somehow foreseen
Thomas would eventually need surgery.
With respect to the Warden’s remark, that surgery would only be provided in
“life threatening situations” (Doc. 82, p. 4), it is just that, a remark. Mlaska v. Schicker,
2015 WL 6098733, *8 (S.D. Ill. 2015) (comments by non-medical staff, that they cannot
make medical staff provide care or that certain testing would not be paid for by a
medical provider, fail to state a deliberate indifference claim). Further, the comment is
tempered by the Warden’s report indicating that concerns brought to his attention while
on the yard, presumably including Thomas’s concerns, were forwarded to the
appropriate unit. (Doc. 82, p. 12). Thomas has presented no evidence the Warden failed
to follow through on his plan or that, by stating that only life threatening conditions
would warrant surgery, he was ignoring Thomas’s complaints.
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The Warden reviewed Thomas’s complaints and relied on the prison medical
expertise in making his determination with regard to Thomas’s grievance. Thus, the
evidence does not support a finding that the Warden was deliberately indifferent to
Thomas’s medical needs.2
CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment filed by
Thomas (Doc. 82) is DENIED, and the Motion for Summary Judgment filed by Warden
Hodge (Doc. 84) is GRANTED. The Clerk of Court is DIRECTED to enter judgment in
favor of Defendant Mark Hodge and against Thomas and to close this case.
IT IS SO ORDERED.
DATED: September 18, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

2

In light of this conclusion, it is unnecessary to discuss Warden Hodge’s claim of qualified immunity.

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