Munson v. Shearing et al
Filing
122
ORDER: For the reasons set forth in the attached Memorandum and Order, the Court GRANTS IN PART AND DENIES IN PART the medical Defendants' motion for summary judgment (Docs. 92 and 93 ). The Court GRANTS summary judgment as to Dr. Trost for deliberate indifference related to food poisoning (Count 4) but DENIES summary judgment as to Shearing, Trost, Ritz, and Wexford as to Counts 1, 2, and 3. The Court also GRANTS the summary judgment motion (Doc. 100 ) filed by Defendants Harrington and Nelson. Signed by Chief Judge Michael J. Reagan on 2/21/17. (rah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES MUNSON,
Inmate No. N95249
Plaintiff,
vs.
ROBERT SHEARING,
MICHAEL NELSON,
JOHN TROST,
RICHARD HARRINGTON,
WEXFORD HEALTH SOURCES, INC.,
and STEPHEN RITZ,
)
)
)
)
)
)
)
)
)
)
Case No. 15-cv-0062-MJR-SCW
Defendants.
MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.
INTRODUCTION
Pursuant to 42 U.S.C. § 1983, pro se Plaintiff, now represented by counsel, filed his
complaint alleging claims of retaliation and deliberate indifference to medical needs.
Specifically, Plaintiff’s complaint alleges that Defendant Shearing retaliated against
Plaintiff for filing a 2011 lawsuit by denying his requests for medical care in 2013-14
(Count 1), that all Defendants deprived Plaintiff of a nutritionally adequate diet (Count
2), that all of the Defendants were deliberately indifferent to Plaintiff’s serious medical
needs by refusing to diagnose or treat Plaintiff for a soy allergy (Count 3), and that
Defendant Trost was deliberately indifferent in failing to address Plaintiff’s concerns
regarding possible food poisoning for nearly fifty days (Count 4).1
This matter is currently before the Court on two motions for summary judgment.
Defendants Shearing, Ritz, Trost, and Wexford Health Sources, Inc. (hereinafter
“Wexford”) first filed a motion for summary judgment (Docs. 92 and 93). Plaintiff has
filed a response to that motion (Doc. 107) and Defendants have filed a reply (Doc. 112).
Defendants Harrington and Nelson have also filed a motion for summary judgment
(Doc. 100) which Plaintiff has filed a response to (Doc. 110). The two Defendants have
also filed a reply to that motion (Doc. 116). Based on the following, the Court GRANTS
IN PART AND DENIES IN PART the medical Defendants’ motion for summary
judgment (Docs. 92 and 93) and GRANTS the motion for summary judgment (Doc. 100)
filed by Harrington and Nelson.
II.
FACTUAL BACKGROUND
Plaintiff filed his pro se complaint on May 9, 2014 alleging claims of retaliation and
deliberate indifference related to his concerns regarding soy in his diet (Doc. 1).
Specifically, Plaintiff believes that he is allergic to soy and the medical Defendants have
refused to diagnose or treat his condition in part due to Wexford’s policies of keeping
costs low (Doc. 6, p. 2). Plaintiff also alleges that Defendant Harrington, warden at
1
Count 5 of this action was dismissed by this Court’s threshold screening order (See Doc. 6 at p. 11).
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Menard Correctional Center, knew about Plaintiff’s complaints regarding his inadequate
healthcare but did nothing to rectify the situation (Id. at p. 4-5). Plaintiff further alleges
that Medical Technician Nelson overheard Defendant Shearing tell Plaintiff he was not
going to provide him with a soy-free diet because Plaintiff filed a lawsuit, but Nelson did
nothing to rectify the situation (Id. at p. 3).
Plaintiff claims that he suffers from a possible soy allergy.
He has been
complaining about abdominal issues since at least May 8, 2007 when he received an
ultrasound for abdominal issues and was diagnosed with gall stones and possible peptic
ulcer disease (Doc. 93-2, p. 1). Subsequently, Plaintiff had his gallbladder removed
(Doc. 93-3, p. 4). Plaintiff also had a sigmoidoscopy in 2010 due to gastrointestinal
issues (Doc. 93-2, p. 2).
Plaintiff previously asked for a change in diet in 2011 and Dr. Fahim informed
Plaintiff that IDOC did not offer an alternative diet for soy (Doc. 93-2, p. 3). Menard,
however, does have a soy/T.V.P. free diet option for inmates and approval for said diet
has to come from an inmate’s treating physician (Doc. 107-16, p. 3; 107-17, p. 6). Since at
least August 2006 IDOC does not recognize a no-soy diet, but if there is a documented
allergy, a memo with the offending foods is to be provided to dietary (Doc. 107-18, p. 4).
Such meals are only provided to an inmate when deemed medically necessary by a
treating physician (Doc. 107-19).
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Plaintiff saw Dr. Shearing on May 31, 2013 for abdominal complaints (Doc. 93-2,
p. 26). Michael Nelson was present in the room on that date (Doc. 100-2, p. 38-39).
Nelson took his temperature and blood pressure (Id. at p. 39).
Plaintiff informed
Shearing of stomach pains and told him he was on Konsyl, a fiber supplement (Id.).
Plaintiff told him he had constant diarrhea and was going to the restroom 3-4 times a
day (Id. at p. 39-40). Plaintiff requested both a soy-free diet and an allergy test, which
Shearing denied (Id. at p. 40). Plaintiff testified that Shearing told Plaintiff he would not
give him anything because Plaintiff filed his complaint and should get the Court to make
that order (Id. at p. 40-41). Nelson was present in the room during the conversation but
did not participate in the conversation; he only wrote down notes (Id. at p. 41). Plaintiff
testified that even though Nelson was present and knew the seriousness of Plaintiff’s
needs, Nelson did nothing nor does he believe that Nelson reported Shearing’s
comments to a higher authority (Id. at p. 42). Nelson testified that he did not observe
any activity that would require reporting on that date (Doc. 100-10, p. 2). Shearing
continued Plaintiff’s prescription for Fibercon as Plaintiff indicated that it was helping
(Doc. 93-2, p. 26).
On June 6, 2013 Plaintiff met with telemedicine doctor Dr. Jeremy Young for
Plaintiff’s HIV (Doc. 107-1, p. 1; 107-2). Plaintiff complained about chronic diarrhea and
abdominal pain which he believed was caused by soy in his diet (Doc. 107-1, p. 1).
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Plaintiff had no side-effects to his HIV medication but complained that the soy in his diet
caused him diarrhea 3-4 times a day but that when he ate food solely from the
commissary the symptoms went away (Doc. 107-2). Young deferred any change in his
diet to IDOC staff but noted that if Plaintiff’s complaints were true that his stomach
issues appeared to be related to his diet (Id.). He offered Imodium which Plaintiff
declined because it had not helped him in the past (Id.).
On June 24, 2013 Plaintiff met with Nurse Moldenhauer indicting that he was
experiencing cramping and diarrhea and requested a soy allergy test (Doc. 93-2, p. 31).
Moldenhauer told him she could only refer him to Dr. Shearing, but an x-ray was
ordered for the next day (Id.). The x-ray showed a moderate amount of stool in the
colon associated with constipation (Doc. 93-2, p. 32). Plaintiff also had a blood test on
July 15, 2013 for H.pylori which came back negative (Doc. 107-4).
Plaintiff again saw Young on September 12, 2013 and complained about constant
abdominal pain and diarrhea 3-8 times per day (Doc. 107-6). Plaintiff noted that he was
suffering from weight loss and sought a dietary supplement (Id.). Young noted that if
Plaintiff’s statements were true that his condition seemed to be related to his diet (Id.).
He prescribed Ensure three times per day but noted that he would not normally manage
an inmate’s diet and that medical staff could contact him if the request was unreasonable
(Id.). Young noted that a trial of Ensure seemed reasonable given Plaintiff’s complaints
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of diarrhea and the fact that Plaintiff lost seven pounds (Id.). Plaintiff testified that he
was never given a dietary supplement (Doc. 107-1, p. 2).
Plaintiff was seen by another telemedicine doctor, Dr. Mahesh Patel, for his HIV
on December 9, 2013 (Doc. 107-7; 107-8). Plaintiff noted his abdominal issues and
diarrhea (Doc. 107-7). He also indicated that he had weight loss (Id.). Patel noted that
his diarrhea and weight loss were concerning and noted the weight loss was most likely
due to Plaintiff avoiding all foods with soy (Id.). Patel indicated that a soy allergy test
should be considered but ultimately deferred to medical staff at the prison as Plaintiff’s
stomach issues were not related to his HIV (Id.).
Plaintiff saw Dr. Trost on April 1, 2014 for a cough and diarrhea (Doc. 93-2, p. 15).
Trost ordered blood work and a stool sample (Id.). Those tests came back negative for
C. diff infection (Id. at p. 16). Plaintiff was seen again by Trost on September 5, 2014
for stomach cramps and diarrhea (Doc. 93-2, p. 17).
Trost prescribed Bentyl and
Fibercon (Id.).
Plaintiff was seen again by Dr. Patel on September 26, 2014 (Doc. 107-11). Patel
noted that Plaintiff had lost fifteen pounds since July (Id.).
Patel requested twice
monthly weight checks and deferred a request for a soy allergy test to Plaintiff’s medical
providers at the prison (Id.).
Dr. Ritz denied a request for soy allergy test after a collegial review between him
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and Dr. Trost because Plaintiff’s commissary list included items that contained soy (Doc.
107-12). Ritz ordered that observation be continued and noted that Trost may test for
celiac disease if symptoms continued (Id.). Plaintiff received a blood test for celiac
disease which came back negative (Doc. 107-13).
Another test for H. pylori on
November 3, 2014 also came back negative (Doc. 107-14).
The medical defendants also admitted facts in their answer to the complaint (Doc.
30). Specifically, the medical defendants admitted the following allegations:
Wexford strict policies and practice resulted in violating Plaintiff’s constitutional
rights and allowed Plaintiff to be neglected and out right denied medical
treatment (Doc. 1-2, p. 10 ¶ 83; Doc. 30, p. 11 ¶83). ;
Wexford is paid an undisclosed amount of money to provide medical service to
the prisons. The less treatment and medications Wexford has to provide the
more money the corporation makes. Therefore, Wexford has an incentive to
neglect or out right deny medical treatment by extension through its medical staff
and policies and practices (Doc. 1-2, p. 10 ¶ 84; Doc. 30, p. 11 ¶84);
In which Wexford policies and practice do not allow the staff to provide proper
and necessary treatment to inmates when it’s needed (Doc. 1-2, p. 10 ¶ 85; Doc. 30,
p. 11 ¶ 85);
Wexford’s policies and practices enforce their staff to be deliberately indifferent to
Plaintiff, violating his constitutional rights by refusing him treatment of pain
medication, allergy test, and soy free diet. In which soy is the underlying cause
of Plaintiff’s diarrhea and stomach pains (Doc. 1-2, p. 10 ¶86; Doc. 30, p. 11 ¶ 86).
To each of the above allegations, the medical defendants responded “[t]hese defendants
admit paragraph[s] [83-86]” (Doc. 30 at p. 11).
Defendant Michael Nelson is a Correctional Medical Technician at Menard
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Correctional Center (Doc. 100-10, p. 1). As a medical technician, Nelson is paired with a
doctor and assists the doctor when he sees patients, including taking vitals, providing
the medical chart, and providing the doctor with any supplies during the visit (Id.).
Nelson did not have the authority to make decisions regarding treatment nor could he
overrule a doctor’s medical decision (Id.). Plaintiff testified that he saw Nelson more
than ten times when Plaintiff was seen by a physician (Doc. 100-2, p. 35-36). Nelson has
taken blood from Plaintiff and was present when Plaintiff saw the doctor (Id.). He also
sometimes saw Plaintiff before seeing the doctor and Nelson would refer him to the
doctor, although Plaintiff acknowledged that the majority of the time, Nelson is in with
the doctor, taking vitals and temperatures and writing down the doctor’s notes (Id. at p.
37-38).
Defendant Richard Harrington was the Chief Administrative Officer at Menard
from February 8, 2013 to April 16, 2014 (Doc. 100-3, p. 1).
He is not a medical
professional nor does he provide treatment to inmates (Id.). Harrington testified that he
sometimes received grievances about inmate medical care, or an inmate not being seen
by medical, and he would delegate those grievances to medical staff as he could not
change an inmate’s treatment (Id. at p. 2). If an inmate complained that he was not
being seen by medical staff, then he would contact nursing staff to determine why an
inmate was not seen (Id.). He might also direct nursing staff to treat the grievance as a
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sick call request so that an inmate would be seen (Id.). Harrington testified that he did
not receive any emergency grievances from Plaintiff during the relevant time period
(Doc. 100-3, p. 3).
Harrington testified that he received a letter from Roosevelt Munson on July 26,
2013 complaining about Plaintiff’s medical care (Doc. 100-4). The letter indicated that
Roosevelt was forwarding a letter from Plaintiff to the warden and that Plaintiff was
being denied medical care (Id.; 110-3). In response, Harrington noted that Plaintiff had
not followed proper procedures regarding filing a grievance and that his grievance was
returned to him (Doc. 100-5).
However, Harrington noted that Plaintiff’s medical
concerns were documented by the Health Care Unit, who was addressing Plaintiff’s
medical issues (Id.). Harrington testified that he reviewed Plaintiff’s medical records to
determine whether Plaintiff was receiving treatment and he concluded that Plaintiff was
receiving treatment from the Health Care Unit (Doc. 100-3, p. 3; 100-6).
Plaintiff
testified that Harrington took no action to order the medical staff to provide an allergy
test (Doc. 100-2, p. 47-48).
III.
LEGAL STANDARDS
A. Summary Judgment
Summary Judgment is proper only “if the admissible evidence considered as a
whole shows there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law.” Dynegy Mktg. & Trade v. Multi Corp., 648
F.3d 506, 517 (7th Cir. 2011) (internal quotation marks omitted) (citing FED. R. CIV. P.
56(a)). See also Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607
(7th Cir. 2005).
The party seeking summary judgment bears the initial burden of
demonstrating—based on the pleadings, affidavits, and/or information obtained via
discovery—the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
After a properly supported motion for summary judgment is made, the adverse
party “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P.
56(e)(2)). A fact is material if it is outcome determinative under applicable law. Id. at
48; Ballance v. City of Springfield, Ill. Police Dep’t, 424 F.3d 614, 616 (7th Cir. 2005);
Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. “A mere scintilla of evidence in
support of the nonmoving party’s position is not sufficient; there must be evidence on
which the jury could reasonably find for the non-moving party.”
Harris N.A. v.
Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
On summary judgment, the Court considers the facts in the light most favorable
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to the non-movant. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). The Court
adopts reasonable inferences and resolves doubts in the nonmovant’s favor. Id.; Nat’l
Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).
Even
if the facts are not in dispute, summary judgment is inappropriate when the information
before the court reveals that “alternate inferences can be drawn from the available
evidence.”
Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004), abrogated on other
grounds by Spiegla II, 481 F.3d at 966 (7th Cir. 2007). See also Anderer v. Jones, 385
F.3d 1043, 1064 (7th Cir. 2004). However, “[a] party will be successful in opposing
summary judgment only when they present definite, competent evidence to rebut the
motion.” E.E.O.C. v. Sears Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). (internal
citation omitted).
B. Deliberate Indifference
Prison officials violate the Eighth Amendment’s proscription against “cruel and
unusual punishments” if they display deliberate indifference to an inmate’s serious
medical needs. Greeno v. Daley, 414 F.3d 645, 652–53 (7th Cir. 2005) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted)).
Accord
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009) (“Deliberate
indifference to serious medical needs of a prisoner constitutes the unnecessary and
wanton infliction of pain forbidden by the Constitution.”). A prisoner is entitled to
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reasonable measures to meet a substantial risk of serious harm — not to demand specific
care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
To prevail, a prisoner who brings an Eighth Amendment challenge of
constitutionally-deficient medical care must satisfy a two-part test. Arnett v. Webster,
658 F.3d 742, 750 (7th Cir. 2011). The first prong that must be satisfied is whether the
prisoner has shown he has an objectively serious medical need. Arnett, 658 F.3d at 750.
Accord Greeno, 414 F.3d at 653. A medical condition need not be life-threatening to be
serious; rather, it could be a condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828 (1994) (violating
the Eighth Amendment requires “deliberate indifference to a substantial risk of
serious harm.”) (internal quotation marks omitted) (emphasis added). Only if the
objective prong is satisfied is it necessary to analyze the second, subjective prong, which
focuses on whether a defendant’s state of mind was sufficiently culpable. Greeno, 414
F.3d at 652–53.
As to the subjective component, an official “must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir.
2002). If an official reasonably responds to a risk, even if harm was not averted,
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deliberate indifference does not exist. Id. A claim for medical negligence does not
amount to deliberate indifference. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.
1997). Additionally, a reasonable response differs depending on the capacity of the
alleged wrongdoer. A non-medical prison employee—one who for example handles
grievances, or supervises prison operations—will generally not be liable for deliberate
indifference if he or she believes the prisoner is receiving adequate medical care, or takes
steps to verify that the inmate is receiving care.
See Greeno, 414 F.3d at 655-57.
However, individual liability may arise on behalf of a non-medical defendant if the
defendant is made aware of a specific constitutional violation via correspondence from
the inmate and the individual declines to take any action to address the situation. See
Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). Simply put, a prison official may
not escape liability by turning a blind eye to serious harms. Id. at 781 (“deliberate
indifference may be found where an official knows about unconstitutional conduct
and facilitates, approves, condones, or ‘turns a blind eye’ to it”).
C. Retaliation
An official who retaliates against a prisoner because that prisoner filed a
grievance violates the prisoner’s First Amendment rights. DeWalt v. Carter, 224 F.3d
607, 618 (7th Cir. 2000). Establishing a claim of retaliation requires a prisoner to show
the following: (1) that he engaged in a protected activity, (2) he suffered a deprivation
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likely to prevent future protected activities, and (3) there was a causal connection
between the two. See also Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges
v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). A defendant can still prevail, however, if he
shows that the offending action would have happened even if there had been no
retaliatory motive, i.e. “the harm would have occurred anyway.” Mays v. Springborn,
719 F.3d 631, 634-35 (7th Cir. 2013); Greene v. Doruff, 660 F.3d 975, 977-80 (7th Cir. 2011).
At summary judgment, “mere speculation” by the plaintiff is insufficient to carry his
burden. Rockwell Automation, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 544 F.3d
752, 757 (7th Cir. 2008); Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir. 2013).
IV.
ANALYSIS
As an initial matter, the Court will address the weight given to admissions made
by the Wexford Defendants in their answer to the complaint (Doc. 30). The Court will
then conduct an analysis of the various claims as to each defendant.
A. Judicial Admissions
In Plaintiff’s response to summary judgment (Doc. 107), he argues that the
medical defendants, including Shearing, Ritz, Trost, and Wexford admitted claims in
their answer (Doc. 30) and that the admissions should be considered as judicial
admissions for summary judgment. In the fact section of the memorandum, the Court
specifically delineated the admissions the medical defendants made in their answer to
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the complaint (See supra p. 7, citing Doc. 30, p. 11 ¶ 83-86; Doc. 1-2, p. 10 ¶ 83-86). Upon
receiving Plaintiff’s response to their motion for summary judgment, the medical
defendants immediately moved to amend or correct their answer to the complaint,
arguing that the admissions “were clearly made in error” (Doc. 111).
Plaintiff
responded to the request to amend or correct arguing that the request to amend is
untimely and that Plaintiff relied on those admissions in addressing the summary
judgment arguments (Doc. 117).
“When a party in a lawsuit makes an admission in its pleadings or in its answer to
a request for admissions, it makes a judicial admission that can determine the outcome
for that lawsuit.” Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th Cir. 1996)
(citing Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir. 1996)). Further, a judicial
admission trumps evidence presented by the party admitting the allegation. Murrey, 73
F.3d at 1455. At this time, the request to amend (Doc. 111) is still pending and the Court
has not yet ruled on that motion.
Plaintiff’s brief indicates a reliance on those
admissions in responding to the summary judgment motion (Doc. 107). Thus, at this
time, the Court will treat Defendants’ answers to ¶ 83-86 as a “binding judicial
admission.” Crest Hill Land Development, LLC v. City of Joliet, 396 F.3d 801, 805 (7th
Cir. 2005) (Defendant’s answer to allegation in complaint constituted a binding
judicial admission). See also Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 669
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(7th Cir. 2007) (judicial admission binding unless withdrawn, allowing the
withdrawal of an admission where parties did not appear to act in reliance on the
admission), abrogated on other grounds by Raybourne v. Cigna Life Ins. Co. of New
York, 700 F.3d 1076 (7th Cir. 2012) (regarding the factors in analyzing an award of
attorney’s fees). Though a Court can exercise discretion by allowing an answer to be
amended or an admission to be withdrawn, this Court finds that it would not be
appropriate to exercise such discretion in this case because allowing an amendment 22
months after an admission was made, and 2 months after the close of discovery could
unfairly prejudice the Plaintiff who had no ability to develop facts surrounding the
admitted facts. Accordingly, the Court will construe the admissions in support of
Plaintiff.
B. Deliberate Indifference Claims for Soy Diet – Medical Defendants
Turning to Plaintiff’s claims that the medical defendants were deliberately
indifferent—by providing him with an inadequate diet and by denying his request for a
soy allergy test—the Court finds that, in light of Defendants’ judicial admissions, there is
enough evidence to present Plaintiff’s claims to the jury. Constant gastrointestinal
distress and drastic weight loss are sufficient to constitute objectively serious medical
conditions.
As to the subjective component of deliberate indifference, the medical
defendants admitted that Wexford had policies and practices that resulted in violations
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of Plaintiff’s rights, including that Plaintiff was neglected or denied medical treatment.
Defendants also admitted that Wexford’s policies do not allow staff to provide proper
and necessary treatment and that the staff were deliberately indifferent to Plaintiff’s
needs by refusing him pain medication, an allergy test, and a soy-free diet. Defendants
further admitted that soy was the cause of Plaintiff’s diarrhea and stomach pain. Given
these admissions, there is clearly enough evidence to present Plaintiff’s deliberate
indifference claims to the jury.
The Court further notes that even without the judicial admissions, there are issues
of fact which prevent the Court from awarding summary judgment as to the two
deliberate indifference claims.
While Defendants argue that they do not have the
ability to prescribe soy-free diets and that IDOC does not offer soy-free diets, Plaintiff
has offered evidence that IDOC did offer alternative diets for soy allergies but those
diets, or a list of offending foods to avoid, had to be approved by a medical professional
(Doc. 107-16, p. 3, 107-17, p. 6, 107-18, p. 4). Further, medical notes from Dr. Patel and
Dr. Young both noted that Plaintiff’s complaints of stomach issues appeared to be
related to his diet (Doc. 107-2; 107-6; 107-7; 107-11). Young also prescribed Ensure for
Plaintiff due to the fact that Plaintiff lost seven pounds, but Plaintiff testified that he
never received the dietary supplement from the prison medical staff.
Patel even
indicated that he would consider a soy allergy test, although he ultimately deferred to
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prison medical staff (Doc. 107-7). Patel later indicated that Plaintiff had lost fifteen
pounds in two months, which he attributed to Plaintiff trying to stay away from soy
products (Doc. 107-11). But Ritz and Trost ultimately denied the request for a soy
allergy test less than a month later (Doc. 107-12). There is also evidence in the record
that Plaintiff was tested for a variety of other ailments which could have caused his
stomach issues, and all of those reports came back negative, yet Defendants still refused
Plaintiff an allergy test or an alternative diet. While Defendants point to a more recent
medical note from Dr. Young indicating that he is not an expert in soy allergies but
noting that it is unlikely that soy caused Plaintiff’s diarrhea (Doc. 93-7, from August
2016), this contradicts earlier notes from him indicating that if Plaintiff’s complaints
were true, the culprit appeared to be Plaintiff’s diet (Doc. 107-2; 107-6). Thus, the Court
finds that there are too many disputes of material fact to award summary judgment to
Defendants Shearing, Trost, Ritz, and Wexford at this time.
C. Retaliation Claim Against Shearing
The Court also finds that there are issues of fact which prevent the Court from
awarding summary judgment as to Defendant Shearing regarding Plaintiff’s retaliation
claim. Plaintiff testified that he saw Defendant Shearing on May 31, 2013 and that
Shearing refused Plaintiff an allergy test because he had filed a lawsuit. Plaintiff had,
indeed, filed a lawsuit in 2011 related to his soy diet which was pending in this district at
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the time that Plaintiff saw Shearing.
See Munson v. Gaetz, Case No.
11-cv-159-NJR-DGW (filed 3/2/2011, closed 9/15/2016).
Defendant Shearing argues
that there is no evidence of retaliation because he continued Plaintiff’s prescription of
Fibercon. But Plaintiff testified that he requested a soy-free diet and/or an allergy test
and Shearing denied those requests, indicating that because Plaintiff had filed a lawsuit
on the topic and would have to get the Court to order those things (Doc. 100-2, p. 39-40).
Given the statements Plaintiff testified that Shearing made, and the fact that Plaintiff had
a lawsuit pending regarding his soy diet at the time he saw Shearing, there is clearly
evidence in the record from which a jury could find that Shearing was retaliating against
Plaintiff. The evidentiary disputes preclude the Court awarding summary judgment on
this claim. Thus, Defendant Shearing’s motion for summary judgment on this claim is
also DENIED.
D. Deliberate Indifference Against Trost Regarding Food Poisoning
By contrast, there is no evidence in the record that Defendant Trost was
deliberately indifferent regarding Plaintiff’s alleged food poisoning. Even accepting
the judicial admissions regarding Plaintiff’s healthcare, made by the medical defendants
in their answer, there is no evidence in the record that Plaintiff complained about food
poisoning or that Trost was somehow deliberately indifferent to those complaints.
Plaintiff’s complaint alleged that he suffered from food poisoning after eating hot dogs
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in January 2014, specifically on January 13, 15, and 19 (Doc. 6, p. 4). He alleged that he
reported symptoms to Menard officials but did not meet with Trost until March 4, 2014
and by that time he was no longer suffering from the symptoms (Id.).
But there is no evidence that Trost refused to see Plaintiff for food poisoning.
The medical records do not reflect that Plaintiff complained of food poisoning. Plaintiff
was seen by a medical technician on January 13, 2014, asking to be seen for diarrhea,
stomach pain, hemorrhoids, intolerance to soy, and a request for a soy allergy test and a
different laxative (Doc. 93-2, p. 8). But there is no indication that he complained about
food poisoning. Plaintiff was seen again by medical technicians on January 20 and 27,
but again there is no indication that Plaintiff complained of food poisoning. Nor has
Plaintiff offered any evidence that Trost was aware of Plaintiff’s complaints and refused
to see him. Accordingly, the Court finds that Trost is entitled to summary judgment on
Plaintiff’s Count 4 regarding Plaintiff’s food poisoning.
E. Deliberate Indifference Claims –Harrington
The Court also finds no evidence of deliberate indifference either to Plaintiff’s
inadequate nutrition or Plaintiff’s medical needs regarding a soy-free diet by Defendant
Harrington. Plaintiff argues that Defendant Harrington failed to address Plaintiff’s
inadequate medical care after receiving grievances and other correspondence from
Plaintiff and his family.
However, the record shows that Harrington looked into
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Plaintiff’s concerns.
He responded to Plaintiff’s relative’s letter indicating that
Plaintiff’s medical concerns were documented and were being treated by the healthcare
unit. The medical records indicate that Plaintiff was seen on numerous occasions by
medical staff and he was provided with medication to treat Plaintiff’s gastrointestinal
issues. As a non-medical provider in this case, Harrington was allowed to rely on the
purported care that Plaintiff was receiving from the healthcare unit. See Johnson v.
Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006); Hayes, 546 F.3d at 527 (no deliberate
indifference when grievance officer investigated and referred the complaint to
medical staff); Greeno, 414 F.3d at 655 (prison official who reviewed complaints and
verified with staff that inmate was receiving treatment was not deliberately
indifferent); Spruill v. Gillis, 372 F.3d 218, 236 (7th Cir. 2004) (non-medical official is
able to rely on the belief that a prisoner is in capable hands when under the care of
medical experts). Further, wardens are allowed to “relegate to the prison’s medical
staff the provision of good medical care.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.
2009) (citing Durmer v. O’Carroll, 991 F.2d 64 (3d Cir. 1993)).
The evidence here
indicates that Harrington checked Plaintiff’s medical records and saw that he was
obtaining treatment from the medical staff. As a non-medical employee, this was a
sufficient response to Plaintiff’s medical issues. See Perez, 792 F.3d at 781-82. As such,
the Court finds that Harrington is entitled to summary judgment on Plaintiff’s deliberate
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indifference claims.
F. Deliberate Indifference Claims – Nelson
The Court also finds that Nelson is entitled to summary judgment on Plaintiff’s
deliberate indifference claims regarding his soy diet. Plaintiff argues that Nelson was
present at his May 31, 2013 appointment with Shearing where Shearing, according to
Plaintiff’s testimony, refused Plaintiff a soy allergy test because Plaintiff had filed a
lawsuit. Plaintiff testified that Nelson was present at the appointment but did not do
anything in response to Shearing’s statement. However, the Court finds no evidence of
deliberate indifference on Nelson’s part. As a medical technician, Nelson only assists
the doctor during doctor visits, by taking vitals and writing down notes. He does not
make treatment decisions, nor does he have the authority to override a doctor’s
decisions.
Plaintiff makes much of the fact that Nelson overheard Shearing’s statement that
he was not providing Plaintiff with medical treatment because Plaintiff filed a complaint
regarding his treatment, yet Nelson failed to report those statements to any higher
authority. Nelson disputes that he overheard any statements that required reporting,
but even still, there is no “free-floating obligation to put things to rights.” Burks, 555
F.3d at 595. Here, Nelson merely sat in on Plaintiff’s appointment with Shearing as a
part of his duties as a medical technician. He had no authority to override Shearing’s
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decisions regarding medical care. As such, the Court finds that Nelson is also entitled
to summary judgment on Plaintiff’s deliberate indifference claims regarding his diet.
V.
CONCLUSION
Accordingly, the Court GRANTS IN PART AND DENIES IN PART the medical
Defendants’ motion for summary judgment (Docs. 92 and 93). The Court GRANTS
summary judgment as to Dr. Trost for deliberate indifference related to food poisoning
(Count 4) but DENIES summary judgment as to Shearing, Trost, Ritz, and Wexford as to
Counts 1, 2, and 3. The Court also GRANTS the summary judgment motion (Doc. 100)
filed by Defendants Harrington and Nelson.
The only claims which remain for trial are the claims that Shearing retaliated
against Plaintiff by denying his requests for medical care (Count 1), the claim against
Shearing, Trost, Ritz, and Wexford that Plaintiff was provided with a nutritionally
inadequate diet (Count 2), and Plaintiff’s deliberate indifference claim against Shearing,
Trost, Ritz, and Wexford for deliberate indifference in refusing to diagnose and treat his
suspected soy allergy and related symptoms.
IT IS SO ORDERED.
DATED: February 21, 2017
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
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