Jordan v. Wexford Health Sources, Inc. et al
Filing
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ORDER granting 39 Motion for Summary Judgment; granting 49 Motion to Dismiss. For the reasons discussed in the attached Order, Plaintiff's claims against Defendants David, Wexford, and Haymes are DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly and close the case. Signed by Magistrate Judge Stephen C. Williams on 9/22/2017. (rms2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMIE JORDAN,
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Plaintiff,
vs.
WEXFORD HEALTH
SOURCES, INC. et al
Defendants.
Case No. 3:15−cv−00105−SCW
MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
INTRODUCTION
Plaintiff brings this civil suit pursuant to 42 U.S.C. § 1983, for the deprivation of
his constitutional rights while he was an inmate at Shawnee Correctional Center
(“Shawnee”) in Vienna, Illinois. Plaintiff claims that in early 2013, he was provided
inadequate medical care causing him pain and suffering. Plaintiff alleges that
Defendant Dr. David denied and delayed medical care for his gastrointestinal bleed for
the two weeks between being admitted to the Shawnee infirmary and being sent to
Herrin Hospital.
Plaintiff further claims that Defendant acted with deliberate
indifference in denying prescribed follow-up care after a blood transfusion and
polypectomy and that this denial and delay resulted in unnecessary and avoidable
physical pain and emotional injuries.
As an initial matter, This Court GRANTS
Page 1 of 13
Plaintiff Jimmie Jordan’s Motion to Dismiss all claims against Defendants Dr. David
Haymes and Wexford Health Sources, Inc. with prejudice. (Doc. 49). As such, the only
remaining claims are against Defendant David.
This matter is before the Court on Defendant David’s Motion for Summary
Judgment (Doc. 39). A response has been filed and the motion is ripe for disposition.
For the reasons stated below, Dr. David’s Motion for Summary Judgment is
GRANTED.
SUMMARY JUDGMENT STANDARD
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
entitled to judgment as a matter of law.” Dynegy Mktg. & Trade v. Multi Corp., 648
F.3d 506, 517 (7th Cir. 2011) (internal quotation omitted) (citing FED. R. CIV. P. 56(a)).
See also Ruffin-Thompsons 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 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 facts showing that there is no 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. Anderson, 477 U.S. at 248;
Balance v. City of Springfield, Ill. Police Dep’t, 424 F.3d 614, 616 (7th Cir. 2005);
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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. The non-moving party “must
create more than mere doubt as to the material facts and will not prevail by relying on a
mere scintilla of evidence to support its position.” CAE, Inc. v. Clean Air Eng'g, Inc., 267
F.3d 660, 677 (7th Cir. 2001) (internal citations and quotations omitted). An opposing
party will only succeed “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
citations omitted).
On summary judgment, the Court considers the facts in the light most favorable
to the non-movant. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). In doing so,
the court will “draw all reasonable inferences in favor of the non-movant.” Id. Even if
the facts are not in dispute, “[s]ummary judgment is inappropriate when 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 961 (7th Cir. 2007).
See also Anderer v. Jones, 385 F.3d 1043, 1064 (7th Cir. 2004).
FACTUAL BACKGROUND
A few days prior to January 15, 2013, Plaintiff began noticing blood in his stool.
While he felt no physical pain, he became concerned about the cause of the blood.
Plaintiff went to the health care unit on January 15, 2013 complaining of blood in his
stool and vomit. (Doc. 41-31, p. 19-22). At that time, Plaintiff was admitted to stay at the
Shawnee infirmary for a 23-hour observation. (Doc. 41-6, p. 7-8). Plaintiff saw
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Defendant David on January 16 and again on January 17, 2013. (Doc. 48-1, p. 1). On
January 17, Defendant David told Plaintiff that a referral to an outside specialist was not
appropriate since Plaintiff’s bleeding condition could be handled within the prison.
(Id.). Medical records show that at that time Dr. Haymes, another doctor at Shawnee,
did not approve of Plaintiff seeing a gastroenterologist. (Doc. 41-8, p. 11). Without
knowing of the disapproval, a nurse scheduled Plaintiff to see Dr. Tibrewala, a
gastroenterologist, and then cancelled after seeing the medical records denying the
appointment. (Doc. 41-9, p. 1).
Plaintiff remained in the infirmary, and each time Plaintiff noticed bleeding, he
notified nurses, who then made notes about his continued rectal bleeding and bloody
stools. (Doc. 41-9, p. 1-13). While in the infirmary that week, Plaintiff received milk of
magnesia and Metamucil for his symptoms, but continued to bleed. (Doc. 41-31, p. 23).
Additionally, nurses regularly monitored him and drew blood. (Doc. 41-32, p. 25).
During that time, Plaintiff complained to the nurses and to Defendant David that the
milk of magnesia and Metamucil were not alleviating the bleeding. (Doc. 48-1, p. 2).
On the morning of January 23, 2013, a doctor at the infirmary recorded that Plaintiff
would be referred to a gastroenterologist. (Doc. 41-10, p. 6). By 2pm the same day, the
doctor had presented the referral to the review board and the gastroenterologist
appointment was approved. (Doc. 41-10, p. 8). In the time between the approval and
the appointment scheduled with Dr. Tibrewala on January 28, Plaintiff remained in the
infirmary and continued to bleed. (Doc. 41-10, p.8-13; Doc. 41-11, p. 1-13).
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On January 23, just prior to Plaintiff’s appointment with Dr. Tibrewala, Union
County Hospital reported a “critical lab” on Plaintiff’s hemoglobin levels. (Doc. 41-12,
p. 2). Plaintiff was transferred to Herrin emergency room for evaluation. (Doc. 41-12, p.
3). At Herrin, Plaintiff received two units of blood for anemia secondary to
gastrointestinal blood loss. (Doc. 41-28, p. 11-12). In addition to the blood transfusion,
Plaintiff received a colonoscopy, an EGD, and a polypectomy. (Doc. 41-28, p. 11).
Plaintiff continued to bleed a small amount, but no other sources of bleeding were
found. Plaintiff was not told that he had a gastrointestinal bleed secondary to internal
hemorrhoids. (Doc. 41-32, p. 10). After the procedures, Plaintiff was kept overnight for
observation, then discharged with a follow-up appointment with a neurologist,
gastroenterologist, orthopedist, and a primary care physician. (Doc. 41-28, p. 11-12). The
Herrin discharge records instructed Plaintiff to not miss follow-up appointments and
listed an appointment with Dr. Tibrewala on February 7, 2013. (Doc. 41-30, p. 9- 10).
When Plaintiff returned from Herrin, he was taken to the Shawnee infirmary for
observation. Plaintiff states that he continued to have “intense discomfort and pain” as
a result of the colonoscopy and polypectomy. (Doc. 48-1, p. 3). Nurses noted that
Plaintiff still had blood in his stools and was having difficulties and pain voiding. (Doc.
41-12, p. 4). Defendant David was notified of Plaintiff’s pain, and Plaintiff was given
Tylenol. (Id. at 9). Plaintiff continued to receive milk of magnesia and Metamucil along
with his regular medications. (Id. at 4). Security told one of the nurses at the Shawnee
infirmary that Plaintiff was to see Dr. Tibrewala on January 31. After a nurse relayed
that information to Defendant David, Dr. David said that he was unaware of any reason
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to send Plaintiff to Dr. Tibrewala for a follow-up at that time. (Doc. 41-12, p. 5-6). For
weeks after being discharged from Herrin, Plaintiff remained in the Shawnee infirmary
and continued to experience pain following his colonoscopy and polypectomy. (Doc.
41-32, p. 22-23).
Plaintiff was finally released from the Shawnee infirmary at the end of February,
after a few weeks of observation. (Doc. 41-14, p. 14). After that, he continued to request
but not receive follow-up appointments with a specialist. (Doc. 41-32, p. 16). Plaintiff
suffered from intermittent bleeding and continued to experience episodes of dizziness
on and off while at Shawnee. (Doc. 41-32, p. 17-18). Plaintiff was released from Shawnee
Correctional Center in May of 2014. (Doc. 41-31, p. 11). He filed this lawsuit on January
30, 2015. (Doc. 1).
LEGAL STANDARDS
A. Eighth Amendment 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)). “Deliberate
indifference to serious medical needs of a prisoner constitutes the unnecessary and
wanton infliction of pain forbidden by the Constitution.” Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to “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).
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In order to prevail on a claim of deliberate indifference, 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) (citing Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir. 2006)). The first prong is whether the prisoner has an
“objectively serious medical condition.” Arnett, 658 F.3d at 750. Accord Greeno, 414 F.3d
at 653. “A medical condition is objectively serious if a physician has diagnosed it as
requiring treatment, or the need for treatment would be obvious to a layperson.”
Hammond v. Rector, 123 F. Supp. 3d 1076, 1084 (S.D. Ill. 2015) (citing Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir.2014)). It is not necessary for such a medical condition to “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.
Prevailing on the subjective prong requires a prisoner to show that a prison
official has subjective knowledge of—and then disregards—an excessive risk to inmate
health. Id. at 653. The plaintiff need not show the individual “literally ignored” his
complaint, but that the individual was aware of the condition and either knowingly or
recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). Presenting
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“evidence that some medical professional would have chosen a different course of
treatment” is not enough to prove a constitutional violation. Petties v. Carter, 836 F.3d
722, 729 (7th Cir. 2016), as amended (Aug. 25, 2016). “But when a plaintiff provides
evidence from which a reasonable jury could infer that the defendant doctor
disregarded rather than disagreed with the course of treatment recommended by
another doctor, summary judgment is unwarranted.” Zaya v. Sood, 836 F.3d 800, 803
(7th Cir. 2016).
Finally, “[s]omething more than negligence or even malpractice is required” to
prove deliberate indifference. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see also
Hammond v. Rector, 123 F. Supp. 3d 1076, 1086 (S.D. Ill. 2015) (“isolated occurrences
of deficient medical treatment are generally insufficient to establish Eighth
Amendment deliberate indifference”). Further, merely reiterating the medical
malpractice standards does not prove deliberate indifference, instead the treatment
must substantially deviate from “accepted medical practice.” Whiting v. Wexford, 839
F.3d 658, 663 (7th Cir. 2016).
B. Limitations Period
Section 1983 does not contain its own statute of limitations. “In order to
determine the proper statute of limitations for § 1983 actions, a federal court must adopt
the forum state's statute of limitations for personal injury claims.” Ashafa v. City of
Chicago, 146 F.3d 459, 461 (7th Cir. 1998). The Seventh Circuit has held that in § 1983
cases brought in Illinois, the Illinois personal injury statute of limitations should apply.
Id.; 735 ILCS 5/13-202. This two-year limitations period commences at the time of the
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injury. 735 ILSC 5/13-202. Therefore, a plaintiff has two years to file suit after the time
the action accrues. Ray v. Maher, 662 F.3d 770, 773 (7th Cir. 2011).
For an Eighth Amendment violation, the date of accrual is the defendant’s
refusal to treat the plaintiff. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001).
“Deliberate indifference to a serious medical need is a continuing violation that accrues
when the defendant has notice of the untreated condition and ends only when
treatment is provided or the inmate is released.” Jervis v. Mitcheff, 258 F. App'x 3, 5–6
(7th Cir. 2007) (citing Heard v. Sheahan, 253 F.3d 316, 318-19 (7th Cir. 2001)). “[A]ll the
pain after the date of onset…of deliberate indifference” is a continuance of the violation.
Id. (finding that a refusal to treat “continued for as long as the defendant has the
power to do something about [the plaintiff’s] condition, which is to say until [the
plaintiff leaves] the jail” so suit brought two years after release was timely).
ANALYSIS
Based on the record presented to the Court, Plaintiff cannot recover from
Defendant David as a matter of law. The Court finds it convenient to divide the facts
into two time periods: (1) Plaintiff’s initial stay in the Shawnee infirmary; and (2) his
second stay in the Shawnee infirmary after his return from Herrin hospital. The Court
addresses the second stay first.
The record fails to demonstrate deliberate indifference on the part of Defendant
David for Plaintiff’s second stay in the Shawnee infirmary. During this stay, Plaintiff
was receiving treatment from Shawnee medical staff, including Defendant David, and
all indications are that Plaintiff was recovering during this time and later recovered.
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Plaintiff experienced less bleeding after returning from Herrin, and though he
experienced some pain while in the infirmary, he was provided with Tylenol to relieve
the pain. Further, the presence of pain is not itself sufficient to demonstrate deliberate
indifference. See Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“To say the Eighth
Amendment requires prison doctors to keep an inmate pain-free in the aftermath of
proper medical treatment would be absurd.”).
While Defendant David did not send Plaintiff to his follow-up appointment with
Dr. Tibrewala, the record indicates that Dr. David’s decision was based on his
observation that there was no need to send Plaintiff to see Tebrewala. In other words,
Defendant David disagreed with the discharge instructions that it was necessary for
Plaintiff to have a follow-up with Tibrewala at that time. The fact that Dr. David
disagreed with the discharge instructions is not itself indicative of deliberate
indifference.
Evidence that a different medical professional would have chosen a
differing course of treatment is not itself sufficient to prove a constitutional violation.
See Petties, 836 F.3d at 729. Rather, there must be evidence to allow a jury to infer that
there was no exercise of professional judgment involved in the physician’s decision.
Zaya, 836 F.3d at 805.
Here, Defendant David’s decision not to send Plaintiff to his follow-up is unlike
other cases where courts have held that summary judgment was not appropriate where
a physician did not follow another physician’s instructions. Take Zaya v. Sood, for
instance. There, an inmate suffered a broken wrist, and the prison physician did not
follow the orthopedic surgeon’s instructions that the inmate be sent to see the specialist
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for a follow-up in three weeks. 836 F.3d at 803. Instead, the prison physician waited
seven weeks to send the inmate back to the specialist, thereby resulting in the need for
surgery, and the Seventh Circuit found that a jury could infer from the evidence that the
physician was deliberately indifferent. Id. Unlike the suit at-bar, however, in Zaya, the
specialist did not simply direct that the inmate see him again in three weeks; rather, the
specialist also explained the risks involved with a further delay of a follow-up. Id. at
806. In addition, the inmate in Zaya presented expert testimony from another physician,
who opined that it was unreasonable for the prison physician to disagree with the
orthopedic surgeon in that instance. Id. at 807. The Seventh Circuit therefore found
that a reasonable jury could infer from the expert’s testimony that the prison physician
did not actually disagree with the specialist’s instructions, and, rather, disregarded
them. Id. There is no similar expert testimony that would allow a jury to make a
similar inference in this matter, however. Finally, while it was clear in Zaya that the
physician’s decision not to send the inmate to a follow-up with the specialist led to the
need for surgery, here, there is no indication that Plaintiff suffered negative
consequences from not being sent to his follow-up appointment. Rather, the record
indicates that Plaintiff was recovering at the time, and eventually recovered from his
ailments.
Though Plaintiff may not have been satisfied with the treatment he received
from Defendant David upon his return from Herrin Hospital, he is not entitled to
demand specific care. Forbes, 112 F.3d at 267.
Rather, Plaintiff was entitled to
“reasonable measures to meet a substantial risk of serious harm,” Id, and there is
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simply not sufficient evidence in the record to allow a reasonable jury to infer that
Defendant David did not employ such reasonable measures after Plaintiff’s return to
Shawnee from Herrin.
As for Plaintiff’s initial stay in the infirmary up until the time he was taken to
Herrin, even if that Defendant David was deliberately indifferent during that time
period, Plaintiff’s claims during that period are nonetheless barred by the statute of
limitations. Plaintiff’s initial stay in the infirmary lasted from January 15, 2013 to
January 28, 2013. Any deliberate indifference by Defendant David ended when Plaintiff
was sent to Herrin Hospital on the 28th. Plaintiff filed suit on January 30, 2015. Since
Illinois’ statute of limitations for personal injury is two years, any claims prior to
January 30, 2013 are barred.
Plaintiff argues that his claims prior to January 30, 2013 are not barred because
they are part of a continuing violation of his rights by Defendant that extended after the
limitations period.
Plaintiff argues that case law in Illinois establishes that the
limitations period does not begin to run until the final tortious act of a course of
improper medical treatment with cumulative effects.
Regardless of the merits of
Plaintiff’s argument, this Court has already found that there is insufficient evidence of
deliberate indifference occurring during Plaintiff’s return to the infirmary within the
limitations period. Therefore, Plaintiff’s claims against Defendant David for his initial
stay in the Shawnee infirmary up to January 28, 2013 are barred by the statute of
limitations.
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CONCLUSION
Based on the record presented to the Court, Plaintiff cannot recover on his
claims against Defendant David. No reasonable jury could find that Defendant was
deliberately indifferent toward Plaintiff’s serious medical needs during Plaintiff’s stay
in the Shawnee infirmary upon his return from Herrin Hospital, and Plaintiff’s claims
relating to his initial stay in the infirmary before he was sent to Herrin are barred by the
statute of limitations. Therefore, Defendant David’s Motion for Summary Judgment
(Doc. 41) is GRANTED. Plaintiff’s claims against Defendant David are DISMISSED
with prejudice. Additionally, Plaintiff’s Motion to Dismiss Defendants Wexford and
Haymes (Doc. 49) is also GRANTED. Plaintiff’s claims against Defendants Wexford
and Haymes are DISMISSED with prejudice. The Clerk of Court is DIRECTED to
enter judgment accordingly and close the case.
IT IS SO ORDERED.
DATED: 9/22/2017
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge
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