Dunigan v. St. Clair County Jail et al

Filing 97

ORDER GRANTING 66 Motion for Summary Judgment; GRANTING 72 Motion for Summary Judgment; and DENYING as moot 94 Motion to Continue. Plaintiff's claims are DISMISSED WITH PREJUDICE, and the Clerk of Court is DIRECTED to close this case and to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 8/22/2017. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
vs.
)
)
RASHIDA POLLION, TARYN
)
ANCHETA, MELINDA KORANDO,
AIMEE LANG, and MARTHA OAKLEY, )
)
)
Defendants.
GREG DUNIGAN,

Case No. 3:15-CV-487-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Greg Dunigan is a former inmate in the custody of the Illinois
Department of Corrections (“IDOC”). Dunigan filed this action on May 1, 2015, alleging
violations of his constitutional rights pursuant to 42 U.S.C. § 1983. (Doc. 1). Dunigan
twice attempted to file complaints in this action, but on both occasions the Court
dismissed them without prejudice for their failure to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. (Docs. 8; 15). Dunigan
was subsequently appointed counsel (Doc. 15) who filed a second amended complaint
on his behalf. (Doc. 24). The Court screened Dunigan’s second amended complaint
pursuant to 28 U.S.C. §1915A, and he was allowed to proceed on an Eighth Amendment
deliberate indifference claim against Rashida Pollion, Taryn Ancheta, Melinda Korando,
Aimee Lang, and Martha Oakley for their alleged failure to treat his sexually transmitted
diseases and resulting painful medical condition. (Doc. 28).

Page 1 of 10

This matter is currently before the Court on two Motions for Summary Judgment:
one filed by Defendant Pollion (Doc. 66), and one filed by Defendants Ancheta, Korando,
Lang, and Oakley (Doc. 72). In the response to the second Motion for Summary
Judgment (Doc. 72), counsel for Dunigan stated he “declines to oppose [their] Motion
and concedes that it may be granted.” (Doc. 85). In light of Dunigan’s concession and the
arguments presented by Defendants, the Motion for Summary Judgment filed by
Ancheta, Korando, Lang, and Oakley (Doc. 72) is granted. For the reasons set forth
below, Defendant Pollion’s Motion (Doc. 66) is also granted.
FACTUAL BACKGROUND
Dunigan’s claim against Defendant Pollion relates to medical treatment she
provided for sexually transmitted diseases while Dunigan was incarcerated at Menard
Correctional Center (“Menard”). Dunigan arrived at Menard on February 13, 2015.
(Dunigan Depo. 9:24-10:7, Doc. 67-3, p. 3). Upon his arrival, Dunigan underwent a
routine medical screening that included basic laboratory testing as well as a syphilis
screening, known as a Rapid Plasma Reagin (“RPR”) test.1 (Pollion Depo. 11:16-21, Doc.
67-2, p. 4; Dunigan Medical Records, Doc. 67-1, p. 3). Dunigan’s RPR was reactive, or
positive, indicating Dunigan had been exposed to syphilis at some point;2 however, a
quantitative test produced a “zero” result, indicating the syphilis bacterium was not
Dunigan’s deposition testimony regarding the RPR is inconsistent. In some instances, he indicates he
may have had blood work done on February 18, 2015, but at other times he testifies that he never received
any such testing. (Doc. 67-3, pp. 5-6). In his response to Defendant Pollion’s motion, however, Dunigan
does not dispute that blood testing, including testing for syphilis, was conducted on February 18, 2015.
Further, the Court notes that Dunigan’s medical records (Doc. 67-1) include the results of a RPR test
conducted on that date. Accordingly, the Court finds that Dunigan was tested for syphilis on February 18,
2015, and does not consider any contradictory statements made at his deposition.
2 Once a person has been exposed to syphilis, any subsequent RPR test will reveal a “reactive” or
“positive” result, even if the bacterium is not currently active. (Doc. 67-2, p. 6).
1

Page 2 of 10

currently active (Pollion Depo. 16:12-18:1, Doc. 67-2, pp. 5-6; see Dungan Medical Records,
Doc. 67-1, pp. 3-4). In other words, Dunigan’s blood work indicated that he had been
“exposed to the disease [syphilis], and at some point was treated for it” but, it was not
active at the point in time he was tested. (Pollion Depo. 17:8-11, Doc. 67-2, p. 6). Dunigan
attests he advised the healthcare provider conducting his screening that he had sores on
his penis and other parts of his body. (Affidavit of Greg Dunigan, Doc. 86-1, ¶ 2).
Dunigan also told the screening nurse that he had been notified by a recent sexual
partner that she was being treated for syphilis. (Dunigan Depo 13:19-25, Doc. 67-3, p. 4).
Soon after his intake screening, on March 6, 2015, Dunigan was seen on nurse sick
call complaining of a sore on his penis and a rash. (Dunigan Medical Records, Doc. 67-1,
p. 7). The nurse referred Dunigan for further evaluation by a nurse practitioner or
physician. (Pollion Depo. 11:23-12:3, Doc. 67-2, p. 4; Dunigan Medical Records, Doc. 67-1,
p. 7). Accordingly, on March 9, 2015, Dunigan was examined by Pollion, an advanced
practice nurse licensed with the State of Illinois and employed as a nurse practitioner at
Menard. (Pollion Depo. 7:13-8:6, Doc. 67-2, pp. 3-4; Dunigan Medical Records, Doc. 67-1, p.
9). The parties dispute what occurred during this examination. Dunigan testified during
this examination he told Defendant Pollion “the same thing” he told the nurse in
receiving and showed her the sores on his genitals and neck, and in his mouth. (Dunigan
Depo. 21:20-23, Doc. 67-3, p. 6). Dunigan asserts the sores were open, and the sore on his
genitals was oozing. (Dunigan Depo. 21:20-22:1, Doc. 67-3, p. 6). Dunigan also asserts
Defendant Pollion started telling him it looked like syphilis or herpes, but she did not
provide any medication to treat his condition. (Dunigan Depo. 22:2-6, Doc. 67-3, p. 6).
Page 3 of 10

Pollion testified that at this examination Dunigan complained of a rash between his legs
and a sore on his penis. (Pollion Depo. 12:18-22, Doc. 67-2, p. 4). Pollion did not see a
rash, but confirmed there was a dried sore on Dunigan’s penis. (Pollion Depo. 12:18-22,
Doc. 67-2, p. 4; Dunigan Medical Records, Doc. 67-1, p. 9). Pollion determined that the sore
was likely a dried herpes lesion, but she could not culture the lesion and provide a
definitive diagnosis because of its dried state. (Pollion Depo. 12:21-13:3, Doc. 67-2,
pp. 4-5). Pollion testified that she told Dunigan to put in for nurse sick call again if the
sore opened up. (Pollion Depo. 13:10-12, Doc. 67-2, p. 5). Pollion did not treat Dunigan
for syphilis at this appointment because his February 18, 2015 lab results indicated that
the bacterium was not active. (Pollion Depo. 15:18-17:11, Doc. 67-2, pp. 5-6).
Soon after, on March 25, 2015, Dunigan was seen by Pollion complaining about a
sore on his penis. (Dunigan Depo. 26:10-13, Doc. 67-3, p. 7; Dunigan Medical Records,
Doc. 67-1, pp. 12-13). Dunigan testified at this appointment Pollion told Dunigan he had
syphilis or herpes, but did not do provide any treatment. (Doc. 67-3, p. 7). Pollion
testified that her examination on this date revealed a small open area on the sore of his
penis, though there was no drainage. (Pollion Depo. 21:8, Doc. 67-2, p. 7). Despite
Dunigan’s positive syphilis test, Pollion stated she did not believe the sore was
associated with an active infection because syphilis sores are not usually painful, and
Dunigan complained his sore was painful. (Dunigan Depo. 26:19-22; Pollion Depo.
21:10-12, Doc. 67-2, p. 7). After reviewing her clinical dermatology book, Defendant
Pollion believed the sore might be a chancroid and, in light of this diagnosis, prescribed

Page 4 of 10

Dunigan Zithromax as part of his treatment plan. (Pollion Depo. 21:18-22:3, Doc. 67-2,
p. 7; Dunigan Medical Records, Doc. 67-1, p. 13).
The record concerning a third examination by Defendant Pollion is unclear. At his
deposition, Dunigan testified that he had put in another request to see Pollion regarding
sores on his penis, but when he went to her office, she told Dunigan she did not want to
see him. (Dunigan Depo. 28:4-6, Doc. 67-3, p. 7). He also testified at his deposition,
however, that Pollion “examined [him] every time … the whole three times sign her
[sic].” (Dunigan Depo. 23:3-4, Doc. 67-3, p. 6). Pollion testified that Dunigan was
scheduled to see her at the Seizure Clinic on April 24, 2015; however, this appointment
was cancelled, because Dunigan had been taken off his seizure medication and was no
longer being seen through the Seizure Clinic. (Pollion Depo. 27:3-8, Doc. 67-2, p. 8).
Pollion testified that she did not recall having contact with Dunigan on this date. (Pollion
Depo. 27:3-8, Doc. 67-2, p. 8). It is undisputed that Defendant Pollion did not evaluate
Dunigan again in connection with the allegations in this lawsuit.
Dunigan was examined, however, by Dr. Trost in November, 2015. (Pollion Depo.
29:3-5, Doc. 67-2, p. 9). Dr. Trost treated Dunigan for syphilis based on his complaints of
painful urination and the positive RPR from February, 2015. (Trost Depo. 16:7-8,
Doc. 86-3, p.4; Pollion Depo. 30:2-3, Doc. 67-2, p. 9). Dunigan was transferred to Big
Muddy Correctional Center (“Big Muddy”) while receiving treatment for syphilis in
November 2015. (Dunigan Depo. 29:10-24, Doc. 67-3, p. 8). Dunigan also was diagnosed
and treated for herpes while at Big Muddy. (Dunigan Depo. 30:13-31:7, Doc. 67-3, p. 8).

Page 5 of 10

LEGAL STANDARDS
Summary Judgment
Summary judgment is proper only if the moving party can demonstrate there is
no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Any
doubt as to the existence of a genuine issue must be resolved against the moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). A moving party is entitled to
judgment as a matter of law where the non-moving party “has failed to make a sufficient
showing on an essential element of her case with respect to which she has the burden of
proof.” Celotex, 477 U.S. at 323. The Seventh Circuit called summary judgment “the put
up or shut up moment in a lawsuit, when a party must show what evidence it has that
would convince a trier of fact to accept its version of the events.” Steen v. Myers, 486 F.3d
1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859
(7th Cir. 2005)).
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 such
a claim, Dunigan must show first that his condition was “objectively, sufficiently
serious” and second, that the “prison officials acted with a sufficiently culpable state of
mind.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
Defendant does appear to contest that Dunigan’s medical condition qualifies as a

Page 6 of 10

“serious medical need”3 and therefore the Court finds this point conceded. The only
issue remaining before the Court is whether Pollion acted with a sufficiently culpable
state of mind—deliberate indifference.
DISCUSSION
Dunigan argues summary judgment is inappropriate because material issues of
fact exist as to Pollion’s knowledge of his syphilis, Pollion’s failure to treat his syphilis,
and the resulting pain and suffering. (Doc. 86, p. 2). The Court disagrees.
Deliberate indifference to the serious medical condition of a prisoner only violates
the Eighth Amendment where it is either deliberate, or reckless in the criminal law
sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence, gross
negligence, or even recklessness as that term is used in tort cases, is not enough. Id. at
653; Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). Put another way, a plaintiff must
demonstrate the relevant officials were “aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists” and that the officials actually
drew that inference. Greeno, 414 F.3d at 653 (citing Farmer v. Brennan, 511 U.S. 825, 834
(1994)). A plaintiff does not have to prove his complaints were “literally ignored,” 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 v.

3

The following circumstances could constitute a serious medical need: “[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual’s daily activities; or the existence of 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.”)

Page 7 of 10

Snyder, 546 F.3d 516, 524 (7th Cir. 2008).
While Dunigan clearly disagrees with Pollion’s course of treatment, it is
well-established that no constitutional claim arises unless the medical treatment was
‘blatantly inappropriate.’” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (citing Johnson
v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006)). Courts give deference to medical
professionals in treatment decisions unless no minimally competent professional would
have acted similarly in the same circumstances. Pyles, 771 F.3d at 409. In other words,
federal courts will not interfere with a medical professional’s pursuit of a particular
course of treatment unless that decision represents so significant a departure from
accepted professional standards that it calls into question whether the individual was
actually exercising their professional judgment. Pyles, 771 F.3d at 409.
The record before the Court indicates Pollion’s treatment of Dunigan for herpes,
rather than syphilis, was not a significant departure from accepted professional
standards and therefore did not violate Dunigan’s Eighth Amendment rights. Pollion
evaluated Dunigan’s complaints of painful genital sores on at least two occasions.
(Pollion Depo., 12:18-22, Doc. 67-2, p. 4; Pollion Depo. 18:16-18, Doc. 67-2, p. 6). Pollion
provided a working diagnosis that Dunigan suffered from a “chancroid”—herpes
related lesion—and prescribed medications to treat that condition after her second
examination of Dunigan.4 (Pollion Depo., 21:16-22:3, Doc. 67-2, p. 7; Dunigan Medical

4

While the Court recognizes that Dunigan has provided a somewhat different rendition of what occurred
at this second appointment (insofar as he generally asserts that Defendant did not provide any treatment
for his condition), his testimony and affidavit are vague, do not specifically contradict Defendant’s
explanation of events (i.e. whether he received the prescribed medication), and are contrary to his medical

Page 8 of 10

Records, Doc. 67-1, p. 13). The deposition testimony of Dr. Trost specifically supports
Pollion’s course of treatment. Dr. Trost testified that a positive RPR finding simply
indicates that the person had syphilis at some point in time. (Trost Depo. 27:1-4, Doc.
87-1, p. 7). Because there were zero dilutions of his serum at the time of the RPR test, Dr.
Trost testified Dunigan did not appear to have an active syphilis infection. (Trost Depo.
27:9-16, Doc. 87-1, p. 7). Pollion’s failure to diagnose Dunigan with syphilis based on the
positive RPR test, therefore, was neither blatantly inappropriate nor a significant a
departure from accepted professional standards. Further, Dr. Trost testified Dunigan’s
complaints of lesion pain are more typically associated with herpes than syphilis. (Trost
Depo. 30:12-17, Doc. 87-1, p. 30). Based on the evidence, Dr. Trost stated he would have
most likely believed Dunigan had Herpes, which he would have treated with
Zithromax. (Trost Depo. 31:6-9, Doc. 87-1, p. 8). Since this is both the conclusion and
course of treatment reached by Pollion, there is no evidence that her care was blatantly
inappropriate or a significant departure from accepted professional standards.
Although Dunigan later received treatment for both syphilis and herpes that
purportedly resolved his issues (Dunigan Depo. 30:13-31:12, Doc. 67-3, p. 8), that
evidence alone does not establish that Pollion intentionally or recklessly disregarded
Dunigan’s needs. First, the continued treatment for herpes supports her original
diagnosis. Second, the Seventh Circuit has held that a later different diagnosis alone is
not sufficient to create a question of fact precluding summary judgment. Ortiz v. Webster,

records. As a result, Dunigan’s statements are insufficient to create a question of fact that precludes
summary judgment.

Page 9 of 10

655 F.3d 731, 738 (7th Cir. 2011); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.
2006). For these reasons, Defendant Pollion is entitled to judgment as a matter of law.
CONCLUSION
For reasons set forth above, the Motion for Summary Judgment filed by
Defendant Pollion (Doc. 66) and the Motion for Summary Judgment filed by Defendants
Ancheta, Korando, Lang, and Oakley (Doc. 72) are GRANTED. Dunigan’s claims are
DISMISSED with prejudice, and the Clerk of Court is DIRECTED to close this case
and to enter judgment accordingly.
IT IS SO ORDERED.
DATED: August 22, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 10 of 10