Cade v. Coe et al
Filing
143
ORDER granting in part and denying in part 135 Motion for Preliminary Injunction. As no merits review of the Second Amended Complaint has been completed, after the review discussed in the attached Order, the Court ADOPTS the counts set fort h by Plaintiff in the Second Amended Complaint. In addition, for the reasons discussed in the attached Order, Plaintiff's Renewed Motion for Preliminary Injunction (Doc. 135) is GRANTED in part. The Court ENJOINS Defendant Wexford and ORDERS that Wexford shall ensure that Plaintiff is examined and treated by a dermatological specialist within 30 days. Signed by Magistrate Judge Stephen C. Williams on 10/27/2017. (rms2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONTA L. CADE,
Plaintiff,
vs.
DR. J. COE, et al.,
Defendants.
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Case No. 15-cv-1297-SCW
MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
INTRODUCTION
Plaintiff Donta Cade is an inmate incarcerated with the Illinois Department of
Corrections.
He brought the present lawsuit alleging violations of his civil rights
stemming from allegedly inadequate treatment of a scalp condition. This matter is
before the Court on Plaintiff’s Renewed Motion for Immediate Medical Attention and
Preliminary Injunction (Doc. 135). The Court has received briefing from the parties on
the motion, and on October 17, 2017, held an evidentiary hearing, at which time it heard
testimony from Plaintiff. (Doc. 142). The motion is now ripe for disposition. For the
reasons discussed below, Plaintiff has demonstrated that he is entitled to a preliminary
injunction, and the Motion (Doc. 135) is GRANTED in part.
MERITS REVIEW
As an initial matter, the Court notes that no merits review of the Second
Amended Complaint filed on March 17, 2017 has been conducted.
The Prison
Litigation Reform Act requires a court to review a complaint in a civil suit filed by a
prisoner seeking redress from a government entity, officer, and/or employee.
28
U.S.C. § 1915A(a). The Court is required to dismiss any claims that are “frivolous,
malicious, or fail[] to state a claim upon which relief may be granted.”
Id. at
1915A(b)(1). After receiving leave, Plaintiff filed an Amended Complaint on March 17,
2017; however, no merits review has yet been conducted. After reviewing the Second
Amended Complaint, the Court finds that all of the counts set forth by Plaintiff in that
complaint warrant further review. The Court ADOPTS the counts set forth by Plaintiff
in the Second Amended Complaint.1 (See Doc. 98). With Plaintiff’s claims now firmly
established, the Court addresses his motion seeking preliminary injunctive relief.
BACKGROUND
According to his testimony, Plaintiff entered Lawrence Correctional Center
(“Lawrence”) in October 2014. At that time he was suffering from bleeding and pus
emitting from two spots on the crown of his scalp. At some point, a dermatologist
diagnosed Plaintiff with suffering from acne keloidalis nuchae (“AKN”).
In his
testimony and through his briefing, Plaintiff has described a series of treatments from
October 2014 to the present. The various treatments provided to Plaintiff have failed to
provide him with full relief from his AKN, however. While he has been provided an
antibiotic that heals the infection caused by the AKN, Plaintiff still suffers from a keloid
The Court’s adoption today excludes the two Jane Doe defendants who were dismissed by the Court on
August 18, 2017. (Doc. 127).
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1
in the back of his head. He testified that the keloid causes a continuous throbbing pain,
and that his head continuously itches. He has been unable to obtain relief from these
symptoms, even after the three years of various treatments. Plaintiff estimates that he
has been to a prison healthcare unit at least 20 times since October 2014.
On March 2, 2017, Plaintiff filed a motion seeking preliminary injunctive relief
relating to treatment for his AKN. (Doc. 89). On May 31, 2017, in an Order agreed
upon by the parties, the Court ordered Defendant Wexford Health Sources, Inc.
(“Wexford”) to provide Plaintiff with a physical examination of his AKN by a medical
doctor at Graham Correctional Center (where Plaintiff now resides) for the purpose of
recommending a course of treatment. (Doc. 117).
On June 5, 2017, Plaintiff was examined by Dr. Francis Kayira, who recommended
a referral to a dermatologist. (Doc. 135-1). Dr. Kayira wrote on Plaintiff’s progress
notes: “Refer to dermatologist as trials of antibiotics and steroids…have failed.” (Id.).
Plaintiff testified that Dr. Kayira also verbally told Plaintiff that he was recommending
that Plaintiff see a dermatologist because the antibiotics and other treatments had not
worked. There is no mention of the Court’s May 31, 2017 order in Dr. Kayira’s notes.
Plaintiff was not referred to a dermatologist, however. On June 28, 2017, Dr.
Kayira prepared a written referral denial. (Doc. 135-2). Dr. Kayira wrote “Request for
Dermatology consult non approved by Dr. Ritz in collegial with Dr. Kayira. Acne
keloids topical treatments have not worked.”
(Id.).
Dr. Kayira indicated that the
matter would be discussed the following week once information could “be obtained on
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the court order.” (Id.).
At his deposition, Dr. Kayira testified that the only reason he initially referred
Plaintiff to a dermatologist was because “someone” told him that the Court had ordered
Dr. Kayira to send Plaintiff somewhere. (Doc. 138-3, p. 2 – 3).
He testified that,
without the court order, he would not have issued the referral. (Id. at 3). According to
Dr. Kayira, he would only send an inmate suffering from AKN to a specialist if surgery
is required; however, Plaintiff’s AKN did not warrant a referral.
(Id.).
He still
acknowledged that past medications had not helped Plaintiff, but testified that had he
not thought he was required to refer Plaintiff to a dermatologist, he would try different
antibiotics or topical steroids. (Id. at 3, 4).
Dr. Kayira testified that he discussed his referral at a collegial. He testified that,
as part of the collegial, he spoke with a Dr. Ritz, who is a Wexford physician located in
Pittsburgh, Pennsylvania. (Id. at 4). According to Dr. Kayira, he told Dr. Ritz that he
was referring Plaintiff to a dermatologist due to a court order. (Id.). Dr. Ritz asked for
the order, but Dr. Kayira told him that he did not have it. (Id.). Dr. Kayira testified
that Dr. Ritz then decided that the case would be continued until they could determine
what the court order said. (Id.).
Plaintiff, however, testified that Dr. Kayira told him that the doctor did not know
why Plaintiff’s referral was denied, and that he would look into it and get back to
Plaintiff. According to Plaintiff, Dr. Kayira did not get back in touch with Plaintiff on
this matter. The back of Plaintiff’s head later became infected again, and Plaintiff was
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provided more of the same antibiotic he had been provided previously, along with a
benzyl peroxide wash. To date, however, Plaintiff has not been referred to or otherwise
seen by a dermatologist.
PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is “an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
Accord Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an
extraordinary remedy never awarded as of right”). To win a preliminary injunction, a
plaintiff must show (1) that he is likely to succeed on the merits, (2) that he is likely to
suffer irreparable harm without the injunction, (3) that the harm he would suffer is
greater than the harm a preliminary injunction would inflict on defendants, and (4) that
the injunction is in the public interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010)
(citing Winter, 555 U.S. at 20). The “considerations are interdependent: the greater the
likelihood of success on the merits, the less net harm the injunction must prevent in
order for preliminary relief to be warranted.” Judge, 612 F.3d at 546.
In the context of prisoner litigation, there are further restrictions on courts’
remedial power.
The scope of the Court’s authority to enter an injunction in the
corrections context is circumscribed by the Prison Litigation Reform Act (PLRA).
Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary
injunction relief “must be narrowly drawn, extend no further than necessary to correct
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the harm the court finds requires preliminary relief, and be the least intrusive means
necessary to correct that harm.” 18 U.S.C. §3626(a)(2). See also Westefer, 682 F.3d at
683 (the PLRA “enforces a point repeatedly made by the Supreme Court in cases
challenging prison conditions:
prison officials have broad administrative and
discretionary authority over the institutions they manage”) (internal quotation marks
and citation omitted).
ANALYSIS
1. Exhaustion of Administrative Remedies
The Court first addresses an argument raised by the Wexford Defendants in their
brief relating to the exhaustion of administrative remedies. Specifically, the Wexford
Defendants argue that Plaintiff’s renewed motion should be denied because Plaintiff has
failed to exhaust his administrative remedies in regards to the denial of the June 5th
referral. The argument fails, however.
The PLRA requires an inmate to exhaust available administrative remedies prior
to bringing an action in court under federal law. 42 U.S.C. § 1997e(a). Where an
inmate has an ongoing problem, however, in order to exhaust, the inmate “need not file
multiple, successive grievances raising the same issue (such as prison conditions or
policies).” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). Rather, “[O]nce a
prison has received notice of, and an opportunity to correct a problem, the prisoner has
satisfied the purpose of the exhaustion requirement.” Id. At no point during this
litigation have any of the defendants filed a motion for summary judgment based on
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failure to exhaust, and the time to do so has long since passed. (See Doc. 51). The
Court, therefore, assumes that Defendants have conceded that Plaintiff exhausted his
administrative remedies as to the deliberate indifference claims raised in his complaint.
Plaintiff’s disagreement with the denial of the June 5th referral is merely part of an
ongoing problem stemming from Plaintiff original deliberate indifference allegations.
Since the Court assumes he has exhausted as to those allegations, he is not required to
exhaust the grievance process as to the June 5th denied referral.
The Court may
consider the merits of Plaintiff’s request for a preliminary injunction.
2. Preliminary Injunction
In order to obtain a preliminary injunction, Plaintiff must demonstrate that he is
likely to succeed on the merits of his Eighth Amendment deliberate indifference claims.
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
reasonable measures to meet a substantial risk of serious harm — not to demand specific
care. Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1074 (7th Cir. 2012) (stating
that a prison doctor “is free to make his own, independent medical determination as
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to the necessity of certain treatments or medications, so long as the determination is
based on the physician’s professional judgment and does not go against accepted
professional standards”); Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Although a
prison official may not continue a course of treatment he knows is blatantly ineffective,
prisoners are not entitled to receive unqualified access to healthcare. See Holloway, 700
F.3d at 1073-74. A doctor may provide the care he feels is reasonable so long as it falls
within a “range of acceptable courses based on prevailing standards in the field.” Id. at
1073.
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 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.
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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. Greeno, 414 F.3d at 653. The plaintiff need not show the defendant literally
ignored his complaint, just that the defendant was aware of the serious medical
condition and either knowingly or recklessly disregarded it. Hayes v. Snyder, 546 F.3d
516, 524 (7th Cir. 2008). Deliberate indifference is not negligence; rather it is more akin
to intentional wrongdoing. McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013). The
standard is criminal recklessness, and even gross negligence will not meet this standard.
Id. at 481.
Based on the record presented, the Court finds that Plaintiff can demonstrate he is
likely to succeed in demonstrating deliberate indifference to his serious medical needs
by Drs. Kayira and Ritz. The Court finds Dr. Kayira’s testimony regarding the reason
for the non-referral to be rather nonsensical and lacking in credibility. The Court’s May
31st Order clearly did not require Wexford to referral Plaintiff to a specialist. Rather, it
merely required that Plaintiff be examined by a Graham physician for the purpose of
recommending a course of treatment. Dr. Kayira’s assertion that his mistaken belief
regarding the court order was the only reason he referred Plaintiff to a dermatologist is
belied not only by the rationale he provided on Plaintiff’s progress note, but also by the
fact that there is no mention of a court order on the June 5th note. Dr. Kayira’s notes
clearly indicate that he was issuing the referral because previous treatments had failed.
If this basis for the referral was merely pretense and the real basis was the belief that the
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Court had ordered him to issue the referral, one would think that Dr. Kayira would have
at least also referred to the Court’s “order”. In addition, Plaintiff, who the Court does
find credible, testified that Dr. Kayira told him that he did not know why the referral had
been denied. Dr. Kayira’s statement to Plaintiff is clearly not true, as Dr. Kayira signed
the referral denial form.
The Court also finds noteworthy Dr. Kayira’s testimony regarding how he would
treat Plaintiff going forward.
Dr. Kayira acknowledged that past treatments had
largely had not helped Plaintiff, and testified that had he not been under the belief that
he was required to refer Plaintiff out, he would try treating Plaintiff with different
antibiotics and possibly different steroids.
After the June examination, however,
Plaintiff again presented to Dr. Kayira with an infection on his head, and the doctor
prescribed him the same antibiotic as was previously prescribed. While the infection
may have cleared up, there is no indication that Dr. Kayira, contrary to his testimony,
has provided Plaintiff with any differing antibiotics or steroids to treat the underlying
AKN.
Knowingly continuing a course of treatment known to be ineffective can
constitute deliberate indifference, see Holloway, 700 F.3d at 1073-74, and based on these
facts alone, a fact-finder could easily find that Dr. Kayira has done just that.
The Court finds that what the record surrounding Dr. Kayira’s examination and
treatment of Plaintiff likely demonstrates is that Dr. Kayira’s notes from the examination
accurately reflect his genuine medical judgment regarding the proper course of action as
to Plaintiff’s AKN. Therefore, without any real explanation as to why the referral was
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denied, Dr. Ritz’s failure to approve the referral in light of Dr. Kayira’s notes and
Plaintiff’s medical history demonstrates Dr. Ritz likely acted with deliberate indifference
as well. Dr. Ritz had been informed that treatment to that point had largely been a
failure, and yet, he still denied the referral. The Court can only speculate as to why Dr.
Kayira’s changed his story; however, the Court does not buy the doctor’s more recent
claim that he only issued the referral under the mistaken belief that this Court ordered
him to do so. As Plaintiff has still not been sent to a specialist or otherwise received
differing treatment, Kayira’s and Ritz’s actions constitute ongoing violations that are still
harming Plaintiff today.
The fact that neither Drs. Kayira nor Ritz are named defendants in this matter
does not preclude the issuance of an injunction against Wexford.
employed by Wexford, who is a named defendant.
They are both
Personal involvement—in
Wexford’s case via practice or policy—is a prerequisite for recovering damages in a 1983
case. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Since Plaintiff is
seeking injunctive relief in this instance, however, a lack of “personal involvement” is
“irrelevant,” see Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011), and Wexford
is the proper defendant to carry out any such relief.
Plaintiff is also likely to suffer irreparable harm if an injunction is not entered.
Plaintiff testified that his keloid is painful, and his head constantly itches. He has also
suffered from scarring. The Court gives credit to Plaintiff’s testimony and finds him to
be a reliable witness. An untreated painful condition, even though not life threatening,
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can create an actionable claim under the Eighth Amendment. Gonzalez, 663 F.3d at
315; Gayton, 593 F.3d at 620. Where the non-issuance of an injunction would certainly
result in continual pain and discomfort for Plaintiff, an injunction ordering that Plaintiff
be referred to a dermatologist may result in relief for him.
In addition, the harm suffered by Plaintiff if an injunction were not issued is likely
to be greater than the harm suffered by Defendants if one were issued. The Court sees
little harm to Defendants if it requires them to send Plaintiff to a dermatologist. The
injunction sought by Plaintiff does not require Wexford to take any actions that are out
of the ordinary. Wexford is in the business of providing medical care to inmates, and
sometimes providing adequate medical care requires an inmate be seen by a specialist
outside the prison. Any burden imposed on Wexford would come in the form of the
resources and money required to send Plaintiff to the specialist.
Such a burden,
however, is outweighed by the pain and harm caused to Plaintiff by his AKN. The
injunction sought by Plaintiff merely requires Wexford to do its job: provide adequate
healthcare to Plaintiff.
The public also has an interest in seeing a preliminary injunction issued.
Anytime a citizen’s constitutional rights are violated, the public interest in the
vindication and protection of those rights is high. Acquiescence to the violation of a
right not only erodes the protection of that right for all citizens, but can also erode the
protection of all rights guaranteed under the Constitution. The public has an interest in
the humane treatment of prisoners, not only because prisoners, like anyone else, possess
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innate human dignity, but also because some members of the public outside of the
prison walls may one day find themselves inside them and clearly therefore have an
interest in receiving the same Eighth Amendment protections as Plaintiff.
Finally, the Court finds that the injunctive relief sought by Plaintiff is sufficiently
narrow as required by the PLRA, with a caveat. Plaintiff does not ask for a specific
medication, test, or procedure. He merely asks that the Court order that he be referred
to a dermatologist within a reasonable time and that he receive ongoing treatment
consistent with the specialist’s recommendations. While the request to be seen by a
specialist is sufficiently narrowly tailored, the Court declines today to order Wexford to
comply with whatever recommendations the specialist may make. In the end, the
Eighth Amendment
may
require
Wexford to
comply
with the specialist’s
recommendations; however, the Court will not order it to do so without knowing what
the recommendations are. If the specialist makes recommendations, and there is a
dispute among the parties as to whether and/or the manner in which the
recommendations are to be carried out, the dispute may be brought to the Court. As
narrowed by the Court, the relief sought by Plaintiff is sufficiently narrowly tailored,
and from the record before it, the Court finds that it is the least intrusive means
necessary to remedy Plaintiff’s harm.
CONCLUSION
For the reasons discussed above, the Court finds that preliminary injunctive relief
is appropriate in this matter.
Plaintiff’s Renewed Motion for Immediate Medical
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Attention and Preliminary Injunction (Doc. 135) is GRANTED in part. The Court
ENJOINS Defendant Wexford and ORDERS that Wexford shall ensure that Plaintiff is
examined and treated by a dermatological specialist within 30 days.
IT IS SO ORDERED.
DATED: 10/27/2017
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge
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