Tolliver v. Wexford Health Sources, Inc. et al
Filing
162
ORDER: Defendants' MOTION for Summary Judgment filed by Nurse Moldenhauer, Wexford Health Sources, Inc., and Dr. Trost (Doc. 126 ), is DENIED. Signed by Judge Staci M. Yandle on 10/5/2021. (rts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHAN TOLLIVER,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.
et al,
Defendants.
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Case No. 16-CV-130-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Jonathan Tolliver filed the instant lawsuit under 42 U.S.C. § 1983. He claims that
Defendants Michael Moldenhauer, John Trost, M.D., and Wexford Health Sources, Inc.
(collectively “the Wexford Defendants”) were deliberately indifferent in their treatment of his
hand injury during his incarceration at Menard Correctional Center (Doc. 1).
This case is before the Court for consideration of the Wexford Defendants’ Motion for
Summary Judgment (Doc. 126). Tolliver filed a response in opposition to the motion (Doc. 143)1
and Defendant replied (Doc 146). For the following reasons, the motion is DENIED.
1
In his response, Tolliver asserts his own Statement of Material Facts (Doc. 140, Ex. 1) but fails to address Wexford
Defendants’ Statement of Uncontroverted Facts. Defendants argue that the entirety of these statements should be
admitted as undisputed and summary judgment should be granted in their favor (Doc. 146 at 7-8). However, such an
approach is neither endorsed nor authorized by Fed. R. Civ. P. 56(e).
Page 1 of 9
Background
The following material facts are either undisputed or taken in a light most favorable to
Plaintiff Tolliver as the non-moving party: Wexford Health Sources, Inc. provides medical
services to inmates at Illinois Department of Corrections (“IDOC”), including Menard (See Doc.
127, Ex. 2 at 103). Defendant Dr. John Trost was the Medical Director at Menard and a Wexford
employee at all times relevant to this case (See Doc. 127, Ex. 3 at 18-21). Defendant Michael
Moldenhauer was a nurse practitioner at Menard and a Wexford employee at all times relevant to
this case (See Doc. 127, Ex. 4 at 17-32).
Care and Treatment of Tolliver’s hand injury:
On April 8, 2014, a correctional officer broke Plaintiff’s third metacarpal in his
right hand as the officer was removing Plaintiff’s handcuffs and hit it against the
cell bars (See Doc 139, Ex. 1 at 102-105, 162; Ex. 9 at 2; Ex. 10 at 45).
In the week that followed, Menard was on “Level 1 Lockdown” (Doc. 139, Ex. 1
at 168; Ex. 7). Sick call would be conducted once a day at minimum, whether or
not there was a Lockdown (Doc. 127, Ex. 3 at 66).
On April 8, 2014, Plaintiff showed his significantly swollen hand to a correctional
officer and asked to see a nurse (Doc. 139, Ex. 1 at 165).
Plaintiff’s hand did not swell immediately, but swelled over the course of a couple
of days. (Doc. 127, Ex. 5). According to the medical records, Plaintiff described his
pain intensity as a 3 or 4 on a 1/10 scale on April 16 (Id.).2
Plaintiff was first seen by a nurse for an appointment regarding his hand injury
approximately one week later, on Wednesday, April 16, 2014 (Doc. 127, Ex. 5).
He reported that he was unable to fully bend his finger (Doc. 127, Ex. 5). Plaintiff
was provided Tylenol for three days, a splint, ace wrap, and a cold pack (Doc. 127,
Ex. 5).
On Friday, April 18, 2014, ten days after his hand was broken and after lockdown
ended, Plaintiff was seen by a nurse for an appointment (Doc. 127, Ex. 5; Doc. 143,
2
Plaintiff disputes this assertion in his deposition indicating that his hand reached approximately double its normal
size within the first day (Doc. 139, Ex. 1 at 168, 188; Ex. 8 at 1; Ex. 11).
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Ex. 16 at 10; Ex. 4 at 50-51). During this appointment, Plaintiff indicated that his
hand was injured on April 15, 20143 (Id.).
According to the medical records, Plaintiff indicated his pain was 4 out of 10, and
that the pain he experienced was Intermittent (Id.).4 Eventually, Plaintiff’s hand
caused him so much pain that he was unable to sleep and suffered day-long
headaches (Doc. 139, Ex. 1 at 249-50).
On the same day, April 18, 2014, an Inmate Injury Report was filled out and
submitted to Defendant Moldenhauer, notifying him of Plaintiff’s injury (Id.).
Upon his review of the report, Moldenhauer requested to see Plaintiff
“immediately” (Id.).
After evaluation, Moldenhauer ordered an x-ray of Plaintiff’s right hand and wrist
(Doc. 127, Ex. 4 at 57; Ex. 5).
Moldenhauer also ordered Tylenol, a lower bunk permit, a splint for Plaintiff’s right
hand, and a follow-up appointment with Defendant Dr. Trost for the following
Monday, April 21, 2014 (Doc. 127, Ex. 5).
Moldenhauer provided a “plainly inappropriate” wrist brace that did nothing to
immobilize the fracture, leaving the fracture completely free to move while pushing
right where the fracture was, exacerbating Tolliver’s pain and fracture (Doc. 139,
Ex. 17 at 128).
On April 21, 2014, Dr. Trost was unavailable. Moldenhauer saw Plaintiff for his
appointment (Id.). Plaintiff informed Moldenhauer “my hand is doing pretty
good.”5
.
Moldenhauer noted that Plaintiff’s splint was intact, there was less bruising, and
Plaintiff’s pain was controlled (Id.). According to Plaintiff, Moldenhauer “did
nothing to provide more effective pain relief” by maintaining the ineffective dose
of Tylenol, 650 mg twice daily (Doc. 139, Ex. 4 at 83-84).
Moldenhauer referred Plaintiff to an off-site orthopedist which he considered an
“emergency” (Doc. 127, Ex. 4 at 84; Ex. 5; Ex. 16).
3
The date of Tolliver’s hand injury is directly disputed. Defendants claim that it is undisputed that Tolliver reported
suffering his injury on April 15 (Doc. 127 at 4). Tolliver disputed this fact during his deposition, explaining that the
mistake likely occurred because of Tolliver’s reference to “last Wednesday” (Doc. 139, Ex. 1 at 245). There is no
evidence in the record indicating that Tolliver’s hand injury in fact occurred on April 15 rather than April 8.
4
Plaintiff describes his pain as excruciating pain which was exasperated every time he used his hand (Doc. 139, Ex.
1 at 187, 249-50; Ex. 9 at 3).
5
Plaintiff explained in his deposition that the comment referenced the color of his hand, not his pain level (Doc.
139, Ex. 1 at 253).
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Plaintiff was first seen by Dr. Barr, the surgeon, on April 24, 2014 (Doc 127, Ex. 6
at 9). Dr. Barr testified that because of the severe degree of displacement and the
age of Plaintiff’s injury before he received medical attention, he required an
osteomy and internal fixation of his third metacarpal: a procedure that required
cutting into the scar tissue that had developed over the preceding weeks and
realigning Plaintiff’s metacarpal to a normal angulation (Doc. 139, Ex. 10 at 57-59,
70).
Plaintiff underwent surgery for his hand injury on May 1, 2014 (Doc. 127, Ex. 5;
Ex. 6 at 9).
Dr. Trost started Plaintiff on ibuprofen because Plaintiff’s operating surgeon
ordered Tylenol 3 with codeine if Plaintiff’s pain is “not relieved by ibuprofen”
(Doc. 127, Ex. 3 at 100; Ex. 5). The Ibuprofen prescribed by Dr. Trost was
inadequate to address Plaintiff’s post-operative pain and left him in “extreme pain
all day long” (Doc. 139, Ex.1 at 258-60; Ex. 9 at 4).
After unanswered complaints regarding inadequate pain relief, Plaintiff wrote a
letter dated May 24, 2014, to Dr. Trost in which he re-iterated his complaint of
inadequate post-operative pain relief (Doc. 139, Ex. 1 at 258; Ex. 19). Despite
Plaintiff’s complaints, Dr. Trost did not alter his pain medication or provide the
medication Dr. Barr had prescribed (Doc. 139, Ex. 1 at 258-259, 261).
Discussion
Summary judgment is proper if the moving party can demonstrate that there is no genuine
issue as to any material fact – that is 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.”
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the evidence is
merely colorable or is not sufficiently probative, summary judgment should be granted. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). Any doubt as to the existence of a genuine
issue of material fact must be resolved against the moving party. Lawrence v. Kenosha County,
391 F.3d 837, 841 (7th Cir. 2004).
Prison officials violate the Eighth Amendment if they are deliberately indifferent to a
serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d
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679, 684 (7th Cir. 2016). To prevail on such a claim, an inmate must show that he 1) suffered
from an objectively serious medical condition; and 2) that the defendant was deliberately
indifferent to a risk of serious harm from that condition. Petties v. Carter, 836 F.3d 722, 727 (7th
Cir. 2016). An objectively serious condition includes an ailment that has been “diagnosed by a
physician as mandating treatment,” one that significantly affects an individual’s daily activities, or
which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
1997). The Seventh Circuit has also held that extreme pain is similarly an objectively serious
medical condition. Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir. 1997).
Defendants agree that Tolliver’s hand injury was objectively serious. As such, he must
prove that Defendants knew of but disregarded his condition. Farmer v. Brennan, 511 U.S. 825,
837 (1994).
Nurse Moldenhauer
Tolliver contends that Nurse Moldenhauer consciously disregarded his serious medical
need by delaying treatment, providing less than minimally competent care, and by failing to
address his pain. Specifically, he argues that Nurse Moldenhauer was aware that his fracture
required treatment by an orthopedic specialist and intermediate treatment to immobilize the injury.
Despite this awareness, Nurse Moldenhauer waited until after the weekend to request that he be
referred to an orthopedic surgeon. Tolliver also argues that Nurse Moldenhauer knew his fracture
should be immobilized but provided a wrist brace that was not only ineffective but exacerbated his
injury. Finally, he argues that Nurse Moldenhauer knew he was in pain and did nothing to modify
the medication, forcing him to suffer pain over the weekend.
The parties agree that Tolliver had obvious signs of a serious injury but disagree regarding
the severity of pain, degree of swelling and discoloration, and to what extent Tolliver was able to
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make a closed fist. That said, the record shows that Nurse Moldenhauer knew Tolliver’s situation
on April 18, 2014 was an “emergency” that required immediate care, but delayed referral to an
orthopedic surgeon until after the weekend. These facts are sufficient to support a finding that
Nurse Moldenhauer was deliberately indifferent to Tolliver’s condition. See Gomez v. Randle,
680 F.3d 859, 865-66 (7th Cir. 2012) (a deliberate indifference claim can be based on delay in
treatment that prolongs plaintiff’s pain even if the delay does not exacerbate the injury).
Further, although the evidence on the record shows that Nurse Moldenhauer treated
Toliver’s fracture in part with a wrist brace, the evidence also supports a finding that the wrist
brace was ineffective and exacerbated Tolliver’s injury. Tolliver’s expert Dr. Slater6 opined that
the brace provided by Defendant Moldenhauer was a “plainly inappropriate” substitute for the
proper splint “widely known to be required” to address the type of injury which Tolliver suffered.
See Zaya v. Sood, 836 F.3d 800, 805 (7th Cir. 2016) (“[J]ury may infer” deliberate indifference
where “defendant’s chosen ‘course of treatment’ departs from ‘accepted professional practice’”).
As to Toliver’s pain complaints, Dr. Moldenhauer did not modify Tolliver’s dose of
Acetaminophen between April 18 and April 21, 2014. At minimum, a reasonable factfinder could
conclude that Tolliver was forced to suffer pain over the weekend while awaiting treatment.
For these reasons, summary judgment is not appropriate as to Nurse Moldenhauer.
Dr. Trost
Tolliver argues that Dr. Trost was aware of and disregarded his severe pain following
surgery. Dr. Barr performed Tolliver’s hand surgery on May 1, 2014. He prescribed a narcotic
analgesic (Tylenol 3 with codeine) to be used if Ibuprofen did not address Tolliver’s pain (Doc.
143 at ¶ 20). Tolliver testified that Ibuprofen was not adequately addressing his post-operative
6
Dr. Slater is an expert in emergency medicine who will testify in support of Tolliver.
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pain and that he told the nursing staff so on each shift. He also testified that he wrote Dr. Trost a
letter directly, sending it through the same institutional mail he has used successfully throughout
his imprisonment at Menard (Id. at ¶ 24). Although Dr. Trost denies being aware of Tolliver’s
pain, Tolliver’s circumstantial evidence is sufficient to permit a jury to infer otherwise. See Ford
v. Fahim, 2016 WL 4585728, at *1 (S.D. Ill. Sept. 2, 2016) (presenting evidence that a prisoner
placed a letter in the prison’s institutional mail creates a rebuttable presumption, because no
evidence was presented indicating the mail was dysfunctional which infers that the recipient in
fact received the letter). Despite the evidence that Tolliver’s pain was not properly controlled with
Ibuprofen, Dr. Trost did not follow Dr. Barr’s plan to provide him Tylenol 3. Even without Dr.
Barr’s prescription, the fact that Dr. Trost failed to develop any alternative pain management plan
despite allegedly knowing that the Ibuprofen was ineffective is itself sufficient to permit a finding
of deliberate indifference. See Petties, 836 F.3d at 729-30. Dr. Trost is not entitled to summary
judgment.
Wexford Health Sources, Inc.
Defendant Wexford argues that Tolliver’s vicarious liability claim, derived from
allegations against Defendants Moldenhauer and Dr. Trost, fails as a matter of law because claims
based on respondeat superior are not available under § 1983. See Johnson v. Dossey, 515 F.3d
778, 782 (7th Cir. 2008). The Court notes that the Seventh Circuit recently questioned whether
private corporations should be subject to respondeat superior liability for section 1983 claims.
Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014); Glisson, 849 F.3d at 379 (leaving
the question of section 1983 respondeat superior liability “for another day”). However, that leaves
the question of a Monell claim against Wexford, which Wexford argues also fails.
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To prevail on a Monell claim against Wexford, Tolliver must proffer evidence showing (1)
an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice
that is so permanent and well-settled it constitutes a custom or practice causing a constitutional
deprivation; or (3) the constitutional injury was caused by a person with final policymaking
authority. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Absent a
deprivation of a constitutional right, a claim under Monell holding fails. Rice ex rel. Rice v. Corr.
Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012).
Tolliver argues that Wexford has instituted a policy that prevented him from receiving
medical care from April 8 until April 16, 2014. More particularly, that Wexford is responsible for
violating his Eighth Amendment rights: (1) through its obviously problematic policy of denying access
to providers for all serious medical needs (except those that non-provider staff decide are emergencies)
during lockdowns, and (2) through the actions of Dr. Trost, to whom Wexford delegated final
policymaking authority on the topic of narcotic pain medication for severe pain.
Wexford’s express policy, as testified to by its Rule 30(b)(6) designee, is to deny prisoners
access to providers during a lockdown, unless correctional or nursing staff determine that there is
an “emergency” (Doc. 143 at ¶ 10). See, Sanyo Laser Prod. Inc. v. Arista Records, Inc., 214 F.R.D.
496, 502-03 (S.D. Ind. 2003) (“[P]urpose behind Rule 30(b)(6) is to create testimony that will bind
the corporation.”); Quinn v. Obaisi, 2018 WL 1184736, at *8 (N.D. Ill. Mar. 7, 2018) (testimony
of Wexford’s 30(b)(6) designee is sufficient to create a triable factual issue on Wexford’s policy,
defeating summary judgment). And construing the record in Plaintiff’s favor, the only training
Wexford provided regarding this policy instructed staff not to consider Tolliver’s non-compound
fracture as an emergency (Id. at ¶ 9-10). Thus, correctional and nursing staff acted consistently
with that training, ignoring his requests for medical attention.
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The risk of harm posed by Wexford’s policy is obvious: denying medical care during
lockdowns to prisoners with serious but non-emergent medical needs virtually guarantees that they
will suffer pain during lockdowns. The self-evident nature of this risk is sufficient to establish
conscious disregard, as “a factfinder may conclude that . . . the risk was obvious.” Farmer, 511
U.S. 825 at (1994). Although Wexford argues that rounds made by nurses and physician staff
were still provided and available to offenders during lockdown, a jury could reasonably conclude
that Tolliver’s pleas for help were ignored for eight days until the lockdown was over, due to
Wexford’s policies. Accordingly, Tolliver’s claims against Wexford also survive summary
judgment.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 126) is
DENIED.
IT IS SO ORDERED.
DATED: October 5, 2021
STACI M. YANDLE
United States District Judge
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