Brand v. Wexford Health Care Serv et al

Filing 57

ORDER ADOPTING 55 REPORT AND RECOMMENDATIONS and GRANTING 50 Motion for Summary Judgment filed by Defendant Emmanuel Afuwape. This action is DISMISSED, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 8/14/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OLSEN BRAND,
Plaintiff,
vs.
DR. EMMANUEL AFUWAPE,
Defendant.

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Case No. 3:16-CV-161-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 55) regarding the Motion for Summary
Judgment filed by Defendant Dr. Emmanuel Afuwape (Doc. 50). The Report and
Recommendation, entered on July 24, 2018, recommends the Court grant Defendant’s
motion. No objections to the Report and Recommendation were filed.
Plaintiff Olsen Brand is a former inmate of the Illinois Department of Corrections.
While housed at Vandalia Correctional Center, Brand filed this pro se civil rights lawsuit
pursuant to 42 U.S.C. § 1983 against a number of defendants, all of whom have been
dismissed except for Dr. Afuwape. In his Amended Complaint, Brand alleges Dr. Afuwape
was deliberately indifferent to his serious medical needs in violation of the Eighth
Amendment (Doc. 12). Specifically, Brand alleges Dr. Afuwape saw him on multiple
occasions but refused to provide him with medication for his asthma and COPD.
Dr. Afuwape filed a motion for summary judgment on January 17, 2018, arguing that
the undisputed evidence demonstrates he was not deliberately indifferent to Brand’s serious
medical needs (Doc. 50). Brand did not file a response in opposition to summary judgment,

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so Magistrate Judge Wilkerson found Dr. Afuwape’s facts to be undisputed for purposes of
the motion. See SDIL-LR 7.1(g). After considering the undisputed facts, Magistrate Judge
Wilkerson concluded that Dr. Afuwape should be entitled to summary judgment because no
reasonable jury could find that his failure to prescribe Brand an inhaler was a significant
departure from accepted professional standards. When Dr. Afuwape first saw Brand, he had
not suffered an asthma attack in a long time, he was not on any asthma medication at that
point, and he was not having difficulty breathing. And when Brand did suffer an asthma
attack two months later, Dr. Afuwape responded by immediately ordering a breathing
treatment and a rescue inhaler, followed by a steroid inhaler two days later. Thus, Dr.
Afuwape was not deliberately indifferent to Brand’s medical needs.
The Report and Recommendation was entered on July 24, 2018, and the parties were
informed that any objections were to be filed within 14 days after service. Because no party
has filed an objection, the undersigned need not undertake de novo review. 28 U.S.C.
§ 636(b)(1)(C); see also Thomas v. Arn, 474 U.S. 140 (1985); Johnson v. Zema Sys. Corp., 170 F.3d
734, 741 (7th Cir. 1999). Instead, the Court should review the Report and Recommendation
for clear error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). The Court may
then “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1).
After carefully reviewing the Report and Recommendation for clear error, the Court
agrees with the findings, analysis, and conclusions of Magistrate Judge Wilkerson.
Accordingly,

the

Court

ADOPTS

Magistrate

Judge

Wilkerson’s

Report

and

Recommendation (Doc. 55) and GRANTS the Motion for Summary Judgment filed by
Defendant Dr. Emmanuel Afuwape (Doc. 50).

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This action is DISMISSED, and the Clerk of Court is DIRECTED to enter judgment
accordingly.

IT IS SO ORDERED.
DATED: August 14, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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