Lisle, Jr. v. Butler et al
Filing
163
ORDER granting in part and denying in part 119 Motion for Summary Judgment; granting in part and denying in part 126 Motion for Summary Judgment. Signed by Chief Judge Nancy J. Rosenstengel on 3/18/2020. (jrj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN D. LISLE, JR.,
#R40159,
Plaintiff,
Case No. 16-cv-00422-NJR
v.
FRANK EOVALDI,
TONYA SMITH,
RICHARD HARRIS,
MICHAEL LAMINAK,
CHRISTOPHER MCCLURE,
BRANDON ANTHONY,
TRACY HARRINGTON,
VIRGIL SMITH,
JOHN TROST, and
SYLVIA BUTLER,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is a Motion for Summary Judgment filed by Defendant John
Trost (Doc. 119) and a Motion for Summary Judgment filed by Defendants Sylvia Butler,
Richard Harris, Frank Eovaldi, Christopher McClure, Michael Laminak, Brandon Anthony,
Tracy Harrington, Virgil Smith, and Tonya Smith (Doc. 126). For the reasons set forth below,
the Court grants in part and denies in part both motions.
BACKGROUND
Lisle, an inmate in the Illinois Department of Corrections, filed this action under
42 U.S.C. § 1983 for alleged deprivations of his constitutional rights that occurred at Menard
Correctional Center (“Menard”). (Doc. 61). On June 17, 2015, Lisle attempted suicide by
swallowing a razor blade. According to the Amended Complaint, despite obvious dangers
and risks of internal bleeding, Defendants failed to provide Lisle with any medical care.
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(Doc. 61, p. 1). After swallowing the razor blade, he was strip searched and left bleeding from
the mouth in a cell overnight. When he was transferred to the infirmary, he was only placed
under observation. (Id.). Although he was x-rayed three times, no care or treatment was
offered for seven days. (Id. at p. 1-2). While the blade was still inside him, he was released
and transferred to segregation without any medical observation or access to immediate care,
and left to pass the razor blade. (Id. at p. 2). Lisle is proceeding with one Eighth Amendment
claim of deliberate indifference for failure to provide adequate medical care against all
Defendants.
RELEVANT FACTS
Inmates at Menard are issued a razor for shaving at the beginning of the designated
shower time. (Doc. 127-7, p. 9; Doc. 127-1, p. 8; Doc. 127-3, p. 16). On June 17, 2015, Lisle was
escorted to the shower area and issued a razor for shaving by Correctional Officer Bennett.
(Doc. 127, p. 2). During his shower, while alone, he broke apart the razor and swallowed the
razor head. (Doc. 127-1, p. 8; 127-2, p. 34). He then told Officer Bennett, who called Sergeant
Harris. (Doc. 127-1, p. 9). To ensure that he did not still have the razor head hidden, Sergeant
Harris conducted a strip search of Lisle, and Officer Bennet searched his clothes. (Doc. 127-4,
p. 8-9; Doc. 127-3, p. 24; Doc. 127-1, p. 9). Lisle was taken to a holding area and evaluated by
Nurse Smith who took Lisle’s vitals, including blood pressure, and listened to his belly.
(Doc. 127-1, p. 9; Doc. 127-2, p. 35-36; Doc. 127, p. 4). Lisle was then placed in a suicide watch
cell for the night. (Doc. 127-1, p. 10; Doc. 127-4, p. 10).
The following day, Lisle was taken to the infirmary, and an x-ray was taken. (Doc. 127,
p. 5; Doc. 127-1, p. 10; Doc. 127-2, p. 37). He remained in the infirmary for a week. (Doc. 1272, p. 32). While there, two more x-rays were taken. (Doc. 61, p. 7-8; Doc. 127-1, p. 27). On June
24, 2015, Lisle was given milk of magnesia, and he was discharged from to the cell house the
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next day on June 25, 2015. (Doc. 127-2 pp. 23, 25, 32). While on suicide watch, Lisle asked
Officer Virgil Smith for additional medical treatment, and Officer Smith said no. (Doc. 127,
p. 8; Doc. 127-2, p. 39). On June 26, 2015, Lisle passed the razor and gave it to a correctional
officer. (Doc. 127-2, p. 33). He has not received any treatment for his rectum or for damage to
his intestinal tract. (Doc. 120, p. 5; Doc. 127-2, p. 39).
LEGAL STANDARDS
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment.
“Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as
to any material fact and that the movant is entitled to judgment as a matter of law.’” Anderson
v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012) (quoting FED. R. CIV. P. 56(a)). Accord Archdiocese
of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014). A genuine issue of material fact
remains “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v.
Khoury Enterpr., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014).
In assessing a summary judgment motion, a district court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the nonmoving party.
Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the
Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by examining
the evidence in the light reasonably most favorable to the non-moving party, giving [him]
the benefit of reasonable, favorable inferences and resolving conflicts in the evidence in [his]
favor.” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).
II. Eighth Amendment Deliberate Indifference
The Eighth Amendment prohibits cruel and unusual punishment and deliberate
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indifference to the “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) (citation omitted). 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).
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 twopart test. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). The first consideration is whether
the prisoner has an “objectively serious medical condition.” Id. Accord Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005). “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) (quoting 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).
The second consideration 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.
A 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). “Something more than negligence or even
malpractice is required” to prove deliberate indifference. Pyles, 771 F.3d at 409. Deliberate
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indifference involves “intentional or reckless conduct, not mere negligence.” Berry v.
Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (citing Gayton, 593 F.3d at 620).
Assessing the subjective prong is more difficult in cases alleging inadequate care as
opposed to a lack of care. Without more, a “mistake in professional judgment cannot be
deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir.
2016). The Seventh Circuit has explained:
By definition a treatment decision that’s based on professional judgment
cannot evince deliberate indifference because professional judgment implies a
choice of what the defendant believed to be the best course of treatment. A
doctor who claims to have exercised professional judgment is effectively
asserting that he lacked a sufficiently culpable mental state, and if no
reasonable jury could discredit that claim, the doctor is entitled to summary
judgment.
Id. (quoting Zaya v. Sood, 836 F.3d 800, 805-06 (7th Cir. 2016)). This is in contrast to a case
“where evidence exists that the defendant[ ] knew better than to make the medical decision
[ ] that [he] did[.]” Id. (quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016)) (alterations
in original). A medical professional’s choice of an easier, less efficacious treatment can rise to
the level of violating the Eighth Amendment, however, where the treatment is known to be
ineffective but is chosen anyway. Berry, 604 F.3d at 441.
ANALYSIS
I.
Deliberate Indifference Claim Against Dr. John Trost
Dr. Trost does not contest that Lisle suffered from a serious medical condition but
instead argues that Lisle has not demonstrated that he acted with deliberate indifference by
failing to establish that he had the requisite state of mind by “intentionally or recklessly
disregard[ing] the plaintiff’s needs.” (Doc. 120, p. 15) (quoting Holloway v. Delaware Cty.
Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012)). Dr. Trost argues that Lisle’s complaints that he
was not sent to an outside facility and prescribed pain medication are disagreements with
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the standard of care and Dr. Trost’s medical judgment, not evidence of deliberate
indifference.
As a doctor trained and experienced as a general surgeon, Dr. Trost states that he
treated Lisle within the standard of care applicable to someone who ingests a foreign body.
(Id. at p. 16). When an inmate swallows a foreign body, the standard of care is to allow the
object to “pass through the gastrointestinal system naturally as the associated risks are lower
than those of surgery…and to monitor while the foreign body passes by vitals and serial
radiographs.” (Id.). Dr. Trost ordered abdominal x-rays on June 17, 2015, June 22, 2015, and
June 25, 2015. (Id. at p. 18). Because the x-rays indicated that the razor had passed through
the esophagus and there was no further indication of bleeding or a mechanical obstruction,
he determined there was no clinical indication to refer Lisle to an outside facility for
treatment. (Id. at p. 17).
Dr. Trost further argues that, although Lisle claims he should have received pain
medication, there is no written documentation of complaints of pain, and, other than
lacerations to Lisle’s mouth from ingesting the razor, Dr. Trost was never verbally notified
that Lisle was experiencing pain. (Id.). Because pain medications (1) slow or halt
gastrointestinal processes, which can result in complications such as bleeding; and (2) can
mask abdominal pain, which would indicate internal bleeding, he states that they are not
clinically warranted or indicated for the ingestion of foreign bodies. (Id. at p. 16).
Dr. Trost contends that he prescribed the milk of magnesia when Lisle’s constipation
was reported on June 24, 2015. (Id. at p. 18). Lisle did not report blood in his stool on June 18,
2015, or June 21, 2015, and he passed the razor without complications or complaints of pain.
(Id. at pp. 14, 19). Although Lisle claims he experienced rectal bleeding, there is nothing in
the medical records recording that there was bleeding as a result of passing the razor. (Id. at
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pp. 8, 11).
Finally, Dr. Trost claims that he discharged Lisle from the infirmary while the razor
head was still in Lisle, because, based on his medical judgment, the razor would naturally
pass “in close proximity to his discharge[.]” (Id. at p. 20). Again, Dr. Trost did not see any
signs of obstruction, internal or external bleeding, or injury and did not deviate from the
standard of care in discharging Lisle from the infirmary.
In response, Lisle does not dispute Dr. Trost’s arguments that he is entitled to
judgment as a matter of law because there is insufficient medical evidence to suggest Dr.
Trost’s care and treatment rose to the level of deliberate indifference. Lisle argues, more
specifically, that Dr. Trost acted with deliberate indifference when he discharged him from
the infirmary with a harmful object still inside him knowing that Lisle was suicidal and
diagnosed as mentally ill. (Doc. 130, p. 1). In his reply brief, Dr. Trost states that Lisle is barred
from raising this new claim of deliberate indifference in the response his motion for summary
judgment. (Doc. 133, p. 2).
First, the Court agrees that Lisle’s argument raised in his Response in Opposition is a
new theory of liability not described in the operative complaint. In the Second Amended
Complaint, Lisle alleges that Dr. Trost failed to provide adequate medical care for his
“medical emergency” and did not offer him treatment options for passing the razor. (Doc. 61,
p. 9). Lisle claims he was discharged from the infirmary without any regular medical
observation (Id. at p. 2), but there is nothing in the Second Amended Complaint putting Dr.
Trost on notice that the Eighth Amendment claim against him is based on discharging Lisle
knowing that he was a high risk to inflict self-harm with the razor. Because “a plaintiff may
not amend his complaint through arguments in his brief in opposition to a motion for
summary judgment[,]” the Court will not consider these arguments. Grayson v. O’Neill, 308
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F.3d 808, 817 (7th Cir. 2002) (quoting Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir. 1996)).
Furthermore, Lisle has not produced any evidence to suggest that Dr. Trost’s
determination to treat him through observation in the infirmary by taking his vitals and a
series of x-rays or to discharge him from the infirmary to pass the razor naturally was a
substantial departure from accepted professional judgment or the standard of care for the
ingestion of foreign objects. See Whiting, 839 F.3d at 663 (holding that “no evidence in this
case support an inference that [the defendant doctor] ‘knew better’ than to pursue the course
of treatment that he did.”). As such, summary judgment is appropriate to Lisle’s claim that
Dr. Trost acted with deliberate indifference in denying him medical treatment for the razor
in his abdomen.
The Court still finds, however, that a genuine issue of material fact exists regarding
whether Dr. Trost was deliberately indifferent to the pain Lisle experienced. Chronic pain
may constitute an objectively serious medical condition. See Gonzalez v. Feinerman, 663 F.3d
311, 314 (7th Cir. 2011) (treating a hernia and chronic pain it caused as separate medical
conditions). Dr. Trost argues that there is no written documentation, including in the medical
records, that Lisle complained of pain. (Doc. 120, p. 6-9). He states that “when treating an
inmate who has swallowed a razor and is not complaining of pain, the standard of care is to
not prescribe pain medication[.]” (Id. at p. 9) (emphasis added). Lisle claims in his Second
Amended Complaint and in his depositions, however, that he continued to experience
“extreme” pain during the week he was in the infirmary. (Doc. 61, p. 7). He alleges that he
repeatedly informed medical staff that he was in pain, even though it is not recorded in the
medical records. (Doc. 127-2, p. 17). In his depositions, Lisle states that Dr. Trost did not
actually physically examine him and that he personally told Dr. Trost that he needed pain
medication and his “insides felt like they [were] burning,” but that Dr. Trost did not provide
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any medication. (Doc. 127-1, pp. 4, 27; Doc. 127-2, pp. 16, 25).
When deciding summary judgment, the Court will not make credibility
determinations. See Townsend v. Fuchs, 522 F.3d 765, 774 (7th Cir. 2008). Although Lisle’s
allegations that he suffered continual pain is not supported by the medical records, it is
possible that the observations written down by medical staff in the medical records are
inaccurate as Lisle insists. (See Doc. 127-2, p. 29). “A reasonable trier of fact could just as easily
accept” Lisle’s assertions that medical staff omitted information or wrote down the wrong
information, as it could accept that the medical records and Dr. Trost’s assertions are
accurate.
certain that there are genuine issues of material fact in dispute.” Washington v. Haupert, 481
F.3d 543, 550 (7 Cir. 2007) (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). As the
accuracy of the medical records has been called into question, Dr. Trost is not entitled to
summary judgment on the issue of whether he was deliberately indifferent in treating Lisle’s
pain.
Finally, Dr. Trost argues that Lisle has not presented any medical evidence that Lisle
“suffered a delay or denial of medical care.” (Doc. 120, p. 13). In cases “where the plaintiff
alleges the defendant delayed, rather than denied, medical treatment, [the Seventh Circuit
has] required that the plaintiff present verifying medical evidence that the delay, and not the
underlying condition, caused some harm.” Walker v. Wexford Health Sources, Inc., 940 F.3d 954,
964 (7th Cir. 2019) (internal citations omitted). In this case, however, Lisle does not argue that
Dr. Trost delayed his medical treatment, but that he was denied treatment altogether.
Accordingly, Lisle is not required to present verifying medical evidence.
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II.
Deliberate Indifference claim against Sylvia Butler, Richard Harris, Frank Eovaldi,
Christopher McClure, Michael Laminak, Brandon Anthony, Tracy Harrington, Virgil
Smith, and Tonya Smith
First, Defendants collectively contend that Lisle did not suffer from a serious medical
condition by ingesting the razor. (Doc. 127, p. 11). Contrary to Lisle’s allegations, staff never
noted any complaints of pain or distress made by Lisle during his time in the infirmary, and
the razor passed with no complications. They argue there is no evidence that Lisle actually
faced a substantial risk of serious harm in this case. (Id.).
It is undisputed that within an hour of swallowing the razor head, Lisle was seen by
Nurse Smith and Dr. Trost was called. (Doc. 127-8, pp. 5, 7; Doc. 127-2, p. 36). The next day
an x-ray was taken, and Lisle remained in the infirmary for a week under observation for
complications, such as internal bleeding and obstruction. (Doc. 127-2, p. 37; Doc. 120, p. 6).
Lisle claims that after ingesting the razor he was bleeding and coughing up blood and that
while in the infirmary he experienced severe pain. (Doc. 127-2, p. 37). Furthermore, the
Seventh Circuit has held that “the risk of suicide is an objectively serious medical
condition[.]” Lisle v. Welborn, 93 F.3d 705, 716 (7th Cir. 2019). Given the factual allegations
and Lisle’s history of self-harm (Doc. 127, p. 2), the Court finds a reasonable jury could find
that Lisle had a serious medical condition. See Hayes, 546 F.3d at 522-23 (an objectively serious
medical condition includes “an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment.”) (quoting Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997)).
a.
Dr. Sylvia Butler
Dr. Butler argues that she was not deliberately indifferent by discharging Lisle from
the infirmary. Dr. Butler states that she is employed as a mental health professional at
Menard, not a medical doctor. (Doc. 127, p. 5). At the time of the allegations, she was the crisis
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team leader and supervisor of mental health. (Id.). Dr. Butler relies on the medical doctor for
medical diagnosis and medical information. She contends that because Dr. Trost determined
that discharge was appropriate medically, she agreed to have Lisle return to a crisis cell,
where he was prior to entry in the infirmary. (Id. at p. 7). In the crisis cell, Lisle continued to
be kept on watch and seen by mental health staff. (Id. at p. 13).
In his response, Lisle argues that Dr. Butler stated in her deposition that she would
not have been comfortable authorizing a patient on crisis watch released to “segregation”
knowing that the patient still had a razor in his rectum. (Doc. 144, p. 5; Doc. 144-2, p. 21). He
states that, based on the medical records, Dr. Butler knew Lisle had not passed the razor on
the day he was discharged and was deliberately indifferent by sending him back to a cell to
be alone with a dangerous object still in his body that could be used for self-harm once
passed. (Doc. 144, p. 8). In his deposition, Lisle states he was placed back in segregation,
denying him medical attention. (Doc. 127-2, p. 28).
The Court finds that Dr. Butler is entitled to summary judgment. Lisle may have been
discharged to a cell alone, but Dr. Butler stated in her deposition that she discharged him to
a crisis cell, not to segregation, and that she never took him off of crisis watch even though
he was discharged from the infirmary. (Doc. 144-2, pp. 18, 29, 31). She further stated that the
30 minute suicide watch in the infirmary is not different than the 30 minute suicide watch in
north two cell house, and so the risk of him harming himself after he passed the razor would
have been the same. (Id. at p. 28-29). It is unclear whether Lisle was actually placed in a
segregation cell or a crisis cell following discharge from the infirmary, as both are located in
north two cell house (see Doc. 144-2, p. 31), 1 but regardless, Lisle does not dispute that Dr.
Butler discharged him with the instructions that he continue to be watched and that he
At times in his deposition Lisle states that he was returned to segregation after being discharged from the
infirmary, but he also states that he was placed on suicide watch. (Doc. 127-2, pp. 27, 39).
1
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continued to be seen by mental health staff. Although she stated that she would not have
been “comfortable” discharging Lisle from the infirmary with a razor still in his body because
she thought that “medically, [Lisle] should be followed,” (Doc. 144, p. 8; Doc. 144-2, p. 21),
she also repeatedly stated that she is not involved in the discharge of a patient regarding his
medical status. (Doc. 144-2, p. 29). Lisle even acknowledges that “Dr. Butler was responsible
for authorizing Lisle’s discharge from the infirmary from a ‘mental health’ perspective, while
Dr. Trost was responsible for authorizing Lisle’s discharge from a ‘medical’ perspective.”
(Doc. 144, p. 5). Lisle has not presented any evidence that Dr. Butler disregarded his mental
health condition or an excessive risk to his safety by discharging him from the infirmary to
be continually monitored in the cell house by mental health. “[A] medical professional is
entitled to deference in treatment decisions unless no minimally competent professional
would have so responded under those circumstances.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011) (quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008)). As such, Dr. Butler’s request
for summary judgment will be granted.
b.
Richard Harris, Frank Eovaldi, Christopher McClure, Michael Laminak, Brandon
Anthony, Tracy Harrington, Virgil Smith, and Tonya Smith
Defendants Harris, Eovaldi, McClure, Laminak, Anthony, Harrington, Officer Smith,
and Nurse Smith argue that Lisle has not presented evidence that they had a culpable state
of mind. (Doc. 127, p. 12). Sergeant Harris was the first to arrive to the showers after being
contacted by Officer Bennet. He strip searched Lisle to ensure he was not concealing the
razor. Harris advised Lieutenant Eovaldi and medical staff. (Id. at p. 3). There is no evidence
that Eovaldi even came to the scene. (Id. at p. 12). Lisle was then evaluated by Nurse Smith
in the cell house. (Id. at p. 13). She took his vitals, listened to his bowel sounds, and noted no
complaints of pain in his medical chart. Nurse Smith claims she called Dr. Trost and received
orders that Lisle could stay in the cell house and that he would be x-rayed in the morning.
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(Id. at p. 12-13). Nurse Smith also contacted mental health. Lisle was taken to a closed
evaluation cell in north two cell house and was placed on crisis watch where he was seen by
someone every 30 minutes. (Id. at p. 4-5). Officer Anthony does not remember receiving a
complaint from Lisle that night. He states that if he had heard a complaint of pain, he would
have notified healthcare. (Id. at p. 5). Furthermore, Defendants state that even if Lisle had
complained during the night to Officer Laminak, Officer McClure, or Sergeant Anthony
regarding his condition, Lisle was already receiving treatment, as he had been evaluated by
healthcare and an x-ray was scheduled. (Id. at p. 13). Likewise, at the time that Lisle alleges
he complained to Correctional Officer Virgil Smith, he had just been discharged from the
infirmary and was being monitored by mental health. (Id. at p. 14). Because non-medical staff
should be able to rely on the medical staff in treating inmates, none of the Defendants acted
with deliberate indifference or any culpable state of mind. Furthermore, nothing in the record
indicates that Lisle was bleeding or in pain prior to being taken to the infirmary.
In response, Lisle argues that the evidence shows that Defendants turned a “blind
eye” by not providing prompt medical care. He was not immediately rushed to the infirmary,
but instead placed in a holding cell waiting while Sergeant Harris notified his superior.
Although Lieutenant Eovaldi states he did not come to the scene, Lisle claims that Eovaldi
was there and berated him and instructed others to not provide him medical assistance.
(Doc. 144, p. 3; Doc. 127-1, p. 10). Following Eovaldi’s directive, Lisle claims (1) Nurse Smith
only checked his vitals and failed to adequately treat him while he was in the infirmary;
(2) Anthony, McClure, and Harris did not assist Lisle in the night when he complained of
pain; and (3) Sergeant Harrington took steps to remove him from the infirmary. (Doc. 144,
p. 4; Doc. 127-2, p. 39).
Even if Lisle demonstrates deliberate indifference, as previously mentioned, the
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Seventh Circuit requires that to succeed on a claim of delayed treatment, a plaintiff must
provide “verifying medical evidence that the delay (rather than the inmate’s underlying
condition) caused some degree of harm.” Conley v. Birch, 796 F.3d 742, 749 (7th Cir. 2015)
(quoting Jackson v. Pollion, 773 F.3d 786, 790 (7th Cir. 2013). “That is, a plaintiff must offer
medical evidence that tends to confirm or corroborate a claim that the delay was
detrimental.” Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir. 2007). Although Lisle claims that
he was denied prompt medical treatment and not immediately taken to the infirmary despite
complaining of pain and spitting up blood after ingesting the razor head (Doc. 144, p. 3-4),
he has not provided any verifying medical evidence that would permit a jury to find that the
delay in his medical treatment was detrimental. Because Lisle’s “own testimony that he
experienced untreated symptoms during the delay does not qualify as verifying medical
evidence[,]” Johnson v. Obaisi, No. 16-cv-4046, 2020 WL 433872, at *7 (N.D. Ill. Jan. 28, 2020),
the motion for summary judgment regarding Lisle’s claim of delayed medical treatment
against Harris, Eovaldi, McClure, Laminak, Anthony, and Nurse Smith is granted.
The Court also grants Sergeant Harrington’s motion for summary judgment. Lisle
claims that “Sergeant Harrington asked Dr. Butler to sign off on removing Mr. Lisle from the
infirmary [and] Dr. Butler agreed.” (Doc. 61, p. 8). He also states that at the request of
Lieutenant Eovaldi, Sergeant Harrington “took affirmative steps to remove Lisle from the
infirmary while he was still suffering from a serious medical condition[,]”and “tried to
remove Lisle from the infirmary,” in an effort to eliminate the limited medical care that Lisle
was receiving. (Id. at pp. 4, 11). Even assuming that Harrington advocated for the discharge
of Lisle from the infirmary by talking to Dr. Butler, this does not demonstrate deliberate
indifference regarding Lisle’s medical care for ingesting the razor. Dr. Butler discharged Lisle
with instructions that he continue to be monitored under crisis watch in the same manner he
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was monitored within the infirmary, and it was Dr. Trost who made the determination to
discharge him from the infirmary before he passed the razor. (Doc. 120, p. 7; Doc. 61, p. 5).
“[T]o be liable under [Section] 1983, an individual must have caused or participated in a
constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005)
(citations omitted). Because there is no underlying constitutional violation by Dr. Butler of
Dr. Trost for discharging Lisle, the factual allegations do not support an Eighth Amendment
claim against Harrington for deliberate indifference to Lisle’s serious medical need by
speaking to Dr. Butler regarding his discharge.
There is a genuine issue of material fact, however, regarding whether Officer Virgil
Smith was deliberately indifferent to Lisle’s serious medical need after he was discharged
from the infirmary. “A prisoner states an Eighth Amendment claim against nonmedical
prison officials if he alleges that they recklessly disregarded a substantial risk of serious pain
to the prisoner.” Bentz v. Ghosh, 718 F. App’x 413, 419 (7th Cir. 2017) (citing Gomez v. Randle,
680 F.3d 859, 865-66 (7th Cir. 2012)). Lisle claims that Officer Smith denied his repeated
requests for medical attention and pain medication. (Doc. 144, p. 11; Doc. 127-2, p. 39). When
he did pass the razor, he alleges he experienced a torn rectum and bleeding. (Doc. 61, p. 8).
Officer Smith does not refute Lisle’s allegation that he refused to take him back to the
infirmary but argues that there is no record that Lisle complained of pain or further injury
from passing the razor. (Doc. 127, p. 14). Additionally, Officer Smith states that Lisle had just
been discharged from the infirmary and was being monitored by mental health. (Id.).
At this stage in the litigation “the evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Liberty Lobby, Inc., 477 U.S. at 255. Lisle
does not allege that he simply asked to go to the infirmary but states in his deposition that he
told Officer Smith that his stomach was hurting and burning and that he was in pain.
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(Doc. 127-2, p. 39). Because the “’unnecessary and wanton infliction of pain’ is proscribed by
the Eighth Amendment[,]” Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)), Lisle’s claim against Office Smith for deliberate
indifference to his pain survives summary judgment.
Officer Smith further argues that he is entitled to qualified immunity as to Lisle’s
claims against him. 2 Qualified immunity shields “government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). The qualified immunity test has two prongs: (1) whether the facts
shown, taken in the light most favorable to the party asserting the injury, demonstrate that
the officer’s conduct violated a constitutional right, and (2) whether the right at issue was
clearly established at the time of the alleged misconduct. See Pearson, 555 U.S. at 232; Brosseau
v. Haugen, 43 U.S. 194, 197 (2004); Wilson v. Layne, 526 U.S. 603, 609 (1999). “The doctrine of
qualified immunity protects government officials from liability for civil damages when their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Humphries v. Milwaukee Cty., 702 F.3d 1003, 1006 (7th
Cir. 2012) (citations and quotation marks omitted).
The Court has already determined that there are disputes of material fact that prevent
a finding that Officer Smith did not engage in a constitutional violation. Furthermore,
accepting Lisle’s allegations as truth, “any reasonable officer would know he had a duty to
seek medication attention.” Orlowski v. Milwaukee Cty., 872 F.3d 417, 422 (7th Cir. 2012). For
these reasons, Officer Smith is not entitled to qualified immunity.
Because summary judgment is granted as to Defendants Dr. Butler, Harris, Eovaldi, McClure, Laminak,
Anthony, Harrington, and Nurse Smith, the Court will not consider their claims of qualified immunity. (See
Doc. 127, p. 15).
2
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DISPOSITION
For the reasons set forth above, the Court GRANTS in part and DENIES in part
Dr. Trost’s motion for summary judgment (Doc. 119). Dr. Trost’s motion is granted as to
Lisle’s claim that he was deliberately indifferent by treating Lisle by allowing the razor head
to pass naturally under observation, but is denied as to Lisle’s claim of untreated pain. The
Court also GRANTS in part and DENIES in part the motion for summary judgment filed by
Dr. Butler, Harris, Eovaldi, McClure, Laminak, Anthony, Harrington, Officer Smith, and
Nurse Smith (Doc. 127). The motion is denied as to Lisle’s claim of deliberate indifference
against Officer Smith, but is granted as to Lisle’s claims of deliberate indifference against Dr.
Butler, Harris, Eovaldi, McClure, Laminak, Anthony, Harrington, and Nurse Smith.
Accordingly, the claims against Defendants Dr. Butler, Harris, Eovaldi, McClure, Laminak,
Anthony, Harrington, and Nurse Smith are DISMISSED with prejudice. The Clerk of Court
shall terminate Dr. Butler, Harris, Eovaldi, McClure, Laminak, Anthony, Harrington, and
Nurse Smith as defendants and enter judgment in favor of these defendants at the conclusion
of the entire action.
Lisle’s claims of deliberate indifference against Defendants Dr. Trost and Officer
Smith are the only claims that remain pending. A status conference will be set by separate
order for the purpose of selecting firm dates for a final pretrial conference and jury trial.
IT IS SO ORDERED.
DATED: March 18, 2020
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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