Rogers v. Wexford Health Care Sources et al
Filing
73
ORDER GRANTING 51 Motion for Summary Judgment and DENYING 59 Motion for Summary Judgment: The Court GRANTS Defendant Phil Martin's motion for summary judgment (Doc. 51) and DENIES Defendant Vipin Shah's motion for summary judgment (Doc. 59). Magistrate Judge Gilbert C. Sison is DIRECTED to recruit counsel for Plaintiff Marcus Rogers and to set this action for a settlement conference. Signed by Chief Judge Nancy J. Rosenstengel on 9/25/2019. (jmp2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARCUS ROGERS,
Plaintiff,
v.
Case No. 3:16-CV-01294-NJR-GCS
PHIL MARTIN and VIPIN SHAH,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Marcus Rogers, an inmate in the custody of the Illinois Department of
Corrections, alleges that Defendants Phil Martin and Vipin Shah were deliberately
indifferent to his neck and shoulder pain while he was incarcerated at Robinson
Correctional Center in 2016. Before the Court are Defendants’ motions for summary
judgment on the merits of this claim. (Docs. 51, 59). For the reasons delineated below, the
Court grants Defendant Phil Martin’s motion and denies the motion for summary
judgment filed by Defendant Vipin Shah.
FACTUAL BACKGROUND
Plaintiff Marcus Rogers, an inmate in the Illinois Department of Corrections since
2015, arrived at Robinson Correctional Center on January 22, 2016. He began complaining
of pain in his neck and right shoulder in February 2016. On February 8, 2016, Rogers was
seen by a nurse in the healthcare unit. His medical records reflect that he described his
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pain as sharp and continuous. The nurse gave him 200 mg of Ibuprofen to take three
times per day for his pain, and she noted that he should return to the healthcare unit if
his symptoms worsened or interfered with daily functioning. (Doc. 60-1, p. 2).
Rogers saw a nurse again on March 1, 2016. He reported sharp, continuous neck
and shoulder pain reaching down to his right hand, and, according to his medical records,
told the nurse that the Ibuprofen helped “some.” (Doc. 60-1, p. 3). The nurse referred him
to a doctor. Defendant Vipin Shah, a doctor, saw Rogers on March 3, 2016. Dr. Shah
examined Rogers and noted a normal range of motion for his right arm and a
questionable contusion or bruised muscle on his right neck and shoulder. He
recommended that Rogers take long, hot showers, as needed, and he prescribed 600 mg
of Ibuprofen to be taken three times per day for thirty days. (Doc. 60-1, p. 4).
Rogers returned to the healthcare unit on March 16, 2016, and was seen by a nurse.
He reported that he had neck pain that went across his shoulders and down to his thumb
and that he was experiencing numbness. The nurse referred him to a physician, and
Rogers saw Dr. Shah on March 18, 2016. Rogers told Dr. Shah that he woke up like he
was shot with pain from his neck to his thumb. He explained that he had been lifting
weights in excess of 200 pounds the day before his pain started and that the pain
medication was not helping, though he continued to take it. Rogers also told Dr. Shah
that he could not lie down on his right side. Dr. Shah noted that Rogers’s thumb was
swollen due to possible alcoholism or gout, and he ordered an x-ray. Dr. Shah also
ordered blood work to determine whether Rogers had arthritis. (Doc. 60-1, p. 5-6).
Rogers had an x-ray of his right shoulder and cervical spine on March 21, 2016.
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The x-ray of his shoulder showed no acute bony injury and mild degenerative changes at
the right acromioclavicular joint. The x-ray of his cervical spine showed mild spondylitic
changes (i.e., mild degenerative changes or arthritis).
Dr. Shah saw Rogers for a follow-up appointment on April 1, 2016. Rogers
reported that his pain medications were not helping. Dr. Shah noted that Rogers’s neck
movement was okay and that his right arm was questionably numb. He also noted that
his x-ray showed degenerative changes and that his bloodwork showed high blood urea
nitrogen (“BUN”), a measurement of kidney and liver function, and low high-density
lipoprotein (“HDL”) cholesterol, the “good” cholesterol. Dr. Shah noted the risk for heart
disease or stroke and instructed Rogers to lose weight, to exercise, and to return to the
healthcare unit, as needed. He also prescribed Rogers Naproxen for his pain instead of
Ibuprofen, and he granted him a low-bunk permit. (Doc. 60-1, p. 7-8).
On April 11, 2016, Rogers reported to a nurse at sick call that the Naproxen he had
been taking was not working, and he was referred to a physician. On April 18, 2016, Dr.
Shah examined Rogers again and noted that Rogers had gained five pounds. Rogers told
Shah that the pain medications were not strong enough, but Dr. Shah did not adjust his
pain medication. Dr. Shah noted that Rogers was extremely obese with degenerative
arthritis in his cervical spine. After reviewing his bloodwork, Dr. Shah ordered an EKG
to determine the health of Rogers’s heart. The EKG, performed on May 4, 2016, was
normal. (Doc. 60-1, p. 9-11). After the EKG, Rogers did not seek further medical treatment
at Robinson before he transferred to East Moline Correctional Center in October 2016.
At all times relevant to Rogers’s complaint, Defendant Phil Martin was the Health
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Care Unit Administrator (“HCUA”) at Robinson. His background is in nursing, and,
according to Martin, only physicians and physician’s assistants have the authority to
prescribe medication or a course of treatment for a patient. As a nurse and the HCUA,
Martin lacks the authority to diagnose conditions, to recommend or order treatments or
tests, or to make medical referrals on behalf of inmates. He also was not responsible for
scheduling appointments for inmates. That was handled by Wexford medical records
staff. According to Martin, he never provided Rogers with medical treatment or tests, nor
did he prescribe him any medications. (Doc. 52-1). Martin did respond, however, to two
grievances filed by Rogers about his pain issues on behalf of the healthcare unit.
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.
Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014), citing FED. R. CIV. P.
56(a). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). 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, the district court views the facts in the
light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Delapaz v. Richardson, 634
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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. Community
Contacts, Inc., 756 F.3d 542 (7th Cir. 2014).
II.
Eight Amendment Deliberate Indifference
The Eighth Amendment prohibits cruel and unusual punishments, and the
deliberate 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). 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). A prisoner’s dissatisfaction with a
medical professional’s prescribed course of treatment does not give rise to a successful
deliberate indifference claim unless the treatment is so “blatantly inappropriate a to
evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition.”
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)(quoting Thomas v. Pate, 493 F.2d 151, 158
(7th Cir. 1974)).
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
two-part test. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing Johnson v. Snyder,
444 F.3d 579, 584 (7th Cir. 2006)). The first consideration is whether the prisoner has an
“objectively serious medical condition.” Arnett, 658 F.3d at 750. Accord Greeno, 414 F.3d at
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653. “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) (citing Pyles v. Fahim, 771
F.3d 403, 409 (7th Cir.2014)). It is not necessary for such a medical condition to “be lifethreatening 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).
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.
Id. at 653. The 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 v.
Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see also Hammond v. Rector, 123 F. Supp. 3d 1076,
1086 (S.D. Ill. 2015) (“isolated occurrences of deficient medical treatment are generally
insufficient to establish . . . deliberate indifference”). Deliberate indifference involves
“intentional or reckless conduct, not mere negligence.” Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010)(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
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
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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. (citing 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 v. Peterman, 604 F.3d
435, 441 (7th Cir. 2010).
ANALYSIS
Defendants do not dispute that Rogers’s pain was an objectively serious medical
condition. Instead, Defendant Martin argues that he was not personally involved in
Rogers’s medical treatment, as his only involvement with Rogers was in relation to
grievance responses, and that he reasonably assumed that Rogers was receiving adequate
care. Defendant Shah maintains that he provided Rogers with appropriate care and that
he was not deliberately indifferent to the pain Rogers experienced.
I.
Phil Martin
Rogers claims that as the Health Care Unit Administrator at Robinson, Martin
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oversaw the day-to-day operations of the healthcare unit and, as a result, is responsible
for the treatment Rogers received and for the perceived failure to refer Rogers to a
specialist. There is no evidence, however, that Martin had the authority to refer Rogers
to an outside specialist. To the contrary, Martin avers that he lacks authority to diagnose
patients and that he cannot recommend or order treatments, examinations, or tests. He
also maintains that he cannot make medical referrals on behalf of inmates. Those
decisions are left to the treating physicians. Other than conjecture by Rogers, there is no
evidence to support his argument that fault lies with Martin.
As to Martin’s involvement in Rogers’s overall care, he maintains that he never
treated Rogers and that never prescribed any medications. Rogers testified at his
deposition that he thought he may have been seen by Martin once, though he could not
describe Martin, and there is no evidence in his medical records supporting his claim.
While Martin may have had some subjective knowledge about Rogers’s pain because he
responded to two grievances, there is insufficient evidence to show that he knowingly or
recklessly disregarded it. As such, Martin is entitled to summary judgment.
II.
Dr. Vipin Shah
Dr. Shah maintains that he was not deliberately indifferent to Rogers’s pain, but a
reasonable juror could conclude otherwise. While Rogers focuses largely on his request
for an MRI, he also mentions the lack of proper medication he received from Dr. Shah.
On March 16, 2016, Rogers reported to a nurse that the Ibuprofen he was taking was not
working, and he told Dr. Shah the same on March 18. In response, Dr. Shah ordered an
x-ray, but he did not change or modify Rogers’s prescription. When Rogers again
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reported that his medication was not helping his pain to Dr. Shah on April 1, 2016,
Dr. Shah switched his medication to Naproxen. Rogers told a nurse that the Naproxen
also was not working during an April 11, 2016 examination, but there’s no evidence his
prescription was changed or modified in any way, even after Dr. Shah examined him on
April 18, 2016. Dr. Shah ordered an EKG in response to Rogers’s complaints.
There is no evidence or testimony that Dr. Shah chose a pain medication regimen
based on professional judgment as to what Rogers needed. While Dr. Shah provided
regular treatment to Rogers, a reasonable juror could conclude that the failure to address
his complaints that he was in pain and that his pain medication was ineffective amounts
to deliberate indifference. As such, Dr. Shah is not entitled to summary judgment.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendant Phil Martin’s motion
for summary judgment (Doc. 51) and DENIES Defendant Vipin Shah’s motion for
summary judgment (Doc. 59). At the close of the case, the Clerk of Court shall enter
judgment in favor of Defendant Phil Martin and against Plaintiff Marcus Rogers.
Magistrate Judge Gilbert C. Sison is DIRECTED to recruit counsel for Plaintiff Marcus
Rogers and to set this action for a settlement conference.
IT IS SO ORDERED.
DATED: September 25, 2019
___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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