Stewart v. Lashbrook et al

Filing 155

ORDER denying 134 Motion for Summary Judgment; granting 138 Motion for Summary Judgment. Signed by Chief Judge Nancy J. Rosenstengel on 2/8/2021. (dhg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAVAR STEWART,
Plaintiff,
vs.
JACQUELINE LASHBROOK,
MICHAEL D. SCOTT, KIMBERLY
FERRARI, and WEXFORD HEALTH
SOURCES, INC.,
Defendants.

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Case No. 3:16-CV-01321-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is a Motion for Summary Judgment (Doc. 134)
(“Wexford MSJ”) filed by Defendants Michael D. Scott (“Scott”), Kimberly Ferrari
(“Ferrari”) and Wexford Health Sources, Inc. (“Wexford”) (collectively, “Wexford
Defendants”), as well as a Motion for Summary Judgment (Doc. 138) (“IDOC MSJ”) filed
by Defendant Jacqueline Lashbrook (“Lashbrook”). For the reasons set forth below, the
Court grants the IDOC MSJ and denies the Wexford MSJ.
FACTUAL AND PROCEDURAL BACKGROUND
This action stems from medical treatment given to Plaintiff Javan Stewart
(“Stewart”) by Defendants while Stewart was an inmate incarcerated at Pinckneyville
Correctional Center, a facility operated by the Illinois Department of Corrections
(“IDOC”). At all times relevant to this action, Wexford provided health care services to
inmates at IDOC facilities, including Pinckneyville, pursuant to a contract with IDOC and
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the Illinois Department of Healthcare and Family Services (Doc. 60). Under that contract,
Wexford was required to “[a]ggressively manage all off-site services for appropriate
utilization and cost effectiveness,” as well as to provide “appropriate staffing levels” and
“provide staff during all hours scheduled in [the] staffing schedules” (Doc. 146-1 at 4, 20).
Ferrari is a licensed practical nurse and was a Wexford employee at Pinckneyville
during the period in question (Doc. 135 at 3). Scott is a medical doctor licensed in Illinois
and was employed by Wexford at Pinckneyville during the period in question (Doc. 1353 at 3; Doc. 59 at 2). Lashbrook was warden of Pinckneyville during the period in question
(Doc. 138 at 2).
On February 12, 2016, Stewart injured his right knee after slipping into a wall at
Pinckneyville (Doc. 135-1 at 11). Stewart indicates that immediately after the injury, he
was unable to stand and was placed in a chair at a C/O station while medical assistance
was brought to him (Id. at 12-13). Approximately 15-30 minutes after receiving this injury,
Stewart was examined by Ferrari at the C/O station (Id. at 13). Ferrari later indicated that
she examined Stewart’s knee and noted that it was out of alignment and showed swelling
above the knee-cap and restricted range of motion, but that there was no edema or
discoloration and the skin integrity was within normal limits (Docs. 135-2 at 6; 136-1 at
3). Ferrari’s notes indicate that she referred Stewart to be seen by the next available
physician and that Stewart reported his pain level as being four on a 10-point scale
(Doc. 136-1 at 3). In her deposition, Ferrari later indicated that did not believe the injury
was one that needed to be seen immediately by a physician (Doc. 135-2 at 6). Stewart later
stated that he had reported his pain as being 14 on a 10 point scale and that Ferrari told
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him that he could not be seen by a doctor immediately because it was a holiday weekend
(Doc. 135-1 at 14). Ferrari gave Stewart ibuprofen, a cold pack, a bandage wrap, and a
low-bunk permit so that he would not need to climb to an upper bunk before seeing the
physician (Docs. 135-2 at 11; 136-1 at 3). Ferrari later indicated that she felt this treatment
was appropriate because Stewart could walk on his leg, had no edema, normal vital signs,
and “all [he] had was a knot above the kneecap” (Doc. 135-2 at 7). Stewart later stated
that Ferrari had brought him from the C/O station to the health care unit by wheelchair
and that his mobility was restricted, forcing him to walk backwards (Doc. 135-1 at 14).
Scott was the on-call physician from February 12-14, 2016, and could have ordered
emergency room treatment if a nurse had informed him that an inmate had an injury that
had to be treated urgently (Doc. 135 at 5). Lashbrook stated that on the day Stewart
injured his knee she “observed him sitting on a box in the front of the gallery” and, at
that time, “told staff members to make sure [his] injury was treated as an emergency and
to make sure he was seen by a doctor or taken to the hospital” (Doc. 21 at 8-9).
Scott saw Stewart on February 16, 2016, and observed that Scott was in a
wheelchair at that time (Doc. 135-3 at 11). Scott determined that there was swelling on
Stewart’s right knee and a depression over the patella ligament area and that the right
patella was higher than the left, among other findings (Id.). Based on these findings, Scott
prescribed an x-ray of Stewart’s right knee, with bandage wraps and a cane to assist
Stewart until the x-ray could be reviewed (Id.). Scott assessed the injury to be non-urgent
because it did not involve a weight-bearing bone and, in his view, Stewart could walk
despite the injury (Id. at 24). Stewart was issued the cane on February 16, and he indicated
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that with the assistance of the cane he was able to walk (Doc. 135-1 at 19). Stewart was xrayed when a technician was next available, on February 17, and Scott reviewed his xrays and determined that Stewart had fractured his right knee (Doc. 135-3 at 12).
Based on this finding, Scott prescribed Tylenol for Stewart’s pain and planned to
present Stewart’s case for “collegial review,” a process through which a site physician
and a Wexford physician confer to determine the medical necessity of obtaining medical
care (Docs. 135-3 at 12; 136-2 at 6). Collegial review occurred every Monday at
Pinckneyville, and Scott presented Stewart’s case at the next scheduled collegial review
on February 22 (Doc. 135-3 at 13). For urgent matters, collegial review could be requested
outside of the ordinary schedule (Id. at 19-20).
Stewart recalls speaking with Lashbrook on February 22 or 23, 2016 (Doc. 135-1 at
39). Stewart told Lashbrook that he had broken his knee and was in “a little pain,” and
confirmed upon Lashbrook’s request that he had met with medical professionals and was
being treated (Id. at 40). At the time of the conversation, Stewart was on medication, he
was using a cane, and his knee was wrapped in an ace bandage (Id.). Lashbrook did have
ultimate authority over the health care program at Pinckneyville (Doc. 138-1 at 5), but she
later indicated that she was not responsible for the work schedules of medical personnel,
and that Wexford predominantly made decisions regarding medical staffing (Id. at 8-9).
Stewart’s medical furlough paperwork for his appointments at the Orthopedic Institute
and his surgery were both signed with Lashbrook’s name, yet Lashbrook indicated that
she had never seen either document and it was standard practice for her designee to sign
documents for her (Id. at 14).
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Scott saw Stewart again on February 29, at which time he notified Stewart of his
referral for orthopedic evaluation and continued the prescription for Tylenol (Id. at 13).
Stewart was taken on March 7 for an orthopedic evaluation at the Orthopedic Institute of
Southern Illinois, conducted by Orthopedic Surgeon Dr. Charles Wood, who
recommended surgery. Wood also noted that Stewart reported pain of three on a 10-point
scale and stated that he could walk (Doc. 136-3 at 3-4). Scott then submitted a request for
surgery for Stewart, and that request was approved by collegial review on March 14, 2016
(Doc. 135-3 at 14).
On March 14, 2016, Stewart was seen at sick call by a nurse who noted Stewart’s
complaint of throbbing pain of ten on a 10-point scale and his treatment with Tylenol.
The nurse referred Stewart to Dr. Scott for him to consider renewing Stewart’s medication
(Doc. 136-1 at 15). Later that day, Scott prescribed Naprosyn for Stewart (Doc. 135-3 at
14), and Scott later noted that Stewart’s orthopedic treatment had been approved the
same day (Doc. 136-1 at 16).
Stewart was seen two weeks later at sick call by Nurse Ferrari, who noted the date
if his injury, indicated that he still had a restricted range of motion, and referred him to a
physician due to his request for medication, which she could not fulfill (Id. at 17). Scott
reviewed Stewart’s chart the same day and noted that Stewart was scheduled for surgery
on March 30, 2016 (Id. at 21).
During the surgery on March 30, Wood observed that a significant amount of scar
tissue had formed around the fracture (Doc. 136-3 at 4). Wood removed this tissue in
order to allow it to heal (Id.). Wood did not observe any complications from the surgery
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(Id. at 5), but indicated that the delay between Stewart’s injury and treatment may have
prolonged Stewart’s recovery period (Id. at 7). Wood indicated that, in his experience, 8090% of patella fractures were treated within one week (Id.).
After his operation, Stewart had a series of follow-up appointments with medical
personnel at Pinckneyville, including Scott, and attended some physical therapy between
May 26, 2016, and August 3, 2016 (Doc. 136-1 at 55-74). Stewart indicated that he ceased
his physical therapy after disagreements with medical personnel regarding the intensity
of the therapy (Doc. 135-1 at 25-27).
Stewart filed this action on December 8, 2016 (Doc. 1). 1 Certain counts and
defendants have subsequently been dismissed (Docs. 121, 154), leaving Stewart
proceeding on the following claims:
-

Count I: Deliberate Indifference against Lashbrook

-

Count II: Deliberate Indifference against Ferrari

-

Count III: Deliberate Indifference against Scott

-

Count IV: Deliberate Indifference against Wexford

Wexford, Ferrari, and Scott jointly filed the Wexford MSJ and accompanying
memorandum and exhibits on May 29 and May 30, 2020 (Docs. 134-136). Lashbrook filed
the IDOC MSJ on June 5, 2020, adopting in part the statement of facts in the Wexford
memorandum (Doc. 138). Stewart responded on July 27, 2020 (Doc. 146), and the Wexford

1

The Court recruited counsel to assist Stewart on November 15, 2017 (see Docs. 41, 45).

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defendants and Lashbrook filed reply briefs on August 10 and 19, respectively (Docs. 147,
150).
LEGAL STANDARD
Summary judgment is only appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED.
R. CIV. P. 56(a)). Once the moving party has set forth the basis for summary judgment,
the burden then shifts to the nonmoving party who must go beyond mere allegations and
offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.
56(e); see Celotex Corp. v. Catrett, 477 U.S. 317,232-24 (1986). The nonmoving party must
offer more than “[c]onclusory allegations, unsupported by specific facts,” to establish a
genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A “court may not assess the credibility of witnesses,
choose between competing inferences or balance the relative weight of conflicting
evidence[.]” Reid v. Neighborhood Assistance Corp. of America, 749 F.3d 581, 586 (7th Cir.
2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)).

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DISCUSSION
A.

Applicable Law
To succeed on a claim based on deliberate indifference in the context of medical

services, an inmate must demonstrate (1) an objectively serious medical need and (2) that
defendants had a subjectively culpable state of mind in acting or failing to act in disregard
of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
A medical need may be deemed serious if it “has been diagnosed by a physician
as mandating treatment or . . . is so obvious that even a lay person would perceive the
need for a doctor’s attention.” Id. (quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005)). 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.” Id. (quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.
2010)).
To establish that prison medical staff acted with a subjectively culpable state of
mind, an inmate need not show that harm was actually intended, but merely that
“defendants knew of a substantial risk of harm to the inmate and disregarded the risk.”
Id. (quoting Greeno, 414 F.3d at 653). Medical professionals are entitled to deference when
acting in their professional capacities, and inmates face a heavy burden when bringing
claims of deliberate indifference against them. Id. “A medical professional acting in his
professional capacity may be held to have displayed deliberate indifference only if the
decision by the professional is such a substantial departure from accepted professional
judgment, practice, or standards, as to demonstrate that the person responsible actually
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did not base the decision on such a judgment.” Id. (quoting Sain v. Wood, 512 F.3d 886,
894-95 (7th Cir. 2008)). Merely negligent conduct will not rise to this level—rather, such
conduct must reach a level “showing as something approaching a total unconcern for the
prisoner’s welfare in the face of serious risks.” Rosario v. Brawn, 670 F.3d 816, 821-822 (7th
Cir. 2012) (quoting Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006)).
Count I: Deliberate Indifference against Lashbrook
Lashbrook argues that she is entitled to summary judgment because: (1) Stewart
cannot provide evidence showing she was aware of and consciously disregarded an
objectively serious risk to his health; (2) Stewart cannot show Lashbrook was involved in
determining Scott’s schedule, and, even if she was, Scott was on call and available to
provide treatment; and (3) Stewart cannot provide evidence showing Lashbrook was
involved in approving Stewart’s medical furloughs or that she in any way delayed
treatment.
It is apparent that Lashbrook was aware of Stewart’s injury, having observed him
on the day of the injury and having spoken with him again roughly ten days later, around
February 22. On the day of the injury, Lashbrook told personnel to ensure that he was
seen by medical staff and treated. Around February 22, she confirmed that he had seen
medical staff and was undergoing treatment. While Lashbrook does have overall control
of health care at Pinckneyville, she herself is not a medical professional, and she is entitled
to defer to medical staff absent indications of an emergency or some clear departure from
medical norms. Stewart contends that factual issues should prevent summary judgment
due to the conversation that he remembers having on February 22—if Lashbrook did
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indeed say that she would “make sure” his meals were brought to him and that he was
sent out to a doctor for surgery if needed, then her failure to do so would amount to
deliberate indifference, Stewart argues.
The Court looks skeptically at this argument. If the conversation between Stewart
and Lashbrook did in fact occur on February 22, Lashbrook’s main focus seems to have
been checking that Stewart had been seen by medical staff and that he had been treated.
Having confirmed that Stewart was undergoing treatment, Lashbrook had little reason
to suspect that her personal intervention was necessary. While she could doubtless have
intervened personally to ensure that Stewart’s surgery was timely scheduled, she was not
unjustified in assuming that the medical staff already attending to Stewart would take
care of this according to longstanding procedures.
As for the failure to ensure that Stewart’s meals were delivered to him, the Court
is not inclined to view the additional pain that Stewart suffered from having to walk to
get his meals as a medical need sufficiently serious to permit a deliberate indifference
claim. Even if it were, Lashbrook’s failure to follow up does not seem by itself sufficient
to permit a claim given her knowledge that other responsible medical staff beneath her
were already attending to Stewart’s case.
Accordingly, the Court grants summary judgment to Lashbrook on Count I.
Count II: Deliberate Indifference against Ferrari
Ferrari argues that summary judgment is warranted because there is no evidence
that her medical decisions were a departure from accepted nursing standards. Stewart
concedes that she met with him on only two occasions, but claims that her performance
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on these two instances creates factual issues that preclude summary judgment. First, Scott
notes that Ferrari failed to consult with Scott, who was on call, instead instructing Stewart
to return to the health care unit in three days. Second, Ferrari and Stewart give differing
accounts of the level of pain that Stewart indicated, with Ferrari recording Stewart selfreporting a pain level of 4 out of 10, and Stewart stating that he in fact said 14.
It is entirely possible that a fact-finder might ultimately conclude that Stewart’s
later statement regarding his self-reported pain level is implausible, or that it would have
been understandable for Ferrari to misinterpret 14 as 4. Similarly, it is possible that a factfinder might conclude that Ferrari’s decision not to call a physician but rather to have
Stewart wait three days for treatment did not drastically depart from the standard of care
or show deliberate indifference, even though Stewart was largely immobile and in
significant pain at the time. At this stage, however, the facts presented regarding the
interactions between Ferrari and Stewart are not so clear as to permit summary judgment.
For this reason, the Court denies summary judgment to Ferrari.
Count III: Deliberate Indifference against Scott
Scott similarly argues that there is no evidence that he acted outside of his
professional judgment or was deliberately indifferent. Stewart argues that Scott should
have sought to expedite his treatment, requesting immediate collegial review and
personally examining Stewart rather than renewing his medications without an
examination.
During the period that Scott treated Stewart, Stewart was largely mobile, and he
generally self-reported his pain as merely moderate, except for his report of ten on the
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pain scale on March 14. Scott was consistently responsive to Stewart’s condition and took
clear steps to ensure that he did receive treatment according to established protocols.
Scott did not choose to expedite Stewart’s treatment, basing that decision on clearly
enunciated professional reasoning.
Ultimately, it is hard to point to a particular instance in which Scott’s care was
lacking, but the overall trend in Stewart’s treatment seems to have been delay—there was
delay in Stewart being seen by Scott, delay in Stewart receiving an x-ray, delay in Stewart
being seen by an outside specialist, and delay in scheduling and performing Stewart’s
surgery. While any one of these delays might individually be quite justifiable, taken as a
whole the total delay in Stewart’s treatment and Scott’s awareness of that delay as it
occurred creates a factual issue and could potentially permit a finder of fact to conclude
that Scott’s insistence on following established procedures and failure to take steps to
expedite treatment amounted to deliberate indifference.
Accordingly, the Court denies summary judgment to Scott.
Count IV: Deliberate Indifference against Wexford
Wexford had no direct involvement with Stewart’s treatment. The Supreme Court,
however, established liability for municipalities under 42 U.S.C. § 1983 for constitutional
violations resulting from a “policy or custom” in Monell v. Dep’t of Social Servs. of the City
of New York, 436 U.S. 658, 690-91 (1978), and the Seventh Circuit has subsequently applied
this holding to private corporations like Wexford which act under the color of state law.
Walker v. Wexford Health Sources, Inc., 940 F.3d. 954, 966-67 (7th Cir. 2019).

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To bring a claim based on an alleged policy of an entity such as Wexford, a plaintiff
must first demonstrate that his injury was caused by the policy in question. Shields v. Ill.
Dep’t of Corr., 746 F.3d 782, 796 (7th Cir. 2014). The plaintiff must further show that
policymakers were “aware of the risk created by the custom or practice” and were
“deliberately indifferent as to known or obvious consequences” of the practice. Thomas v.
Cook County Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009).
Stewart argues that a number of Wexford’s policies, practices, and customs
consistently led to inadequate care and delays in his treatment and the treatment of other
inmates. Specifically, Stewart cites issues such as Wexford’s practice of “having nurses as
the highest-level provider … at least 30% of the time[,]” delaying offsite appointments
and x-rays, and generally delaying medical care through the collegial review process.
Wexford responds to each of these arguments in turn, first noting that nurses are entirely
qualified to evaluate injuries and make medical decisions related to physician referral.
As to Wexford’s alleged delays in scheduling and the collegial review process, Wexford
cites other judges within this circuit who have found such practices to be constitutional
and similar to practices employed by insurance companies. See, e.g., Howell v. Wexford
Health Sources, Inc., et al., Case No. 16-cv-160-RJD, Doc. 167 (S.D. Ill. Oct. 10, 2019) (Daly,
J.).
But these arguments by Wexford gloss over significant flaws that have been
observed in Wexford’s practices by courts in recent years. Most notably, voluminous
discovery and multiple well-researched expert reports prepared for the Northern District
of Illinois chronicled systematic failings in IDOC’s health care system over a period of
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years, specifically citing delays in the provision of offsite services and specialist care
resulting from Wexford practices including collegial review. Lippert et al. v. Ghosh et al.,
Case No. 10-cv-04603, Doc. 339 at 29, Doc. 767 at 63-64 (N.D. Ill.). Without going into
exhaustive detail, Lippert is far from the only case to have observed delays and failings in
the medical care provided by IDOC through Wexford.
Accordingly, it seems entirely plausible that a fact-finder presented with Stewart’s
case might conclude that his injury was caused by Wexford practices, that Wexford was
aware of the risks arising from its practices, and that Wexford was deliberately indifferent
to the consequences of those practices. Summary judgment for Wexford is denied.
CONCLUSION
For the reasons set forth above, the Court GRANTS summary judgment to
Lashbrook and DENIES summary judgment to the Wexford Defendants.
A telephonic status conference will be set by separate order for the purpose of
setting a firm trial date.
IT IS SO ORDERED.
DATED: February 8, 2021
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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