Maya v. Illinois Department of Corrections et al

Filing 213

ORDER granting in part and denying in part 143 Motion for Summary Judgment; granting in part and denying in part 148 Motion for Summary Judgment. The claims against Dr. Einwohner, Dr. Garcia, Wexford, and Shicker are DISMISSED with prejudice. Count 1 shall proceed against Dr. Trost and Dr. Ritz. Count 3 shall proceed against Baldwin, Butler, and Lashbrook. A telephone status conference to set a trial date will be set at a later date. The parties are encouraged to discuss whether a settlement conference would be beneficial and, if so, request a referral to a magistrate judge for that purpose. Signed by Chief Judge Nancy J. Rosenstengel on 9/14/2020. (anp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SOCORRO MAYA,
#R33278,
Plaintiff,
v.

Case No. 17-cv-00546-NJR

WEXFORD HEALTH SOURCES, INC.,
LOUIS SHICKER,
JOHN BALDWIN,
KIMBERLY BUTLER,
JACQUELINE LASHBROOK,
JOHN TROST,
HECTOR GARCIA,
STEPHEN RITZ,
REBECCA EINWOHNER, and
ANTHONY WILLS,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is a Motion for Summary Judgment filed by Defendants
Baldwin, Butler, Lashbrook, and Shicker (Doc. 143) and a Motion for Summary Judgment
filed by Defendants Einwohner, Garcia, Ritz, Trost, and Wexford Health Sources, Inc.
(Doc. 148). For the reasons set forth below, the Court grants in part and denies in part
both motions.
BACKGROUND
Plaintiff Socorro Maya, an inmate of the Illinois Department of Corrections
(“IDOC”) currently incarcerated at Menard Correctional Center (“Menard”), commenced
this action by filing a Complaint pursuant to 42 U.S.C. § 1983 for the deprivation of his
constitutional rights. (Doc. 1). On November 19, 2018, Maya, through court recruited
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counsel, filed an Amended Complaint. (Doc. 108). According to the Amended Complaint,
Wexford Health Sources Inc. (“Wexford”) has a policy of minimizing the health care
provided to persons in IDOC custody, in order to reduce costs and maximize revenue.
Specifically, Wexford and its employees (1) do not authorize surgical repair of an
umbilical hernia unless the hernia has become strangulated, and instead, treat umbilical
hernias with pain medication and by manually pushing the hernia back into place;
(2) minimize the tests administered to determine whether an inmate is suffering from a
chronic disease and if medication is an appropriate form of treatment; and (3) minimize
the medical intervention provided so as to reduce the number of staff necessary to
provide treatment. These policies resulted in Maya receiving inadequate medical care for
his umbilical hernia, kidney disease, and diabetic condition from Wexford staff.
Maya also alleges that he has been housed in unconstitutional conditions of
confinement. Menard is overcrowded, and as a result, he has been housed with a cellmate
in a cell originally designed for one person. He is kept in the cell for twenty-one to twentythree hours on many days and for twenty-four hours when the facility is on lockdown.

outages, a lack of ventilation resulting in oppressively hot temperatures, and mold
contamination. Maya only receives underclothing and socks once a year, and it is difficult
to obtain washcloths, towels, and soap. These living conditions have exacerbated Maya’s
health conditions and caused or contributed to his high blood pressure and cholesterol
and ongoing back and knee pain.
Maya is currently proceeding on an Eighth Amendment claim for deliberate
indifference regarding treatment of his hernia (Count 1); an Eighth Amendment claim for
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deliberate indifference regarding treatment of his diabetes and kidney damage (Count 2);
and an Eighth Amendment claim for unconstitutional conditions of confinement
(Count 3).
On March 3, 2020, the Court granted Maya’s Motion for Preliminary Injunction.
(Doc. 196). Defendants were ordered to facilitate a referral to a board certified surgeon
for evaluation of Maya’s umbilical hernia and to submit to the Court documentation from
the medical appointment, including the surgeon’s recommended treatment plan. The
surgeon, Dr. Stratmann, recommended that Maya’s umbilical hernia be surgically
repaired, and Maya had surgery on August 6, 2020. (Doc. 211). 1
RELEVANT FACTS
I. Unconstitutional Medical Care
a. Umbilical Hernia
Maya first noticed a hernia after carrying his property boxes in November 2004.
(Doc. 149, p. 2; Doc. 149-2, p. 25). He was diagnosed with an umbilical hernia in February
2005 and prescribed ibuprofen for pain. (Doc. 149, p. 2; Doc. 164, p. 2). It is disputed
whether Maya complained of issues relating to his umbilical hernia with any medical
provider from July 28, 2005, to March 1, 2007. (Doc. 149, p. 2; Doc. 164, p. 2). On March 1,
2007, Maya requested for his hernia to be removed. (Doc. 149, p. 2). At that time, the
hernia was easily reducible, and the plan was to observe it. (Id.). On May 11, 2007, Maya
reported increased pain, and the hernia was recorded as being the size of a half dollar
and reducible when laying down. (Doc. 149, p. 2; Doc. 164, p. 2; Doc. 209, p. 5). Maya also

As Maya has received surgical repair of his umbilical hernia, the Court finds his request for a permanent
injunction (Count 4) moot. (See Doc. 108).

1

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discussed or attempted to discuss his hernia with medical providers on May 27, 2007 (not
seen), June 11, 2007, July 9, 2007, September 10, 2007, October 23, 2007, October 25, 2007,
December 27, 2007, March 3, 2008, May 2, 2008, May 5, 2008, and June 11, 2008. (Doc. 149,
p. 2; Doc. 164, p. 3; Doc. 134-1, p. 11-13; Doc. 141-3, p. 3-6; Doc. 149-1, p. 15). On June 19,
2008, during an appointment with a nurse practitioner, Maya reported pain during bowel
movements and “when hernia ‘pops out.’” (Doc. 149, p. 2; Doc. 209, p. 10). The medical
entry on this date records complaints of “hernia pain on/off,” and Maya also reported
exercising when he goes to the yard. The nurse practitioner gave Maya a thirty day
prescription of Motrin 400 mg twice per day, as needed, and explained the risks of long
term use of nonsteroidal anti-inflammatory drugs (“NSAIDs”). (Doc. 149, p. 3; Doc. 164,
p. 3).
Maya again complained of hernia pain on January 26, 2009. (Doc. 141-3, p. 9).
During this appointment, he rated his pain at a four and was instructed to not lift
anything above fifty pounds. (Id.; Doc. 164, p. 3). Medical records reflect that on April 1,
2009, Maya again asked for hernia repair, and the provider wrote that the hernia is “easily
reduced, surgery not medically indicated.” (Doc. 209, p. 20).
Defendants state that from November 2009 until November 2016, Maya did not go
to the health care unit for his hernia. (Doc. 143, p. 3; Doc. 149, p. 3). Maya testified that,
while he did not go to the health care unit specifically for his hernia during this time
period, he would tell medical staff that his hernia was hurting at his appointments for
other medical issues. (Doc. 164, p. 3; Doc. 149-2, p. 25). Medical records dated April 8,
2014, May 16, 2015, May 27, 2015, and June 24, 2015, all include notations of Maya’s hernia
in his medical history. (Doc. 164, p. 3). Maya has not been prescribed ibuprofen or Motrin
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for his hernia since 2008. (Doc. 149, p. 3).
On December 3, 2016, Dr. Trost completed a surgical referral for a general surgical
consult regarding Maya’s hernia. (Doc. 149, p. 3; Doc. 209-1, p. 46). The referral was
denied by Dr. Ritz, who recommended on-site conservative treatment of an abdominal
binder for Maya’s symptoms. (Doc. 149, p. 3; Doc. 209-1, p. 45). On January 23, 2017, Maya
complained to Dr. Einwohner, a Wexford employed nephrologist who was treating
Maya’s kidney condition, that the abdominal binder was causing bruising and back pain.
(Doc. 149, p. 3). The medical records from January 24, 2017, until November 3, 2018, do
not mention Maya’s hernia or record related pain. (Doc. 149, p. 3). Maya testified he told
his physicians the hernia hurt all the time and denied ever telling them his hernia does
not hurt. (Doc. 164, p. 4; Doc. 149-4, p. 6).
Maya was seen during nurse sick call for a renewal of his abdominal belt permit
on November 3, 2018. (Doc. 149, p. 4). The nurse recorded that Maya reported intermittent
pain and that his pain level could reach an eight to a nine, lasting ten to fifteen minutes
in duration. (Doc. 164, p. 5). Maya testified that as of February 22, 2019, other than the
abdominal binder, he was not receiving treatment for his hernia. (Doc. 149-4, p. 6).
b. Diabetes
Defendants state that in January 2005, Maya was placed on the diabetes mellitus
and cholesterol chronic clinic list. (Doc. 149, p. 4). On January 11, 2005, Maya’s laboratory
report indicated an elevated blood glucose level and an elevated hemoglobin A1C level
of 6.0. (Id.). On January 28, 2005, he was recorded to be positive for diabetes mellitus. (Id.;
Doc. 149-1, p. 3). He attended his first diabetes mellitus chronic clinic on February 2, 2005.
(Doc. 149, p. 4; Doc. 149-1, p. 4). Lab test results dated April 12, 2005, and August 24, 2005,
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showed elevated A1C levels. Maya had a glucose tolerance test on September 28, 2005,
which showed elevated glucose levels at all stages of the test. From 2005 until 2008, Maya
opted out of medications and told medical staff at Menard that he preferred to use diet
and exercise to control his diabetes and lipids. (Id.). On June 12, 2008, Maya’s lab test
results showed his A1C levels had risen to 8.1. (Id.). He was then prescribed Glipizide 10
mg twice a day and Metformin 500 mg twice a day to control his glucose levels. (Id.).
From 2008 until 2016, Maya had several changes in his medication, received lab work two
to three times a year and weekly accu-cheks, and attended the diabetes mellitus chronic
clinic quarterly. (Id. at p. 5; Doc. 149-2, p. 31). On April 19, 2016, Maya’s diabetes was
listed as stable with good control. The physician assistant discontinued the Metformin,
effective that day, added a low dose of Glipizide, and ordered sliding scale insulin as
needed. (Id.). On June 9, 2016, the Glipizide was discontinued and substituted with
Glimepiride. (Id.). As of February 22, 2019, Maya was not taking any medication to treat
his diabetes. (Doc. 149-4, p. 7).
c. Kidney Disease
On June 29, 2009, based on abnormal lab results, Dr. Fuentes ordered a urinalysis
for Maya to rule out a urinary tract infection. (Doc. 149, p. 5). On July 26, 2009, it was
noted in Maya’s medical records that he was experiencing proteinuria and further urine
testing, and a renal ultrasound was ordered. (Id.). Maya had normal creatine levels on the
tests performed on June 11, 2009, and September 24, 2009. (Id.; Doc. 164, p. 6). A renal
ultrasound was performed on August 17, 2009. (Doc. 149, p. 5). A diagnosis of possible
nephrotic syndrome was recorded on September 18, 2009. Maya then discussed his lab
results with Dr. Nwaobasi on September 29, 2009, who referred Maya to the medical
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director for possible referral to a nephrologist. (Id.).
On April 28, 2016, Maya’s abnormal labs showed an elevated creatinine level of
1.81, his glomerular filtration rate was calculated at 48 ml, and he was assessed to be in
Stage 3 renal failure. (Id. at p. 6). Nurse Practitioner Moldenhauer completed a collegial
referral to a urologist and noted that the Metformin had previously been discontinued on
April 19, 2016. Dr. Garcia participated in the collegial review of the urology referral and
recommended that renal ultrasound be taken and to further discuss the nephrologist
consult once the ultrasound was completed. A renal ultrasound was completed, and Dr.
Siddiqui referred Maya for a nephrologist consult and scheduled him for a follow up
appointment in one month.
Maya saw Dr. Trost on July 5, 2016, for his follow up appointment. On August 8,
2016, during collegial review, Maya was referred to Dr. Einwohner, a Wexford employed
nephrologist, for evaluation and recommendations. (Id.; Doc. 209-1, p. 41). Maya had his
first appointment with Dr. Einwohner on August 22, 2016. (Doc. 149, p. 6; Doc. 209-1,
p. 40). Dr. Einwohner increased Maya’s Norvasc prescription, halted the Zantac
prescription, ordered lab work, referred Maya back to Dr. Trost regarding his possible
anemia, and suggested another appointment in October. (Id.). Dr. Einwohner had
appointments with Maya on November 7, 2016, and January 23, 2017. (Doc. 149, p. 7;
Doc. 209-1, p. 43). On March 23, 2017, Dr. Einwohner discussed Maya’s condition with
Dr. Ritz and recommended a renal biopsy, which was approved. (Doc. 149, p. 7; Doc. 2091, p. 47). On March 30, 2017, Dr. Einwohner recommended that Maya see an offsite
nephrologist, which Dr. Ritz approved. (Doc. 149, p. 7; Doc. 209-1, p. 52).
Maya had a renal biopsy on April 11, 2017, showing advanced membranous
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nephropathy with associated segmental sclerosis and moderate arteriosclerosis.
(Doc. 149, p. 7; Doc. 209-1, p. 59). Maya saw the offsite nephrologist, Dr. Koch, on June 8,
2017. On August 28, 2017, Dr. Koch prescribed Maya immunosuppressive therapy of
Cytoxan and Prednisone pending specific lab results. (Doc. 149, p. 7; Doc. 209-1, p. 65-66).
On September 7, 2017, Dr. Siddiqui conferenced with Dr. Koch, who advised holding off
on the Tacrolimus prescription and starting the immunosuppressive therapy as ordered.
(Doc. 149, p. 8; Doc. 209-1, p. 15).
Maya had another appointment with Dr. Koch on November 2, 2017, who
continued treatment with Cytoxan, Prednisone, and erythropoietin analog injections.
(Doc. 149, p. 8; Doc. 149-5, p. 2-3). Dr. Koch recommended “CBC” every two weeks and
a monthly chemistry panel. (Id.). On December 1, 2017, Dr. Siddiqui recorded that Maya’s
blood sugar was fluctuating, and he was unable to contact Dr. Koch. (Doc. 149, p. 8;
Doc. 209-1, p. 169). Dr. Siddiqui added Lantus for Maya’s glucose levels. (Id.). Maya was
placed on a twenty-three hour observation due to a hyperglycemic episode and increased
blood pressure on December 6, 2017. (Doc. 149, p. 8; Doc. 209-1, p. 171). The next day, Dr.
Siddiqui diagnosed Maya with uncontrolled diabetes secondary to steroids and ordered
that Maya gradually be tapered off of the Prednisone but for Maya to continue the
Cytoxan. (Doc. 149, p. 8; Doc. 209-1, p. 173). On February 16, 2018, Dr. Koch noted in his
assessment that because the Prednisone was discontinued, he “would favor
discontinuing the Cytoxan as well.” (Doc. 149, p. 8; Doc. 149-5, p. 4).
II. Unconstitutional Conditions of Confinement
Maya has been incarcerated at Menard since October 6, 2004. (Doc. 160, pp. 1, 4;
Doc. 149-2, p. 6). He alleges that Menard is overcrowded, and he has been housed with a
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cellmate in small cells designed to hold one inmate. Maya has been housed at various
points in time during his incarceration in the North 1 Cell House. (See Doc. 143-1;
Doc. 149-4, p. 8). Specifically, in May 2016, he was moved to Gallery 5, North 1, Cell 515
measuring 11 feet long, 92 inches tall, 53 inches wide; in September 2016 he moved to
Gallery 6, North 1, Cell 654 measuring 11 feet long, 92 inches tall, 51.5 inches wide; in
June 2017 he was moved to Gallery 5, North 1, Cell 554 measuring 11 feet long, 92 inches
tall, 51.5 inches wide; he lived in South 1 from November 2017 until January 2018 when
he was moved to Gallery 4, North 1, Cell 401 measuring 11 feet long, 92 inches tall, 53
inches wide; in September 2018 he was moved to Gallery 5, North 1, Cell 526 measuring
11 feet long, 92 inches tall, 53 inches wide; and in December 2018 he was moved to Gallery

resided as of February 22, 2019. (Doc. 143-1, p. 1; Doc. 149-4, p. 8-9; Doc. 160, p. 4-5).
Whether Maya remains in his cell for twenty-one to twenty-three hours on most
days is disputed. (Doc. 143, p. 3; Doc. 160, p. 4-5). Maya leaves his cell for dinner, yard,
gym, law library visits, showers, and when he is assigned a job. (Doc. 143, pp. 3, 19).
Generally, he has two yard periods and two gym periods per week, each being between
two and a half to three hours. (Id.; Doc. 149-2, p. 10). As of February 22, 2019, Maya was
taken out of his cell for yard on Wednesdays, Saturdays, and Sundays, and for gym on
Thursdays. (Doc. 149-4, p. 10). He leaves his cell three times a week for a twenty to
twenty-five minute shower and can go to the library if he puts in a request. (Doc. 149-4,
p. 10; Doc. 160, pp. 3, 7). It takes about a week and a half to two weeks for a request to
visit the law library to be granted.
Maya has worked intermittently during his time at Menard. (Doc. 143, p. 3;
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Doc. 149-2, p. 9). When working as a second shift janitor, Maya is out of his cell
approximately six hours a day, from 3:00 p.m. to 9:00 p.m., up to seven days a week,
when the facility is not on lockdown. (Doc. 143, p. 3; Doc. 149-4, p. 12; Doc. 160, pp. 3, 7).
When Menard is on lockdown, Level Four, he works from 5:00 p.m. to 9:00 p.m., and
when Menard is on lockdown, Level One, he is not let out of his cell to work and remains
in the cell for 24 hours. (Doc. 149-2 pp. 5, 9; Doc. 160, p. 3). At the time of his deposition
taken on January 14, 2019, Maya had been working for six weeks, seven days a week as a
janitor, but he was no longer working at the time of his February 22, 2019, deposition.
(Doc. 149-2, p. 10; Doc. 149-4, p. 10; Doc. 160, p. 3). He was told by Menard staff he could
work again beginning March 15, 2019. (Doc. 149-4, pp. 11, 12; Doc. 160, p. 3).
The toilet in Maya’s current cell has not broken, and he recalls two incidents of
major flooding in his cell during his time at Menard. (Doc. 143, p. 4; Doc. 149-2, p. 11). In
December 2017, water leaked from the toilet for approximately two weeks before it was
fixed. (Doc. 143, p. 4; Doc. 149-2, p. 12). Maya did not personally put in a request slip to
have the toilet fixed. (Id.). In 2018, his cellmate repeatedly pushed a button on their sink
causing the button to stick and water to leak. (Id.). It took one day for someone to fix the
leak, as the facility was on security lockdown the day the leak occurred. (Id.).
Maya testified that the power outages that occur are usually caused by another
inmate using a “stinger,” blowing the fuse. (Doc. 143, p. 4; Doc. 149-2, p. 13). It may take
ten minutes to two hours for the power to turn back on in the cell. (Id).
Menard cells become “warm” in the summer months. (Doc. 143, p. 4-5; Doc. 1492, p. 13). Temperatures are monitored at Menard, and when it is warm, inmates are
provided ice, fans, and allowed to open chuckhole doors. (Doc. 143, p. 4-5). The
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temperature of the cells and the effectiveness of the measures taken to alleviate the
alleged high temperatures and poor ventilation is disputed. (Doc. 160, p. 3).
Maya’s claims regarding the receipt of adequate clothing and mold contamination
at Menard are also both disputed issues. (Doc. 143, p. 5).
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. Donahoe, 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 challenges
constitutionally-deficient medical care must satisfy a two-part 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 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, 511 U.S. at 828 (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.
Greeno, 414 F.3d 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
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more than negligence or even malpractice is required” to prove deliberate indifference.
Pyles, 771 F.3d at 409. Deliberate 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, where the treatment
is known to be ineffective but is chosen anyway. Berry, 604 F.3d at 441.
III. Eighth Amendment Conditions of Confinement
Prison officials violate the Eighth Amendment when “they are deliberately
indifferent to adverse conditions that deny ‘the minimal civilized measure of life’s
necessities,’ such as adequate food, clothing, shelter, recreation, and medical care.” Budd
v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (quoting Farmer v. Brennan, 511 U.S. 825, 834
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(1994)). To succeed on a claim of deliberate indifference to a condition of confinement, a
prisoner must show: (1) a deprivation that is, from an objective standpoint, sufficiently
serious that it results in the denial of the minimal civilized measure of life’s necessities or
the denial of basic human needs; and (2) prison officials were deliberately indifferent to
this state of affairs. Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (quotation marks
and citation omitted); Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). To be found liable
“the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511
U.S. at 837.
ANALYSIS
I. Inadequate Medical Care
A. Defendants Dr. Trost, Dr. Garcia, Dr. Ritz, and Dr. Einwohner
a. Hernia
Defendants Dr. Trost, Dr. Garcia, Dr. Ritz, and Dr. Einwohner do not argue that
Maya did not suffer from a serious medical condition regarding his hernia, but instead
argue that Maya has failed to demonstrate that their decision not to surgically repair the
hernia was blatantly inappropriate or outside the standard of acceptable medical practice.
(Doc. 149, p. 12). Although Maya was first diagnosed with a hernia in 2005, he was not
treated by Defendants until 2016. After his diagnosis, he sporadically complained of pain,
but Defendants assert that there is no evidence that his pain significantly impacted his
daily activities or that the hernia was incarcerated or strangulated. And, because of his
comorbidities, surgical repair presented a danger or risk exceeding the potential benefits
of surgery. As such, Defendants state that the decision to conservatively treat with an
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abdominal binder was reasonable and based upon medical judgment. (Doc. 149).
The Court finds that there is a genuine issue of material fact regarding whether
Dr. Ritz and Dr. Trost acted with deliberate indifference in treating Maya’s hernia. Maya
claims that for over twelve years he consistently complained about his hernia. He testified
that he has pain “almost constantly” and that because of pain from his hernia he can no
longer run or lift weights, has difficulty when using the bathroom, cannot walk in the
yard on successive days, and cannot work “heavy jobs.” (Doc. 149-4, p. 6-7). Although at
times he would work six hours a day, up to seven days a week as a janitor, he stated that
his job was to pass out trays to inmates in the cells and that the plastic trays were not
heavy and the job did not require a lot of walking. (Doc. 149-2, p. 10).
Dr. Trost testified that “[n]ot all hernias have to be repaired. . . but if they are
causing you pain, problems, incarceration et cetera, then usually that’s an indication to at
least be evaluated for having it repaired.” (Doc. 149-6, p. 17). In the medical records,
Dr. Trost refers to Maya’s hernia as “longstanding” and “symptomatic, though
reducible.” (Doc. 209, p. 236). In denying the referral for surgical evaluation, Dr. Ritz
described the hernia as greater than twenty years and recorded Maya’s pain as “10/10.”
(Doc. 209-1, p. 45). The medical records do not explain why Dr. Ritz opted for a more
conservative treatment plan, even though he was aware that Maya developed the hernia
several years prior to the appointment and was in pain, and Dr. Trost testified that he did
not know why his request to refer Maya to a surgeon was denied by Dr. Ritz. (Doc. 1496, p. 18).
Neither did Dr. Trost or Dr. Ritz prescribe Maya any kind of pain medication for
to help alleviate his symptoms and only provided him with an abdominal binder; the
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effectiveness of which is disputed. 2 (Doc. 164, p. 7; Doc. 173, p. 4; Doc. 149-4, p. 6).
Because of his kidney disease, Maya was unable to take ibuprofen, and it is also not
settled whether he could have taken Tylenol for his pain. 3 Maya testified that the
prescribed abdominal binder made the pain a “little bit less,” but that it did not make the
pain go away. (Doc. 149-2, p. 27; Doc. 149-4, p. 6). He also stated that it caused additional
pain and bruising. (Doc. 149-2, p. 26). The medical record from January 23, 2017, notes
that the binder was causing Maya backpain and bruising and to “refer to Dr. Trost for
back pain from abdominal binder...” (Doc. 134-1, p. 23). Unfortunately, however, Maya
was not seen by medical staff again for his hernia until November 3, 2018, when his
abdominal binder permit was renewed. (Doc. 141-3, p. 100). At his deposition, Dr. Trost
confirmed that because Maya is unable to take ibuprofen or Tylenol, he either has to live
with the pain or have surgery. (Doc. 149-6, p. 32).
Based on the record and Maya’s testimony, a factfinder could reasonably infer that
(1) the decision by Dr. Ritz to treat Maya’s hernia with only an abdominal binder after
several years of complaints; and (2) Dr. Trost’s failure to challenge the decision or
resubmit the referral request were “blatantly inappropriate in the face of [Maya’s] pain
and the risk the worsening hernia poses to his present and future health.” Gonzalez v.
Feinerman, 663 F. 3d 311, 314 (7th Cir. 2011) (finding that allegations that plaintiff’s hernia

At the preliminary injunction hearing, Dr. Siddiqui admitted that abdominal binders do not treat pain.
(Doc. 196, p. 6). Dr. Trost testified that the “real purpose or aim of the binder is that it…bolstered the
weakened spots so whatever might be adjacent or sitting there can’t come out and become incarcerated.”
(Doc. 149-6, p. 19). He also stated that the abdominal binder was prescribed to Maya to alleviate hernia
symptoms, including pain. (Id. at p. 32).
3
Dr. Daniels, Defendants’ expert, reported that “Tylenol can be taken by individuals with renal
insufficiency and even patients who are on dialysis.” (Doc. 149-3, p. 7). Dr. Siddiqui also testified at the
hearing on the motion for preliminary injunction that Tylenol is a safe pain medication. (Doc. 196, p. 6).
Dr. Trost testified, however, that Tylenol is not recommended for people with kidney disease to take.
(Doc. 149-6, p. 23).
2

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pain was treated with minimal or no medication for over two years stated a claim). See
also Heard v. Ill. Dep’t of Corr., No. 06 C 644, 2012 WL 832566, at *6 (N.D. Ill. Mar. 12, 2012)
(finding that a jury could infer deliberate indifference where plaintiff’s hernia was not
repaired for thirteen years after it was diagnosed and the severity and frequency of the
plaintiff’s pain was in dispute). Simply stated, Dr. Ritz and Dr. Trost are not entitled to
summary judgment on Count 1.
There is insufficient evidence, however, to support the claim that Dr. Einwohner
and Dr. Garcia were involved in providing treatment for Maya’s hernia and related
symptoms or that either defendant was even aware that the hernia and associated pain
remained untreated. Maya testified that he told Dr. Einwohner that he had hernia when
she asked him whether he exercised but stated, “I never asked her what she could do
about it or not, because that’s not on her part, because she was hired supposedly to look
after my kidneys, nothing to do with my hernia.” (Doc. 149-2, p. 28). Maya also testified
that he thought Dr. Garcia was involved in the decision to deny hernia surgery because
“everyone was involved” in the collegial review and “if they all work for Wexford, right,
and if they all have the responsibility over us, over the health problems that we have, so
they have to have a meeting in general to see what is to be done…” (Doc. 149-2, p. 27).
Because Maya has not offered any evidence to suggest that Dr. Einwohner and Dr. Garcia
had knowledge of his ongoing hernia pain and inadequate treatment, the summary
judgment motion on Count 1 is granted as to Dr. Einwohner and Dr. Garcia.
b. Diabetes
Defendants argue that Maya has failed to establish that they acted with deliberate
indifference in the diagnosis and treatment of his diabetes. (Doc. 149, p. 14-15). They state
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that there is no evidence of a contradictory diagnosis, misdiagnosis, or difference of
opinions regarding Maya’s diabetes. Dr. Daniels, Defendants’ expert, reported that
“[t]here was never any doubt about the diagnosis of diabetes, as evidenced by his
elevated blood glucose and hemoglobin a1c levels in 2007 and thereafter.” (Doc. 149-3,
p. 6). Maya received an abundance of testing, and Maya has not represented what the
“proper” testing was that he should have received for diabetes. Based on Maya’s family
history of diabetes and his lab results, the providers used their medical judgment to
diagnosis and treat Maya’s diabetes.
Defendants further dispute Maya’s assertion that he was prescribed harmful and
unnecessary medication. Maya wanted to use diet and exercise, rather than medication,
to manage his diabetes, but his diet was not conducive to a diabetic and included various
foods high in sugar and refined carbohydrates. When his A1C levels rose to 8.1 in 2008,
he was prescribed medication to regulate his glucose levels. Defendants assert that once
the medications were prescribed and the dosages refined, Maya gained good control of
his diabetes. (Doc. 149, p. 15; Doc. 149-3, p. 6). Additionally, there is no evidence that the
medication he was prescribed caused or exacerbated his kidney disease. (Doc. 149, p. 1617).
The Court grants summary judgment to Dr. Einwohner, Dr. Ritz, Dr. Garcia, and
Dr. Trost regarding Maya’s claims of deliberate indifference in the treatment of his
diabetes. First, Maya claims that Dr. Garcia, Dr. Ritz, Dr. Trost, and Dr. Einwohner
frustrated his ability to control his blood sugar level through regular exercise by refusing
to approve his needed hernia surgery. (Doc. 108, p. 5). The Court has already ruled that
Maya has not presented evidence from which it could be reasonably inferred that Dr.
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Garcia and Dr. Einwohner were involved in the treatment of his hernia. Likewise, there
is no evidence that Maya’s inability to exercise more frequently due to his hernia has
contributed to or worsened his diabetic condition or that he would have been able to
properly control his blood sugar levels by exercise and diet alone, without medication. In
fact, the record demonstrates the opposite. From 2005 to 2008, Maya “opted out of
medications” and stated to medical staff that he would like to use diet and exercise to
control his diabetes mellitus and lipids. (Doc. 149, p. 4; Doc. 164, p. 5). He was not
prescribed medication until 2008, when his efforts were unsuccessful and his A1C level
had reached 8.1. (Doc. 149, p. 4). On August 19, 2016, his diabetes and hypertension were
documented as stable with good control, and Dr. Daniels reported that “Maya’s diabetes
has been under excellent glucose control with the medications that he received.”
(Doc. 149-3, p. 6). As of his deposition on February 22, 2019, Maya was no longer taking
medication to control his blood sugar levels at all. (Doc. 149-4, p. 3). Accordingly, Maya
has not established a triable issue on whether Dr. Trost and Dr. Ritz were deliberately
indifferent to his diabetic condition by not referring him for a surgical evaluation.
Second, Maya claims that Dr. Trost, Dr. Ritz, Dr. Garcia, and Dr. Einwohner did
not conduct proper testing to assess for diabetes and to determine whether medication
was necessary. (Doc. 108, p. 5). Maya has not presented any evidence that Dr. Ritz, Dr.
Garcia, or Dr. Einwohner were personally involved in the diagnosis or treatment of his
diabetes. Dr. Ritz and Dr. Garcia were not onsite providers, and their roles in Maya’s
medical care were limited to reviewing and analyzing medical referrals as needed. Dr.
Einwohner treated Maya for his kidney condition. All three Defendants became involved
with Maya’s medical care eight years after he was first prescribed medications to treat his
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diabetes and also after the Metformin prescription, which Maya alleges has contributed
to or caused damage to his kidneys, had been discontinued in 2016. (Doc. 209-1, p. 69).
Maya testified that during an appointment Dr. Einwohner she stated that she was
surprised Maya was diabetic, and then at a subsequent appointment, Dr. Einwohner
informed him she could not give him information on his diabetic condition because she
was not a specialist in diabetes and was there to treat his kidneys. (Doc. 149-2, p. 36).
Although she declined to discuss his diabetic condition, Dr. Einwohner referred him back
to Dr. Trost for his diabetes concerns and management. She noted in the record that Maya
questioned if he was diabetic. (Doc. 149, p. 7; Doc. 209-1, p. 45). Assuming that Dr.
Einwohner became aware of issues with Maya’s treatment for his diabetes through this
conversation, she did not act with deliberate indifference but noted his concerns in the
record and referred him to Dr. Trost for a follow up. Because Maya has failed to put forth
any evidence to support a jury finding that Dr. Garcia, Dr. Ritz, or Dr. Einwohner knew
of and disregarded an excessive risk to his health regarding his diabetic condition,
summary judgment will be granted.
Maya also has failed to provide any evidence to support his claim that Dr. Trost
never conducted proper testing for his diabetes. Maya testified that he believes he is not
diabetic because a nurse practitioner told him in 2016, based on his lab test results, he was
not diabetic. (Doc. 149-2, p. 30-31). Maya stated that when he asked Dr. Trost to have a
specialist conduct additional tests, Dr. Trost informed him that the blood tests had
already been done and “they” were the only ones who did the blood tests for Menard.
(Doc. 149-2, p. 34). Maya claims that since the suspension of Metformin and other diabetic
medications in the Spring of 2016, he has not suffered ill effects from diabetes, thus
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indicating that those medications were unnecessary and harmful. (Doc. 108, p. 8;
Doc. 149-2, p. 31, 33).
Dr. Trost testified that an A1C level above six “is considered to indicate diabetes
or poor glucose control[.]” (Doc. 149-6, p. 27). When asked what tests could be performed
to determine whether or not a patient has diabetes, Dr. Trost answered that “‘[t]here is
hemoglobin A1C level, which is a good indicator of blood sugar levels over about a threemonth period” and there is a glucose tolerance test which “is the gold standard.”
(Doc. 149-6, pp. 26, 28). Maya was given both these tests at Menard. The record indicates
that he was given a glucose tolerance test on September 28, 2005 (Doc. 149, p. 5; Doc. 1491, p. 33), and June 20, 2013 (Doc. 149-6, p. 27; Doc. 209-1, p. 109). Dr. Trost testified that
the glucose tolerance test performed in 2013, a few months before he started at Menard,
indicated that Maya had diabetes mellitus. (Id.). The lab work performed while Dr. Trost
worked at Menard showed elevated A1C levels on November 3, 2014, March 3, 2015, and
November 3, 2015. (Doc. 209-1, pp. 116, 117, 123). Dr. Trost stated that it was “clearcut”
that Maya was diabetic due to his “countless elevated A1Cs.” (Doc. 149-6, p. 28).
Maya admitted that blood work had been performed on him two to three times a
year since 2005 and around twenty lab tests reported his A1C levels at above 6.0. (149-2,
p. 32). He also stated that he does not have any knowledge regarding the tests physicians
use to diagnose diabetes. (Id. at p. 30-31). Nothing in the record supports the allegation
that Dr. Trost was deliberately indifferent by not referring Maya for further blood tests
or that Maya was misdiagnosed. Dr. Trost’s assessment that Maya had diabetes is
supported by Dr. Daniels’s report, which states “[t]here was never any doubt about the
diagnosis of diabetes, as evidenced by his elevated blood glucose and hemoglobin a1c
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levels in 2007 and thereafter.” (Doc. 149-3, p. 6). Although in the last few years Maya has
not needed medication to control his diabetes, Dr. Daniels reported that:
This is quite common in individuals who have significant renal disease.
Insulin is excreted by the kidneys, and when an individual develops
decreased renal function, an individual’s endogenous insulin become more
effective and medication requirements to control blood glucose decrease
and even cease.
(Id.). Other than Maya’s speculation that he required additional diabetes testing or that
the medication prescribed was unnecessary for managing his blood glucose levels; he has
not presented any evidence to support a reasonable inference in favor of his allegation.
Maya also alleges that Dr. Trost failed to conduct tests to determine the proper
medication to treat his diabetes and prescribed him harmful medications despite actual
knowledge that Maya suffered from decreased kidney function. (Doc. 108, p. 6). On July
26, 2009, following a urine analysis, “renal impairment” was documented in Maya’s
medical records, and a renal ultrasound was performed. (Doc. 149-6, p. 25; Doc. 209,
p. 24). Maya’s diagnosis of possible nephrotic syndrome was made, and on September
29, 2009, Maya discussed his lab results with a doctor at Menard who referred him to the
medical director for possible referral to nephrologist. (Doc. 149, p. 5; Doc. 209, p. 28).
Maya was prescribed Metformin and Glipizide to treat his diabetes from 2008 until 2016.
Maya has not offered any evidence to support his claim that Glipizide is not
recommended for individuals with decreased kidney function and can exacerbate kidney
disease. Whether Maya should have been prescribed and continued taking Metformin for
his diabetes after the labs results showed decreased kidney function in 2009, however,
remains a disputed fact. According to Dr. Daniels,
There is no evidence in the medical literature that metformin or glipizide
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result in renal damage. Metformin is indeed contraindicated in patients
with significant renal failure (creatinine levels of greater than 1.4), but not
because the metformin damages the kidneys. Rather, there is an increased
incidence of lactic acidosis, a rare complication of metformin use, in
individuals with renal insufficiency. In fact, the metformin prescribed for
Mr. Maya was discontinued appropriately when his creatinine rose above
1.4.
(Doc. 149-3, p. 6). Maya testified that when he asked Dr. Koch, the outside nephrologist
who treated his kidney disease, whether “the problem could be that I was taking
medication for diabetes…he told me that, no, he didn’t see that that can be the problem.”
(Doc. 149-4, p. 3). Contrary to Dr. Koch and Dr. Daniels, Dr. Trost testified that Maya
should not have been on Metformin, as it can cause further damage to the kidneys and is
“not an ideal medication, diabetic medication in the setting of someone with renal
insufficiency.” (Doc. 149-6, p. 13, 26).
Despite this disputed fact, Maya has not demonstrated that Dr. Trost acted with
deliberate indifference in regard to his Metformin prescription. Maya claims that Dr.
Trost continued to prescribe Metformin “despite actual knowledge from a renal
ultrasound performed in 2009 that Plaintiff suffered from decreased kidney function[,]”
but Maya has not presented any evidence for a jury to conclude that Dr. Trost did in fact
have knowledge of Maya’s kidney damage. (Doc. 108, p. 6). Dr. Trost renewed Maya’s
Metformin prescription on one occasion on August 7, 2015. (Doc. 149, p. 16). And
although Dr. Trost testified that Metformin is not an appropriate medication for
individuals with renal insufficiency, he also stated that he was not aware of the 2009
medical records documenting that Maya suffered from renal insufficiency. (Doc. 149-6,
p. 31). Dr. Trost testified that the paper method of record keeping at Menard is a “poor
archaic system” and that the 2009 records probably were not included in Maya’s chart,
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which contains a patient’s medical history from the previous five years for the provider
to review prior to an appointment. (Doc. 149-6, pp. 8, 31). Maya has not offered any
evidence to refute his testimony showing that he did not have actual knowledge that
Maya was suffering from decreased kidney function. Dr. Trost’s failure to review all of
the medical records or perform a certain test prior to renewing Maya’s prescription for
Metformin, while maybe negligent or poor professional judgment, does not amount to
deliberate indifference. See Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (ruling
that it is not enough to show that a doctor should have known a medical treatment was
necessary; “rather, the doctor must know that [the treatment] was necessary and then
consciously disregard that need in order to be held deliberately indifferent.”).
Accordingly, summary judgment will be granted to Dr. Trost, Dr. Ritz, Dr. Garcia,
and Dr. Einwohner as to Maya’s claims regarding inadequate treatment of his diabetes.
c. Kidney Disease
Defendants also argue that there is no evidence that they acted with deliberate
indifference to Maya’s chronic kidney disease. Following abnormal lab results on April
28, 2016, Dr. Garcia and Dr. Trost participated in a collegial review for a urology referral
requested by a nurse practitioner at Menard. Dr. Garcia recommended obtaining a renal
ultrasound first to determined, anatomically, the condition of Maya’s kidneys, and once
completed, discuss a nephrologist consult. This was Dr. Garcia’s only involvement in
Maya’s medical care. After receiving the results, on August 8, 2016, Dr. Ritz and Dr. Trost
participated in a collegial review regarding a nephrology consult, and Dr. Ritz referred
Maya to Dr. Einwohner. Dr. Einwohner saw Maya on August 22, 2016, November 7, 2016,
and January 23, 2017. On March 22, 2017, Dr. Einwohner recommended a renal biopsy,
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which was immediately approved and completed less than one month later. The
hospital’s request for a pre-biopsy ultrasound was also approved. On March 30, 2017, Dr.
Einwohner recommended that Maya see an offsite nephrologist, which was approved by
Dr. Ritz. Dr. Einwohner and Dr. Trost were no longer involved in Maya’s medical care
after March 2017, and Dr. Ritz continued to approve follow up consultations with Dr.
Koch in July 2017, September 2017, and April 2018. Defendants argue that Dr. Ritz never
denied any of Maya’s nephology consultations. (Id. at p. 20).
Maya claims that Dr. Ritz, Dr. Trost, Dr. Garcia, and Dr. Einwohner were aware of
his kidney disease, but continued to prescribe and dispense medications which caused or
contributed to cause his kidney disease, not only diabetic medications, but also Motrin,
ibuprofen, and acetaminophen. (Doc. 108, p. 15). This claim is not supported by the
record. There is no evidence that Dr. Ritz, Dr. Trost, Dr. Garcia, or Dr. Einwohner
prescribed Maya Motrin, ibuprofen, or acetaminophen. And as previously discussed, Dr.
Ritz, Dr. Garcia, and Dr. Einwohner were not involved in the treatment of Maya’s
diabetes, and there is no evidence that they ever prescribed medicine to treat his diabetes.
Dr. Trost recommended that Maya take ibuprofen for chest pain on March 17, 2104, and
renewed his prescription for Metformin on August 7, 2015; however, the Court has
already found that Maya has not presented sufficient evidence for a jury to conclude that
Dr. Trost knew that Maya had a possible diagnosis of nephrotic syndrome. (Doc. 209,
p. 148; Doc. 149-6, pp. 11, 26). Finally, the Court notes that Maya testified that it had been
many years since he was prescribed ibuprofen or Motrin. (Doc. 149-2, p. 34).
Maya also asserts that Dr. Trost, Dr. Ritz, Dr. Garcia, and Dr. Einwohner were
aware of the decline of Maya’s renal function and his continuing kidney disease, yet
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failed to facilitate the course of treatment prescribed by Dr. Koch by refusing to arrange
for appropriate monitoring and lab work. This claim is also not supported by the record.
Maya did not begin treatment with Dr. Koch until June 8, 2017, and Dr. Trost and Dr.
Einwohner were no longer involved in Maya’s care following March 2017. Similarly, Dr.
Garcia also was only involved in Maya’s medical care on May 4, 2016, when he denied
the urology referral and recommended a renal ultrasound. There is no evidence to
suggest that these Defendants were involved in Maya’s medical treatment once he started
seeing Dr. Koch.
Additionally, while Dr. Ritz referred Maya to Dr. Einwohner for an evaluation,
approved Dr. Einwohner’s recommendation for Maya to see an offsite nephrologist, and
approved follow up consultations with Dr. Koch in July 2017, September 2017, and April
2018, (Doc. 149, pp. 7, 20), there is no evidence to suggest that Dr. Ritz had any
involvement in facilitating the course of treatment or arranging the collection and
monitoring of lab work requested by Dr. Koch or that Dr. Ritz knew Dr. Koch’s orders
were not being properly carried out by staff at Menard.
Accordingly, Maya has not put forth admissible evidence showing that there is a
genuine dispute of material fact for trial, and summary judgment on Count 2 will be
granted to Dr. Trost, Dr. Ritz, Dr. Garcia, and Dr. Einwohner.
B. Defendants Baldwin, Butler, Lashbrook, and Shicker
Defendants Baldwin, Butler, Lashbrook, and Shicker do not contest that Maya
suffered from serious medical conditions. Rather, Defendants argue that they are not
responsible for providing direct medical care to prisoners, they did not provide Maya
direct medical treatment, and Maya cannot produce evidence or demonstrate that they
Page 26 of 39

had personal knowledge of a substantial risk to his health and then disregarded that risk.
(Doc. 143, p. 11).
Maya alleges that “Shicker, Butler, Baldwin, and Lashbrook has actual knowledge
of [his] umbilical hernia, the refusal of Wexford to treat it appropriately because of
Wexford’s policy, the ongoing and significant pain experienced[,] and the impact of that
ongoing pain upon him.” (Doc. 108, p. 5). He argues that Butler and Lashbrook were
aware of the inadequate treatment he was receiving regarding his hernia because he
made his complaints known through repeated grievances and letters. Maya further
claims that Shicker, Butler, and Baldwin were each personally aware of his concern about
his diabetes diagnosis, the damage to his kidneys caused by medication, and the decline
of his renal function and continuing kidney disease, but despite their knowledge they did
not intervene to insist on proper treatment, including facilitating the course of treatment
planned by Dr. Koch.
The Court finds that Defendants Butler, Lashbrook, Shicker, and Baldwin are
entitled to summary judgment as to Counts 1 and 2. Maya testified that he has never met
with or written letters to John Baldwin, the former director of IDOC, or Louis Shicker, the
former medical director for IDOC. (Doc. 149-2, p. 19-20). Maya has not presented any
evidence that Baldwin and Shicker knew of his medical conditions or had any personal
involvement in his treatment. As he cannot establish liability solely based on the fact that
they held supervisory roles, the Court grants summary judgment to Shicker and Baldwin.
See Sanville v. McCaughtry, 266 F. 3d 724, 740 (7th Cir. 2001) (respondeat superior liability is
not applicable in Section 1983 claims).
His contact with the former wardens of Menard, Jaqueline Lashbrook and Kim
Page 27 of 39

Butler, was also limited. Maya testified that he wrote several letters to Butler that he was
having health problems, but she never answered, and he does not know if she even
received the letters. (Doc. 149-2, p. 18-19). Three years ago, he attempted to speak with
her as she passed through the cell house, and Butler responded that she could not stop to
talk. (Id.). As for Lashbrook, Maya testified that he could not “recall if I sent her one or
two” letters and that one of the letters was written regarding his hernia pain. He did not
receive a response and does not have any evidence that she received the letter. (Id.). “The
fact that [Maya] sent a letter or letters to [Lashbrook and Butler] is insufficient to create a
genuine issue of material fact. . .” Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)
(overruled on other grounds). The record must indicate that Butler and Lashbrook
actually received and read the correspondences. Id. Here, it does not.
Both Butler and Lashbrook attest that they “do not recall receiving any letters or
having any face-to-face conversations” with Maya. (Doc. 143-5, p. 2; Doc. 143-6, p. 1).
Additionally, the grievances that Maya submitted regarding lack of medical treatment
for his hernia were filed in 2007 and 2008, years before Butler or Lashbrook worked at
Menard (see Doc. 160, p. 9), and he did not start receiving treatment from Dr. Koch until
2017, after Butler was no longer employed at Menard. In sum, the record is void of any
indication that Butler and Lashbrook were aware of Maya’s complaints from his letters,
grievances, or otherwise. There is insufficient evidence for a jury to find that Butler and
Lashbrook were deliberately indifferent to Maya’s medical needs. Accordingly, summary
judgment is also warranted in their favor. See Jones v. Drew, 221 F. App’x 450, 454 (7th Cir.
2007) (affirming summary judgment for a warden where there was no evidence the
warden personally received or read the communications since he delegated review of
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prisoner complaints to others within his office).
C. Wexford
Maya claims that Wexford has a policy of (1) not approving surgical repair of a
hernia unless the hernia becomes strangulated; and (2) treating umbilical hernias that are
not strangulated by manually pushing the hernia back into place. (Doc. 108, p. 4). This
policy resulted in deliberate indifference to Maya’s serious condition because surgery
was repeatedly not authorized, no matter the complaints of pain, unless his hernia
became strangulated. (Id. at p. 13). Maya asserts that Shicker, Butler, Baldwin, and
Lashbrook were aware of Wexford’s policy of performing repair surgery only if the
hernia became strangulated. (Id. at p. 13-14). He further alleges that in order to maximize
revenue Wexford also maintains a policy of minimizing (1) the tests administered to
inmates to determine whether such persons suffer from chronic diseases such as diabetes
and whether medication is appropriate to treat them; and (2) the medical intervention
provided to inmates in order to reduce the number of staff necessary to provide
treatment. (Id. at p. 6). This policy resulted in conflicting diabetes diagnoses, receiving
unnecessary and harmful medications, and not seeing appropriate specialists, including
nephrologists, in a timely manner. (Id. at p. 16). He asserts that Shicker participated and
approved the implementation of this policy.
Wexford is a private corporation, but the Seventh Circuit held that the Monell
theory of municipal liability applies in Section 1983 claims brought against private
companies that act under color of state law. See, e.g., Shields v. Ill. Dep’t of Corr., 746 F.3d
782 (7th Cir. 2014) (noting that every circuit court that has addressed the issue has
extended the Monell standard to private corporations acting under color of state law). To
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prevail on his Monell claim, Maya needs to show that Wexford’s policy, practice, or
custom, caused a constitutional violation. See Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d
293, 303 (7th Cir. 2009).
a. Hernia Policy
Wexford argues that Maya has failed to establish that a Wexford policy was the
cause of Defendants’ actions. (Doc. 149, p. 13). Maya’s claim that Wexford has a “policy
of refusing to authorize hernia surgery, no matter the complaints of pain, unless the
hernia is strangulated” misinterprets the guidelines regarding hernia treatment as
mandatory or binding. Wexford states that the guidelines are based on accepted medical
literature and practice and specify that all decisions are made on a case-by-case basis and
are “not intended to replace hands on clinical judgment.” (Id.; Doc. 153).
Other courts have considered Wexford medical guidelines for treating hernias that
are similar, if not identical, to those at issue in this case and found that a reasonable jury
could find that Wexford’s hernia treatment policy “was unconstitutional as to patients
with hernias that are not strangulated or incarcerated because it does not account for the
pain caused by the hernia.” Heard, 2012 WL 832566, at *8. See also Wilder v. Wexford Health
Sources, Inc., No. 11 C 4109, 2015 WL 2208440, at *10 (N.D. Ill. May 8, 2015); Gills v. Coe,
No. 13-cv-791-DGW, 2017 WL 679914, at *8-9 (S.D. Ill. Feb. 21, 2017). Nonetheless, Maya
has failed to show a causal connection between Wexford’s guidelines and the inadequate
treatment of his hernia provided by Dr. Trost and Dr. Ritz. See Rice ex rel. Rice v. Corr.
Med. Serv., 675 F. 3d 650, 675 (7th Cir. 2012). Maya testified that he was told by Dr. Trost
that he was not approved for hernia surgery because of the cost. (Doc. 149-2, pp. 28-29;
Doc. 149-4, p. 3; Doc. 164, p. 7). This testimony is not sufficient evidence for a jury to
Page 30 of 39

conclude that the treatment decisions of Dr. Trost or Dr. Ritz were based on Wexford
guidelines regarding surgical repair of hernias. Dr. Trost testified that he has “never used
the guidelines to direct [his] practice[,]”and during his deposition, Dr. Trost was not even
familiar with some of the terms used in the guidelines. (Doc. 149-6, p. 24). As previously
discussed, the record does not contain any indication of why Dr. Ritz denied the request
for referral to a general surgeon and opted for a more conservative treatment plan. The
Wexford guidelines state “[d]ecisions regarding patient suitability for consideration of
abdominal wall herniorrhaphy must be made on a case-by-case basis…and are not
intended to replace hands-on clinical judgment.” (Doc. 153, p. 2). Maya testified that it is
the doctors, not Wexford, who have control “over what we can be given and what we
cannot be given…as far as health care.” (Doc. 149-2, p. 20). He also stated that he has
never seen any policies and procedures from Wexford. (Doc. 149-4, p. 2). Based on the
record, Maya has not provided any evidence that Dr. Trost or Dr. Ritz acted pursuant to
Wexford guidelines or policy when providing him treatment. Therefore, summary
judgment shall be granted to Wexford on Maya’s hernia claim. See Wilson v. Wexford
Health Sources, Inc., 932 F. 3d 513, 521-22 (7th Cir. 2019).
b. Policy of Minimizing Tests and Medical Intervention
Because the Court has determined that Maya has failed to present enough
evidence for a jury to infer that Defendants caused him to suffer a constitutional violation
as to the treatment of his diabetes and kidney disease, Wexford cannot be held liable for
maintaining an unconstitutional policy or practice of minimizing testing and medical
intervention. See also King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 (7th
Cir. 2007) (“there can be no municipal liability based on an official policy under Monell if
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the policy did not result in a violation of [the plaintiff’s] constitutional rights.”). The Court
also finds that Maya has not presented any evidence that Wexford has such a blanket
policy, either formal or informal. He testified that he has never seen any documentation
regarding a policy of minimizing medical tests and that he came by this belief based on
what other inmates have told him. (Doc. 149-4, p. 2). Accordingly, Wexford is entitled to
summary judgment.
II. Conditions of Confinement
Defendants Baldwin, Butler, and Lashbrook 4 argue that Maya has failed to
establish that he was housed in conditions that resulted in extreme deprivations and that
Defendants knew about the substantial risk to his safety and failed to take responsible
steps to resolve the situation. (Doc. 143, p. 18-20). They state that the injuries Maya claims
to have suffered over a fifteen year period at Menard as a result of his living conditions
are de minimis at most.
Defendants point to Maya’s testimony, in which he admits that the issues with
plumbing and power are largely caused by other offenders and are responded to and
repaired within ten minutes to two weeks. (Doc. 143, p. 18-19). Maya is able to recall only
two incidents of flooding due to plumbing, one in 2017 and one in 2018, and testified that
if there is an issue with plumbing, he may put in a work order or inform an employee,
and the issue will be fixed. (Doc. 143, p. 19; Doc. 149-2, p. 12). Although he alleges having
In the First Amended Complaint, Maya brings his claim of unconstitutional conditions of confinement,
Count 3, against Butler, Baldwin, and Lashbrook. (Doc. 108, p. 17-18). In his Response in Opposition to the
Motion for Summary Judgement filed by IDOC Defendants Baldwin, Butler, Lashbrook, and Shicker, Maya
argues Shicker was also deliberately indifferent to the Maya’s conditions of confinement. (Doc. 160, p. 14).
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 against Defendant Shicker
pertaining to Count 3. Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002) (quoting Shanahan v. City of Chi.,
82 F.3d 776, 781 (7th Cir. 1996)).
4

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issues receiving clothing, he has never grieved the clothing issue and the clothing log and
his commissary records demonstrate he has received and purchased clothing. (Doc. 143,
p. 19; Doc. 143-9, p. 1-2). He also testified that the power outages last from ten minutes to
two hours at the most. (Doc. 149-2, p. 13). Defendants state that Menard staff monitor the
temperatures and provide inmates with fans and ice, and allow inmates to keep chuck
holes open to facilitate air movement. (Doc. 143-5, p. 2). As for the complaint about mold,
they state Maya admits the last time he had an issue with mold was in either 2013 or 2014.
(Id.; Doc. 149-2, p. 16). Finally, Maya is able to leave his cell for meals, gym, yard, work,
showers, and library, contrary to his claims that he is kept in his cell with a cellmate for
twenty-two to twenty-three hours a day. (Doc. 143, p. 19). These complaints do not rise
to “extreme deprivations [that] are required to make out a conditions-of-confinement
claim.” (Doc. 143, p. 18) (citing Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1995)).
Defendants further argue that not only does the record reflect that actions have
been taken by Menard staff to ensure any issues with the living conditions are responded
to and remedied, but Maya has not demonstrated that Defendants knew and disregarded
an excessive risk to his health or safety. (Doc. 143, pp. 17, 20). The involvement of Butler
and Lashbrook regarding Maya’s claims is limited. Maya states he is not sure if he ever
wrote a letter to Butler regarding conditions at Menard and does not know if Butler
received any of his letters. He attempted to speak to Butler on one occasion in 2016, but
the two did not have a conversation. Butler also argues that Maya was not moved to
Gallery 6, Cell 654 until September 2016, six months after she left Menard full time and
the same month she left Menard permanently. (Doc. 176, p. 3). As for Lashbrook, Maya
wrote her one letter relating to clothing and conditions but testified he does not have copy
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or know if Lashbrook ever received the letter. He also tried to speak with her in 2018 and
2019, but the two did not have a conversation. Butler and Lashbrook claim they relied on
cell house staff to carry out the day-to-day administrative duties within the cell house.
Butler and Lashbrook argue they did not have direct personal involvement and were not
personally aware of Maya’s complaints, and so, cannot be liable. (Doc. 143, p. 20).
Finally, Defendants state that Maya did not meet Baldwin or write him any letters,
and he cannot produce evidence or demonstrate that Baldwin had personal knowledge
of a substantial risk to his health and safety and disregarded that risk. (Id. at p. 21).
The Court finds that Maya’s allegations of faulty plumbing, mold in his cell, and
inadequate clothing do not amount to constitutional violations. During the course of

after two weeks, even though he personally did not put in a request for repair, and the
broken sink was fixed the next day. As to his claims regarding mold in his cells, first,
Maya’s belief that there is mold contamination in his cells, causing his nostrils and neck
to burn and eyes to tear, is based on information told to him by other inmates, and he has
not presented any evidence other than his own speculation that there is mold in the cells.
(Doc. 149-2, pp. 16, 22). See Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995)
(noting that “[s]peculation does not create a genuine issue of fact[.]”). Furthermore, Maya
cannot point to a specific instance of mold exposure and could not remember the last time
he was housed in a cell that had a mold problem. He stated it was either in 2013 or 2014
when he was housed in Gallery Six but later presented conflicting testimony that he was
housed in Gallery Five during 2013 and 2014. (Doc. 149-2, p. 16; Doc. 149-4, p. 8). He
testified that since 2013 or 2014 he has not had an issue with mold because he has either
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been placed in cell where is it “better” or “if it’s bad…I ask for paint…and then I paint
it.” Maya stated that when he paints the cell “everything’s fine.” (Doc. 149-2, p. 16).
Finally, Maya claims that (1) when he arrived at Menard he did not receive clothes for
sixty days; (2) he put in a request for clothes in 2017, and although they did not have tshirts in his size, he received a shirt, a pair of pants, and a sheet; and (3) in the fall of 2018,
he put in a request for clothes but as of January 14, 2019, he had not received clothes or a
response to his request. (Doc. 149-2, p. 17). The record indicates that Maya has repeatedly
been provided clothing during his time at Menard. (Doc. 143-9). Specifically, in 2017, a
year prior to his most recent clothing request, he received 2 t-shirts, 2 pairs of shorts, 1
pair of pants, 1 shirt, and 3 pairs of socks. (Doc. 143-9, p. 2).
Based on his testimony and the record, Maya has not made an objective showing
to support his claim that he was exposed to mold and waste and provided inadequate
clothing creating an excessive risk to his health and safety in violation of the Eighth
Amendment. (Doc. 108, p. 17). See Cobian v. McLaughlin, 804 F. App’x 398, 399 (7th Cir.
2020).
The Court finds that Maya has, however, established a triable issue of fact with
respect to his claims that he was held in a small cell with a cellmate for long periods of
time, in excessive heat intensified by poor ventilation and lack of power. “It is well
established that individuals can be harmed by placement in cells that are
unconstitutionally small, even if they have occasional opportunities to leave their cells
and have not sought medical treatment from problems related to cell size.” Randle v.
Baldwin, No. 16-CV-1191-NJR, 2020 WL 1550638, at *15 (S.D. Ill. Apr. 1, 2020) (citations
omitted). In Turley v. Lashbrook, No. 08-07-SCW, 2018 WL 7585236 (S.D. Ill. 2018), the
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Court addressed the issue of double celling in similar sized cells, and the Court ruled that
the “Cells in the North 1 cell house are too small to house two grown men for any
extended period of time.” The Court further found that,
[T]he practice of double celling inmates in North I over an extended period,
even when taking into account ideal conditions wherein the inmates receive
all scheduled recreation, programming, and meals outside of the cell,
provides those inmates inadequate living space to meet the ’minimal
civilized measure of life’s necessities.’ These conditions are so extreme that
they also cause an excessive risk to inmates’ mental and physical health.
Id. Given this decision, “there is a clear argument that conditions were not constitutional.”
Randle, 2020 WL 1550638, at *5. Furthermore, these conditions were exacerbated by high
temperatures. Defendants do not dispute that it becomes “warm” in cells at Menard but
state that inmates are provided ice, fans, and allowed to open chuckhole doors to improve
ventilation. (Doc. 143, p. 5). Maya claims that these measures are not effective. (Doc. 160,
p. 3). He testified that his cell could reach up to 100 degrees when the fans were unable
to run due to power outages, and the small window in his cell does not provide
ventilation. (Doc. 149-2, p. 13-14). Maya’s testimony regarding the extreme temperatures
in his cells “is sufficient to create a genuine dispute of fact.” Jose-Nicolas v. Buter, No. 15cv-01317-NJR-DGW, 2018 WL 7020205, at *4 (S.D. Ill. Dec. 19, 2018) (citing Jordan v.
Milwaukee Cty., 680 F. App’x 479, 483 (7th Cir. 2017)). Thus, a jury could reasonably find
that the combination of being double celled in a small cell along with excessive heat, lack
of ventilation, and frequent power outages interfering with the efficiency of the fans
created conditions that denied Maya the basic necessities of civilized life. See Isby v.
Brown, 856 F. 3d 508, 522 (7th Cir. 2017).
The Court also finds that there is a question of fact as to whether Baldwin, Butler,

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and Lashbrook disregarded the substantial risk of harm to Maya’s safety and failed to
take reasonable measures to abate it. Maya testified that he was not sure if he wrote Butler
any letters regarding living conditions at Menard, he wrote one letter to Lashbrook
regarding clothing and did not receive a response, and he did not write any letters or
speak with Baldwin. (Doc. 149-2, p. 18-20). While Defendants may have had little or no
knowledge of Maya’s placement in the North 1 Cell House,
[t]he long history of double-celling at Menard, the numerous lawsuits that
have resulted from the practice and the periodic rebukes given to IDOC by
this Court leave little room for doubt that the warden[s] of Menard and the
head of IDOC were aware of the individualized consequences of their
broader logistical and budgetary decisionmaking and ultimately had direct
personal involvement in double-celling inmates such as [Plaintiff].
Randle, 2020 WL 1550638, at *5. Because Baldwin, Butler, and Lashbrook may be found to
have been put on notice by other proceedings that have alleged similar constitutional
violations, they are not entitled to summary judgment. Turley v. Rednour, 729 F.3d 645,
653 (7th Cir. 2013). See also Lightfoot v. Walker, 486 F. Supp. 504, 511 (C.D. Ill. 1980); Munson
v. Hulick, No. 10-cv-52-JPG, 2010 WL 2698279 (S.D. Ill. July 7, 2010); Wallace v. Baldwin,
No. 18-CV-1513-NJR-MAB, 2019 WL 6036742 (S.D. Ill. Nov. 14, 2019).
III. Qualified Immunity
Defendants Baldwin, Butler, Lashbrook, and Shicker claim that they are entitled
to qualified immunity on all counts. To determine whether an official is entitled to
qualified immunity, the Court must assess (1) whether a constitutional right would have
been violated on the facts alleged, and (2) whether the right alleged to have been violated
was clearly established. Saucier v. Katz, 533 U.S. 194, 200 (2001).
Here, the Court has granted summary judgment on all counts except Count 3

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against to Baldwin, Butler, and Lashbrook for unconstitutional cell size, excessive heat,
and poor ventilation. If, as Maya alleges, he was double-celled in a cell that was so small
as to violate the minimum standards of decency, it would amount to a constitutional
violation. This violation would be clearly established, for the Supreme Court and courts
within this circuit have repeatedly addressed how excessively small cells and
overcrowding can violate the Eighth Amendment, even discussing this in relation to
Menard specifically.
Similarly, Baldwin, Butler, and Lashbrook are not entitled to qualified immunity
based on their positions—while supervisory prison officials must be shown to have
personal involvement in constitutional violations, it is clearly established that they too
may be found liable. Accordingly, the Court denies qualified immunity on Count 3.
DISPOSITION
For the reasons provided, the Court GRANTS in part and DENIES in part the
Motion for Summary Judgment (Doc. 143) filed by Defendants Baldwin, Butler,
Lashbrook, and Shicker. The motion is granted as to Count 1 and Count 2 but is denied
as to Count 3 against Baldwin, Butler, and Lashbrook.
The Court also GRANTS in part and DENIES in part the Motion for Summary
Judgment (Doc. 148) filed by Dr. Einwohner, Dr. Garcia, Dr. Ritz, Dr. Trost, and Wexford.
The motion is granted as to Count 1 against Dr. Einwohner, Dr. Garcia, and Wexford but
is denied as to Dr. Trost and Dr. Ritz. The motion is granted as to Count 2.
Accordingly, the claims against Dr. Einwohner, Dr. Garcia, Wexford, and Shicker
are DISMISSED with prejudice. The Clerk of Court shall terminate them as defendants
and enter judgment in their favor at the conclusion of the entire action. This action will
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proceed on Count 1 (Eighth Amendment claim for deliberate indifference regarding
treatment of Maya’s hernia) against Dr. Trost and Dr. Ritz and Count 3 an Eighth
Amendment claim for unconstitutional conditions of confinement against Baldwin,
Butler, and Lashbrook.
A telephone conference will be set at a later date (when the suspension of jury
trials in the district due to COVID-19 has ended) to set firm dates for a final pretrial
conference and jury trial. In the meantime, the parties are encouraged to discuss whether
a settlement conference would be beneficial and, if so, request a referral to a magistrate
judge for that purpose.
IT IS SO ORDERED.
DATED: September 14, 2020
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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