Christmas v. Wexford Health Sources, Inc. et al

Filing 117

ORDER: the Court ADOPTS Magistrate Judge Daly's Report and Recommendation (Doc. 105 ). Accordingly, Defendants' Motions for Summary Judgment (Docs. 87 and 94 ) are GRANTED and Plaintiff's claims against Defendants Wexford, Trost an d Walls are DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly at the close of the case. Further, Defendants' Motion to Strike (Doc. 102 ) is GRANTED as to pages 29-51 of Document 100 ; the Clerk of the Court is DIRECTED to redact that portion of the document. Plaintiff's Motion for Leave to File under Seal (Doc. 107 ) is DENIED. Signed by Judge Staci M. Yandle on 4/23/2020. (bps)

Case 3:17-cv-01006-SMY Document 117 Filed 04/23/20 Page 1 of 8 Page ID #1186

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEMOND CHRISTMAS,

)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES, INC., et )
al,,
)
)
Defendants.
)

Case No. 17-CV-1006-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Demond Christmas, an inmate of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights
were violated while he was incarcerated at Menard Correctional Center (“Menard”). He claims
Defendants have been deliberately indifferent in their treatment of a right orbital fracture.
This matter is before the Court on the Report and Recommendation (“Report”) of United
States Magistrate Judge Reona J. Daly (Doc. 105), recommending granting the Motions for
Summary Judgment filed by Defendants Dr. Trost, Wexford Health Sources, Inc. and Gail Walls
(Docs. 87 and 94). Plaintiff filed a timely objection (Doc. 106). For the following reasons, Judge
Daly’s Report and Recommendation is ADOPTED.
Background
Plaintiff sustained an injury to his right eye in June 2012 while housed in Cook County
Jail. 1 A CT scan revealed an orbital face fracture without inferior rectus entrapment, and no further

1

An exhaustive account of Plaintiff’s medical care is detailed in the “Findings of Fact” section of Judge Daly’s
Report (Doc. 105, pp. 3-12). Because no specific objection has been made to that portion of the Report, the Court
adopts those findings of fact and will only summarize the relevant facts herein.

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treatment was recommended. Plaintiff reported the injury at his initial intake into IDOC custody
and upon his transfer to Menard in November 2012.
On January 30, 2013, Plaintiff was evaluated by Dr. Eric Johnson, O.D., to whom he
reported diplopia (double vision) peripherally and requested surgery. Dr. Johnson advised Plaintiff
that surgery could correct the issue without causing diplopia in his primary vision. Plaintiff was
seen at sick call on March 22, 2013 and reported that he was suffering right eye pain after hitting
his eye getting down from his bunk. He saw Dr. Shearing two days later and reported that he was
experiencing blurred and double vision and a persistent headache since hitting his eye. After
evaluating plaintiff, Dr. Shearing prescribed ibuprofen and ordered Plaintiff’s medical records
from the time of the initial injury and the CT scan. Apparently dissatisfied, Plaintiff filed a
grievance that day against “the eye doctor” on the grounds that he was not receiving adequate
treatment for his broken eye socket.
Dr. Shearing subsequently received and reviewed Plaintiff’s records and concluded that no
further workup or treatment (including ongoing pain medication) was indicated. He also noted that
Plaintiff’s demands for pain medication appeared to be drug-seeking behavior.
Defendant Gail Walls, Director of Nurses at Menard, responded to Plaintiff’s March 25,
2013 grievance, stating that he had been seen multiple times by doctors and nurses and that Dr.
Shearing had indicated no further treatment was necessary. Plaintiff then filed a grievance
regarding the accuracy of Dr. Shearing’s statements relayed by Walls—that is, that his eye socket
is still broken.
In October 2014, Plaintiff reported to sick call with a headache from his right eye and
occasional double vision.

He was then seen by Dr. Trost, Medical Director at Menard,

complaining of chronic drainage from his right eye and allergies. Dr. Trost prescribed Claritin for

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the allergies and two antibiotics for the eye discharge and referred him to the Optometry Clinic for
follow-up. Plaintiff was then seen by Defendant Dr. Lochhead 2 complaining of headaches from
his right eye and drainage. Dr. Lochhead added a recommendation for warm compresses to the
eye.
On March 7, 2016, Plaintiff was again seen at the Optometry Clinic at Menard and Dr.
Eyrich referred him for an outside ophthalmology consult. This referral was discussed in collegial
review by Dr. Trost and Dr. Garcia, and Dr. Garcia approved the request. As a result, Plaintiff
was sent to Dr. Unwin on April 12, 2016, who found chronic giant papillary conjunctivitis
(inflammation of the conjunctiva due to allergy) of the right eye and possible glaucoma. A sample
of the discharge from Plaintiff’s eye did not reveal any infection, and Unwin recommended a full
work-up for possible glaucoma.
Plaintiff was seen again by Dr. Trost on April 29, 2016 on referral from a nurse practitioner,
and Dr. Trost referred him to the Optometry Clinic for further evaluation and treatment. Plaintiff
was again referred to Dr. Unwin for glaucoma evaluation, which was again approved on collegial
review. When Plaintiff complained of constant tearing and the presence of pus and a lump in the
corner of his right eye, Dr. Unwin recommended referral to an oculoplastic surgeon for evaluation.
An optometrist at Menard submitted a request for the referral for collegial review which was
approved. Plaintiff was then seen by Dr. Couch on December 1, 2016, who diagnosed a right tear
duct obstruction and recommended a surgical procedure to restore its function.
On January 17, 2017, Plaintiff was seen at sick call complaining of two weeks of chest pain
and rapid heartbeat. He asked about his eye surgery and had pus in his right eye, but no notes from
Dr. Couch’s evaluation was in his chart. Plaintiff’s vital signs and EKG were normal, and the

2

Dr. Lochhead has yet to be served in this matter and there is a pending Order (Doc. 116) addressing her status.

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nurse practitioner prescribed Metoprolol, weekly blood pressure checks and a mental health
evaluation for anxiety and ordered copies of Dr. Couch’s consultation.
On January 18, 2017, Dr. Sutterer requested a referral for the surgical procedure
recommended by Dr. Couch, which was discussed in collegial review and approved. Surgery was
performed on March 1, 2017, resolving both his drainage issue and most of his other symptoms,
including headaches, dizziness, double vision and blurry vision. However, Plaintiff claims that
the delay in getting surgery caused him to have a heart condition.
Discussion
As Plaintiff filed a timely objection to the Report, this Court must undertake a de novo
review of Judge Daly’s findings and recommendations. 28 U.S.C. § 636(b)(1)(B), (C); FED. R.
CIV. P. 72(b); SDIL-LR 73.1(b); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992).
De novo review requires the district judge to “give fresh consideration to those issues to which
specific objections have been made” and make a decision “based on an independent review of the
evidence and arguments without giving any presumptive weight to the magistrate judge’s
conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept,
reject or modify the magistrate judge’s recommended decision.” Id. Consistent with these
standards, the Court has conducted a de no review of those portions of the Report subject to
objection. 3
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

3
Plaintiff’s Objection does not identify which portions of the Report he contests. He merely restates his assertions
that Defendants are liable in largely conclusory fashion. Rule 72(b) and the corresponding Local Rule require specific
objections. However, given Plaintiff’s pro se status, the Court will construe the Objection as a challenge to Judge
Daly’s legal conclusions and review those de novo.

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law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Here, the
dispositive question is whether there is any evidence from which a reasonable jury could conclude
that Defendants were deliberately indifferent to Plaintiff’s condition.
Prison officials inflict cruel and unusual punishment in violation of the Eighth Amendment
when they are deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97,
104 (1976). To succeed on such a claim, an inmate must show (1) that he suffered from an
objectively serious medical condition; and (2) that the defendant was deliberately indifferent to a
risk of serious harm from that condition. Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). A
serious medical condition is “one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would perceive the need for a doctor’s attention.”
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). The second element requires proof that the
defendant knew of facts from which he could infer that a substantial risk of serious harm exists,
and he must actually draw the inference. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016).
Dr. Trost
“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 did not base the decision on such a judgment.” Sain v. Wood, 512 F.3d 886,
894–95 (7th Cir. 2008). Plaintiff has presented no evidence to support such a finding as to Dr.
Trost. Dr. Trost saw Plaintiff in person twice. The first time, in 2014, he addressed Plaintiff’s
complaints of allergies and drainage from his right eye with an allergy medication and two types
of antibiotics for the drainage, and referred him to the prison’s eye care clinic. The second time,

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in 2016, Dr. Trost (a generalist) referred Plaintiff to the eye care clinic for treatment. And, when
Dr. Trost was involved in collegial reviews of referral recommendations, those recommendations
were always approved. There is no evidence that Trost’s treatment decisions were a departure
from accepted medical standards at all, let alone a substantial enough departure to suggest he did
not utilize professional judgment.
Moreover, the fact that Dr. Trost was Medical Director during a portion of Plaintiff’s time
at Lawrence does not render him liable for the actions of other staff members or for the alleged
delays in Plaintiff’s treatment. See Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008) (there is
no respondeat superior liability for claims under § 1983); Garvin v. Armstrong, 236 F.3d 896,
898–99 (7th Cir. 2001) (a medical director cannot be held vicariously liable for actions of nursing
staff).
Gail Walls
In order to establish liability under § 1983, a plaintiff must demonstrate that a given
defendant was personally involved in the alleged constitutional deprivation. Prison officials who
simply process or review inmate grievances lack personal involvement in the conduct forming the
basis of the grievance. Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017); Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001). According to the record, the extent of Walls’ involvement was
reviewing Plaintiff’s March 25, 2013 grievance and drafting a response that Dr. Shearling
indicated no further treatment was necessary. This is insufficient as a matter of law to support
liability.
Plaintiff argues that Walls was providing treatment once she reviewed his records. To the
extent he suggests she should have overruled Dr. Shearling’s determination that no further
treatment was necessary, the argument fails. “[A] medical care system requires nurses to defer to

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treating physicians' instructions and orders in most situations, [although] that deference may not
be blind or unthinking, particularly if it is apparent that the physician's order will likely harm the
patient.” Berry v. Peterman, 604 F.3d 435, 443 (7th Cir. 2010). However, a nurse does not have
a responsibility to second-guess a doctor’s medical judgment when nothing about the course of
care generally raised any obvious risks of harm. See McCann v. Ogle Cty., 909 F.3d 881, 887 (7th
Cir. 2018).
Wexford
The bulk of Plaintiff’s Objection focuses on Wexford’s liability. The main thrust is that
Wexford is responsible under the doctrines of respondeat superior and vicarious liability for the
actions or inactions of its employees. (Doc. 106, pp. 1-3). In particular, Plaintiff argues Wexford
is liable for “refusing to take corrective action measures” and “allowing or condoning the actions
of its employees.” (Doc. 106, p. 2). He is incorrect.
A private corporation is shielded from respondeat superior and vicarious liability under
Section 1983. Shields v. Illinois Dep't of Corr., 746 F.3d 782, 789 (7th Cir. 2014). The only
avenue available to Plaintiff is through Monell liability, under which he must demonstrate that the
wrongdoers acted pursuant to an unconstitutional policy or custom of Wexford’s, and that the
policy or custom was the moving force behind the constitutional violation. Whiting v. Wexford
Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016); Shields, 746 F.3d at 790; and Gable v.
City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (citing Monell v. Dep't of Social Servs., 436
U.S. 658, 691 (1978)). Plaintiff has produced no evidence from which a jury could reasonably
conclude that Wexford had a policy or practice that was the moving force behind any constitutional
violation. Plaintiff states that Wexford “has implemented a cost cutting policy[,] practice and
custom, resulting in the failure to provide constitutionally adequate healthcare to Plaintiff.” (Doc.

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106, p. 1). The record contains no evidence suggesting that such a policy, if it exists, played a role
in any of the decisions made in his case. Plaintiff also suggests that Wexford has an “overarching
practice to not follow written policies of Wexford or IDOC[.]” (Id., p. 2). However, he fails to
point to any evidence demonstrating that such a practice was a moving force behind his alleged
constitutional injury.
Disposition
For the foregoing reasons, the Court ADOPTS Magistrate Judge Daly’s Report and
Recommendation (Doc. 105) in its entirety. Accordingly, Defendants’ Motions for Summary
Judgment (Docs. 87 and 94) are GRANTED and Plaintiff’s claims against Defendants Wexford,
Trost and Walls are DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter
judgment accordingly at the close of the case.
Further, Defendants’ Motion to Strike (Doc. 102) is GRANTED as to pages 29-51 of
Document 100; the Clerk of the Court is DIRECTED to redact that portion of the document.
Plaintiff’s Motion to Seal (Doc. 107) is DENIED.
IT IS SO ORDERED.
DATED: April 24, 2020
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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