Kane v. Santos et al

Filing 108

Defendants' Motion for Summary Judgment (Doc. 98) is GRANTED as to Defendants Venerio Santos, Rebecca Jo Pickett, and Lisa Schukar. Plaintiff Kane shall recover nothing. The Clerk of Court shall close this case and enter judgment accordingly. Signed by Chief Judge Nancy J. Rosenstengel on 6/30/2021. (Attachments: # 1 Notice of Appeal) (drr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ADAM R. KANE,
Plaintiff,
v.

Case No. 3:17-CV-01054-NJR

VENERIO SANTOS, REBECCA JO
PICKETT, and LISA SCHUKAR,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is a motion for summary judgment filed by Defendants
Venerio Santos, Rebecca Jo Pickett, and Lisa Schukar (Doc. 98). For the reasons set forth
below, the motion is granted.
BACKGROUND
Plaintiff Adam Kane, an inmate previously incarcerated at Centralia Correctional
Center (“Centralia”), filed this action pursuant to 42 U.S.C. § 1983 on September 29, 2017.
(Doc. 1). Kane alleges that Centralia’s Medical Director, Dr. Santos, violated the Eighth
Amendment to the United States Constitution when he acted with deliberate indifference
to his medical needs by denying him adequate medical care for the growth on his arm
(Docs. 1, 7). Kane also alleges Nurse Pickett and Nurse Schukar violated the Eighth
Amendment when they acted with deliberate indifference to his medical needs by failing
to object or intervene during the procedure performed by Dr. Santos in October 2015

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(Id.). 1 In addition, Kane alleges that Dr. Santos violated the Fourteenth Amendment by
depriving him of his liberty interest and performing the procedure in October 2015
without his consent (Id.).
In October 2015, Kane first noticed a zit-like bump on his right forearm near the
elbow (Doc. 99-1, p. 35). Initially, the bump was not painful, but over the next couple of
days the bump quickly grew to be “substantially bigger” (Id. at p. 36). The bump became
painful and started to leak fluid whenever Kane would bend his arm (Id. at pp. 36-37).
About a week after noticing the bump, Kane visited Centralia’s health care unit (“HCU”)
(Id. at p. 39). The first record of Kane visiting the HCU for this bump is October 5, 2015
(Doc. 99-2, p. 11). 2 Dr. Santos observed a 3x2 centimeter bump on Kane’s right inner
elbow (Id.; Doc. 99-6, p. 1). Dr. Santos diagnosed the bump as an infected abscess and
prescribed antibiotics, Motrin, and a follow-up in one week (Id.).
On the evening of October 7, 2015, Kane reported back to the HCU complaining
that the bump was “leaking all over the place” (Doc. 99-1, p. 45; Doc. 99-2, p. 15; Doc. 996, p. 2). Dr. Santos was “contacted by phone” and informed that the bump was leaking
fluid (Doc. 99-6, p. 2). It was then ordered that Kane be “admitted to the infirmary in
isolation,” receive “dressing changes with showers,” and “continu[e] the antibiotic
medication” (Doc. 99-6, p. 2; Doc. 99-2, p. 15; Doc. 99-1, p. 45-46). Later that night, Kane
refused a vitals check claiming it was unneeded (Doc. 99-1, p. 46-47; Doc. 99-2, p. 16).

On May 9, 2018, Centralia Correctional Center identified Defendant Nurse Schumukor as Lisa Schukar
(Doc. 36).
2 Kane testifies that he initially reported the bump to the HCU on October 4, 2015, and did not meet with
Dr. Santos on that day (Doc. 99-1, p. 39-40).
1

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The next morning, on October 8, 2015, a nurse examined Kane, and noted a “large
amount of swelling,” a “dime sized opening with a dark spot in the middle[,]” and bloody
drainage (Doc. 99-2, p. 16). Kane described the bump as being around the size of a tennis
ball (Doc. 99-1, pp. 47-48). Fluid from the bump was obtained for testing, and Kane
showered following the dressing change (Doc. 99-1, p. 48; Doc. 99-2, p. 16). Later that
same day, Dr. Santos observed that the bump still had swelling, reddening, yellow debris,
and fluid (Doc. 99-2, p. 17; Doc. 99-6, p. 2). Dr. Santos officially diagnosed Kane with a
“recurrent infected cyst at the right antecubital area” (Id.).
Dr. Santos determined that an emergent procedure was necessary to clean out the
infected tissue for Kane’s health, and to avoid the risk of infection to other prisoners
(Doc. 99-1, p. 58; Doc. 99-2, p. 17; Doc. 99-6, p. 2). The procedure took place in the
afternoon on October 8, 2015, and involved Dr. Santos, Nurse Schukar, and Nurse Pickett
(Doc. 99-1, p. 48; Doc. 99-2, p. 19; Doc. 99-4; Doc. 99-5). A local anesthetic (xylocaine) was
injected, 3 and Dr. Santos debrided the infected tissue (Doc. 99-2, p. 19; Doc. 99-6, p. 2).
Following the procedure, Dr. Santos ordered a culture and sensitivity test (Doc. 992, pp. 98-99; Doc. 99-6, p. 2). Additionally, he ordered Clindamycin and Motrin to be taken
3-times a day as needed for pain (Doc. 99-2, pp. 19, 96; Doc. 99-6, p. 2). Kane was ordered
to take daily showers and visit the HCU for dressing changes, so that the bump could be
cleaned with peroxide, saline, and silvadene cream (Doc. 99-2, pp. 19, 21; Doc. 99-6, pp. 2-

The administration of xylocaine is notated in Kane’s medical chart (Doc. 99-2, p. 19). There is ongoing
dispute, however, as to when the xylocaine was administered. Kane argues that the anesthetic was not
administered until after he demanded it to relieve the pain (Doc. 99-1, p. 57). Dr. Santos states that he
injected the anesthetic before he began the debridement (Doc. 99-6, p. 2).
3

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3). Dr. Santos also ordered a one week follow up (Doc. 99-2, pp. 19, 21).
Every day, from October 9, 2015, through October 14, 2015, Kane visited the HCU
for monitoring and for the bump to be redressed by nurses (Doc. 99-2, pp. 23-28). Kane
saw Dr. Santos again on October 12, 2015. Kane had no complaints, and there were no
signs of infection (Doc. 99-2, p. 25; Doc. 99-6, p. 3). Dr. Santos prescribed continued
showers, “wet to dry dressing changes with hydrogen peroxide,” and another follow up
in one week (Id.). Dr. Santos saw Kane on October 15, 2015, and again Kane had no
complaints (Doc. 99-2, p. 29; Doc. 99-6, p. 3). While the hole had not yet healed, there were
no signs of infection, and the cultures had been received revealing there was no sign of
an infection (Doc. 99-2, pp. 29, 98-99; Doc. 99-6, p. 3). Dr. Santos instructed Kane to
continue daily showering and ordered dressing changes with “triple antibiotic ointment
and Band-Aids” paired with a follow up in six days (Doc. 99-6, p. 3; Doc. 99-2, p. 29).
Dr. Santos saw Kane for the last time on October 20, 2015. (Doc. 99-2, p. 31). Kane had no
complaints, the wound was healing, and there were no signs of infection (Id.). Dr. Santos
continued the same treatment and instructed Kane to follow up with him as needed (Id.;
Doc. 99-6, p. 3).
On November 2, 2015, Kane was medically cleared to be a food handler, as a result
of the healed infection (Doc. 99-1, p. 65; Doc. 99-2, p. 31). Following this approval, Kane
did not return to the Centralia’s HCU for any further treatment (Doc. 99-1, p. 65). In fact,
there was no longer a bump on Kane’s arm (Id. at pp. 67-68). Kane also was able to return
to normal daily activities including playing basketball and lifting weights (Id. at pp. 65-

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66, 69, 76; Doc. 99-2, pp. 43, 78). 4
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 sets 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). However, “[i]nferences that rely upon speculation or
conjecture are insufficient.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014). “Where
the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.” Id. (citation omitted).

After transferring to Lincoln Correctional Center, in March 2017, Kane noticed the beginning of another
bump in the same general area that was about the size of a pea (Doc. 99-1, p. 66, Doc. 99-2, p. 57). This
second bump was later operated on in February 2019 (Doc. 99-1, p. 73). After the procedure, the bump
became infected again and required a second follow-up procedure in November 2019 (Doc. 99-1, p. 74).

4

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DISCUSSION
I.

Count I – Deliberate Indifference
Kane brings an Eighth Amendment deliberate indifference claim against Santos
for denying him adequate medical care for the growth on his right arm in October 2015.
Santos agrees that Kane suffered a serious medical condition, but Santos argues he was
not deliberately indifferent to Kane.
The Eighth Amendment prohibits cruel and unusual punishments and deliberate
indifference to the “serious medical needs of a prisoner constitutes the unnecessary and
wanton infliction of pain forbidden by the Constitution.” Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to “reasonable measures to
meet a substantial risk of serious harm”—not to demand specific care. Forbes v. Edgar, 112
F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a medical professional’s
prescribed course of treatment does not give rise to a successful deliberate indifference
claim unless the treatment is so “blatantly inappropriate as to evidence intentional
mistreatment likely to seriously aggravate the prisoner’s condition.” Snipes v. DeTella, 95
F.3d 586, 592 (7th Cir. 1996) (quoting Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974)).
To succeed on an Eighth Amendment deliberate indifference claim, a plaintiff
must show: (1) that he suffered from an objectively serious medical condition; and (2) that
the individual defendant was deliberately indifferent to that condition. Berry v. Peterman,
604 F.3d 435, 440 (7th Cir. 2010); Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing
Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)). A medical condition is objectively
serious if “ ‘a physician has diagnosed it as requiring treatment, or the need for treatment

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would be obvious to a layperson.’” Lockett v. Bonson, 937 F.3d 1016, 1023 (7th Cir. 2019)
(quoting Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)). It is not necessary for such a
medical condition to “be life-threatening to be serious; rather, it could be a condition that
would result in further significant injury or unnecessary and wanton infliction of pain if
not treated.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010); accord Farmer v. Brennan,
511 U.S. 825, 828 (1994) (violating the Eighth Amendment requires “deliberate
indifference to a substantial risk of serious harm”) (internal quotation marks omitted,
emphasis added).
Prevailing on the second prong requires a prisoner to show that a prison official
has subjective knowledge of—and then disregards—an excessive risk to inmate health.
Id. at 653. The plaintiff need not show the individual “literally ignored” his complaint,
but that the individual was aware of the condition and either knowingly or recklessly
disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). “Something more than
negligence or even malpractice is required” to prove deliberate indifference. Pyles v.
Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see also Hammond v. Rector, 123 F. Supp. 3d 1076,
1086 (S.D. Ill. 2015) (“isolated occurrences of deficient medical treatment are generally
insufficient to establish . . . deliberate indifference”). Deliberate indifference involves
“intentional or reckless conduct, not mere negligence.” Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010)(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)).
Assessing the subjective prong is more difficult in cases alleging inadequate care
as opposed to a lack of care. Without more, a “mistake in professional judgment cannot
be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th

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Cir. 2016). The Seventh Circuit has explained:
By definition a treatment decision that’s based on professional judgment
cannot evince deliberate indifference because professional judgment
implies a choice of what the defendant believed to be the best course of
treatment. A doctor who claims to have exercised professional judgment is
effectively asserting that he lacked a sufficiently culpable mental state, and
if no reasonable jury could discredit that claim, the doctor is entitled to
summary judgment.
Id. (citing Zaya v. Sood, 836 F.3d 800, 805-06 (7th Cir. 2016)). This is in contrast to a case
“where evidence exists that the defendant [ ] knew better than to make the medical
decision[ ] that [he] did,” Id. (quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016)). A
medical professional’s choice of an easier, less efficacious treatment can rise to the level
of violating the Eighth Amendment, however, where the treatment is known to be
ineffective but is chosen anyway. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).
Construing the evidence in a light most favorable to Kane, there is nothing to
suggest that Dr. Santos was deliberately indifferent to Kane’s medical needs. For instance,
even if Santos told Kane that he is not going to see a specialist because the State is broke,
Santos never prevented Kane from receiving treatment (Doc. 99-1, p. 52). Kane’s medical
records show that Santos continually assessed Kane’s complaints each time he sought
help at Centralia’s HCU. Kane’s medical records show an extensive record of follow-up
appointments and testing to address Kane’s bump and to protect it from infection. Again,
from the beginning of October 2015 until Kane stopped seeking treatment at Centralia,
he received daily cleanings of the infected area, a procedure to remove the infected tissue,
multiple prescriptions for pain medication, and a culture and sensitivity test—over the

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course of more than a dozen appointments (Doc. 99-2, pp. 11-19, 21, 23-29, 31, 96, 98-99;
Doc. 99-6, p. 2-3).
Kane notes he should have seen a specialist because the IDOC “ended up sending
[him] out to some type of specialist, and [he] had muscle atrophy on [his] left side”
(Doc. 99-1, pp. 51, 69). 5 Notably, the bump was on Kane’s right forearm—not his left.
More importantly, after the procedure, Kane saw Dr. Santos on October 12, 2015, October
15, 2015, and October 20, 2015, and had no complaints (Doc. 99-2, pp. 25, 29, 31). By
November 2, 2015, Kane was medically cleared to be a food handler, as a result of the
healed infection (Doc. 99-1, p. 65; Doc. 99-2, p. 31). Kane never returned to Centralia’s
HCU for any further treatment (Doc. 99-1, p. 65). There was no longer a bump on Kane’s
arm, and he was able to return to normal daily activities—even playing basketball and
lifting weights (Id. at pp. 65-69, 76; Doc. 99-2, pp. 43, 78).
Kane testified that the “procedure needed to be done[,]” but did not “necessarily”
agree that it was an emergency (Doc. 99-1, p. 58). Kane wanted the infection removed,
but he did not want Dr. Santos to perform the procedure because of conversations with
other prisoners regarding Dr. Santos’s competence (Id. at pp. 50-51). On these facts, the
Court cannot say that Dr. Santos was deliberately indifferent to Kane’s medical needs,
and summary judgment must be granted in favor of Dr. Santos on Count I.

Later Kane reported that he had muscle atrophy on his right side. But Kane admits that the muscle loss
is related to a prior car accident (Doc. 99-1, p. 77, Doc. 99-2, p. 59).

5

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II.

Count II – Failure to Intervene
Kane brings a failure to intervene claim against Pickett and Schukar for failing to
object to or intervene and stop the procedure performed by Dr. Santos. Failure to
intervene is also a constitutional violation under the Eighth Amendment. Harper v. Albert,
400 F.3d 1052, 1064 (7th Cir. 2005). Although nurses aide physicians and “may generally
defer to instructions given by physicians, they have an independent duty to ensure that
inmates receive constitutionally adequate care.” Perez v. Fenoglio, 792 F.3d 768, 779 (7th
Cir. 2015) (citing Berry v. Peterman, 604 F.3d 435, 443 (7th Cir. 2010)).
“In order for there to be a failure to intervene, it logically follows that there must
exist an underlying constitutional violation . . . .” Harper, 400 F.3d at 1064. As explained
above, Kane failed to establish that Dr. Santos was deliberately indifferent to his medical
needs in violation of his Eighth Amendment. Thus, summary judgment must be granted
in favor of Defendants Pickett and Schukar on Count II.

III.

Count III – Fourteenth Amendment Due Process
Kane brings a Fourteenth Amendment due process claim against Dr. Santos for
depriving Kane of a liberty interest when he performed procedure on his right arm
without first obtaining his consent in October 2015 (Docs. 1, 7). “[P]risoners have a
Fourteenth Amendment right to informed consent.” Knight v. Grossman, 942 F.3d 336, 342
(7th Cir. 2019). “The right to refuse medical treatment carries with it an implied right to
the information necessary to make an informed decision about whether to refuse the
treatment.” Id. “Together, the right to refuse treatment and the right to information
required to do so constitute a right to informed consent.” Id.

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Evaluating Kane’s due process claim involves a two-step inquiry. Id. at 343. First,
Kane must “establish that his right to informed consent was violated.” Id. at 343-44. “To
do this, [Kane] must prove that (1) he was deprived of information that a reasonable
patient would deem necessary to make an informed decision about his medical
treatment, (2) the defendant acted with deliberate indifference to [ ] [his] right to refuse
treatment, and (3) if [Kane] had received the information, he would have refused the
treatment.” Id. at 344. Second, the court must balance “[Kane’s] right to informed consent
against countervailing state interests.” Id. “Liability arises only if, in the end, [Kane’s]
right outweighs the state interests.” Id.
Here, Kane was informed about the degree of the infection, and the need for an
emergency procedure:
Defendants’ Counsel: And Dr. Santos described the degree of infection as an
emergency procedure that needed to be performed. Do you agree with that?
Kane: Yeah.
Defendants’ Counsel: Okay.
Kane: I don’t necessarily know if I was necessarily labeled as an emergency; but, I
mean, I know that a procedure needed to be done –
Defendants’ Counsel: Okay.
Kane: -- in my opinion.
(Doc. 99-1, p. 58). Besides having information to make an informed decision, Kane fails
at proving that he would have refused the treatment. Indeed, the only issue Kane had
with the procedure was that he wanted somebody else to remove the infection:
Defendants’ Counsel: Okay. So did you want the infection removed?

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Kane: Yes.
Defendants’ Counsel: Okay. Is your issue with -- and I’m talking specifically about
the informed consent part of your claim. Is your issue that Dr. Santos removed the
infection because you didn’t want it removed or you wanted somebody else to
remove it?
Kane: My issue was more so that I wanted somebody else to remove it.
(Id. at p. 50).
In Knight, 942 F.3d at 338, a prisoner brought suit under 42 U.S.C. § 1983, when he
“went under the knife for one surgery and [defendant], upon seeing during the operation
that he made the wrong diagnosis, performed another.” The Seventh Circuit held that the
prisoner failed to meet his burden of proof, however, and acknowledged that “saying he
may have refused treatment is not the same as saying he would have.” Id. at 344.
If the prisoner in Knight failed to meet his burden of proof, Kane surely fails here.
Kane never said he may have refused treatment. There is no question as to whether Kane
wanted this treatment. His only issue was that Dr. Santos was the one performing the
procedure.
Ignoring the first inquiry does not help Kane as he also fails under the second
inquiry. By balancing Kane’s right against state interests, one quickly sees that Kane’s
right does not outweigh state interests. Kane had a leaking infection with a rapid growth
rate. Kane’s infection appeared to be resistant to some antibiotics. Leaving Kane’s
condition untreated could have resulted in further harm to Kane and spread to staff and
other prisoners. After the procedure, Kane’s bump improved, and his condition did not
spread to others. Accordingly, summary judgment must be granted in favor of Santos on
Count III.
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CONCLUSION
For the reasons stated above, the Defendants’ Motion for Summary Judgment
(Doc. 98) is GRANTED as to Defendants Venerio Santos, Rebecca Jo Pickett, and Lisa
Schukar. Plaintiff Kane shall recover nothing. The Clerk of Court shall close this case and
enter judgment accordingly.
IT IS SO ORDERED.
DATED: June 30, 2021
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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