Rogers v. Baldwin et al

Filing 124

ORDER Denying 96 MOTION for Summary Judgment filed by Nurse Elizabeth, Nurse Shaya, N.P. Moldenhauer. For the reasons stated in the attached Memorandum & Order, Defendants' motion for summary judgment is DENIED. By separat e order, the Court will set Plaintiff's motion to compel (Doc. 117 ) and the consent motion to continue discovery deadline and dispositive motion deadline (Doc. 119 ) for hearing. The parties shall file a joint status report on or before November 30, 2020, advising whether the issues raised in the motion to compel have been resolved. The Clerk of Court shall correct Defendants' names on the docket sheet as directed in footnote 1. Signed by Judge David W. Dugan on 11/17/2020. (kll)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY ROGERS,
Plaintiff,
vs.
JOHN BALDWIN,
JACQUELINE A. LASHBROOK,
ANDY STOUT,
JUSTIN ENGELAGE,
TYLER HOWELL,
BRIAN ADAMS,
ZACHARY FITZGERALD,
RYAN ASHTON,
MATTHEW DULANEY,
LASHAYA DONABY,
REVA ENGELAGE,
ELIZABETH KNOP,
RON SKIDMORE, and
MICHAEL MOLDENHAUER,
Defendants. 1

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Case No. 18-cv-22-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiff Terry Rogers, an inmate in the custody of the Illinois Department of
Corrections, alleges that Defendants LaShaya Donaby, Elizabeth Knop, and Michael
Moldenhauer were deliberately indifferent to his serious medical needs after he was
assaulted by staff members at two correctional facilities in August 2017. Now before the
Court is a motion for summary judgment filed by Defendants Donaby, Knop, and

1

The Clerk of Court shall update the docket sheet to reflect the correct spellings of Defendants’ names.

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Moldenhauer. (Doc. 96). Plaintiff responded through counsel on August 2, 2019. (Doc.
98). Plaintiff’s counsel retired from the practice of law in September 2019, and new
counsel was appointed. The parties were allowed until August 10, 2020, to supplement
or amend their briefs. (Doc. 113). Neither party filed an amendment or a supplement by
the deadline, and the matter is now ripe for ruling. For the reasons delineated below, the
Court denies Defendants’ motion.
FACTUAL BACKGROUND
On August 24, 2017, Plaintiff Terry Rogers was incarcerated at Lawrence
Correctional Center (“Lawrence”) when he got into an argument with Defendant Andy
Stout, a correctional officer. Rogers alleges that Stout opened his cell door and assaulted
and injured him. After being examined by healthcare staff at Lawrence, Rogers was
transferred to Menard Correctional Center (“Menard”). He alleges that several staff
members at Menard assaulted him a second time upon his arrival. After the second
assault, Rogers claims that prison officials turned off the water to his cell, gave him a dirty
mattress, refused to feed him, and ignored his requests for medical care.
A nurse, L. Gregson, conducted Rogers’s medical intake at Menard. Gregson’s
notes reflect that Rogers had no subjective complaints and that his physical appearance
and behavior were appropriate. She charted his medications and placed him on sick call
“routine.” Rogers has asthma, and his intake paperwork reflects that he had two
prescriptions for asthma pumps. (Doc. 97-1, p. 2). After arriving at Menard, he was taken
to a cell in segregation where he did not have access to his asthma medication.

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Defendant LaShaya Donaby, a nurse in the healthcare unit at Menard, passed out
Plaintiff’s medications on August 26, 2017. According to his deposition testimony, Rogers
showed Donaby bruising on his forehead when she came to his cell, and he told her that
he did not have his asthma pump. An unidentified correctional officer told Donaby not
to talk to Rogers, not to give him medical care, and to keep moving. Rogers testified that
Donaby questioned whether she could talk to him, and the officer told her not to because
Rogers was a “staff assaulter.” (Doc. 97-2, p. 24). He explained that he believed Donaby
would have helped him but for the officer’s involvement. He couldn’t remember whether
Donaby gave him any medications, but his medical records reflect that he received his
psychiatric medications: Remeron, Prazosin, and Effexor. (Doc. 97-1, p. 9; Doc. 97-2, p.
24). Rogers also testified that he kept his asthma pumps in his cell at Lawrence and that
it should have been included with his property when he was transferred.
Defendant Elizabeth Knop, also a nurse in the healthcare unit at Menard, passed
out medications to Rogers on August 28, 2017. Rogers testified that he asked Knop for
medical attention, including asking her for his asthma pump, and that he showed her his
injuries. He explained that he believed she would have helped him if a correctional officer
hadn’t told her not to. Knop provided Rogers with his medications, including Remeron,
Prazosin, and Effexor. She did not give him his asthma medications. According to Rogers,
he also tried to give Knop a sick call request slip, but the correctional officer would not
let him submit it. (Doc. 97-2, p. 25-26).
On August 31, 2017, Defendant Michael Moldenhauer, a nurse practitioner,
performed a physical examination of Rogers. According to Rogers’s deposition,
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Moldenhauer moved his hand and wrist to check for mobility issues in his wrist and
thumb. The appointment ended after Moldenhauer said he did not have Rogers’s entire
file, which contained his complete medical chart and labs. Rogers didn’t see his file that
day and acknowledged that it was possible it had yet to arrive from Lawrence. He
explained that the issue with the missing file only arose after Rogers mentioned he was
injured in a staff assault and that Moldenhauer’s “whole demeanor changed” after
Rogers claimed he was assaulted. (Doc. 97-2, p. 27). Moldenhauer’s notes do not mention
Rogers’s wrist issues or his missing asthma pump. (Doc. 97-1, p. 4). Rogers testified that
he did not receive medication for his pain or ointment for the wounds on his wrist from
Moldenhauer during the appointment.
The parties agree that Rogers received his asthma medication at some point in
September 2017. His medical records reflect that an unidentified nurse first noted his
complaints of headache, nausea, vomiting, dizziness, and right thumb pain on September
25, 2017. The records contain a note that the thumb and wrist pain was caused by arthritis.
The medical records do not contain any noted complaints about asthma complications in
September 2017. (Doc. 97-1, p. 5-6).
Rogers saw Defendant Moldenhauer again on October 12, 2017. Moldenhauer
prescribed Nasacort spray, Claritin, Motrin, and Pepcid. He charted that Plaintiff’s right
thumb had a good range of motion, no edema, and good sensation. Plaintiff
acknowledged at his deposition that he did not have any complaints related to the
medical treatment he received during the October 12, 2017 visit with Moldenhauer except
that his pain was not medicated sufficiently. (Doc. 97-2, p. 28-29).
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Moldenhauer saw Rogers again on November 12, 2017, and he ordered an x-ray
and Naproxen after Rogers complained of right thumb pain and new tingling.
Moldenhauer noted that Plaintiff’s thumb had good range of motion and no edema.
Rogers testified at his deposition that he did have swelling, stiffness, and pain and that
Moldenhauer ordered physical therapy. (Doc. 97-2, p. 29). He also testified that he had
no complaints about the care he received from Moldenhauer on November 12, 2017.
According to Rogers, his complaints with the care he received from Moldenhauer
stemmed from the August 31, 2017 appointment and from the delay in ordering an x-ray
and physical therapy. (Doc. 97-2, p. 30). Rogers did not receive an x-ray for his August
injuries until November 16, 2017. The results showed no acute displace fracture or
dislocation. (Doc. 97-1, p. 11). Rogers eventually received physical therapy for his thumb
and wrist pain, but he testified that it continues to bother him during his normal, daily
activities. (Doc. 97-2, p. 30-31).
LEGAL STANDARDS
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. See
Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014)(citing FED. R. CIV. PROC.
56(a)). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of
material fact remains “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord
Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014).
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In assessing a summary judgment motion, the district court views the facts in the
light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. See Anderson, 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. Community Contacts, Inc., 756 F.3d 542, 544 (7th Cir.
2014).
The Eighth Amendment prohibits cruel and unusual punishments, and the
deliberate indifference to the “serious medical needs of a prisoner constitutes the
unnecessary and wanton infliction of pain forbidden by the Constitution.” Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to
“reasonable measures to meet a substantial risk of serious harm”—not to demand specific
care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a
medical professional’s prescribed course of treatment does not give rise to a successful
deliberate indifference claim unless the treatment is so “blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition.”
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)(citation omitted).
In order to prevail on a claim of deliberate indifference, a prisoner who brings an
Eighth Amendment challenge of constitutionally deficient medical care must satisfy a
two-part test. See Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)(citation omitted). The
first consideration is whether the prisoner has an “objectively serious medical condition.”
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Arnett, 658 F.3d at 750. 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)(citing 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, 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).
Prevailing on the subjective prong requires a prisoner to show that a prison official
has subjective knowledge of—and then disregards—an excessive risk to inmate health.
See Greeno, 414 F.3d 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, 123 F. Supp. 3d at 1086
(stating that “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).
ANALYSIS
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Defendants do not challenge that Plaintiff’s injuries and asthma issues rise to the
level of being serious medical needs. Plaintiff testified that he had pain, bruises, and
wounds when he interacted with Defendants Donaby and Knop. He also testified that he
asked both nurses for his asthma pump. Rogers’s testimony also establishes that
Defendant Moldenhauer examined his range of motion in his injured right wrist during
the first time Moldenhauer examined him. Rogers said that he asked Moldenhauer for
his asthma pump and that he complained about his pain and wounds during their
appointments. Plaintiff’s testimony on these points is largely uncontroverted, and that is
sufficient at this time to establish that he had objectively serious medical needs.
1. Deliberate Indifference by Defendants Donaby and Knop
Defendants Donaby and Knop argue that they were not deliberately indifferent to
Plaintiff’s medical needs because they provided him with his psychiatric medications
during their rounds through segregation. They suggest that there is no evidence that their
failure to give Rogers his asthma medication was anything more than inadvertent and
that they could not have provided further medical attention because the correctional
officers prohibited them from doing so. Plaintiff counters that Donaby and Knop played
a role in a broader pattern of harassing conduct, arguing that they cannot blame their
failure to take steps necessary to provide him with needed care on interference by other
prison personnel.
Plaintiff testified that he showed Donaby his bruises and told her he needed his
asthma pump. According to his testimony, which Defendants do not rebut, Donaby did
not help him with his injuries nor did she take steps to locate or secure an asthma pump
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for Rogers. Similarly, Rogers showed Knop his injuries and asked her about his missing
asthma pump, but Knop did not treat him or help him get his asthma pump. Rogers also
testified that he attempted to give Knop a sick call slip, but she would not take it. Rogers
testimony also establishes that Defendants’ actions were guided, in part, by instructions
from correctional officers, but a reasonable juror could conclude that, by only providing
him with his psychiatric medications, Defendants acted with deliberate indifference to
his other medical needs. Drawing inferences in favor of Rogers as the non-moving party,
there is a genuine dispute of material fact as to whether Defendants Donaby and Knop
were merely negligent or whether their conduct was reckless or intentional. As such, they
are not entitled to summary judgment.
2. Deliberate Indifference by Defendant Moldenhauer
Defendant Moldenhauer argues that he provided Rogers with appropriate
medical care and did not act with deliberate indifference. Moldenhauer treated Rogers
on three occasions. During their first appointment on August 31, 2017, Plaintiff’s
uncontroverted testimony establishes that Moldenhauer examined the mobility of his
hand, thumb, and wrist, but, once Rogers told Moldenhauer he was assaulted by staff,
Moldenhauer’s demeanor changed. He told Rogers he didn’t have his file and that he
would have to schedule him for follow-up care. According to Rogers, he had wounds and
injuries that were not tended to by Moldenhauer during the appointment. He also
testified that he asked for an asthma pump, but Moldenhauer did not help him with his
missing asthma medication.

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Moldenhauer argues that his ability to provide care was limited by not having
Plaintiff’s file. The record is unclear as to whether Plaintiff’s medical file was available or
not. While Rogers testified that he did not see his file and acknowledged that it may not
have been there, nothing in the record rebuts his testimony that the missing file only
became an issue after he mentioned the altercation with prison staff. Plaintiff’s testimony
also suggests that Moldenhauer was aware of his thumb and wrist pain but did not
provide pain relief or treatment, and Rogers claims that their later appointments were
satisfactory with the exception of the lack of treatment he received for his pain.
Rogers argues in his response that Moldenhauer also was deliberately indifferent
because he delayed treatment of his thumb injury, for which he was eventually
prescribed physical therapy. A delay in treatment can rise to the level of deliberate
indifference if the delay “exacerbated the inmate’s injury or unnecessarily prolonged his
pain.” Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015)(citing McGowan v. Hulick, 612
F.3d 636, 640 (7th Cir. 2010) and Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)).
“Whether the length of delay is tolerable depends upon the seriousness of the condition
and the ease of providing treatment.” Id. (citing McGowan, 612 F.3d at 640).
Considering the record as a whole, a juror crediting Plaintiff’s testimony could
find that Moldenhauer failed to provide Rogers with pain relief and delayed an x-ray and
treatment of his thumb and wrist injury, prolonging Rogers’s pain. As with Defendants
Donaby and Knop, Rogers’s testimony establishes that he also asked Defendant
Moldenhauer for his asthma medication, and Moldenhauer failed to assist him, which
could lead reasonable jurors to conclude that he exposed Rogers to a substantial risk of
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harm. For all these reasons, Defendant Moldenhauer is not entitled to summary
judgment.

3. Harm Caused by Defendants’ Deliberate Indifference
Defendants’ final argument is that Rogers cannot prove that he was harmed by
their conduct. The argument cites no case law and is unclear. To the extent that
Defendants raise the argument to challenge their personal involvement, only persons
who cause or participate in an alleged constitutional deprivation are responsible under §
1983. See Greeno v. Daley, 414 F.3d 645, 656-657 (7th Cir. 2005). Here, however, there is
sufficient evidence that Defendants each were personally involved in the alleged
deprivations. Plaintiff’s testimony and his medical records establish that each defendant
interacted with Rogers and played a role in his medical treatment, which is sufficient to
establish personal involvement.
Defendants’ argument may be aimed at the proposition that to recover damages
in a § 1983 action, a plaintiff must show that he is injured and must show a “causal
connection between that injury and the deprivation of a constitutionally protected right.”
Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999). Plaintiff testified that he had
wounds and injuries, including his right thumb and wrist injury, that went untreated
because of Defendants’ actions. He also testified that he had shortness of breath and
burning in his chest due to being in a hot cell that smelled of urine and feces. (Doc. 97-2,
p. 16). Rogers said he did not have his asthma pump and that he had asthma attacks
during the time period when he was in segregation around the time when Defendants
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Donaby and Knop saw him. (Doc. 97-2, p. 16). Taken together, a reasonable juror could
conclude that Defendants’ allegedly unconstitutional conduct shares a causal connection
with continued pain and breathing difficulties suffered by Rogers while he waited for
adequate medical treatment. Given the undeveloped nature of Defendants’ argument,
they fail to carry their burden of establishing that they are entitled to summary judgment
as a matter of law.
CONCLUSION
For the above-stated reasons, Defendants’ motion for summary judgment (Doc.
96) is DENIED. By separate order, the Court will set Plaintiffs’ motion to compel (Doc.
117) and the consent motion to continue discovery deadline and dispositive motion
deadline (Doc. 119) for hearing. The parties shall file a joint status report on or before
November 30, 2020, advising whether the issues raised in the motion to compel have been
resolved.
SO ORDERED.
Dated: November 17, 2020
______________________________
DAVID W. DUGAN
United States District Judge

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