Wilson v. Wexford Health Sources, Inc. et al
Filing
126
ORDER GRANTING IN PART AND DENYING IN PART 98 MOTION for Summary Judgment filed by Michael Moldenhauer, John Trost, Stephen Ritz, Hector Garcia, Wexford Health Sources, Inc., and GRANTING 100 MOTION for Summary Judgment filed by Kimberly Butler. Judgment shall be entered in favor of Defendants Michael Moldenhauer, Wexford Health Sources, Inc., and Kimberly Butler and against Plaintiff Reco Wilson at the close of this case. Signed by Magistrate Judge Reona J. Daly on 3/17/2022. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RECO WILSON,
)
)
Plaintiff,
)
)
v.
)
)
WEXFORD HEALTH SOURCES, INC.,
)
STEPHEN RITZ, DR. HECTOR GARCIA, )
KIMBERLY BUTLER, DR. JOHN TROST, )
and MICHAEL MOLDENHAUER,
)
)
Defendants.
)
Case No.
18-cv-498-RJD
MEMORANDUM AND ORDER
DALY, Magistrate Judge:
Plaintiff Reco Wilson, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated while he was incarcerated at Menard Correctional Center (“Menard”). Plaintiff alleges
he was provided inadequate medical treatment and delayed care for a lump on his spine that caused
him pain. The lump was surgically removed on November 9, 2017; however, Plaintiff had sought
treatment for the lump beginning in March 2011.
Following a threshold review of Plaintiff’s complaint under 28 U.S.C. § 1915A (Doc. 6),
and entry of a summary judgment order on Defendants’ motions for summary judgment on the
issue of exhaustion of administrative remedies (Doc. 63), Plaintiff proceeds on the following
claims:
Count 1:
Ritz, Garcia, Butler, Trost, and Moldenhauer were deliberately indifferent
to the lump on Plaintiff’s back in violation of the Eighth Amendment.
Count 2:
Wexford had policies and/or practices in place to deny Plaintiff needed
healthcare for his lump in violation of the Eight Amendment.
Page 1 of 22
Defendants filed motions for summary judgment on August 19, 2021 (Docs. 98 and 100)
that are now before the Court. Plaintiff filed responses to the motions, and Defendants Wexford,
Ritz, Garcia, Trost, and Moldenhauer filed a reply. For the reasons set forth below, the Motion
for Summary Judgment for Deliberate Indifference to a Serious Medical Need filed by Defendants
Moldenhauer, Ritz, Garcia, Trost, and Wexford (Doc. 98) is GRANTED IN PART AND
DENIED IN PART, and the Motion for Summary Judgment filed by Defendant Butler (Doc. 100)
is GRANTED.
Factual Background
Plaintiff’s Medical Treatment
Plaintiff Reco Wilson has been incarcerated with the IDOC since 2009 (Reco Wilson
Deposition, Doc. 99-1 at 11). Plaintiff was transferred to Menard, where the claims in this lawsuit
arise, in March 2009 (Id.). Plaintiff discovered a lump in the middle of his back in March or April
2011 while he was taking a shower (Id. at 22). Plaintiff testified the lump was in the middle of his
spine, and caused pain and discomfort as it was difficult to sleep on his back (Id. at 23). Plaintiff
described his pain at the time as “high” (Id.).
Plaintiff first presented to the healthcare unit (“HCU”) on April 24, 2011 concerning the
lump near his spine (Plaintiff’s Medical Records, Doc. 99-6 at 7). The records indicate the lump
was approximately egg-sized and soft, and caused Plaintiff difficulty sleeping and laying down
(Id.) Plaintiff rated his pain as a 6 out of 10 (Id). Plaintiff was provided ibuprofen and referred
to the doctor (Id.).
Plaintiff was seen on the MD sick call line on April 27, 2011 by an unknown medical
provider (Doc. 99-6 at 8). The doctor noted the lump was tender and assessed it as a possible
Page 2 of 22
lipoma1 (Id.). The lipoma was measured at 6 x 2.5 centimeters (Id.). X-rays of Plaintiff’s spine
were ordered and taken the same day (Id. at 8, 168).
On June 22, 2011, Plaintiff was seen by non-defendant Dr. Nwaobasi regarding the mass
on his back (Doc. 99-6 at 9). Dr. Nwaobasi measured the mass at 10 x 5 centimeters and assessed
it as a possible lipoma (Id.). Dr. Nwaobasi noted the x-rays showed no other gross abnormality
(Id.). Dr. Nwaobasi prescribed Motrin and noted he would follow-up with Plaintiff in two months
for a reassessment for a possible excision (Id.). Plaintiff was seen by Dr. Nwaobasi for a
follow-up on August 25, 2011 (Doc. 99-6 at 10). Dr. Nwaobasi noted there were no signs of
significant size increase and indicated Plaintiff was to be seen in six months for reassessment (Id.).
Dr. Nwaobasi described Plaintiff’s lump as a “soft tissue mass” and “mid thoracic spine lipoma
mass” (Id.)
A non-defendant nurse practitioner saw Plaintiff for his six-month follow-up regarding the
lump on his spine on February 23, 2012 (Doc. 99-6 at 17). The nurse practitioner described the
lump as a “soft movable mass” (Id.). The nurse practitioner noted that Plaintiff complained the
mass causes pain when he presses his back against his bunk (Id.). Plaintiff was instructed to
follow-up with nurse sick call and contact the HCU if his symptoms worsened, or if there was an
increase in size (Id.).
Plaintiff was seen by a certified medical technician on November 21, 2014, and
complained of pain on his spine related to the mass (Doc. 99-6 at 26). Plaintiff rated his pain as a
9 out of 10 (Id.). The CMT noted Plaintiff described the pain as “throbbing” and “intermittent,”
1
It is undisputed that the lump on Plaintiff’s spine was indeed a lipoma. The parties include various references to the
diagnoses ascribed to the mass throughout their statement of facts. However, any question about the diagnosis is not
necessarily relevant to Plaintiff’s claims. Thus, the Court will only include references to the diagnoses that are
pertinent to the issues before the undersigned. Insofar as the medical records include various terminology to identify
the lump, the Court will attempt to reflect the description provided in the medical records as cited. As such, this
Order will include various terms to describe the lipoma.
Page 3 of 22
and referred Plaintiff to a provider (Id.). The CMT also provided seven days of Acetaminophen
(see id.). Plaintiff was seen by Defendant Nurse Practitioner Moldenhauer on November 25,
2014 regarding Plaintiff’s complaints of the “knot” on his spine (Doc. 99-6 at 27). Plaintiff
indicated the “knot” was getting bigger (Id.). Moldenhauer measured the mass as 5 x 1.5 inches
and referred Plaintiff to Defendant Dr. Trost (Id.). Plaintiff was seen by Dr. Trost on December
15, 2014 (Doc. 99-6 at 28). Dr. Trost noted the lump was a subcutaneous mass over the thoracic
spine consistent with a lipoma (Id.). Dr. Trost assessed that the lump was a back lipoma and
ordered observation of the same (Id.).
Plaintiff did not present to the Menard HCU regarding the lipoma on his back from
December 2014 to December 2016 (Doc. 99-1 at 55-56). Plaintiff also did not write any
grievances regarding his medical treatment or the pain he was in related to his back in 2015 or
2016 (Id. at 124-25). Plaintiff, however, testified that he did not request to see a medical provider
or file a grievance for the mass on his spine during this time because Wexford and its employees
refused to provide additional testing to diagnose the mass, and the only treatment he received was
over-the-counter pain medication (Id. at 56-57). Plaintiff also testified he was made to pay $5
every time he requested to see a medical provider and he did not have the money to spend on the
same when they were not doing anything for him (Id.).
On December 21, 2016, Plaintiff was seen by a nurse in the HCU for complaints of pain
related to the lump on his spine (Doc. 99-6 at 56). Plaintiff was prescribed ibuprofen and referred
to a medical provider (Id.). Plaintiff was seen by a non-defendant nurse practitioner on January 3,
2017 (Doc. 99-6 at 58). The NP noted the mass had increased in size, measuring 12 x 5
centimeters, and was tender with palpation (Id.). Plaintiff also assessed his pain as a 7 out of 10
(Id.). The NP prescribed ibuprofen and ordered x-rays of Plaintiff’s thoracic and lumbar spine
Page 4 of 22
(Id.). The ordered x-rays were taken on January 13, 2017 (Doc. 99-6 at 171). The findings set
forth the possibility of a “soft tissue tumor perhaps lipoma,” but an ultrasound of the region was
recommended for “further assessment and to characterize the tissue characteristics” of the lesion
(Id.). Plaintiff was scheduled to be seen by NP Moldenhauer on January 20, 2017, but Plaintiff
was absent and therefore, was not seen (Doc. 99-6 at 59). Dr. Trost sought collegial review for an
ultrasound of Plaintiff’s “soft tissue tumor” that was approved on January 26, 2017 (Doc. 99-6 at
61, 105). The ultrasound was performed on February 14, 2017, and showed no distinct mass or
cyst and the impression was a possible lipoma (Doc. 99-6 at 62, 106).
Plaintiff was seen by an unknown nurse on March 29, 2017 who evaluated the lump on his
back (Doc. 99-6 at 63). The nurse indicated Plaintiff rated his pain as a 9 out of 10 and Plaintiff
was referred to a physician (Id.). Plaintiff was seen by Dr. Siddiqui on April 3, 2017 regarding the
mass on his back (Doc. 99-6 at 64). Dr. Siddiqui noted the lump was along the length of
Plaintiff’s thoracic spine and felt cystic on palpation (Id.). Dr. Siddiqui noted the ultrasound
indicated a possible lipoma, but the lump “[did] not feel like lipoma” (Id.). Dr. Siddiqui
submitted a collegial referral for a magnetic resonance imaging (“MRI”) scan of the lipoma and
the referral was discussed in collegial conference with Dr. Ritz and Dr. Siddiqui on April 10, 2017
(Doc. 99-6 at 66, 107).
The request was denied and an alternative treatment plan was
implemented (Id.). Plaintiff was to be monitored on-site, provided analgesics, and modify his
activity as tolerated (Id.). It was noted that Plaintiff should be re-presented to collegial if his
symptoms worsened (Id.).
Plaintiff was seen again by Dr. Siddiqui on May 4, 2017 (Doc. 99-6 at 68). Dr. Siddiqui
noted the “large cystic mass” was linear along the length of Plaintiff’s thoracic spine (Id.). Dr.
Siddiqui noted he would repeat his request to collegial for an MRI scan (Id.). Dr. Siddiqui made
Page 5 of 22
no note regarding Plaintiff’s symptoms and whether they were worse than his previous visit (see
id.). Dr. Siddiqui re-presented his request for an MRI with Dr. Ritz during a collegial review on
May 10, 2017, wherein he appealed the April 10, 2017 denial (Doc. 99-6 at 70, 109-110). The
request was again denied and Plaintiff was to be monitored onsite (Id.). No treatment changes
were made. Dr. Siddiqui requested a second opinion of the denied appeal (Doc. 99-6 at 111).
The appeal was submitted to Dr. Garcia, who upheld Dr. Ritz’s decision for an alternative
treatment plan finding the mass to be a benign lipoma per the ultrasound report on May 18, 2017
(Id. at 111-112).
Plaintiff was seen by Dr. Siddiqui on June 27, 2017 wherein he again noted the mass along
Plaintiff’s spine (Doc. 99-6 at 76). Dr. Siddiqui noted photographs of Plaintiff’s back mass were
to be sent to collegial (Id.). On July 14, 2017, Dr. Siddiqui requested a collegial referral for an
MRI scan of Plaintiff’s lipoma and a general surgery evaluation (Doc. 99-6 at 113). Dr. Siddiqui
re-presented the previous ultrasound information, but noted again that it “did not feel like lipoma”
(Id.). Photographs were also sent in with the referral (Id.). Dr. Fisher discussed the referral in
collegial review with Dr. Siddiqui, and Dr. Fisher approved Dr. Siddiqui’s request for an MRI
(Id.). Dr. Fisher and Dr. Siddiqui agreed to wait on the results from the MRI for additional
treatment planning, including a surgical evaluation referral (Id.).
An MRI was performed on August 4, 2017, which showed an encapsulated subcutaneous
soft tissue mass consistent with a fat-containing tumor that may represent an atypical lipoma with
liposarcoma not excluded (Doc. 99-6 at 119). The mass measured 18.3 x 5.3 x 3.6 centimeters
(Id.). Surgical excision was recommended to exclude a liposarcoma (Id.). Dr. Siddiqui referred
Plaintiff for a general surgery evaluation on September 22, 2017 (Doc. 99-6 at 86). The referral
request was discussed in collegial review on September 8, 2017 with Dr. Ritz and Dr. Siddiqui
Page 6 of 22
(Doc. 99-6 at 87, 115). Dr. Ritz approved Dr. Siddiqui’s request for a general surgery evaluation
and Plaintiff was seen by a surgeon for evaluation on October 18, 2017 (Doc. 99-6 at 115, 117).
Dr. Siddiqui presented a collegial referral for surgical excision of the lipoma on Plaintiff’s spine on
October 27, 2017, and it was approved by Dr. Smith (Doc. 99-6 at 91, 121). Plaintiff had surgery
on November 9, 2017 to remove the lipoma (Doc. 99-6 at 126, 130; see also Plaintiff’s Medical
Records from Carbondale Memorial Hospital, Doc. 99-7). The pathology results final diagnosis
was a soft tissue, midline back excision consistent with lipoma (Id. at 62).
Plaintiff’s Symptoms
It is undisputed that the lump on Plaintiff’s back was a lipoma. A lipoma is a benign fatty
tumor (Declaration of Stephen Ritz, D.O., Doc. 99-4 at ¶ 8). Dr. Siddiqui testified that lipomas
are not cancer, are usually not problematic, and typically removed only for cosmetic reasons
(Deposition of Dr. Siddiqui, Doc. 99-8 at 18-20). Removal would also be indicated if it was
causing pain or pressure (Doc. 99-8 at 21). Dr. Siddiqui also testified that benign lipomas are
generally painless (Id. at 18). Although the lipoma itself is not painful, it can cause discomfort
depending on its location (Id.). Dr. Siddiqui testified that if the patient’s lipoma is symptomatic
and the symptom needs to be relieved, then the lipoma can be removed (Id. at 26).
Plaintiff testified that he experienced chronic back and nerve pain associated with the
lipoma on his back from 2011 until its removal in 2017 that affected his daily activities, including
sleeping and working out (Doc. 99-1 at 133-34). More specifically, at his deposition, Plaintiff
testified that around November 2014 his back pain limited his ability to write, and he could not sit
in a chair, lay down, or stand up comfortably (Id. at 45-46). Plaintiff testified he explained the
pain he was experiencing to Moldenhauer in November 2014 (Id. at 46-47). Plaintiff also
testified that he told Dr. Trost in December 2014 about the pain caused by the lipoma and that it
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was affecting his sleep and ability to workout (Id. at 52). Plaintiff asked Dr. Trost for an MRI to
determine what the lump was so he could have it removed (Id. at 53-54). Following his surgery,
Plaintiff testified he still experiences numbness, weakness, and pain (Id. at 16). In December
2016, Plaintiff testified he experienced significant pain, struggled to sleep and workout, and
experienced involuntary movements related to the lipoma (Id. at 59-62). Immediately after
surgery Plaintiff denied any pain or discomfort (Doc. 99-6 at 97-100).
Wexford Utilization Management Process
Wexford employs a utilization management process and has policies and procedures in
place utilized by physicians and other health care providers as guidelines for treating inmates
within the IDOC (see Doc. 99-4 at ¶ 5). Collegial review is a component of Wexford’s utilization
management process (Id.). Collegial review is utilized when an onsite provider makes a written
request for use of offsite resources, such as for a specialist consultation or diagnostic testing (Id. at
¶ 6). During said review, discussion is held between a utilization management corporate medical
director and the site medical director concerning the patient’s relevant medical history, pertinent
clinical findings, pertinent diagnostic or laboratory testing, and the proposed plan of care (Id.).
As part of the collegial review process, the consult coordinator obtains the medical records
associated with a referral request and submits all supporting documentation for the review (see
Doc. 118-1). Prior to collegial review, the Utilization Management Physician will have the
materials that were sent from the consult coordinator at the site (Deposition of Hector Garcia,
M.D., Doc. 99-5 at 49).
The “Lippert Report”
In Plaintiff’s Statement of Additional Undisputed Facts (Doc. 111), he cites to the “Lippert
Report” in paragraphs 82 through 87. The Lippert Report refers to a final expert witness report
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submitted in Lippert v. Godinez, Case No. 10-cv-04603, relating to medical care provided by
Wexford at IDOC facilities. Plaintiff cites the “Lippert Report” in support of his assertion that
Wexford adopted policies and/or practices that resulted in his alleged constitutional violations.
Plaintiff asserts that the “Lippert Report” is a document in the public record and, as such,
the Court can take judicial notice of the same.
The Wexford Defendants object to the use of the “Lippert Report”, asserting it is
inadmissible in this case and cites to evidence not in the record. The Court agrees. As found by
the Seventh Circuit, the report is not authenticated by its authors or the persons quoted within it, it
is not a public record, and there is no appropriate hearsay exception. Wilson v. Wexford Health
Sources, Inc., 932 F.3d 513, 522 (7th Cir. 2019) (citations omitted). There is no basis on which
the Court can consider the “Lippert Report.” As such, the facts set forth by Plaintiff on which he
relies on the report have not been considered in this Order.
Plaintiff’s Grievances and Requests for Medical Treatment
Plaintiff testified he submitted four emergency grievances regarding the lump on his back
to Defendant Butler: one in 2011, one in 2012, and two in 2014 (Doc. 99-1 at 120-121). Plaintiff
placed all of these grievances in Defendant Butler’s mailbox, which was the only option he had to
communicate with her (Doc. 99-1 at 120-21). Plaintiff attached an emergency grievance dated
August 29, 2011 to his complaint wherein he complains that the lump on his back is still causing
him pain and he seeks surgery for the same (see Doc. 1 at 18-19). There is no facility or
Administrative Review Board (“ARB”) response to this grievance. Plaintiff testified that he does
not know if Butler received the grievances he submitted in 2011 or 2012, including the August
2011 emergency grievance (Doc. 99-1 at 120-121).
Also attached to the complaint are two emergency grievances dated December 18 and
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December 30, 2014 (see Doc. 1 at 20-21, 24-24). There is no facility or ARB response to these
grievances and there is no record of the grievances being received by the Grievance Office (see
Doc. 47-3). Plaintiff attached a letter directed to Defendant Butler dated December 30, 2014
regarding the issues in this lawsuit and explaining he has attempted to submit emergency
grievances and has not received any response (see Doc. 1 at 22-23). Plaintiff does not know if
Butler received or reviewed these grievances (Doc. 99-1 at 123). Plaintiff testified he also sent
Butler a letter in November 2014, but he did not make a copy of the same and has no evidence that
it was received by Butler (Doc. 99-1 at 117-18). Plaintiff testified he spoke with Butler on one
occasion around November or December 2014 and told her he had written her a letter and
submitted a grievance about his medical condition (Doc. 99-1 at 114 – 116). Plaintiff testified
Butler told him she did not know if she received a letter and told him to write her again and follow
through with the grievance process (Id. at 119).
Defendant Butler was the Warden of Menard from approximately April 2014 through
September 2016 (Declaration of Kimberly Butler, Doc. 102 at ¶ 1). From April 2016 through
September 2016 Butler was also Chief of Programs for the State, so the assistant wardens handled
the day-to-day operations of Menard (Id.).
Butler attests she does not recall seeing any letters, kites, or grievances from Plaintiff (Doc.
102 at ¶ 8). She would not have personally reviewed a kite or letter sent to her office, as it would
have been delegated to her office staff to direct it to the appropriate department (Id.). Butler also
does not recall having an in-person conversation with Plaintiff in November or December 2014;
however, she generally instructed inmates to follow the grievance process (Id. at ¶ 11). Finally,
Butler asserts she did not receive Plaintiff’s emergency grievances dated August 29, 2011,
December 18, 2014, or December 30, 2014 (Id. at ¶ 10). Butler asserts that although she tried to
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personally review grievances marked for emergency review, grievances that went through the
normal grievance process were generally reviewed by one of her designees, an assistant warden,
due to the amount of paperwork she received on a daily basis (Id. at ¶ 9).
Legal Standards
Summary Judgment Standard
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
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). 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. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation
omitted).
Eighth Amendment Deliberate Indifference
The Supreme Court has recognized that “deliberate indifference to serious medical needs
of prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim, Plaintiff must show first
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that his condition was “objectively, sufficiently serious” and second, that the “prison officials
acted with a sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir.
2005) (citations and quotation marks omitted).
With regard to the first showing, the following circumstances could constitute a serious
medical need: “[t]he existence of an injury that a reasonable doctor or patient would find important
and worthy of comment or treatment; the presence of a medical condition that significantly affects
an individual’s daily activities; or the existence of chronic and substantial pain.” Hayes v. Snyder,
546 F.3d 516, 522-23 (7th Cir. 2008) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
1997)); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005) (“A serious
medical need is one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”).
A prisoner must also show that prison officials acted with a sufficiently culpable state of
mind, namely, deliberate indifference. “Deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’.” Estelle, 429 U.S. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “The infliction of suffering on prisoners
can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless
in the criminal law sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985).
Negligence, gross negligence, or even recklessness as that term is used in tort cases, is not enough.
Id. at 653; Shockley v. Jones, 823, F.2d 1068, 1072 (7th Cir. 1987). Put another way, the plaintiff
must demonstrate that the officials were “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists” and that the officials actually drew that inference.
Greeno, 414 F.3d at 653. A plaintiff does not have to prove that his complaints were “literally
ignored,” but only that “the defendants’ responses were so plainly inappropriate as to permit the
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inference that the defendants intentionally or recklessly disregarded his needs.” Hayes, 546 F.3d
at 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).
Discussion
As a preliminary matter, the Court addresses Plaintiff’s argument that because the potential
for cancer existed in April 2011, the Wexford Defendants were deliberately indifferent in waiting
until August 2017 to provide Plaintiff an MRI and November 2017 to excise the lump on his back.
He bases this claim on the possibility that the lump could have been cancerous; although he does
not dispute that the lump was found to be a lipoma upon excision. To be successful on an Eighth
Amendment claim, a plaintiff must show not only that a defendant was deliberately indifferent to a
serious medical need, he must also show that the breach caused him to suffer a cognizable legal
harm. Doe v. Welborn, 110 F.3d 520, 523 (7th Cir. 1997) (citing Babcock v. White, 102 F.3d 267,
271 (7th Cir. 1996)). Here, Plaintiff has not set forth any evidence or made any argument that he
suffered a “cognizable legal harm” from the failure to definitively diagnose his lipoma prior to
2017. Without harm, there is no cause of action. For this reason, to the extent Plaintiff attempts
to set forth a claim related to the potential for the lump to be cancerous until its excision in 2017,
Defendants are entitled to summary judgment on the same and it will not be discussed further.
The discussion below concerns Plaintiff’s argument that Defendants were deliberately indifferent
in failing to excise the lipoma from April 2011 until November 2017 as it was causing Plaintiff
chronic pain.
The Court also must address the cursory argument brought by Defendants Moldenhauer,
Ritz, Garcia, Trost, and Wexford that they are entitled to qualified immunity (Doc. 99 at 15). Not
only is this argument lacking in specificity and substance, but it is also futile as the Seventh Circuit
has clearly stated that “private prison employees are barred for asserting qualified immunity from
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suit under § 1983.” Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 794 (7th Cir. 2014).
Finally, the Court disagrees with the Wexford Defendants’ argument that Plaintiff cannot
demonstrate he suffered from a serious medical need. As mentioned above, a serious medical
need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention. See Foelker.,
394 F.3d at 512-13. Defendants’ own argument on this point details the medical treatment
Plaintiff received, which highlights the necessity of medical attention. Further, a lump on an
individual’s back is necessarily concerning and a lay person would recognize the need for a
doctor’s attention to the same. While the Court recognizes a lipoma may not always require
excision or further treatment, Plaintiff’s ultimately did, as demonstrated by the medical record.
Further, the Seventh Circuit recognizes that a serious medical need exists where the condition
features “chronic and substantial pain,” which Plaintiff has presented evidence of here. Hayes,
546 F.3d at 523 (citing Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
1. Nurse Practitioner Michael Moldenhauer
Plaintiff asserts Defendant Moldenhauer was deliberately indifferent to his medical needs
because he knew in November 2014 that Plaintiff was experiencing significant pain due to the
lipoma on his back, but he failed to provide any medical treatment.
In viewing the evidence in the light most favorable to Plaintiff as this Court must do at this
stage in the proceedings, the Court finds Plaintiff saw Moldenhauer on November 25, 2014.
Moldenhauer measured the mass and referred Plaintiff to Dr. Trost. Plaintiff explained he was
experiencing pain due to the lump on his back and conveyed the limitations it was causing on his
ability to write, sit, lay, and stand.
While the Court acknowledges Plaintiff advised Moldenhauer he was in pain and
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Moldenhauer took no particular action to address the same, Moldenhauer did refer him to Dr. Trost
for further evaluation, and Dr. Trost saw him within approximately three weeks. Moldenhauer
also saw Plaintiff just three days after the medical technician noted Plaintiff was provided with a
seven-day supply of Acetaminophen. This one occasion wherein Moldenhauer failed to provide
pain medication or further treatment for Plaintiff’s lipoma is simply not enough to rise to the level
of deliberate indifference. Indeed, with regard to examination of the lipoma, Moldenhauer
followed the procedure in referring Plaintiff to Dr. Trost (see Doc. 99-1 at 50). Moreover, the
Court finds that, at most, Moldenhauer’s failure to provide pain medication or other treatment in
November 2014 was an isolated incident of neglect, and such isolated instances of neglect are
generally insufficient to support of claim of Eighth Amendment deliberate indifference. See
Gutierrez v. Peters, 111 F.3d at 1374. Because Moldenhauer referred Plaintiff to be seen by Dr.
Trost for further treatment, his failure to address Plaintiff’s complaint of pain on this one occasion
does not rise to the level of deliberate indifference and Moldenhauer is entitled to judgment as a
matter of law.
2. Dr. John Trost
Plaintiff asserts Dr. Trost was deliberately indifferent to his medical needs because Dr.
Trost knew in November 2014 that Plaintiff experienced significant pain, but Dr. Trost failed to
provide any medical treatment to Plaintiff.
It is undisputed that Dr. Trost examined Plaintiff on December 15, 2014 and noted the mass
over Plaintiff’s thoracic spine was consistent with a lipoma. Dr. Trost assessed that the mass was
a lipoma and his plan was to observe the same. Dr. Trost did not take any action to address
Plaintiff’s complaints of pain or otherwise excise or definitively diagnose the lipoma. While the
Court acknowledges Dr. Trost’s position that Plaintiff did not complain about pain because there is
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no notation regarding the same in the medical records, Plaintiff testified to the contrary, and the
evidence must be viewed in Plaintiff’s favor at this time. Moreover, Dr. Trost represented that he
relies on a patient’s medical records to inform his medical judgment and form the basis of his
medical opinion (Affidavit of John Trost, M.D., Doc. 99-2 at ¶ 4). Plaintiff’s medical records in
December 2014 documented complaints of pain at a level of 9 out of 10 less than one month prior,
on November 21, 2014. Plaintiff’s medical records also evidenced Plaintiff began complaining
about the lipoma in 2011, and excision was considered in June 2011. The medical records also
documented Plaintiff’s consistent complaints of pain from 2011 to 2012, and again in November
2014 until he saw Dr. Trost. Viewing this evidence in the light most favorable to Plaintiff, Dr.
Trost’s failure to render any treatment to address Plaintiff’s complaints of pain or seek further
testing to diagnose and assess the lipoma to address the cause of the pain would permit a
reasonable jury to find Dr. Trost acted with deliberate indifference. Accordingly, Dr. Trost’s
motion for summary judgment must be denied.
3. Dr. Stephen Ritz
Plaintiff asserts Dr. Ritz was deliberately indifferent to his medical condition insofar as he
knew Plaintiff experienced pain and discomfort for over six years from the lipoma on his back, yet
he offered no new medical treatment or additional diagnostic testing.
By way of background, Dr. Ritz is a licensed physician and has been employed as
Wexford’s Corporate Utilization Management Medical Director since September 1, 2014, and the
Chief Medical Officer since July 5, 2020 (Declaration of Steven Ritz, D.O., Doc. 99-4 at ¶ 3).
The undisputed record demonstrates that Dr. Ritz became involved in Plaintiff’s medical care in
January 2017, wherein Dr. Ritz approved Dr. Trost’s request for an on-site ultrasound of the mass
on Plaintiff’s back (see Doc. 99-6 at 105). Dr. Ritz was again involved in Plaintiff’s medical care
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in April and May 2017, wherein he denied Dr. Siddiqui’s request for an MRI of the lipoma and
implemented an alternative treatment plan to monitor Plaintiff onsite, provide analgesics, and
modify Plaintiff’s activities.
Plaintiff contends at the time Dr. Ritz denied Dr. Siddiqui’s referral requests, Dr. Ritz
would have had knowledge of all the pertinent information contained in Plaintiff’s medical records
regarding the lipoma on Plaintiff’s back, including his ongoing complaints of pain, which persisted
despite pain medication. Plaintiff asserts that Dr. Ritz’s denial of the referral requests amounted
to deliberate indifference as he delayed additional treatment for Plaintiff despite continuing
complaints of pain and despite the lipoma markedly increasing in size, from 10 x 5 centimeters
(“egg size”) in June 2011 to 18.3 x. 5.3 x. 3.6 in 2017 (Doc. 99-6 at 119).
In this instance, Dr. Ritz’s denials of Dr. Siddiqui’s referral requests ultimately resulted in
an approximate three-month delay in Plaintiff receiving additional treatment to address his pain
and discomfort, including an MRI, referral to a surgeon, and excision of the lipoma. A delay in
treatment may constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain. Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010);
Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir. 2007). The length of delay that is tolerable
depends on the seriousness of the condition and the ease of providing treatment. See McGowan v.
Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (the defendant dentist could be liable for three-month
delay in treating the plaintiff’s dental pain if dentist was aware of the severity of the plaintiff’s
dental problems and refused to approve a dental visit); Grieveson v. Anderson, 538 F.3d 763,
778-80 (7th Cir. 2008) (guards could be liable for delaying treatment for painful broken nose by at
least a day-and-a-half). In this case, the Court finds a reasonable jury could find the three-month
delay attributable to Dr. Ritz’s collegial review denials constituted deliberate indifference to the
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pain and discomfort caused by Plaintiff’s lipoma. As such, Dr. Ritz’s motion for summary
judgment must be denied.
4. Dr. Hector Garcia
Similar to Dr. Ritz, Plaintiff asserts Dr. Garcia was deliberately indifferent to his medical
condition insofar as he knew Plaintiff experienced pain and discomfort for over six years from the
lipoma on his back, yet he offered no new medical treatment or additional diagnostic testing. Dr.
Garcia is a licensed physician who was employed at Wexford as the National Medical Director for
eleven years before retiring in 2021 (Doc. 99-5 at 16-17).
The undisputed record demonstrates that Dr. Garcia reviewed Dr. Siddiqui’s appeal of Dr.
Ritz’s denial of his requested referral for an MRI on May 18, 2017. Thus, Dr. Garcia upheld the
alternative treatment plan rendered by Dr. Ritz. Similar to Dr. Ritz, the evidence in the record is
sufficient to establish that Dr. Garcia knew or should have known Plaintiff’s medical history
regarding his lipoma and the pain it was causing Plaintiff.
While any delay in treating Plaintiff’s pain attributable to Dr. Garcia is somewhat less than
the delay caused by Dr. Ritz, the Court declines to find, as a matter of law, that a two-month delay
as opposed to a three-month delay does not substantiate a finding of deliberate indifference.
Based on the circumstances in this case and record before the Court, such a decision is best left to
a jury. Because the Court finds a reasonable jury could find a two-month delay attributable to Dr.
Garcia’s actions constituted deliberate indifference to the pain and discomfort Plaintiff was
experiencing as a result of the lipoma on his back, Dr. Garcia’s motion for summary judgment is
denied.
5. Wexford Health Sources, Inc.
Plaintiff asserts Wexford is liable under the Eighth Amendment because there are issues of
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fact as to whether Wexford condoned and/or adopted the Wexford Defendants’ misconduct and
because the Seventh Circuit recently expressed ‘serious doubts” as to whether private corporations
can avail themselves of the bar on respondeat superior liability created by Monell v. Dep’t of
Social Services, 436 U.S. 658, 694 (1978).
First, the Court addresses Plaintiff’s contention regarding respondeat superior liability.
Although Plaintiff does not identify the Seventh Circuit opinion on which he relies, the Court finds
Judge Hamilton, in a concurring opinion in Reck v. Wexford Health Sources, Inc., -- F.4th – at *12
(7th Cir. 2022), reiterated his concerns regarding the application of Monell to private corporations
like Wexford when said corporations should be subject to respondeat superior liability. See
Shields v. Illinois Dep’t of Corrections, 746 F.3d 782, 789-96 (7th Cir. 2014). However, the law
of this Circuit still provides for the application of Monell to Wexford in this case and that is the law
that will be applied.
Monell provides that where a private corporation has contracted to provide essential
government services, such as health care for prisoners, the private corporation cannot be held
liable under § 1983 unless the constitutional violation was caused by an unconstitutional policy or
custom of the corporation itself. Monell v. Department of Social Services of City of New York,
436 U.S. 658 (1978). Accordingly, in order for Plaintiff to recover from Wexford, he must offer
evidence that an injury was caused by a Wexford policy, custom, or practice of deliberate
indifference to medical needs, or a series of bad acts that together raise the inference of such a
policy. Shields, 746 F.3d at 796. Plaintiff must also show that policymakers were aware of the
risk created by the custom or practice and must have failed to take appropriate steps to protect him.
Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2009). Finally, a policy or
practice “must be the ‘direct cause’ or ‘moving force’ behind the constitutional violation.”
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Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917, 927 (7th Cir. 2004)
(internal citations omitted).
Here, Plaintiff has not identified any particular policy or practice that was employed by
Wexford that caused a constitutional violation. In his response brief, Plaintiff cites the “Lippert
Report” in support of his policy and practice argument. However, as set forth above, the Report is
inadmissible hearsay and cannot be considered. Because Plaintiff has not set forth any other
evidence to demonstrate an unconstitutional policy or practice adopted and implemented by
Wexford, summary judgment in favor of Wexford is appropriate.
6. Kimberly Butler
Plaintiff asserts Defendant Butler was deliberately indifferent to his medical condition
because she failed to take any action upon receiving notice that there was a serious risk to his
health.
Plaintiff testified he submitted four emergency grievances regarding the lump on his back
to Defendant Butler from 2011 through 2014. Plaintiff also asserts he sent her a letter and had an
in-person conversation with her in which he told Butler he had written her a letter and submitted a
grievance about his medical condition.
First, with regard to the grievances and letter in the record, even when the evidence is
viewed in the light most favorable to Plaintiff, the Court cannot find that any grievance or letter
was ever received or reviewed by Butler. The Court acknowledges Plaintiff’s testimony that he
placed the grievances in Butler’s mailbox; however, this is not enough to establish Butler had
notice of the grievances. The grievances themselves have no response from Butler (or any staff
member) and Plaintiff has no evidence she received the same.
Thus, the Court finds the
grievances and letter were insufficient to notify Butler of any serious risk to Plaintiff’s health and
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she was not deliberately indifferent to the same.
With regard to Plaintiff’s contention that he spoke to Defendant Butler in 2014 and advised
her he submitted several emergency grievances and letters to her, the Court finds this isolated
communication is also insufficient to substantiate a claim of deliberate indifference as to Butler.
Plaintiff only spoke with Defendant Butler on one occasion, and there is little evidence in the
record as to what the communication consisted of and how Plaintiff presented his health care
concerns and treatment. While officials may not turn a blind eye to a constitutional violation,
such limited, informal, and fleeting interactions do not substantiate a finding that Butler acted with
deliberate disregard to a substantial risk of serious harm to Plaintiff. See Owens v. Duncan, 788
F. App’x 371, 374 (7th Cir. 2019) (finding allegations that staff members who had a single
interaction with the plaintiff did not amount to a plausible claim that the defendants knew of and
disregarded a serious medical risk). Accordingly, summary judgment in favor of Defendant
Kimberly Butler is warranted2.
Conclusion
Based on the foregoing, the Motion for Summary Judgment for Deliberate Indifference to a
Serious Medical Need filed by Defendants Moldenhauer, Ritz, Garcia, Trost, and Wexford (Doc.
98) is GRANTED IN PART AND DENIED IN PART, and the Motion for Summary Judgment
filed by Defendant Butler (Doc. 100) is GRANTED. Judgment shall be entered in favor of
Defendants Michael Moldenhauer, Wexford Health Sources, Inc., and Kimberly Butler and
against Plaintiff Reco Wilson at the close of this case. Plaintiff will proceed in this case on the
following claim:
2
Because the Court finds Defendant Butler was not deliberately indifferent, the undersigned does not address Butler’s
statute of limitations or qualified immunity arguments.
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Count 1:
Ritz, Garcia, and Trost were deliberately indifferent to the lump on
Plaintiff’s back in violation of the Eighth Amendment.
IT IS SO ORDERED.
DATED: March 17, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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