Reed v. Larson

Filing 87

ORDER DENYING 69 Motion for Summary Judgment and DISMISSING without prejudice 81 Motion to Strike. Signed by Judge J. Phil Gilbert on 9/27/2022. (jsy)

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 1 of 15 Page ID #1473

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RECO1 REED, #B18431,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
Defendant.

Case No. 18-cv-01182-JPG

MEMORANDUM & ORDER
GILBERT, District Judge:
During his incarceration at Big Muddy River Correctional Center, Plaintiff Reco Reed
suffered from an inguinal hernia that grew from a small lump in his lower abdomen when he
arrived at the prison in July 2017 to a massive protrusion in his scrotum a year later. The prison’s
medical staff told Reed that the hernia was “reducible.” They recommended simply pushing it
back in place and wearing a hernia belt for support.
Reed claims the hernia was “incarcerated,” or trapped. When he attempted to push it back
in place, the hernia would pop out as soon as he coughed, sneezed, or stood, resulting in significant
pain. The hernia belt didn’t work and also caused a rash. Reed’s prison health care providers
eventually offered ointment for the rash and Tylenol for pain, but Reed was not referred for
surgery. For over a year at Big Muddy, the hernia grew until it descended halfway down Reed’s
leg, by his own account. When Wexford Health Sources, Inc. finally approved him for surgery
after he filed this lawsuit, Reed suffered from complications including a retracted testicle, nerve
damage, chronic pain, inflammation, and blood clots. He ultimately lost a testicle.
1

The Court will refer to Plaintiff by the name he used in his Complaint: “Reco Reed.” However, the Court
notes that Reed is also referred to as “Rico Reed” in other documents on file in this matter. (See Doc. 10,
p. 1 n.1 (citing Doc. 1, pp. 11, 15-16, and 21-26)).

1

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 2 of 15 Page ID #1474

On May 31, 2018, Reed filed this civil rights action pursuant to 42 U.S.C. § 1983 for
inadequate medical treatment of his inguinal hernia at Big Muddy. (Doc. 1). In the original
Complaint, Reed asserted an Eighth Amendment deliberate indifference claim against Dr. Dennis
Larson, the prison physician employed by Wexford, for failing to provide him with pain relief
treatment for his hernia (Count 1) and an Eighth Amendment deliberate indifference claim against
Dr. Larson for denying Reed surgery to correct his hernia (Count 2). Both claims survived review
under 28 U.S.C. § 1915A. (Doc. 10).
Reed later filed a Second Amended Complaint to add an Eighth Amendment deliberate
indifference claim against Wexford for its policy, practice, or procedure of denying hernia repair
surgery requests unless the hernia was strangulated or incarcerated (Count I) and an Eighth
Amendment deliberate indifference claim against Wexford and Dr. Larson for knowingly
disregarding Reed’s serious medical need by failing to take proper measures to treat the hernia as
it worsened (Count II). (See Doc. 49). The Court allowed Reed to proceed with Count I against
Wexford and Count II against Dr. Larson, but dismissed Count II against Wexford because the
claim against the private medical corporation was based on a respondeat superior theory of
liability not recognized under Section 1983. (Doc. 48). The Court later dismissed Count II against
Dr. Larson at summary judgment on the issue of exhaustion. (Doc. 64).
What remains is Count I against Wexford for its policy, practice, or procedure of denying
hernia surgery unless the hernia is strangulated or incarcerated. (Id.). Wexford filed a motion for
summary judgment on the merits of this claim, arguing, first, that Reed cannot present sufficient
admissible evidence of an underlying constitutional violation and, second, that Reed cannot
establish that the private corporation, through its systemwide policies, practices, or procedures,
was a moving force in any alleged constitutional violation. (Doc. 69).

2

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 3 of 15 Page ID #1475

Reed opposes summary judgment. (Doc. 77). He argues that the nearly year-long delay
in surgery constituted deliberate indifference to his serious medical needs, prolonged his pain, and
resulted in post-operative complications.

(Id.).

He blames Wexford’s policy, practice, or

procedure of delaying or denying surgical referrals for painful hernias that are deemed reducible
by taking a “wait and watch” approach. (Id.). Reed points out that he was only approved for
surgery after his hernia became incarcerated, he filed this lawsuit, and/or Wexford’s hernia policy
came under attack in this and other lawsuits. Reed maintains that there is sufficient evidence of a
genuine factual dispute regarding the underlying constitutional violation and the motivating policy,
pattern, or practice to survive summary judgment. (Id.).
For the reasons discussed in more detail below, Wexford’s Motion for Summary Judgment
(Doc. 69) shall be DENIED, and Wexford’s related Motion to Strike Dr. DeMattei’s Declaration
(Doc. 81) shall be DISMISSED.
FACTS
The following facts are offered in the light most favorable to Reed because he is the nonmoving party. Stewart v. Wexford Health Sources, Inc., 14 F.4th 757 (7th Cir. 2021).
Reed is an inmate in the custody of the Illinois Department of Corrections (“IDOC”) and
transferred from Centralia Correctional Center (“Centralia”) to Big Muddy River Correctional
Center (“Big Muddy”) in July 2017. (Doc. 70, ¶ 1; Doc. 77, ¶ 1). He was housed at Big Muddy
during the relevant time period. Wexford Health Sources, Inc. (“Wexford”) is a private medical
corporation that employed health care providers to treat Reed and other inmates.
Several months before he transferred from Centralia, Reed discovered a small lump in his
lower abdomen. (Doc. 70, ¶ 2; Doc. 77, ¶ 2). He was diagnosed with an inguinal hernia, which is
a protrusion of tissue through a weak spot in the abdominal muscle. (Doc. 70, ¶ 3; Doc. 77, ¶ 3).

3

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 4 of 15 Page ID #1476

He was issued a hernia belt at Centralia, while the hernia was small and asymptomatic. (Doc. 77,
¶ 3). Reed had no complaints about his care at Centralia. (Id.).
When he arrived at Big Muddy in late July 2017, Reed’s hernia was still small. (Id.).
Although Reed brought the hernia belt with him, Big Muddy’s staff confiscated and returned it to
him at various times. (Id.). Meanwhile, Reed’s hernia began to steadily increase in size, protrude
into his scrotum, and cause him pain. The belt caused a rash and did not prevent the hernia from
protruding into his scrotum. (Id.).
In November 2017, Plaintiff’s hernia popped out when he sneezed, and it descended ten
inches into his scrotum. (Doc. 77, ¶ 6). Reed met with a nurse to discuss his condition on
December 16, 2017. (Id. at ¶ 5). Reed complained that the hernia popped out when he coughed
or stood. (Id.). Each time this occurred, he suffered pain. (Id. at ¶ 8). Although the nurse
instructed him to “reduce it” by pushing the hernia back into its compartment, the hernia would
not stay there. (Id.). Each time Reed attempted the procedure, he experienced the same result; the
hernia would soon pop out again. (Id.). The nurse ordered a follow-up with Dr. Larson, Big
Muddy’s Medical Director. (Id.).
Dr. Larson finally met with Reed in January 2018. (Doc. 77, ¶ 9). At the appointment,
Reed explained that he was unable to reduce the hernia on his own. (Id. at ¶ 7). Even as Reed
insisted that it would pop out whenever he attempted to reduce it, Dr. Larson noted that the hernia
was “easily reducible.” (Doc. 70, ¶ 7; Doc. 77, ¶ 7). Dr. Larson recommended continued use of
the hernia belt for support and use of ointment for the rash it caused. (Id.). Dr. Larson also told
Reed that the hernia would not be surgically repaired unless it became strangulated, but Reed did
not know what this meant. (Doc. 77, ¶ 9).

4

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 5 of 15 Page ID #1477

Regardless, Reed received no treatment for his pain or his hernia. (Id. at ¶ 8). At an
appointment the following month, Reed reported that he never received ointment and could not
wear the hernia belt because it caused a rash and was ineffective. (Id. at ¶¶ 8-9). It is unclear
whether he was even in possession of the hernia belt at the time. (Id.). Despite receiving ointment
in February and April 2018, Reed continued to complain about the painful and enlarging hernia,
which grew to sixteen inches in size. (Doc. 70, ¶ 11; Doc. 77, ¶¶ 2, 11).
In April 2018, Reed maintains that medical staff recommended a referral for surgery
consultation, but Wexford denies that any referral request was made at that time. Reed continued
to complain of a painful and increasingly large hernia that was not reducible. Wexford claims that
he continued to refuse treatment for his reducible hernia.
After meeting with Dr. Larson, who still described the hernia as “easily reducible” on
May 2, 2018, Reed filed this lawsuit on May 31, 2018. (Doc. 1; Doc. 70, ¶ 11; Doc. 77, ¶ 12).
The following week on June 6, 2018, Reed met with a nurse and again complained about the
hernia. (Doc. 70, ¶ 12; Doc. 77, ¶ 12). She scheduled an appointment with Dr. Larson. At the
appointment with Dr. Larson on June 13, 2018, Reed reported that the hernia was not reducible,
had not been reducible for six months, would not stay in place, was growing in size, and was
causing significant pain. (Id.). Dr. Larson still described the hernia as “easily reducible” but
referred Reed for a general surgery consult, ordered a permit for a low bunk, ordered a low gallery
permit, and prescribed Tylenol for pain. (Id.).
On June 20, 2018, Wexford approved the referral for Reed to have a surgical consult for a
hernia repair. (Doc. 77, ¶ 13). This referral was not tantamount to approval for surgery, but rather
approval for consultation about surgery. Even after a surgeon recommended surgery, Wexford
had final authority over any decision regarding surgery. (Id.).

5

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 6 of 15 Page ID #1478

On August 9, 2018, Reed met with Dr. Dalencourt, a non-Wexford outside general surgeon.
(Doc. 70, ¶ 14; Doc. 77, ¶ 14). Surgical repair of the hernia was deemed “elective,” and Reed
requested the surgery. (Doc. 70, ¶ 17; Doc. 77, ¶¶ 16-17). Wexford approved the request for
surgery on August 27, 2018. (Id.). Reed filed a request for emergency treatment of the hernia on
September 4, 2018, and a nurse issued him a disciplinary ticket for doing so one day later.
Dr. Dalencourt scheduled the procedure for September 21, 2018. (Doc. 70, ¶ 18; Doc. 77,
¶ 17). The procedure was performed on that date. (Id.). Complications during or after surgery
included a retracted right testicle, nerve damage, chronic pain, and blood clots. Reed ultimately
lost his right testicle.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure governs summary judgment motions.
According to that rule, summary judgment is appropriate only if the admissible evidence,
considered as a whole, shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. See Archdiocese of Milwaukee v. Doe, 743 F.3d 1101,
1105 (7th Cir. 2015) (citing FED. R. CIV. P. 56(a)). Rule 56 imposes an initial burden of production
on the party moving for summary judgment to inform the district court why a trial is unnecessary.
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). This requirement is not particularly onerous. The movant’s initial burden
may be discharged by showing—based on the pleadings, affidavits, and/or information obtained
in discovery—the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. A genuine
issue of fact exists “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).

6

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 7 of 15 Page ID #1479

When presented with a motion for summary judgment, the Court does not decide the truth
of the matters presented, and it cannot “choose between competing inferences or balance the
relative weight of conflicting evidence.” Anderson, 477 U.S. at 248; Hansen v. Fincantieri Marine
Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations omitted). The Court must instead “view
all the evidence in the record in the light most favorable to the non-moving party and resolve all
factual disputes in favor of the non-moving party.” Hansen, 763 F.3d at 836. If the “evidence is
such that a reasonable jury could return a verdict for the nonmoving party[,]” then a genuine
dispute of material fact exists. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016).
DISCUSSION
The Eighth Amendment prohibits cruel and unusual punishment of incarcerated persons.
See U.S. CONST., amend. VIII. When considering an Eighth Amendment claim for constitutionally
deficient medical care against an individual medical professional, the Court applies a two-part
analysis. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005). First, the Court must determine
whether the plaintiff suffered from a sufficiently serious medical condition, from an objective
standpoint. Id. Second, the Court must determine whether the defendant responded with deliberate
indifference, from a subjective standpoint. Id. In other words, prison officials violate the Eighth
Amendment’s proscription against cruel and unusual punishment when they exhibit deliberate
indifference to an inmate’s serious medical need. Greeno, 414 F.3d at 652-53; Estelle v. Gamble,
429 U.S. 97, 104 (1976)).
An Eighth Amendment claim against a private medical corporation, like Wexford, entails
a different analysis. Wexford cannot be liable under Section 1983 for a constitutional deprivation
caused by one of its employees simply based on the employment relationship. Shields v. Ill. Dep’t
of Corrs., 746 F.3d 782, 789 (7th Cir. 2014). Respondeat superior liability is not recognized under

7

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 8 of 15 Page ID #1480

Section 1983. Id. This limitation on liability stems from Monell v. Dept. of Social Services of the
City of New York, 436 U.S. 658, 690-91 (1978), a United States Supreme Court decision holding
that a municipality may be liable under Section 1983 for constitutional violations resulting from a
policy or custom of the municipality but not based on the misconduct of its employees. Id. In
Shields, the Seventh Circuit extended Monell to private medical corporations that provide
government services, including Wexford. Shields, 746 F.3d at 789 (citing Iskander v. Village of
Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)).
Wexford can only be liable for a constitutional violation that results from a policy, custom,
or practice amounting to deliberate indifference by the corporation itself. Shields, 746 F.3d at 789.
A private corporation’s deliberate indifference is shown through an express written policy, an
implicit policy, or a series of bad acts that raise the inference of deliberate indifference on the part
of the corporation. McKay v. Odom, 726 F. App’x 493, 494 (7th Cir. 2018). In the absence of an
explicit policy, a “series of violations must be presented to lay the premise of deliberate
indifference.” Id. Isolated acts of misconduct will not suffice to establish deliberate indifference
by a private corporation. Id. (citing Palmer v. Marion County, 327 F.3d 588, 596 (7th Cir. 2003);
Shields, 746 F.3d at 796 (citing Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316,
1326 (7th Cir. 1993)). Failure to make a policy can also be actionable. Glisson v. Indiana Dep’t
of Corr., 849 F.3d 372, 381 (7th Cir. 2014).
A.

Underlying Constitutional Deprivation
There is enough evidence of an underlying constitutional violation to preclude summary

judgment here.

8

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 9 of 15 Page ID #1481

1.

Serious Medical Condition

In a case largely characterized by disagreements between the parties at summary judgment,
there is no dispute that Reed suffered from an objectively serious medical condition. Both parties
agree that Reed’s inguinal hernia was sufficiently serious to satisfy the first component of this
Eighth Amendment claim. Wexford states that “[f]or purposes of this motion only, Defendant
does not dispute that Plaintiff’s condition could be viewed as a serious medical need.” (Doc. 70,
p. 9). The Court agrees that Reed’s increasingly large and painful inguinal hernia was sufficiently
serious to trigger protection under the Eighth Amendment.
2.

Deliberate Indifference

Genuine issues of material fact surround the deliberate indifference component of this
claim. Reed was diagnosed with an inguinal hernia eighteen months before he underwent surgery
to repair it. For the first six months, the hernia remained small and asymptomatic. Reed had no
complaints about the treatment he received at Centralia.
After transferring to Big Muddy in July 2017, things changed. The hernia steadily and
dramatically increased in size. By November 2017, it extended ten inches into Reed’s scrotum.
When he met with a nurse the following month, Reed explained that the hernia regularly popped
out when he coughed, sneezed, or stood, resulting in pain. He was nevertheless instructed to reduce
the hernia by pushing it back in place.
Reed was not permitted to see a doctor, Dr. Larson, about his condition until January 2018.
In the interim, he suffered from the same symptoms and from pain. When he finally met with
Dr. Larson, the doctor told him that the hernia would not be surgically repaired unless and until it
became strangulated—a term that Reed did not understand at the time.

9

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 10 of 15 Page ID #1482

In the meantime, Dr. Larson recommended reducing the hernia by pushing it back in place,
using the hernia belt for support, using ointment for the rash it caused, and taking Tylenol for his
pain. The problem with this treatment plan, according to Reed, was that the hernia was not
reducible, the hernia belt was not effective (and often not even in his possession), the ointment
was not provided, and the Tylenol did not control his pain. Nevertheless, it is undisputed that the
prison medical providers, including Dr. Larson, persisted in this course of treatment until Reed
finally underwent surgery in September 2018.
Whether the hernia was reducible is clearly in dispute. Wexford argues that the hernia was
always reducible because Reed could manually return the hernia to its compartment by lying down
and pushing the hernia back into place. Reed insists that the hernia was not reducible because it
immediately popped back out of place when he stood, sneezed, or coughed, and the hernia belt did
not work to keep the hernia in place beginning in November 2017.
Even as medical staff characterized the hernia as “easily reducible” or “reducible” in the
ten months between November 2017 and August 2018, Reed describes a hernia which became so
large and problematic that it would not stay in place unless he was lying down. By his own
account, Reed’s hernia eventually descended halfway down his leg and prevented him from
mobilizing, an account that is supported by the issuance of a low bunk and low gallery permit
during the relevant time period.
The effectiveness of Reed’s hernia belt as treatment for the hernia is also disputed. Reed
consistently complained that that the belt was ineffective because it did not hold the hernia in place.
He also reported that the belt was frequently confiscated and returned to him by staff, so he did
not have regular use of it. It also caused a rash. Despite Wexford’s objections about the
effectiveness of the hernia belt and ointment, the record contains ample evidence of Reed’s

10

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 11 of 15 Page ID #1483

ongoing prescription for a hernia belt and ointment and complaints from him to raise a genuine
dispute about the effectiveness of treatment.
B.

Motivating Policy, Custom, or Procedure
The question here is whether a motivating policy, pattern, or practice on the part of

Wexford caused the unconstitutional delay or denial of surgery. In January 2018, Reed testified
that Dr. Larson told him that surgery was not an option, unless the hernia became strangulated.
Although Reed did not know what this meant at the time, the parties agree that hernia strangulation
is a life-threatening condition. Wexford counters that it has no such policy, but the facts suggest
that this prison medical director was well aware of the policy.
The record contains evidence that a surgical consultation was recommended in April 2018,
and that Wexford had an explicit policy to act on such recommendations within five days.
However, Wexford did not authorize the surgery consultation until June 2018, for whatever reason,
and the consultation did not occur until August 2018.
It is also undisputed that Reed was never actually offered surgery. Dr. Larson and other
medical staff consistently described his hernia as being reducible and recommended self-treatment
and use of a hernia belt, ointment, and Tylenol. Reed received the referral for a surgical consult
several weeks after he filed suit in May 2018. This was also shortly after Wexford’s hernia policies
came under attack in several other lawsuits,2 including the class action Bryant v. Wexford,
Case No. 18-cv-2192 (C.D. Ill.).
This case is like another one involving the same medical condition, prison, treating
physician, and policy: Broaddus v. Wexford Health Sources Inc., No. 15-cv-01339, 2018 WL

2

Reed identifies the following other lawsuits targeting Wexford’s policies, practices, and procedures for
hernia treatment: Barnes v. Sood, et al., No. 15-cv-4088 (C.D. Ill.); Mitchell v. Sood, et al., No. 16-cv-4012
(C.D. Ill.) and Mitchell v. Bautista, et al., No. 16-cv-4154 (C.D. Ill.) (consolidated); Noser v. Smith, et al.,
No. 18-cv-3050 (C.D. Ill.); and Bryant, et al. v. Baldwin, et al., No. 18-cv-2192 (C.D. Ill.) (class action).

11

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 12 of 15 Page ID #1484

1565603 (S.D. Ill. Mar. 30, 2018). In Broaddus, a former inmate sued Wexford and Big Muddy’s
health care unit administrator after his medical providers, including Dr. Larson, ignored his
complaints about a hernia in furtherance of Wexford’s policy of denying hernia surgery and instead
taking a “wait and watch approach” to save on costs. Broaddus, 2018 WL 1565603, at *1. The
HCU administrator was granted summary judgment, but Wexford was not. Id.
As for Wexford, the Court explained that Monell liability arises in three contexts. Id. at
*5. First, a plaintiff may point to an explicit “policy statement, ordinance, regulation, or decision
officially adopted and promulgated by the body’s officers.” Id. (citing Glisson, 849 F.3d at 379
(7th Cir. 2017) (quoting Los Angeles County v. Humphries, 562 U.S. 29, 35 (2010)). Second, a
plaintiff may show that a custom was created by “‘those whose edicts or acts may fairly be said to
represent official policy.’” Id. (citing Glisson, 849 F.3d at 379 (quoting Monell, 436 U.S. at 69091)). Third, a plaintiff may establish a constitutional deprivation through a widespread custom or
practice. Id. (citing Glisson, 849 F.3d at 379). Liability in this context extends to customs “so
permanent and well settled as to constitute a custom or usage with the force of law” even if they
receive no formal approval. Id. (citing Monell, 436 U.S. at 91 (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 167-68 (1970)). Evidence of a policymaking official’s acquiescence to the
unconstitutional practice is sufficient to establish a custom. Id. (citing McNabola v. Chicago
Transit Authority, 10 F.3d 501, 511 (7th Cir. 1993)). It is also sufficient to present proof that the
practice is “so long standing or widespread” that it would “support the inference that policymaking
officials ‘must have known about it but failed to stop it.’” Id. (quoting Brown v. City of Fort
Lauderdale, 923 F.3d 1474, 1481 (11th Cir. 1991)).

12

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 13 of 15 Page ID #1485

The Court denied Wexford’s motion for summary judgment, after finding that a jury could
reasonably infer a “widespread and well-settled unconstitutional practice on the part of Wexford
and/or its doctors,” based on the following:
. . . The record allows for the reasonable inference that a practice existed such that surgery
would not be approved for as long as possible as long as an inmate’s hernia was reducible.
The Court does not find it unreasonable to infer that this practice by Wexford, a private
company, existed for the purpose of cost savings.
This practice may be inferred for many reasons. First, for almost two years, from
January 3, 2011 to November 16, 2012, Plaintiff presented to a prison health care provider
regarding his hernia, and because Plaintiff’s hernia was ultimately reducible each time,
there was no deviation from the same conservative course of treatment. In addition, at two
separate collegials, Plaintiff was denied a referral for a surgery even though the hernia was
a longstanding problem and by Wexford’s own admission, was the size of a tennis ball to
a softball. One of the surgery denials came after an outside specialist recommended
surgery. With each denial, it was referenced that Plaintiff’s hernia was reducible.
After Plaintiff’s second denial for surgery, he presented to healthcare roughly six times
before he was ultimately approved for surgery. On one of these occasions, one of
Plaintiff’s testicles was swollen and another, a medical emergency exists and Plaintiff was
in so much pain that he had to be placed on Vicodin. Yet, each time, his hernia was
reducible, and still no surgery was approved. Surgery was not performed until an outside
emergency room doctor stated that Plaintiff must have the hernia surgically repaired.
Additionally, though Plaintiff cannot recover against Defendant Kerr, her statement at the
October 2013 meeting that Plaintiff was not getting surgery is evidence of the
aforementioned policy. The fact that a health care administrator who is unable to make
treatment decisions is aware that an inmate is not going to get a surgery for his longtime
problematic hernia is strong evidence of a common condoned practice among healthcare
providers of not approving surgeries for reducible hernias.
There is also plenty of evidence to allow a jury to reasonably infer that this policy was
well-settled, and that it was so widespread that even if not formally approved by Wexford
policymakers, they had to have known about it and did nothing: Plaintiff was subjected to
the same conservative treatment in the face of recurring and worsening problems for at
least three years. Additionally, it cannot be said that the course of treatment to which
Plaintiff was subjected was not the result of one or two isolated physicians at one facility.
From September 2010 to October 2013, at least five different Wexford doctors at two
separate prison facilities were involved in Plaintiff’s care. Plaintiff’s care was discussed
at three separate collegial reviews before October 2013 involving three different doctors
and Plaintiff was not approved for a surgery. There is no bright line rule that establishes
what constitutes a widespread custom or practice, Wilson v. Cook County, 742 F.2d 775,
780 (7th Cir. 2014); however, the Court is confident that, here, the number of doctors
13

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 14 of 15 Page ID #1486

involved and the fact that the consistent course of conservative treatment occurred at two
separate prisons are both not only evidence of the policy itself, but also evidence of a wellestablished and widespread policy.
There is also no doubt that this policy was violative of the Eighth Amendment. . . . Here
Wexford’s practice of refusing to approve a hernia repair surgery as long as the hernia was
reducible flew in the face of Plaintiff’s repeated pain and other problems, as well as, a
recommendation from an outside specialist. A jury could easily infer that this practice was
not based on the professional medical judgment of the physicians carrying it out. Though
Plaintiff ultimately received surgery, it was in spite of, and not due to, Wexford, and there
is no doubt, with the facts taken in Plaintiff’s favor, that because of this practice Plaintiff
suffered needless pain for an extended period of time.
Broaddus., 2018 WL 1565603 at *5-6. The District Court issued this decision on March 30, 2018,
during the time period when Reed’s claim arose. The facts and analysis in Broaddus are nearly
interchangeable with this case.
Reed’s claim arises from Wexford’s policy, custom, or procedure of delaying or denying
hernia surgery for non-strangulated, non-incarcerated hernias, even when an inmate complains of
symptoms that include ongoing pain. Reed maintains that this policy caused the delay in necessary
hernia surgery and made use of a “wait and watch” approach each time the hernia was deemed
“reducible.” Evidence of this policy can be gleaned from the consistent recommendation to
“reduce” a hernia that was arguably not reducible, make use of an ineffective (and frequently
unavailable) hernia belt, and use ointment for the resulting rash, even in the face of complaints that
the hernia was rapidly growing causing pain, and preventing activity. Reed was given the same
recommendation for almost a year, despite consistent complaints and requests for surgery. This
was after Dr. Larson told him that surgery would be denied, unless the hernia was deemed
strangulated.
A jury could infer from this record and the public record that Wexford had an
unconstitutional policy, custom, or practice of delaying or denying surgical referrals for painful
and symptomatic hernias that are not incarcerated or strangulated. A jury could also infer that
14

Case 3:18-cv-01182-JPG Document 87 Filed 09/27/22 Page 15 of 15 Page ID #1487

Reed only received the surgery when he did because of this and other lawsuits filed against
Wexford for their inadequate treatment of hernias. While he cannot recover from Dr. Larson for
an Eighth Amendment violation, the Court finds that a genuine issue of material fact precludes
summary judgment against Wexford because of the motivating policy, customs, or procedures
described herein.
Rule 56 authorizes summary judgment only 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. FED. R.
CIV. P. 56(a) (emphasis added). Wexford is the movant and has not shown the absence of a triable
issue. Celotex, 477 U.S. at 323. At this stage, any doubt about the existence of a genuine issue
for trial is resolved in favor of the non-moving party, Reed. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988). Genuine issues of
material fact preclude summary judgment here. Accordingly, the pending motion for summary
judgment (Doc. 69) shall be denied. Because the Court reached this decision without considering
the Declaration of Dr. Clay DeMattei, the related Motion to Strike Declaration of Dr. DeMattei
from Consideration on Summary Judgment (Doc. 81) shall be dismissed.
DISPOSITION
IT IS HEREBY ORDERED that Defendant Wexford Health Sources, Inc.’s Motion for
Summary Judgment (Doc. 69) is DENIED, and the Motion to Strike (Doc. 81) is DISMISSED
without prejudice. The Court will take up the pending Motion to Bar Plaintiff’s Expert Testimony
(Doc. 71) in a separate order.
IT IS SO ORDERED.
DATED: 9/27/2022

s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

15