GILMAN v. CORIZON MEDICAL SERVICES et al

Filing 189

Order Granting Motion for Summary Judgment And Directing Entry of Final Judgment - Plaintiff James Gilman, an inmate at the Wabash Valley Correctional Facility ("Wabash"), brings this action pursuant to 42 U.S.C. § 1983 alleging tha t his Eighth Amendment rights have been violated because he received inadequate medical care for his knee pain while incarcerated. The defendants' motion for summary judgment, dkt. 159 , is granted. Judgment consistent with this Order and the Order of August 10, 2016, (dkt. 8 ) screening Mr. Gilman's complaint pursuant to 28 U.S.C. § 1915A, shall now issue. (See Order.) Signed by Judge James R. Sweeney II on 8/20/2019. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JAMES E. GILMAN,
Plaintiff,
v.
CORIZON MEDICAL SERVICES, et al.
Defendants.

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No. 2:16-cv-00194-JRS-MJD

Order Granting Motion for Summary Judgment
And Directing Entry of Final Judgment
Plaintiff James Gilman, an inmate at the Wabash Valley Correctional Facility (“Wabash”),
brings this action pursuant to 42 U.S.C. § 1983 alleging that his Eighth Amendment rights have
been violated because he received inadequate medical care for his knee pain while incarcerated.
The defendants have moved for summary judgment and Mr. Gilman has responded. For the
following reasons, the motion for summary judgment is granted.
I. Summary Judgment Standard
Summary judgment is appropriate when 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 Fed. R.
Civ. P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there
is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).
To survive a motion for summary judgment, the non-moving party must set forth specific,
admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). The Court views the record in the light most favorable to the non-moving
party and draws all reasonable inferences in that party’s favor. Barbera v. Pearson Education, Inc.,
906 F.3d 621, 628 (7th Cir. 2018). The Court cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are left to the fact-finder. Johnson v.
Advocate Health & Hospitals Corp., 892 F.3d 887, 893 (7th Cir. 2018).
II. Factual Background
The following statement of facts has been evaluated pursuant to the standard set forth
above. Some of the facts that follow are disputed. The Court notes these disputes, but whether
noted or not, the facts stated are not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed evidence are presented in the light most
favorable to Mr. Gilman, “the party against whom the motion under consideration is made.”
Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
A. The Parties
Since his incarceration, Mr. Gilman has experienced chronic osteoarthritis of his knees,
hands, and feet. Dkt. 160-1, ¶ 7.
During the times relevant to Mr. Gilman’s complaint, Defendant Corizon, LLC was the
company that contracted with the Indiana Department of Correction (“IDOC”) to provide medical
care to Indiana prisoners. Dkt. 2.
Defendant Dr. Samuel Byrd was a physician providing medical services at Wabash during
all times relevant to the complaint. Dkt. 160-1, ¶ 3. As a physician, Dr. Byrd saw inmates as they
were scheduled by nursing staff. Id. Dr. Byrd asserts that he did not set the patient schedule. Id.
Dr. Byrd treated Mr. Gilman for his arthritis at all relevant times. Id., ¶ 4.

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Defendant Dr. Michael Mitcheff was the Regional Medical Director for Corizon, LLC from
2006 to July 4, 2014. Dkt. 160-2, ¶ 4. Defendant Dr. Brian Buller was the Associate Regional
Medical Director for Corizon from May 4, 2015, to April 2016. Dkt. 160-3, ¶ 4. As Corizon
Regional Medical Directors, Dr. Mitcheff and Dr. Buller’s duties and responsibilities included
reviewing consultation requests from providers at prisons to refer inmates for outside specialty
appointments, including surgeries, diagnostic imaging, or consultations with specialists. Dkt. 1602 ¶ 5; dkt. 160-3, ¶ 5. Dr. Mitcheff and Dr. Buller would review these requests and either
communicate their agreement or suggest an alternative treatment plan. Id. If either Dr. Mitcheff or
Dr. Buller suggested an alternative treatment plan, the provider at the prison had the final authority
to proceed with the requested course of treatment or agree with the alternative treatment plans
offered. Id. Almost every time that Dr. Mitcheff, Dr. Buller, or other Corizon executives submitted
an alternative treatment plan, the provider at the prison followed their recommendation. See Dkt.
181-2, pp. 331-334, 335-37.
Defendant Chelsey Pearison was a qualified medical assistant (“QMA”) at Wabash at all
relevant times. Dkt. 160-4, ¶ 4. QMA Pearison cannot diagnose medical conditions or prescribe
medications. Id., ¶ 5. Part of QMA Pearison’s duties and responsibilities as a medical assistant
included coordinating with the onsite medical provider, in this case Dr. Byrd, to schedule provider
appointments. Id.
Defendants Nurse Barbara Riggs, Nurse Amy Wright, and Nurse Kimberly Hobson were
licensed and qualified nurses at Wabash during all relevant times. Dkt. 160-5, ¶ 4; dkt. 160-6, ¶ 4;
dkt.160-7, ¶ 4. Nursing staff cannot diagnose medical conditions or order medical treatment for
offenders or any other patients. Dkt. 160-5, ¶ 5; dkt. 160-6, ¶ 5; dkt. 160-7, ¶ 5. Nursing and

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assistant staff also cannot prescribe medications. Id. Nursing staff does not schedule provider
appointments. Dkt. 160-5, ¶ 7; dkt. 160-6, ¶ 7; dkt. 160-7, ¶ 5.
At Wabash, inmates fill out a Healthcare Request Form (“HCR”), which describes who the
inmate needs to see and the medical need the inmate is having. 1 Dkt. 181-1, ¶ 6. The inmate places
the HCR in a box in their housing unit. Id. A nurse is supposed to pick up HCRs daily, but the
nurse sometimes skips pickups on the weekends. Id. The nurse reviews the HCR and either
conducts a visit with the inmate or issues a written response. Id. During a visit, the nurse will
determine if the inmate should see a provider/doctor. Id. In response to an HCR, nurses would tell
Mr. Gilman that he was already scheduled to see a provider during a regularly scheduled chronic
care visit – visits that are scheduled every six months. Id., ¶ 7.
B. Gilman’s History of Knee Arthritis
Mr. Gilman has a history of arthritis in his knees, hands, and feet. Dkt. 160-1, ¶ 5. Mr.
Gilman previously filed a lawsuit regarding arthritis in his knees. Gilman v. Correctional Medical
Services, 2 et al., No. 2:07-cv-00161. The parties agree that the medical treatment that was at issue
in that case is not at issue in this case. The parties further agree that Mr. Gilman’s claims in this
case are his claims that the defendants exhibited deliberate indifference to his serious medical
needs between June 2014 and June 2016. Dkt. 180, p. 4.

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The defendants object to Mr. Gilman’s description of these medical policies and procedures for
lack of foundation. But it is evident from the record that Mr. Gilman regularly used the HCR
process during the times relevant to this case. He certainly has knowledge of how an inmate
requests medical care and can testify to his experiences on this point.
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Correctional Medical Services later became Corizon Health, LLC, one of the defendants in this
case.
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Dating back to at least 2012, Mr. Gilman’s medical records note that conservative
measures, including prescription medications, had failed. 3 Dkt. 181-2, pp. 215-217 (discussing
pain in both knees). Mr. Gilman was prescribed Mobic, a Nonsteroidal Anti-inflammatory Drug
(“NSAID”) for his pain. Dkt. 160-9, p. 175. By July 5, 2013, Mr. Gilman had taken so many
NSAIDs that Dr. Naveen Rajoli advised he should avoid using NSAIDs altogether “because of the
long-term side effects.” Dkt. 181-2, pp. 242-245. In 2013, when Mr. Gilman had an orthopedic
consult, Dr. Madsen, an orthopedic specialist, diagnosed him with “degenerative joint disease
severe erosive bilateral, left worse than right.” Id., p. 167. During this consultation, Mr. Gilman
states that Dr. Madsen told him that while both knees needed to be replaced, he had to choose one.
Dkt. 181-1, ¶ 31. Mr. Gilman had a total replacement of his left knee on February 18, 2013. Dkt.
160-9, p. 173.
C. Treatment of Mr. Gilman’s Right Knee Arthritis from 2014-2016
From June 2013 through July 2014, Mr. Gilman submitted various HCRs requesting Mobic
refills for his arthritis. Dkt. 160-9, pp. 177, 194-195; Dkt. 160-10, pp. 11-12, 25. On June 11, 2014,
Mr. Gilman saw Dr. Rajoli and reported right knee pain that had been ongoing since he arrived at
the IDOC. Dkt. 160-10, pp. 13-16. A physical exam was normal and revealed no tenderness or
swelling. Id. Mr. Gilman was wearing a knee brace. Id. Dr. Rajoli reviewed Mr. Gilman’s history
and saw that he had previously received a short course of Prednisone (an oral steroid for arthritis)
with success. Id. Dr. Rajoli ordered Prednisone, cortisone injections, and x-rays. Id.

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The defendants object to testimony regarding the treatment Mr. Gilman received before 2014 as
irrelevant because it is outside the applicable statute of limitations. But, while the treatment he
received before 2014 is not part of the claims in this case, it is relevant to the length of time he was
experiencing right knee pain and what measures to treat that pain had already been tried.
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On July 9, 2014, Mr. Gilman’s x-ray revealed moderate to severe arthritis with some
swelling and no acute injury. Id., p. 17. That same day, Mr. Gilman requested his Prednisone
prescription be refilled and medical staff told him he had a prescription through September 2014.
See id., pp. 18-24.
On August 1, 2014, Mr. Gilman saw Dr. Neil Martin and was concerned because “he was
promised a knee injection.” Dkt. 160-10, pp. 26-28. A physical exam revealed a stable right knee,
although Mr. Gilman reported pain on movement. Id. Dr. Martin ordered a cortisone injection for
Mr. Gilman’s arthritis pain. Id. On August 8, 2014, Mr. Gilman received the cortisone injection.
Id., pp. 29-31. On August 27, 2014, Dr. Martin charted that Mr. Gilman had some arthritic flareups in his right knee, but was otherwise asymptomatic. Id., pp. 32-33. Mr. Gilman’s physical exams
were normal and he was able to ambulate. Id. He was also active at recreation and performed
physical activities without limitations. Id.
On September 14, 2014, Mr. Gilman submitted an HCR asking to see a doctor for his
arthritis pain. Dkt. 181-2, p. 278. Nurse Riggs referred him to the doctor. Id.
On September 18, 2014, Nurse Riggs noted that Mr. Gilman’s “condition was not
responding to protocols.” Dkt. 181-1, ¶ 39; dkt. 181-2, p. 280.
On September 24, 2014, Mr. Gilman saw Dr. Rajoli for his arthritis. Dkt. 160-10, pp. 3436. Dr. Rajoli inquired into Mr. Gilman’s daily living activities and functions. Id. The parties
dispute whether Mr. Gilman told the provider that he could complete certain daily living activities.
The evidence in the light most favorable to Mr. Gilman is that he did not tell Dr. Rajoli that he
could climb stairs, cook, get into or out of the bathtub, or get in and out of a car. Dkt. 181-1 ¶ 38.
Dr. Rajoli diagnosed him with mild right knee arthritis that occurred intermittently. Id. Mr. Gilman

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told Dr. Rajoli that his arthritis was relieved with medications, heat, and Prednisone. Id. Dr. Rajoli
ordered Prednisone through January 2015. Id., pp. 37-44.
On December 9, 2014, Mr. Gilman saw medical staff for his annual health assessment. Dkt.
160-10, pp. 44-45. Mr. Gilman did not report any concerns with his arthritis or any limitations in
his daily living activities or ambulation. Id. He was classified as free of disability or limitations.
Id. On December 15, 2014, Dr. Michael Aluker ordered nursing staff to lower his Prednisone
prescription and dosage to wean him off the steroid. Id., pp. 47-48.
On January 14, 2015, Mr. Gilman requested a refill of his Prednisone. Dkt. 160-10, p. 49.
This was the first time defendant Dr. Byrd treated Mr. Gilman. Dkt. 160-1, ¶ 10. Prednisone is a
corticosteroid aimed at reducing inflammation in the joints. Id. Since Mr. Gilman reported relief
with Prednisone, Dr. Byrd refilled his prescription through July 15, 2015. Dkt. 160-10, pp. 50-59.
On February 4, 2015, Dr. Byrd examined Mr. Gilman for his right knee arthritis. Id., pp.
60-63. Mr. Gilman reported that he had been getting cortisone injections for some time until the
staff physicians changed. Id. Mr. Gilman stated that no one else would give him injections. Id. He
reported that anti-inflammatory medications did not provide him with relief. Id. He also wore a
knee brace and reported modest relief from the brace. Id. Mr. Gilman reported swelling if “I do
much.” Id. He requested a right knee cortisone injection. Id. Dr. Byrd’s physical exam was normal
and there was no swelling or weakness in Mr. Gilman’s right knee, although Mr. Gilman did report
pain. Id. Dr. Byrd gave Mr. Gilman a cortisone injection and ordered him to return for a follow up
in three months. Id. Dr. Byrd also ordered replacement bilateral knee braces. Id. On February 26,
2015, Mr. Gilman received his knee braces. Id., pp. 64-66.
On April 8, 2015, Mr. Gilman submitted an HCR requesting a cortisone injection for his
right knee and reporting that he believed he was on a ninety-day cycle for his injections. Dkt. 160-

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10, p. 67. QMA Pearison responded that Mr. Gilman was scheduled to see a provider in the Chronic
Care Clinic. Id. On April 15, 2015, Dr. Byrd examined Mr. Gilman in the Chronic Care Clinic for
his right knee arthritis. Id., pp. 68-72. Mr. Gilman told Dr. Byrd that the last injection provided
him with relief for two months and requested another injection. Id. Mr. Gilman also complained
of left knee pain and was concerned about damaged hardware from his prior surgery. Id. Dr. Byrd
ordered a cortisone injection in Mr. Gilman’s right knee and a left knee x-ray. Id. On April 24,
2015, Mr. Gilman received a cortisone injection. Id., pp. 73-75.
On April 27, 2015, Dr. Byrd examined Mr. Gilman in Chronic Care Clinic and Mr. Gilman
reported that the cortisone injection “took.” Id., pp. 76-79. Dr. Byrd ordered labs to monitor Mr.
Gilman’s medical condition since he had a long-standing Prednisone prescription for arthritis. Id.
On June 29, 2015, Mr. Gilman filed an HCR requesting another right knee injection. Id.,
p. 80. Nurse Riggs responded that Mr. Gilman was scheduled for a Chronic Care Clinic visit. Id.
On July 8, 2015, Dr. Byrd saw Mr. Gilman in Chronic Care for his right knee arthritis pain. Id.,
pp. 81-95. Mr. Gilman’s left-knee x-rays revealed arthritis and intact hardware. Id. Dr. Byrd
ordered a cortisone injection, prescribed the pain medication Imipramine through January 12,
2016, and prescribed Prednisone through January 4, 2016. Id. On July 17, 2015, Dr. Byrd
administered a right knee cortisone injection. Id., pp. 96-97.
On September 8, 2015, Mr. Gilman submitted an HCR reporting that his cortisone injection
had worn off. Id., p. 98; Dkt. 160-4, ¶ 7. QMA Pearison reviewed Mr. Gilman’s records and
confirmed that his last cortisone injection was in July 2015. Id. She scheduled an appointment for
Mr. Gilman to see a provider and responded to the HCR by notifying him that he was scheduled
for a visit with a provider. Dkt. 160-10, p. 98.

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On October 2, 2015, Dr. Byrd saw Mr. Gilman in a Chronic Care Clinic visit and Mr.
Gilman requested another cortisone injection. Dkt. 160-1, ¶ 17; dkt. 160-10, pp. 99-103. Mr.
Gilman also reported that the orthopedic physician who completed his left knee total replacement
surgery (Dr. Madsen) told him he would require a right knee total replacement as well. Id. Dr.
Byrd noted that Mr. Gilman did not experience relief with NSAIDs. Dkt. 160-10, p. 99. Mr. Gilman
did not have any acute injury or ligament damage, although he did report pain on movement which
is not uncommon in patients with arthritis. Id. Dr. Byrd ordered a cortisone injection “when
possible” and a follow-up x-ray to further evaluate Mr. Gilman’s right knee and determine if
additional intervention was indicated. Id. The records indicate that the x-ray was ordered on
November 18, 2015. Id., p. 103.
After this appointment, Dr. Byrd began investigating Mr. Gilman’s statement that Dr.
Madsen stated he would need a right total knee replacement. Dkt. 160-1, ¶ 19. Dr. Byrd took steps
to obtain and review Mr. Gilman’s medical records to determine what occurred at the time of his
2013 left knee replacement. Id. Dr. Byrd states that if he had found information corroborating Mr.
Gilman’s recollection that Dr. Madsen had recommended total right knee replacement surgery, Dr.
Byrd would have simply referred him for the surgery. Id. Dr. Byrd also explains that deferring
corticosteroid injections into a knee that may require surgery is medically preferable. Id. However,
Dr. Byrd did not find a prior recommendation for total right knee replacement. Id. Dr. Byrd testifies
that his investigation into Mr. Gilman’s assertion that Dr. Madsen recommended total right knee
replacement caused the delay in scheduling the cortisone injection. Id. Once Dr. Byrd was satisfied
that Dr. Madsen had not recommended total right knee replacement, he scheduled Mr. Gilman for
a right knee injection. Id. Mr. Gilman states that Dr. Byrd told him that he did not know when his
injection would be scheduled because he was the only doctor at Wabash. Dkt. 181-1, ¶ 46. Mr.

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Gilman also talked to QMA Pearison after this visit. 4 Id. She told him that his injection would be
administered at the Procedure Clinic, but the clinic was canceled until another doctor was hired or
assigned to Wabash. Id. ¶ 46. Mr. Gilman describes the pain he was experiencing at this time as a
9 on a scale of 1-10. Id.
On October 5, 2015, Mr. Gilman filed an informal grievance complaining that he had not
received a cortisone injection following his visit with Dr. Byrd. Dkt. 160-6, ¶ 7; dkt. 160-10, p.
180. Nurse Wright responded that he had received an injection on July 17, 2015, and that injections
are given only every 90 days at the discretion of the provider. Id. She also told him that he would
be seen when the Procedure Clinic resumes. Id.
On November 13, 2015, Mr. Gilman filed a formal grievance again complaining that he
had not received his cortisone injection. Dkt. 160-7, ¶ 7; dkt. 160-10, p. 182-83. Nurse Hobson
responded to this grievance on November 18, 2015, and told Mr. Gilman that Dr. Byrd had ordered
an x-ray and that he would be scheduled for an injection sometime in December. Dkt. 160-10, p.
193.
On November 22, 2015, Mr. Gilman’s right knee x-ray was performed. Id. p. 104. It
revealed moderate arthritis and no acute injury. Id. p. 104.
On November 29, 2015, Mr. Gilman submitted an HCR asking for the results of his x-ray
and a cortisone injection. Dkt. 160-4, ¶ 7; dkt. 160-10, p. 105. Nurse Riggs responded that the
results of the x-ray would be reviewed at Chronic Care Clinic. Id.

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The defendants object to some of Mr. Gilman’s testimony regarding alleged staffing issues as
containing legal conclusions and argument, but what Dr. Byrd and Ms. Pearison told Mr. Gilman
is a statement of fact and he can testify as to what Dr. Byrd and Ms. Pearison told him as a statement
by a party opponent. Fed. R. Evid. 801(d)(2).
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On December 5, 2015, Mr. Gilman submitted another HCR requesting a cortisone injection
and stating that medical staff told him that the procedure was delayed because there was not a
second physician on staff. Dkt. 160-4, ¶ 8; dkt. 160-10, p. 106. QMA Pearison reviewed Mr.
Gilman’s medical history and coordinated with Dr. Byrd to schedule an appointment. Dkt. 160-4,
¶ 8.
On December 18, 2015, Dr. Byrd renewed Mr. Gilman’s oral Prednisone prescription
through June 18, 2016. Dkt. 160-10, p. 109-118.
On January 3, 2016, Mr. Gilman submitted another HCR stating that he had not received
his cortisone injection and had experienced arthritis pain since October 2015. Dkt. 160-10, p. 119.
Nurse Riggs reviewed Mr. Gilman’s records and responded that he was scheduled for an injection.
Dkt. 160-5, ¶ 9. dkt. 160-10, p. 119.
On January 7, 2016, Mr. Gilman submitted another HCR requesting to know when his
appointment was for the cortisone injection. Dkt. 160-10, p. 122. Nurse Riggs responded that his
appointment was set for January 8, 2016. Id.
On January 8, 2016, Mr. Gilman received a cortisone injection in his right knee. Id., p. 123.
On January 14, 2016, Dr. Byrd saw Mr. Gilman in Chronic Care Clinic for his right knee arthritis.
Dkt. 160-1, ¶ 20; dkt. 160-10, pp. 125-28. Mr. Gilman told Dr. Byrd that his cortisone injections
typically relieved his pain for up to two months at a time and that he was concerned that they were
not particularly safe. Dkt. 160-10, pp. 125-28. He again told Dr. Byrd that Dr. Madsen had
recommended a right total knee replacement in 2013. Id. Dr. Byrd noted that he had reviewed Mr.
Gilman’s records and did not find an order or recommendation for a right knee total replacement
surgery. Id. Dr. Byrd also noted that he reviewed Mr. Gilman’s 2009 MRI and noted a potential
torn left ACL, but Mr. Gilman did not know what had happened and simply began having

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instability of the knee before it was replaced. Id. Mr. Gilman now reported getting similar episodes
of instability with the right knee and had fallen before getting a cane at the time of his last injection.
Id. He also reported using the elevator to get to the classes he taught because he did not feel safe
using the stairs. Id. Dr. Byrd’s physical exam revealed a positive meniscus test and a significant
decrease in range of motion in Mr. Gilman’s right knee. Id. Dr. Byrd ordered physical therapy for
Mr. Gilman’s right knee and recommended an orthopedic consult. Id.
As noted above, when a provider in a prison wants to refer an inmate outside of the prison
for specialty appointments, they submit a Consultation Request Form that would then be reviewed
to see if the request meets certain criteria. Dkt. 160-1, ¶ 21. The Regional Medical Director or
Associate Regional Medical Director reviews these requests and either agrees with the
recommendation or suggests an alternative treatment plan. Id.
On January 27, 2016, the Regional Director at that time, Dr. Papendick, reviewed Dr.
Byrd’s orthopedic consult recommendation. Dkt. 160-1, ¶ 22; dkt. 160-10, pp. 129-130. Dr.
Papendick recommended an alternative treatment plan that included physical therapy, rotating
anti-inflammatory medications and cortisone injections. Id. Dr. Papendick indicated that Mr.
Gilman was still ambulatory with an aide and had not failed conservative therapies. Id. Mr. Gilman
contends that conservative measures had not been useful in treating his pain since at least 2012.
Dkt. 181-2, pp. 215-217. Dr. Byrd agreed with the alternative plan and ordered physical therapy
for Mr. Gilman’s right knee. Dkt. 160-1, ¶ 22; dkt. 160-10, pp. 129-130. Dr. Byrd determined that
it would not hurt to strengthen Mr. Gilman’s right lower extremity before any potential surgical
interventions. Id. Dr. Byrd determined that the use of Mr. Gilman’s cane could have led to some
degree of weakness in his quadriceps and could be contributing to his knee instability. Id.

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From February 10, 2016, through March 14, 2016, Mr. Gilman underwent physical therapy
for his right knee arthritis. Dkt. 160-10, pp. 134-138, 140. On March 19, 2016, Mr. Gilman
submitted an HCR notifying medical staff that his last cortisone injection had worn off. Dkt. 1605, ¶ 10; Dkt. 160-10, p. 139. Nurse Riggs reviewed Mr. Gilman’s medical records and responded
that he had been scheduled with the doctor. Id. On April 4, 2016, Mr. Gilman filed another HCR
stating that he had not yet received his cortisone injection and did not want to be scheduled for
chronic care. Dkt. 160-10, p. 141. Mr. Gilman requested a visit with medical sick call. Id. Medical
staff responded that Mr. Gilman was scheduled to see a provider. Id. On April 8, 2016, Dr. Byrd
examined Mr. Gilman in chronic care for his right knee arthritis. Dkt. 160-1, ¶ 23; dkt. 160-10, pp.
142-145. Dr. Byrd noted that Mr. Gilman completed on-site physical therapy and plateaued with
essentially no improvement. Id. Dr. Byrd’s physical exam revealed limited range of motion and a
small suprapatellar effusion. Id. Dr. Byrd opined that it was time for intervention beyond
conservative measures for Mr. Gilman’s right knee, with cortisone shots only lasting a couple of
months and no relief from anti-inflammatory medications. Id. Dr. Byrd performed a right knee
injection and ordered an MRI. Id. On April 8, 2016, medical providers, including Dr. Byrd,
prescribed Mr. Gilman Prednisone through July 2016. Id., pp. 146.
On May 11, 2016, Dr. Byrd examined Mr. Gilman in a Chronic Care Clinic visit. Dkt. 16010, pp. 147-149. Mr. Gilman reported severe arthritis in his right knee that was worsening. Id. Mr.
Gilman explained that he experienced activity limitation, joint swelling of knees, limping, morning
stiffness and weakness. Id. He also told Dr. Byrd that Prednisone no longer helped his knees,
although it helped his hand arthritis, and the cortisone injections helped for up to two months. Id.
Dr. Byrd determined that Mr. Gilman had failed conservative therapies and that he would continue

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to monitor Mr. Gilman’s progress with a potential MRI in the future to evaluate the need for further
interventions. Id.
Dr. Byrd then submitted Consultation Request Forms for an MRI and orthopedic
consultation. Dkt. 160-3, ¶ 10; dkt. 160-10, pp. 150-53. Dr. Byrd stated that Mr. Gilman had “been
on NSAIDs with no relief. He wears a knee brace as well with only modest relief. … He is walking
with a cane and falls despite cane…. He notes it is most difficult to descend stairs. PT ON SITE
DONE AND HE HAS PLATEAUED WITH ESSENTIALLY NO IMPROVEMENT…
significant decrease in ROM.” Dkt. 160-10, p. 151. Associate Regional Medical Director, Dr.
Brian Buller, reviewed Dr. Byrd’s requests and requested additional information to justify
pursuing more invasive treatment. Dkt. 160-3, ¶ 10. Dr. Buller requested documentation of the
specific MRI exam Dr. Byrd requested because there were varying types of MRIs. Id. Dr. Buller
explained that not all MRIs are alike, and he has seen the wrong MRI ordered by practitioners. Id.
Dr. Buller recommended that an orthopedic specialist determine exactly what kind of MRI would
be appropriate so that the correct information would be available to make the appropriate
assessment and treatment plan. Id. Further, Dr. Buller requested additional information on what
had been tried as far as PT, exercise, medication and how Mr. Gilman was functioning in the
facility, including his reported falls. Id. Dr. Buller states that this information was required in the
managed care environment to establish that all other alternatives were exhausted, and Mr. Gilman
would be going toward a joint replacement, which begins with an orthopedic consultation. Id. Dr.
Buller explains that joint replacement is not a benign procedure and there are lots of risks and
complications and those who are not very compliant may have low success rates. Id. Dr. Buller
requested the additional information and documentation to demonstrate that Mr. Gilman would be
a good candidate for an orthopedic consultation and joint replacement surgery. Id.

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On August 24, 2016, Dr. Byrd submitted another orthopedic request with the requested
information. Dkt. 160-3, ¶ 11; dkt. 160-10, pp. 161-64. Dr. Byrd described the physical therapy
Mr. Gilman had received, stated that he used the elevator to go up one flight of stairs, did not do
any physical activities at recreation, reported falls, did not engage in physical activity, and used a
cane to ambulate. Id. Mr. Gilman had failed treatment with anti-inflammatories and had an ongoing
prescription for Prednisone. Id. Given this information, Dr. Buller agreed that Mr. Gilman should
now be considered for joint replacement because the information and documentation supported
that he had exhausted all conservative alternatives, although Dr. Buller remained hesitant given
Mr. Gilman’s relatively young age for joint replacement surgery. Id.
On October 3, 2016, Mr. Gilman went off-site to orthopedic surgeon Dr. Madsen who
diagnosed him with degenerative joint disease. Dkt. 160-10, p. 168. Dr. Madsen charted, based on
Dr. Byrd’s detailed and inclusive orthopedic consultation request, that Mr. Gilman had failed all
conservative therapies and recommended a right total knee replacement. Id. Dr. Madsen noted that
the bones in Mr. Gilman’s right knee were rubbing together. Dkt. 181-2, p. 387. On November 2,
2016, Mr. Gilman underwent a right total knee replacement without complication. Id., p. 169.
D. Expert Opinions
The defendants have presented the opinions of two doctors who have reviewed Mr.
Gilman’s medical records regarding the care he received that is at issue in this case.
Dr. Casey Pickerill is a Board-Certified Family Practice physician appointed by the Court
as an independent expert pursuant to Rule 706 of the Federal Rules of Evidence. Dr. Pickerill
reviewed Mr. Gilman’s medical records and provided the following opinion:
An understood dictum in the practice of medicine is to attempt conservative, less
invasive diagnostic and/or therapeutic maneuvers first, before going on to more
invasive modalities, when indicated. There are times, of course, when the acuity of
the situation warrants deviation from this protocol if delay caused by a prolonged
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multistep algorithm could compromise the outcome (like appendectomy in the case
of appendicitis.) On the other hand, chronic disease states such as degenerative joint
disease, like in Mr. James Gilman’s case, usually are better approached in a stepwise fashion. The standard of care actually demands that conservative therapy
should be employed exhaustively when osteoarthritis is diagnosed at a young age.
Dkt. 160-11, p. 4.

Dr. Pickerill concludes “that the standard of care was met by the Corizon Health team of
physicians and nurses managing Mr. James Gilman’s bilateral knee arthritis.” Id., p. 5.
The defendants also submit the expert testimony of Dr. William Kleckner. Like Dr.
Pickerill, Dr. Kleckner states that in patients with osteoarthritis, the appropriate and timely course
of care involves conservative treatment before surgical intervention. Dkt. 160-8, ¶ 13. The proper
treatment includes anti-inflammatory medications, therapy, activity modification, and ambulation
aides. Id. Only after these treatments fail, and if the patient continues to complain of pain, would
a surgical consult be considered. Id. Dr. Kleckner also opined that the defendants properly
managed Mr. Gilman’s cortisone injections. Dkt. 160-8, ¶ 18. The standard timeframe between
administering a cortisone injection is three to six months due to risks of the procedure and potential
side effects of steroidal medications. Id. Mr. Gilman never went longer than six months without a
corticosteroid injection in his right knee from 2014 through 2016. Id. Dr. Kleckner also concludes
that osteoarthritis in his knees did not substantially change during the defendants’ care. Id., ¶ 19.
Dr. Kleckner opines that any delay in referring Mr. Gilman for a surgical consult was not medically
significant because Mr. Gilman already had severe osteoarthritis that was not made worse by any
delay in surgical intervention. Id.
III. Discussion
The defendants move for summary judgment on Mr. Gilman’s claims arguing that they
were not deliberately indifferent to his serious medical needs.

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Pursuant to the Eighth Amendment, prison officials have a duty to provide humane
conditions of confinement, meaning, they must take reasonable measures to guarantee the safety
of the inmates and ensure that they receive adequate food, clothing, shelter, and medical care.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). “To determine if the Eighth Amendment has been
violated in the prison medical context, [courts] perform a two-step analysis, first examining
whether a plaintiff suffered from an objectively serious medical condition, and then determining
whether the individual defendant was deliberately indifferent to that condition.” Petties v. Carter,
836 F.3d 722, 727–28 (7th Cir. 2016) (en banc). “[C]onduct is ‘deliberately indifferent’ when the
official has acted in an intentional or criminally reckless manner, i.e., “the defendant must have
known that the plaintiff ‘was at serious risk of being harmed [and] decided not to do anything to
prevent that harm from occurring even though he could have easily done so.’” Board v. Farnham,
394 F.3d 469, 478 (7th Cir. 2005) (quoting Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir.
1998)). “A significant delay in effective medical treatment also may support a claim of deliberate
indifference, especially where the result is prolonged and unnecessary pain.” Berry v. Peterman,
604 F.3d 435, 441 (7th Cir. 2010). “A delay in treatment may show deliberate indifference if it
exacerbated the inmate’s injury or unnecessarily prolonged his pain,” and “even brief, unexplained
delays in treatment may constitute deliberate indifference.” Lewis v. McLean, 864 F.3d 556, 563
(7th Cir. 2017) (a jury might find deliberate indifference in a delay in treating muscle spasms for
approximately an hour and a half) (quoting Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir.
2015)) (emphasis in Lewis).
For purposes of summary judgment, the parties do not dispute that Mr. Gilman’s knee
condition constitutes a serious medical condition. Instead, they disagree as to whether the
defendants were deliberately indifferent to Mr. Gilman’s knee pain. The defendants argue that they

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each acted appropriately and within the standard of care when treating Mr. Gilman’s knee pain.
The treatment each of the defendants provided to Mr. Gilman will be discussed in turn.
A. Expert Testimony
First, the Court addresses Mr. Gilman’s objections to the expert testimony by Dr. Kleckner
and Dr. Pickerill. Rule 702 of the Federal Rules of Evidence governs testimony by expert
witnesses. That Rule provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
The rule requires that the trial judge ensure that any and all expert testimony or evidence admitted
“is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589
(1993).
Mr. Gilman objects to Dr. Kleckner’s qualifications as an expert in this case, arguing that
he does not have experience, training, or education related to caring for patients with specific
orthopedic needs. But the issue in this case is whether Mr. Gilman’s doctors, who are primary care
providers, responded appropriately to his complaints of knee arthritis. Dr. Kleckner is Board
Certified in Family Medicine. Dkt. 160-8, ¶ 2. An expert may be qualified by “knowledge, skill,
experience, training, or education.” Fed.R.Evid. 702. Because Dr. Kleckner has knowledge and
experience providing primary care, he can testify regarding his assessment of the care Mr. Gilman
received. Mr. Gilman also objects to Dr. Kleckner’s affidavit, arguing that Dr. Kleckner ignored
critical data in reaching his conclusion, but the record does not support this assertion. Dr. Kleckner

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testifies that he reviewed Mr. Gilman’s medical records, dkt. 160-8, ¶ 3, and there is no reason to
believe that he did not review all of them. Dr. Kleckner has thus provided enough information
regarding the facts and evidence upon which his opinions are based.
Mr. Gilman challenges Dr. Pickerill’s opinion, arguing that Dr. Pickerill failed to include
or consider many of Mr. Gilman’s medical records. But the parties produced together the records
Dr. Pickerill would review. Dkt. 131, 140. There is no evidence to suggest that Dr. Pickerill did
not consider the entirety of those records. Further, to the extent that Mr. Gilman contends there are
inconsistencies in Dr. Pickerill’s report, Mr. Gilman questioned Dr. Pickerill on these concerns
and Dr. Pickerill concluded that his overall opinion did not change. Dkt. 160-12.
In short, the experts satisfy the requirements of Rule 702 and their testimony will not be
excluded.
The Court now turns to the care each of the defendants provided to Mr. Gilman.
B. Dr. Mitcheff
In response to the motion for summary judgment, Mr. Gilman agreed that his claims are
based on care he received between June 2, 2014, and June 2, 2016. It is undisputed that Dr.
Mitcheff did not provide Mr. Gilman with medical care during this time frame. He is therefore
entitled to summary judgment.
C. Dr. Byrd
Dr. Byrd seeks summary judgment arguing that he was not deliberately indifferent to Mr.
Gilman’s knee arthritis.
When Dr. Byrd saw Mr. Gilman between February 4, 2015, and July 17, 2015, he either
provided a steroid injection for Mr. Gilman’s pain or scheduled one. See Dkt. 160-10, pp. 49, 6063, 64-6673-75, 76-79, 99-105, 109-118, 123. In that time period, those shots were not more than

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three months apart. Dr. Byrd also prescribed other pain medicines and ordered labs to monitor Mr.
Gilman’s condition because of the medications he was taking. See id. While Mr. Gilman reported
that steroid injections provided pain relief for only about two months, the defendants have
presented expert testimony that a time span of three to six months between cortisone injections in
treating arthritis is normal and appropriate due to the risks of the procedure and potential side
effects of the steroid medications. While there was one period in which there was nearly six months
between injections, both experts have testified that such a time frame is within the standard of care
for treating this chronic condition. There was no time in which Mr. Gilman went longer than six
months between injections.
Further, there is no evidence to support a conclusion that Dr. Byrd persisted in a course of
treatment he knew was not working. Dr. Byrd consistently provided cortisone injections when Mr.
Gilman requested them and prescribed other pain medications. Dkt. 160-10, pp. 125-28. When Dr.
Byrd thought it might be time to consider knee surgery, he requested an orthopedic consultation
for Mr. Gilman. Based on the advice of the Regional Medical Directors in response to those
requests, he sent Mr. Gilman to physical therapy and tried other conservative measures to treat his
condition. See Dkt. 160-10, pp. 129-30. The defendants have also presented expert testimony that
such a conservative course of treatment is appropriate, particularly when someone is diagnosed
with osteoarthritis at a young age, like Mr. Gilman, who was in his forties when his arthritis was
diagnosed. Finally, there is no evidence that any delay in providing Mr. Gilman with replacement
surgery for his right knee aggravated his condition.
In short, there is no evidence that would allow a reasonable jury to conclude that Dr. Byrd
was deliberately indifferent to Mr. Gilman’s condition. Dr. Byrd is therefore entitled to summary
judgment on Mr. Gilman’s claims.

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C. Dr. Buller
Next, Dr. Buller argues that he was not deliberately indifferent to Mr. Gilman’s knee pain
because he reviewed Dr. Byrd’s consultation requests and suggested that Dr. Byrd gather
additional information and documentation to justify surgical intervention.
Dr. Byrd requested an orthopedic consultation for Mr. Gilman on January 14, 2016. Dkt.
160-10, p. 125-27. He noted that he “is steroid dependent” and “has failed PT for this previously.”
Id., p. 127. That consultation request was denied by another doctor. Dr. Byrd then requested an
MRI and an orthopedic consultation for Mr. Gilman on May 16, 2016. Dkt. 160-10, p. 150-157.
In that request, Dr. Byrd stated that Mr. Gilman had reported falling, that cortisone injections had
only provided about two months’ relief, that physical therapy had plateaued with essentially no
improvement, and that Mr. Gilman had experienced decreased range of movement. Dkt. 160-10,
pg. 151. Dr. Buller inquired whether MRI is the imaging of choice, if Dr. Byrd saw him after the
falls, how others report he is doing, and suggested submitting for an orthopedic consult. Dkt. 16010, p. 153. A request for an orthopedic consultation was submitted on July 12, 2016, which
contained essentially the same information as the previous request for an MRI. Dkt. 181-2, p. 363.
The response to that request was deferred. Dr. Buller inquired whether Mr. Gilman had done
exercises for strengthening and to “consider scheduling and restricting NSAIDS and
acetaminophen to demonstrate compliance . . . .” Dkt. 160-10, p. 157. Dr. Buller states that this
information is required to establish that all other alternatives were exhausted. Dkt. 160-3, ¶ 10.
Mr. Gilman saw the orthopedic specialist on October 3, 2016. Dkt. 160-10, p. 168. Dr. Madsen
recommended a total knee replacement and that surgery was performed on November 2, 2016. Id.
p. 169.

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Again, the defendants have presented expert testimony that conservative measures are
appropriate for knee arthritis before moving on to surgery because of the risks and complications
related to knee replacement surgery. Given this, and considering Dr. Buller’s detailed responses
to the requests he received, there is no evidence to allow a reasonable jury to conclude that Dr.
Buller was deliberately indifferent to Mr. Gilman’s condition. He is therefore entitled to summary
judgment.
D. Nurses Wright, Riggs, and Hobson
Nurses Wright, Riggs, and Hobson seek summary judgment arguing that they did not have
the authority to prescribe medications or schedule appointments. They conclude therefore that they
could not have been deliberately indifferent to Mr. Gilman’s pain or need for treatment for his
pain. Mr. Gilman argues, to the contrary, that no inmate is seen without first having some sort of
interaction, whether it be in-person or via correspondence, with a nurse. Dkt. 181-1, ¶ 6. It is only
after a nurse interaction that an inmate is scheduled with a doctor. Id. The interactions that Mr.
Gilman had with each nurse will be discussed in turn.
Nurse Wright
On October 5, 2015, Mr. Gilman filed an informal grievance complaining that he had not
received a cortisone injection following his visit with Dr. Byrd. Dkt. 160-6, ¶ 7; dkt. 160-10, p.
180. Nurse Wright responded that he had received an injection on July 17, 2015, and that injections
are given only every 90 days at the discretion of the provider. Id. She also told him that he would
be seen when Procedure Clinic resumes. Id. This is the only time Nurse Wright was responsible
for responding to a complaint from Mr. Gilman.
Based on these facts, Nurse Wright is entitled to summary judgment on Mr. Gilman’s
claims. When Nurse Wright received Mr. Gilman’s complaint, it had not been three months since

22

his last cortisone injection, and she responded that he would receive one when Procedure Clinic
resumed. Mr. Gilman has presented no evidence to suggest that Nurse Wright failed to respond
appropriately to his complaint or could have done anything further to treat him.
Nurse Riggs
On September 18, 2014, Nurse Riggs noted that Mr. Gilman’s “condition was not
responding to protocols.” Dkt. 181-1, ¶ 39; dkt. 181-2, p. 280. On November 29, 2015, Mr. Gilman
submitted an HCR asking for the results of his x-ray and a cortisone injection. Dkt. 160-4, ¶ 7; dkt.
160-10, p. 105. Nurse Riggs responded that the results of the x-ray would be reviewed at Chronic
Care Clinic. Id. On January 3, 2016, Mr. Gilman submitted another HCR stating that he had not
received his cortisone injection and had experienced arthritis pain since October 2015. Dkt. 16010, p. 119. Nurse Riggs reviewed Mr. Gilman’s records and responded that he was scheduled for
an injection. Dkt. 160-5, ¶ 9; dkt. 160-10, p. 119. On January 7, 2016, Mr. Gilman submitted
another HCR requesting to know when his appointment was for the cortisone injection. Dkt. 16010, p. 122. Nurse Riggs responded that his appointment was set for January 8, 2016. Id. On March
19, 2016, Mr. Gilman submitted an HCR form notifying medical staff that his last cortisone
injection had worn off. Dkt. 160-5, ¶ 10; dkt. 160-10, p. 139. Nurse Riggs reviewed Mr. Gilman’s
medical records and responded that he had been scheduled with the doctor. Id.
In short, every time Nurse Riggs received a request from Mr. Gilman, she considered the
request and his medical records. She noted that he was scheduled to see a doctor who would be
able to provide him with treatment. There is no evidence that she ignored his complaints or
provided an inadequate or inappropriate response to them. Nurse Riggs is therefore entitled to
summary judgment.

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Nurse Hobson
On November 13, 2015, Mr. Gilman filed a formal grievance again complaining that he
had not received his cortisone injection. Dkt. 160-7, ¶ 7; dkt. 160-10, p. 192-93. Nurse Hobson
responded to this grievance on November 18, 2015, and told Mr. Gilman that Dr. Byrd had ordered
an x-ray and that he would be scheduled for an injection sometime in December. Dkt. 160-10, p.
193. This was the only time Nurse Hobson responded to Mr. Gilman’s complaints. Mr. Gilman
has not shown that this response demonstrates deliberate indifference to Mr. Gilman’s serious
medical needs. Nurse Hobson reviewed his complaint and his medical records and determined that
his provider was evaluating his condition. There is no evidence to support a conclusion that she
knew that the treatment Mr. Gilman was receiving was inappropriate, but failed to do anything
about it. She is therefore entitled to summary judgment.
E. QMA Pearison
Part of QMA Pearison’s duties and responsibilities as a medical assistant included
coordinating with the onsite medical provider, in this case Dr. Byrd, to schedule provider
appointments. Dkt. 160-4, ¶ 5. She argues that she is entitled to summary judgment because, in
this role, she was not deliberately indifferent to Mr. Gilman’s medical needs.
QMA Pearison is entitled to summary judgment on Mr. Gilman’s claims. Her job was to
respond to HCRs and schedule appointments with the provider as necessary. Every time Mr.
Gilman submitted an HCR to which QMA Pearison responded, she reviewed Mr. Gilman’s
concerns and his records and consulted with Dr. Byrd. There is no evidence that QMA Pearison
ignored Mr. Gilman’s complaints or knew that the treatment he was receiving was inadequate but
failed to do anything about it.

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F. Corizon
Corizon also seeks summary judgment on Mr. Gilman’s claims.
Because Corizon acts under color of state law by contracting to perform a government
function – providing medical care to correctional facilities – it is treated as a government entity for
purposes of Section 1983 claims. See Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 fn.6
(7th Cir. 2002). This means that, to show that Corizon was deliberately indifferent, Mr. Gilman
must show that he suffered a constitutional deprivation as the result of an express policy or custom
of Corizon. See Thomas v. Cook Cty. Sheriff's Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing
Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658, 690 (1978)). “An official policy or
custom may be established by means of an express policy, a widespread practice which, although
unwritten, is so entrenched and well-known as to carry the force of policy, or through the actions
of an individual who possesses the authority to make final policy decisions on behalf of the
municipality or corporation.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir.
2012) (citing Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011)).
Corizon argues that there is no evidence of a practice or policy that resulted in the
deprivation of Mr. Gilman’s rights. In response, Mr. Gilman has presented testimony from other
inmates stating that Corizon had delayed or denied them treatment for their painful medical
conditions. Mr. Gilman’s assertion of a few other inmates who also allege delays in receiving care
is insufficient to create a question of fact regarding whether Corizon had a widespread practice of
delaying medical care. Cf. Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531
(7th Cir. 2000) (requiring a series of constitutional violations to raise an inference of a policy on
the part of a municipal defendant). Moreover, the undisputed evidence shows that the care Mr.
Gilman received was within the standard of care. Thus, no reasonable jury could conclude that Mr.

25

Gilman suffered from deliberate indifference on the part of any of the individual defendants.
Therefore, Corizon cannot be held liable. See Horton v. Pobjecky, 883 F.3d 941, 954 (2018) (“‘A
municipality cannot be liable under Monell when there is no underlying constitutional violation by
a municipal employee.’”) (quoting Sallenger v. City of Springfield, Ill., 630 F.3d 499, 503 (7th Cir.
2010)).

IV. Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment, dkt. [159], is
granted. Judgment consistent with this Order and the Order of August 10, 2016, (dkt. 8) screening
Mr. Gilman’s complaint pursuant to 28 U.S.C. § 1915A, shall now issue.
IT IS SO ORDERED.

Date: 8/20/2019

Distribution:
JAMES E. GILMAN
110906
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only

All Electronically Registered Counsel

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