BAILEY v. WEXFORD HEALTH IND. LLC. et al

Filing 97

ENTRY ON MEDICAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - For the reasons discussed above, the motion for summary judgment filed by the Medical Defendants, dkt. 74 , is granted in part and denied in part. Summary judgment is granted in favor o f HSA Hobson but denied as to the claims brought against Dr. Byrd, Dr. Mitcheff, and Wexford. No partial final judgment shall issue at this time. The Magistrate Judge is requested to set this matter for a status conference to direct the further devel opment of the claims against Dr. Byrd, Dr. Mitcheff, and Wexford. These claims will be resolved by settlement or trial. The clerk is directed to terminate H.S.A. Kimberly Hobson as a defendant on the docket, as well as defendant Warden Richard Brown. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 2/16/2021. (JRB)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CHRISTOPHER R. BAILEY,
Plaintiff,
v.
WEXFORD HEALTH IND. LLC.,
SAMUEL BYRD,
KIMBERLY HOBSON,
MICHAEL A. MITCHEFF,
RICHARD BROWN,
Defendants.

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No. 2:19-cv-00082-JMS-DLP

ENTRY ON MEDICAL DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
For the reasons explained in this Entry, the medical defendants' motion for summary
judgment, dkt. [74], is granted in part and denied in part.
I. Background
Plaintiff Christopher R. Bailey is a prisoner confined at all relevant times at the Wabash
Valley Correctional Facility (Wabash Valley). He brings this 42 U.S.C. § 1983 civil rights action
against defendants Wexford of Indiana, LLC (Wexford), Samuel Byrd, M.D. (Dr. Byrd), Michael
A. Mitcheff, O.D. (Dr. Mitcheff), and Kimberly Hobson, Health Services Administrator (HSA)
(together the Medical Defendants). He alleges that he injured his right knee and that he experienced
severe pain for months. The treatment prescribed by Dr. Byrd did not relieve his pain and Mr.
Bailey's requests for an MRI and renewed pain medication were denied for months. Dkt. 43 at 3
(Entry Screening Amended Complaint). He complained to HSA Hobson but she failed to take
corrective action. Id. He further alleges that Wexford has a policy or practice of denying adequate
medical treatment, including MRIs, for financial reasons. Id.

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The Medical Defendants seek resolution of the claims against them through summary
judgment. Dkt. [74]. Mr. Bailey responded, dkt. [83-84], and the Medical Defendants replied, dkt.
[87]. The motion is ripe for resolution.
II. Summary Judgment Standard
Summary judgment should be granted "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). "Material facts are those that might affect the outcome of the suit under applicable
substantive law." Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (internal quotation omitted).
"A genuine dispute as to any material fact exists 'if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.'" Daugherty v. Page, 906 F.3d 606, 609-10 (7th
Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views
the facts in the light most favorable to the non-moving party and all reasonable inferences are
drawn in the non-movant's favor. Barbera v. Pearson Educ., 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 and Hosps. Corp., 892
F.3d 887, 893 (7th Cir. 2018).
III. Discussion
A. Undisputed Facts
The following statement of facts was evaluated pursuant to the standards set forth above.
That is, this statement of facts is not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed evidence are presented in the light
reasonably most favorable to Mr. Bailey as the non-moving party with respect to the motion for
summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

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Defendant Dr. Byrd is a physician licensed to practice medicine in the State of Indiana.
During all relevant times, he was employed by Wexford and worked at Wabash Valley. Dkt. 761, ¶¶ 1-2 (Affidavit of Samuel Byrd, M.D.).
Defendant Dr. Mitcheff is a physician licensed to practice medicine in the State of Indiana.
Dkt. 76-2, ¶ 1 (Affidavit of Michael A. Mitcheff, D.O.). Since July 2018, he has been employed
by Wexford as the Regional Medical Director (RMD) for the State of Indiana. Id., ¶ 2. As the
RMD, Dr. Mitcheff rarely has direct patient interaction. Id., ¶ 3. Dr. Mitcheff supervises medical
care provided by site medical directors, responds to questions or issues from a site level or the
Indiana Department of Correction (IDOC), and reviews requests for patients to receive off-site
medical care. Id.
Defendant Hobson is a nurse licensed to practice in the State of Indiana. During all relevant
times, she was employed by Wexford as the HSA at Wabash Valley. Dkt. 76-3, ¶¶ 1-2 (Affidavit
of Kim Hobson, HSA). As the HSA, Ms. Hobson's job duties and responsibilities were primarily
administrative in nature, and she rarely was involved in direct patient contact or care. Id., ¶ 3. Ms.
Hobson oversaw the provision of medical services at the facility, ensured compliance with IDOC
Health Services Directives, served as a liaison between IDOC and medical staff, and also
responded to requests for information and grievances on behalf of the medical department. Id.
On August 13, 2018, Mr. Bailey injured his right knee while lifting weights with his legs
in the gym. Dkt. 76-4 at 27 (Mr. Bailey's Deposition). When his leg came down, it "went numb."
Id. He could not put any pressure on it. Id. He had to ask for a wheelchair because he could not
stand up. Id. That day, he was put on a lower range assignment and was given a low bunk. Id. at
29.

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Mr. Bailey was taken to medical where he saw Dr. Byrd. Id. at 28. According to Dr. Byrd's
treatment notes, Mr. Bailey said that he was performing knee extensions on a weight machine
when he suddenly developed right lateral knee pain and was unable to straighten his leg. Dkt. 765 at 29; dkt. 76-1, ¶ 4. Mr. Bailey described his pain as "aching to throbbing" when just sitting in
the wheelchair "but sharp with palpation of the knee or attempts to straighten knee completely."
Dkt. 76-5 at 29. The "[o]nly alleviating factor at this point is sitting with knee at roughly 75
degrees." Id.
Dr. Byrd assessed Mr. Bailey's knee, having him perform a number of movements as well
as palpating the area and testing his range of motion. Dr. Byrd also performed a McMurray's test
which is used to determine if there may be a fracture, a torn muscle, or potential torn cartilage,
versus simply a sprain or strain. Dkt. 76-1, ¶ 4. After Dr. Byrd's initial assessment, he was not able
to definitively determine the extent of the injury. Id. He ordered an x-ray of the knee and provided
a steroid Prednisone pack and a compression knee sleeve. Id.; dkt. 76-5 at 31.
Two days later, on August 15, 2018, Mr. Bailey filed a request for health care, reporting
that his pain was still a 10/10 and wanting to know the results of the x-ray. Dkt. 2-1 at 2. On August
19, 2018, Mr. Bailey submitted another request for health care, stating that the pain in his knee
was still bad, that the x-ray did not show anything, and asking for an MRI to see if anything in the
knee was torn. Dkt. 2-1 at 3. Mr. Bailey was scheduled to see the doctor. Id.
Dr. Byrd saw Mr. Bailey on August 22, 2018. Dkt. 76-5 at 22. Dr. Byrd noted that the xray he ordered was negative. Id. Mr. Bailey continued to report significant pain and no relief from
the Prednisone tablets. Id; dkt. 76-1, ¶ 5. Dr. Byrd ordered Mobic and Tylenol for pain relief and
provided a cortisone injection of the knee. Dkt. 76-5 at 23, 28; dkt. 76-1, ¶ 5. The goal of the
cortisone injection was to provide pain relief and hopefully promote increased healing of the

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affected area. Dkt. 76-1, ¶ 5.
On August 24, 2018, Mr. Bailey submitted a request for health care directed to Dr. Byrd
informing him that his pain had not gotten any better, the injection had not helped, and he could
still not straighten his knee all the way. Dkt. 2-1 at 4. He asked to be sent to the hospital for an
MRI. Id. He was scheduled to see Dr. Byrd. Id.
Dr. Byrd saw Mr. Bailey on September 5, 2018, a little more than three weeks after the
injury. Dkt. 76-5 at 25-27. Mr. Bailey continued to describe his pain as "aching to throbbing" when
just sitting in the wheelchair "but sharp with palpation of the knee or attempts to straighten knee
completely." Id. Dr. Byrd noted that the x-ray was negative for signs of any fracture and showed
no effusion (fluid on the knee) and that the steroid injection and prednisone were ineffective. Dkt.
76-1, ¶ 6. Effusion would indicate a torn ligament. Id. There was no bruising or swelling of the
knee upon visual inspection. Id. Dr. Byrd testified in his affidavit that he attempted to perform
another McMurray test to determine the presence of a cartilage tear, but he could not complete the
test due to Mr. Bailey's pain. Id. The medical record states, however, "McMurray's positive
subjectively. It was difficult to even perform McMurray testing due to pain." Dkt. 76-5 at 26. Dr.
Byrd noted some decreased passive range of motion to the right knee but nothing that was
convincing regarding the potential for a torn ligament. Id. As such, Dr. Byrd's assessment remained
knee joint pain. Id. He prescribed Acetaminophen 500 mgs and Mobic 15 mgs. Dkt. 76-1, ¶ 6. He
submitted paperwork to have a "collegial discussion" with Dr. Mitcheff, the RMD, about Mr.
Bailey's case to determine if a form of physical therapy was warranted. Id.; dkt. 76-2, ¶ 4; dkt. 765 at 27.
On September 11, 2018, Mr. Bailey submitted a request for health care reporting that he
had been on crutches for four weeks and his knee was not any better. Dkt. 2-1 at 5. He asked again

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to be sent to the hospital for an MRI. Id. He submitted another heath care request on September
18, 2018, after being on crutches for five weeks. Dkt. 2-1 at 6. Mr. Bailey asked to be sent to the
hospital for an MRI. Id. The response dated September 19, 2018, stated, "Request for PT eval
sent." Id.
Dr. Byrd and Dr. Mitcheff had a collegial discussion about Mr. Bailey's treatment options
on or around September 21, 2018. Dkt. 76-2, ¶ 4. Dr. Mitcheff was aware that a recent x-ray was
negative for any fractures and did not note any effusion. Id. At that point, Dr. Mitcheff
recommended to Dr. Byrd that Mr. Bailey receive a home exercise plan that focused upon
improving knee range of motion. It was his belief that ongoing conservative care was appropriate
at that point, as it had only been a few weeks since the date of injury. Id.
On September 24, 2018, Mr. Bailey submitted a request for interview to Dr. Byrd, stating
that he had been on crutches for six weeks, was not getting better, and he wanted to be sent to the
hospital for an MRI because he wanted to get better. Id. at 7. On September 25, 2018, Mr. Bailey
submitted a request for interview to Kimberly Hobson, stating that he had an injury to his knee
and that Dr. Byrd said because there was no swelling "they won't let me go" to an outside hospital
to get an MRI. Id. at 8. Mr. Bailey further stated that "[t]here is a serious problem with my knee."
Id. A response dated October 9, 2018, stated, "Please see previous form." Id.
Dr. Byrd saw Mr. Bailey that same day, on September 25, 2018. Dr. Byrd had discussed
an "alternative treatment plan" with the RMD, Dr. Mitcheff. Dkt. 76-1, ¶ 7. Dr. Byrd informed Mr.
Bailey that the plan was to have him do six weeks of a home exercise plan (HEP), antiinflammatories, and a knee brace and then reevaluate. Dkt. 76-5 at 19; dkt. 76-1, ¶ 7. Mr. Bailey
continued to complain of significant pain and that "something serious had to have happened." Dkt.
76-5 at 19. Dr. Byrd noted that Mr. Bailey still had difficulty bearing weight on his right foot. Dkt.

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76-1, ¶ 7.
Dr. Byrd noted that a prior x-ray was negative without effusion, thereby ruling out a
fracture, and making a torn ligament less likely, but he decided to re-order the x-ray with further
specificity in an attempt to rule out a potential stress fracture. Id. Dr. Byrd decided to provide
another course of steroids with the hope that it would promote healing. Id. He encouraged Mr.
Bailey not to rely so much on crutches and to use just one (1) crutch. Id. The repeat x-ray was
completed that day, but it revealed no signs of a stress fracture. Id. Dr. Byrd continued the
prescriptions for Mobic and Tylenol and advised Mr. Bailey that unless there was a change on his
x-ray, he would have to do six weeks of the HEP and then they would reevaluate. Id.; dkt. 76-5 at
19-20.
On September 25, 2018, Mr. Bailey also sent a request for interview to Dr. Kuenzli saying
that he had been on crutches for six weeks, there was something seriously wrong with his knee,
and he believed he had a torn ligament, but he had been denied an MRI because there was no
swelling. Dkt. 2-1 at 9. A response stated, "[y]ou have been seen by the MD, you are to do 6 weeks
of HEP exercises and then reevaluated by the MD." Id.
On September 27, 2018, Mr. Bailey submitted a request for health care asking for the xray results. Dkt. 2-1 at 13. The response dated September 29, 2018, stated that the "x-ray was
negative." Id.
On September 28, 2018, Mr. Bailey submitted another request for health care stating that
his knee was "still in bad shape," he had been taking the medicine and doing the leg exercises, but
he could still not put pressure on his whole foot. Dkt. 2-1 at 15. He again asked to be sent out for
an MRI to determine if he had torn a muscle in his knee. Id. The response on September 30, 2018,
was "MD ordered you to complete HEP X 6 weeks as ordered & to get off crutches per treatment

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schedule." Id.
On October 17, 2018, Mr. Bailey submitted a request for health care informing Dr. Byrd
that he had been trying to do the workouts but he could not stand up on his own due to the pain in
his leg and he still could not walk on his right leg. Dkt. 2-1 at 21. He requested an MRI because
there was "something seriously wrong" with his knee. Id. The October 19, 2018, response was
that "[o]rders were exercises X 6 wks, anti-inflammatories, knee brace X 6 wks, & then it will be
reevaluated. It has only been 3 ½ weeks approx." Id.
On October 23, 2018, Mr. Bailey submitted a formal grievance asserting that he had filed
three informal grievances on October 7, 2018, complaining that he had told medical that he cannot
perform the prescribed workouts because he cannot put pressure on his foot, he had been using
crutches for 10 weeks, was in serious pain and it hadn't gotten any better, and he had asked to be
sent to a hospital for an MRI, but been denied. Dkt. 2-1 at 26. On November 9, 2018, Mr. Bailey
sent a letter to Warden Brown informing him that he had a knee injury and had been waiting to be
sent to the hospital for an MRI and although he had been very patient, he is "really hurt" and asking
for the Warden's help. Id. at 1. A handwritten response indicated that because Mr. Bailey had
already filed informal complaints and a grievance, "no further response [was] necessary at this
time." Id.
Ms. Hobson was contacted by IDOC grievance specialist Tom Wellington regarding Mr.
Bailey's October 23, 2018, grievance. Dkt. 76-3, ¶ 4 (Hobson Affidavit); dkt. 76-6 at 1, 3. After
receiving this grievance, Ms. Hobson reviewed Mr. Bailey's medical records and summarized the
treatment he had received, dating back to the initial date of the injury on August 3, 2018. Dkt. 763, ¶ 5; dkt. 76-6 at 3. Ms. Hobson reported that Mr. Bailey had been seen by Dr. Byrd, received
an x-ray that revealed no abnormality, and received an injection in the knee. Id. She further

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reported that Dr. Byrd had requested physical therapy, but the RMD's recommendation was to
provide a home exercise program and conservative onsite treatment. Id. She noted that on
September 25, 2018, another x-ray revealed no abnormality, prednisone was ordered, and Mr.
Bailey was encouraged to use the knee sleeve and crutches and continue on Tylenol. Id. She also
noted that only Dr. Byrd could determine if an MRI was appropriate at the time of the grievance
and he had not requested an MRI. Id. She stated, "your care has been appropriate." Dkt. 76-6 at 3.
Mr. Wellington used this information to deny Mr. Bailey's grievance on November 16, 2018. Dkt.
2-1 at 30; dkt. 76-3, ¶ 6; dkt. 76-6 at 4.
Mr. Bailey testified in his deposition that he tried to do the home exercises for about three
weeks, but because it hurt to put pressure on his foot and he couldn't straighten his knee, he could
not do them. Dkt. 76-4 at 38-39. He further testified that the exercises did not benefit him at all.
Id. at 39.
On November 4, 2018, Mr. Bailey submitted a health care request, stating that he had been
on crutches for three months, was still in pain, had tried to do the exercises but his knee gave out
every time he tried, and he really needed to have an MRI. Dkt. 2-1 at 27. He further stated, "I have
been patient and doing what you asked and it is not working." Id. The November 6 response
indicated that Mr. Bailey had right knee pain with pressure, he felt pain when pressing his toes
upward, and Dr. Byrd would be notified. Id.
Mr. Bailey next filed a request for health care on November 9, 2018. Dkt. 2-1 at 28. He
reported that he was told that day that Dr. Byrd said he would not be sent out for an MRI. Id. Mr.
Bailey said that he was seriously injured and was asking again to be sent out for an MRI. Id. Mr.
Bailey was referred to the doctor. Id. On November 19, 2018, Mr. Bailey submitted a request for
health care asking for a refill of Acetaminophen and Meloxicam, but the response was that there

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was no order for those medications. Dkt. 2-1 at 29.
Mr. Bailey next saw Dr. Byrd on November 20, 2018. Dkt. 76-1, ¶ 8; dkt. 76-5 at 16. Dr.
Bailey noted that the injury had occurred more than eight (8) weeks ago and that Mr. Bailey could
still not bear weight on his right leg. Dkt. 76-5 at 16. 1 Mr. Bailey continued to complain of
significant pain and that "something serious had to have happened." Id. Dr. Byrd noted that at the
last visit, they had prescribed a six (6) week alternative treatment plan consisting of home
exercises, anti-inflammatories, and a knee brace. Id. He also noted that the repeat x-ray was
negative, the steroid injection was ineffective, and prednisone was ineffective. Id.
Dr. Byrd noted that Mr. Bailey's range of motion of the right knee was "slightly improved"
but that he had lost some range of motion "to flexion and extension of the knee." Id.; dkt. 76-1, ¶
8. Mr. Bailey was walking with a cane as opposed to crutches. Id. Mr. Bailey had to walk on his
tippy toes when he used the cane because it hurt to put pressure on his right foot. Dkt. 76-4 at 43.
At this point Dr. Byrd believed his condition was consistent with patellar tendonitis. Dkt. 76-5 at
18; dkt. 76-1, ¶ 8.
Dr. Byrd testified in his affidavit that he was encouraged by "the improved condition," but
symptoms still remained. Dkt. 76-1, ¶ 8. Dr. Bailey prescribed a home exercise plan specific to
treatment of patellar tendonitis and advised him he should do these exercises as he was able, up to
two (2) times per day. Dkt. 76-1, ¶ 8; dkt. 76-5 at 18. Dr. Byrd also ordered another steroid packet.
Id.
Mr. Bailey did not see Dr. Byrd again until about two months later, on January 15, 2019.
Dkt. 76-1, ¶ 9. Dr. Byrd's chart reflects that the injury "occurred more than three months now,"
dkt. 76-5 at 13, which was accurate, but it was in fact more than five (5) months after the injury

1

The injury had actually occurred more than fourteen (14) weeks earlier. The eight (8) week mark was
October 8, 2018.

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occurred. Mr. Bailey was still complaining of significant pain. Dkt. 76-1, ¶ 9; dkt. 76-5 at 13.
Dr. Byrd's chart notes were essentially the same as the November appointment, with the
exception that in January, Dr. Byrd noted that Mr. Bailey was able to bear weight but only "with
significant pain." Dkt. 76-5 at 13. He further noted that Mr. Bailey had not been on any medications
and Mr. Bailey requested pain medication. Dkt. 76-1, ¶ 9. Dr. Byrd prescribed Cymbalta, which is
an FDA approved medication for treatment of chronic pain. Id. He believed it was appropriate for
a patient who was suffering symptoms consistent with patellar tendonitis given the failure with
Mobic. Dkt. 76-5 at 15; dkt. 76-1, ¶ 9. Dr. Byrd continued to note "slightly improved" range of
motion, but Mr. Bailey had lost some range of motion in his flexion and extension of his knee.
Dkt. 76-5 at 13; dkt. 76-1, ¶ 9. Dr. Byrd again noted that the repeat x-ray was negative, the steroid
injection was ineffective, and prednisone was ineffective. Id. Dr. Byrd advised Mr. Bailey to
continue his home exercise plan with the goal that it would continue to promote ongoing healing.
Dkt. 76-1, ¶ 9.
Two months later, on March 12, 2019, Dr. Byrd saw Mr. Bailey again. Dkt. 76-1, ¶ 10; dkt.
76-5 at 10. Mr. Bailey was unable to tolerate Cymbalta for pain due to severe nausea. Id. They
discussed his condition and his home exercise plan and Mr. Bailey reported the ongoing impact on
his activities of daily living due to his pain. Id. He was unable to go to recreation, had to use a cane
all the time, and walked with an obvious limp. Id. He had lost his job as a sanitation worker at the
prison. Dkt. 76-5 at 10. A custody officer who was present confirmed these statements. Id.; dkt.
76-1, ¶ 10. Dr. Byrd performed another McMurray test, which was more clearly positive this time,
and given Mr. Bailey's symptoms, led him to believe there may be a tear of the medial meniscus.
Id. Dr. Byrd noted that Mr. Bailey had failed all conservative measures. Id. He submitted a request
for Mr. Bailey to receive an MRI to determine if there may be a torn ligament or meniscus in the

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knee. Dkt. 76-1, ¶ 10; dkt. 76-5 at 12.
On or about March 29, 2019, Dr. Byrd submitted a request to Dr. Mitcheff for Mr. Bailey
to receive an MRI of his knee. Dkt. 76-2, ¶ 5. Dr. Byrd indicated in the medical records that Mr.
Bailey had ongoing right knee pain, performed several weeks of home exercises, and had been
treated with anti-inflammatories and a knee brace, but continued to have pain. Id. Dr. Byrd had
also ordered a repeat x-ray that did not have any significant findings. Id. After review of these
records and discussion with Dr. Byrd, Dr. Mitcheff approved Mr. Bailey to receive an MRI of his
right knee. Id.
On April 8, 2019, Mr. Bailey received an MRI of his right knee that showed a possible
radial tear of the medial meniscus with an oblique tear of the anterior horn of the lateral meniscus
and small joint effusion. Dkt. 76-1, ¶ 11; dkt. 76-5 at 7, 38. Dr. Byrd followed up with Mr. Bailey
on April 12, 2019, to discuss the findings of the MRI. Given the findings of a confirmed oblique
tear of the meniscus, Dr. Byrd submitted a request for Mr. Bailey to be referred to see an orthopedic
specialist because those types of tears generally require surgery if conservative measures fail. Dkt.
76-1, ¶ 12; dkt. 76-5 at 7. After asking for some additional information, and after Dr. Byrd
indicated that Mr. Bailey had been non-weight bearing for a period of about three (3) months, on
April 29, 2019, Dr. Mitcheff approved the request to be seen by an orthopedic specialist. Dkt. 762, ¶ 6.
On May 6, 2019, Mr. Bailey saw orthopedic specialist Dr. Kurt Madsen, who determined
that Mr. Bailey needed a right knee arthroscopy. Dkt. 76-1, ¶ 13; dkt. 76-5 at 39. Dr. Byrd
submitted a request for right knee arthroscopy and continued the prescriptions for Tylenol and
Mobic for pain. Dkt. 76-1, ¶ 14; dkt. 76-5 at 5-6. Dr. Mitcheff approved the request for the
arthroscopy. Dkt. 76-2, ¶ 7.

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Dr. Madsen performed the right knee arthroscopy on May 22, 2019. Dkt. 76-1, ¶ 15; dkt.
76-5 at 1-4. Afterward Mr. Bailey returned to the facility and was admitted to the institutional
infirmary for follow up care. Id. He was given a prescription of Tramadol for pain and continued
to have prescriptions for Tylenol and Mobic. Id.
Dr. Mitcheff approved follow up appointments with the surgeon and recommended in July
2019 that the nurse on-site educate Mr. Bailey regarding gait training with a recommendation that
a cane only be used short term, to help promote increased mobility following surgery. Dkt. 76-2,
¶ 7.
Mr. Bailey had follow-up appointments with Dr. Madsen on June 5, 2019, July 15, 2019,
and August 12, 2019. Dkt. 76-1, ¶ 17; dkt. 76-5 at 40-42. Following the last visit, he was referred
for physical therapy and recommended to receive a hinged knee brace, and both were ordered. Id.
After the surgery, Mr. Bailey used a cane for months and he still has some pain, but he is able to
walk on it and has returned to a job requiring that he be on his feet. Dkt. 76-4 at 56-58.
Dr. Mitcheff never physically examined Mr. Bailey nor had any face-to-face interactions
with him. Dkt. 76-2, ¶ 8. Dr. Mitcheff's only involvement with Mr. Bailey's care was as the RMD
and was based upon his review of the medical records and conversations with Dr. Byrd. Id.
It is Dr. Mitcheff's opinion that there was not any improper or significant delay in Mr.
Bailey receiving medical care. Id., ¶ 10. It is his opinion that consistent with the applicable
community standard of care, Mr. Bailey was given a thorough course of conservative measures
which included pain medications, injections, assistive devices, and home exercises. Id. Once
conservative measures failed, additional measures were ordered and approved. Id. Dr. Mitcheff
believes the care and treatment was timely, thorough, appropriate, and consistent with the
community standard of care. Id., ¶ 12.

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As a nurse, Ms. Hobson does not have the legal authority to diagnose a patient or order
specific medical treatment. Dkt. 76-3, ¶ 9. In the case of Mr. Bailey, she did not have the authority
to order an MRI or order that he be sent to an off-site hospital. Id. Ms. Hobson was carbon copied
on a few e-mails regarding requests submitted by Dr. Byrd for Mr. Bailey to receive physical
therapy, as well as an MRI and his surgical referral in 2019. Id. However, Ms. Hobson was not
consulted regarding whether these actions were necessary, nor did she have the authority to
approve or deny these requests. Id.
Mr. Bailey believed that Ms. Hobson was Dr. Byrd's "boss," and that she needed to approve
his being sent to the hospital. Dkt. 76-4 at 17-18. He also assumed that because she was the HSA
she had the authority to send him to the hospital. Id. at 18.
B. Analysis
Mr. Bailey was a convicted prisoner at all relevant times. This means that the Eighth
Amendment applies to his deliberate indifference claims. Estate of Clark v. Walker, 865 F.3d 544,
546, n.1 (7th Cir. 2017) ("the Eighth Amendment applies to convicted prisoners"). To prevail on
an Eighth Amendment deliberate indifference claim, a plaintiff must demonstrate two elements:
(1) he suffered from an objectively serious medical condition; and (2) the defendant knew about
the plaintiff's condition and the substantial risk of harm it posed but disregarded that risk. Farmer
v. Brennan, 511 U.S. 825, 837 (1994); Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 964
(7th Cir. 2019); Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016); Pittman ex rel. Hamilton v.
Cty. of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014); Arnett v. Webster, 658 F.3d 742, 750-51
(7th Cir. 2011). "[A]n inmate is not entitled to demand specific care and is not entitled to the best
care possible…." Arnett, 658 F.3d at 754. Rather, inmates are entitled to "reasonable measures to
meet a substantial risk of serious harm." Id.

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"A medical condition is objectively serious if a physician has diagnosed it as requiring
treatment, or the need for treatment would be obvious to a layperson." Pyles v. Fahim, 771 F.3d
403, 409 (7th Cir. 2014). The "subjective standard requires more than negligence and it approaches
intentional wrongdoing." Holloway v. Del. Cty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). The
Court finds that there is no genuine issue of material fact as to whether Mr. Bailey's knee injury
presented a serious medical condition. The dispositive issue is whether the defendants knew about
Mr. Bailey's severe knee pain but disregarded that pain.
1.

Claim Against Dr. Byrd

Mr. Bailey is suing Dr. Byrd because Dr. Byrd's prescribed medications did not relieve his
severe pain, trying to do exercises was painful, and for months despite his many requests, Dr. Byrd
failed to refer him for an MRI or to see an outside specialist. Dkt. 76-4 at 14-17.
Mr. Bailey argues that the conservative treatment approach was extended far too long,
causing him nine (9) moths of unnecessary and significant pain, and that he should have been
provided an outside consultation and MRI immediately after he was injured. He contends that
requiring him to try to do two rounds of home exercises knowing that they caused more pain also
constituted deliberate indifference to his pain. Dr. Byrd responds that there was some initial
improvement with the home exercise plan and that he then prescribed more specifically tailored
exercises, but when it was clear that Mr. Bailey's condition had plateaued and was no longer
improving and pain persisted, he ordered the MRI.
The Seventh Circuit has held that a prisoner may show deliberate indifference by showing
that a medical provider persisted "in a course of treatment known to be ineffective." Petties, 836
F.3d at 729-730. Deliberate indifference may also be shown by "an inexplicable delay in treatment
which serves no penological interest." Id. (citing cases); see also Howell v. Wexford Health

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Sources, Inc., No. 19-3210, _ F.3d _, 2021 WL 405006, at *3 (7th Cir. Feb. 5, 2021) ("Denying or
delaying appropriate treatment to an incarcerated person suffering from avoidable pain can violate
the Eighth Amendment."); Miller v. Campanella, 794 F. 3d 878, 880 (7th Cir. 2015); Perez v.
Fenoglio, 792 F.3d 768, 777–78 (7th Cir. 2015) ("A delay in treatment may show deliberate
indifference if it exacerbated the inmate's injury or unnecessarily prolonged his pain."); Gomez v.
Randall, 680 F.3d 859, 865-66 (7th Cir. 2012) (same); Arnett, 658 F.3d at 752 (same). "In some
cases, even brief, unexplained delays in treatment may constitute deliberate indifference."
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)).
"To show that a delay in providing treatment is actionable under the Eighth Amendment,
a plaintiff must also provide independent evidence that the delay exacerbated the injury or
unnecessarily prolonged pain." Petties, 836 F.3d at 730-31. "Most importantly, the plaintiff must
show that the defendant's actions or inaction caused the delay in his treatment." Walker, 940 F.3d
at 964. "The receipt of some medical care does not automatically defeat a claim of deliberate
indifference." Perez, 792 F.3d at 777 (internal quotation omitted).
Here, the record is undisputed that the "alternative treatment plan" prescribed by Dr. Byrd
consisting of a compression knee sleeve, an anti-inflammatory (Mobic) and Tylenol, and exercises,
was ineffective in reducing Mr. Bailey's pain or improving his ability to walk on his right leg. As
of October 17, 2018, Dr. Byrd was aware that Mr. Bailey could not perform the exercises due to
pain. He also knew that the anti-inflammatories were not reducing Mr. Bailey's severe pain. The
six (6) week conservative treatment plan began on September 25, 2018, and thus should have
ended November 6, 2018. And yet, on November 9, 2018, Dr. Byrd told Mr. Bailey that he would
not be sent out for an MRI.

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On or about November 20, 2018, it was Dr. Byrd's opinion that Mr. Bailey's condition had
"slightly improved" with physical therapy. Dr. Byrd explains that because of that improvement a
second home exercise plan was issued specific to his then diagnosis of patellar tendonitis. This
opinion appears to have been based solely on a slightly improved range of motion of the right knee
even though Dr. Byrd also noted some loss of range of motion to flexion and extension of the knee.
At this time, Mr. Bailey's pain had not improved, and he still could not put weight on his right foot.
Dr. Byrd was not required to base his treatment decisions on Mr. Bailey's statements that
he believed a muscle was torn and needed an MRI. Mr. Bailey is not a physician nor is he otherwise
qualified to diagnose his injury. Dr. Byrd was required, however, to take into account the amount
of pain that Mr. Bailey reported and the fact that his conservative treatment measures were
ineffective across the board. At no time did Mr. Bailey report that any treatment alleviated his
severe pain or allowed him to put weight on his right foot.
"Deliberate indifference may occur where a prison official, having knowledge of a
significant risk to inmate health or safety, administers blatantly inappropriate medical treatment, …
or delays a prisoner's treatment for non-medical reasons, thereby exacerbating his pain and
suffering." Perez, 792 F.3d at 777 (internal citations omitted). It is Dr. Byrd's opinion that in cases
like those presented by Mr. Bailey, the community standard of care will often require that a patient
complete conservative measures, including medications, injections, and physical therapy. Dkt. 761, ¶ 19. But, for how long?
Mr. Bailey has presented pages from a medical treatise that discuss the "essentials of
diagnosis" with respect to meniscus injuries. Dkt. 84-1 at 4. 2 The treatise states that a "patient

2

For purposes of summary judgment, the Court accepts the passages Mr. Bailey has presented
from medical texts as statements from a learned treatise that may be admitted under Federal Rule
of Evidence 803(18). Mr. Bailey has not presented this evidence through an expert witness, but he
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may or may not report an injury, joint line pain and pain with deep squatting are the most sensitive
signs, and difficulty with knee extension suggests an internal derangement that should be evaluated
urgently with MRI." Id. (emphasis added). "Physical findings can include effusion or joint line
tenderness." Id. "Meniscus tears rarely lead to the immediate swelling that is commonly seen with
fractures and ligament tears." Id. "Provocative tests, including the McMurray test, the modified
McMurray test, and the Thessaly test, can be performed to confirm the diagnosis." Id.
"Radiographs are usually normal but may show joint space narrowing, early osteoarthritis changes,
or loose bodies." Id. "MRI of the knee is the best diagnostic tool for meniscal injuries." Id. It was
documented that Mr. Bailey could not straighten his knee all the way on August 24, 2018, and
there is no record that that ever changed before his surgery.
Dr. Byrd demonstrated his knowledge that the McMurray test was a proper means of
confirming a diagnosis of a meniscus tear. He first performed that test on the date of the injury,
but it was inconclusive. He tried to perform the test again about three (3) weeks later on September
5, 2018, and even though he could not complete it because of Mr. Bailey's severe pain, the chart
reflects that it was "positive subjectively." Dr. Byrd ultimately relied on the McMurray test to
diagnose the possible meniscus tear, but he fails to explain why he did not conduct the test again
until six (6) months later, in mid-March 2019. Dr. Byrd knew that Mr. Bailey was in significant
pain this entire time. Again, no prescribed treatment had improved Mr. Bailey's pain or ability to
regain normal knee function.
Dr. Byrd testifies in his affidavit that he did not believe an MRI was required at an earlier

has "point[ed] to evidence that can be put in an admissible form at trial." Marr v. Bank of America,
662 F.3d 963, 966 (7th Cir. 2011). Moreover, the defendants have not challenged the admissibility
of these passages.

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time because the x-rays did not show signs of effusion (as he would expect if there were a torn
ligament). Dkt. 76-1, ¶ 22. For injuries like Mr. Bailey's, however, x-ray results will be normal,
and an MRI is the best diagnostic tool. Dkt. 84-1 at 4.
"While the cost of treatment is a factor in determining what constitutes adequate,
minimum-level care, medical personnel cannot simply resort to an easier course of treatment that
they know is ineffective." Petties, 836 F.3d at 730. “[T]he dangers of delayed responses to medical
requests are readily apparent.” Howell, 2021 WL 405006, at *10. "Prison officials must provide
inmates with medical care that is adequate in light of the severity of the condition and professional
norms." Perez, 792 F.3d 777.
A reasonable jury could find that it was blatantly inappropriate for Dr. Byrd not to perform
another McMurray test in early November 2018 after the first six (6) weeks of exercises failed to
reduce Mr. Bailey's severe pain. A reasonable jury could further conclude that Dr. Byrd persisted
in a course of treatment known to be ineffective; that is, continuing to prescribe the same
conservative treatment for seven months while Mr. Bailey was in severe pain, knowing that x-rays
do not reveal meniscus tears. Given these reasonable possibilities, as to the claim against Dr. Byrd,
summary judgment must be denied.
2.

Claim Against Dr. Mitcheff

Mr. Bailey is suing Dr. Mitcheff because he did not send him to the hospital for treatment
regarding his knee. Dkt. 76-4 at 21. Mr. Bailey argues that Dr. Mitcheff forced him to go through
two (2) rounds of physical therapy knowing that an x-ray would not show a torn meniscus. As the
RMD, Dr. Mitcheff was in a position to approve or deny a physician's request for offsite treatment
and an MRI. As noted above, a reasonable jury could conclude that the failure to order an MRI
sooner caused Mr. Bailey to suffer unnecessary pain for months.

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Dr. Byrd spoke to Dr. Mitcheff on or about September 21, 2018. The medical records
reflected that the McMurray test on September 5, 2018, was "positive subjectively." On September
21, 2018, almost six weeks after the injury, Mr. Bailey could not straighten his knee all the way,
the x-rays were negative, and the cortisone injection, prednisone, and pain medications were
ineffective. It is not surprising that Dr. Mitcheff believes that Mr. Bailey's treatment was timely
and consistent with the community standard of care. The treatise standard of care, however,
indicates that when a patient has difficulty with knee extension, the injury should be evaluated
urgently with an MRI. A reasonable jury could conclude that knowing this history of the symptoms
and treatment, Dr. Mitcheff's recommendation of exercises rather than an MRI was blatantly
inappropriate.
It could be argued that Dr. Byrd did not ask Dr. Mitcheff to approve an MRI until March
29, 2019, but that still does not relieve Dr. Mitcheff of his obligation to prescribe appropriate
diagnostic tools for a painful injury for which numerous treatments had failed. The Court
acknowledges that the "collegial review process" of requiring an off-site physician to approve
referral recommendations by on-site physicians "is not unconstitutional on its face." Howell, 2021
WL 405006, at *1. Nonetheless, a reasonable jury could conclude, based on this record, that Dr.
Mitcheff directly caused the delay in diagnosis and treatment. Therefore, Dr. Mitcheff is not
entitled to summary judgment.
3.

Claim Against Wexford

Although a private entity, Wexford acts under color of state law and therefore may be liable
for violating Mr. Bailey's Eighth Amendment rights under the theory announced in Monell v. Dep't
of Soc. Servs., 436 U.S. 658 (1978). See Walker, 940 F.3d at 966. "Prevailing on such a claim
requires evidence that a Wexford policy, practice, or custom caused" the deliberate indifference.

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Id. "It does not matter if the policy was duly enacted or written down, nor does it matter if the
policy counsels aggressive intervention into a particular matter or a hands-off approach." Glisson
v. Ind. Dep't of Corr., 849 F.3d 372, 379 (7th Cir. 2017).
Mr. Bailey is suing Wexford because he believes that it hires people who don't care and
don't take injuries seriously. Dkt. 76-4 at 26. He also alleges that Wexford has a practice or policy
of failing to provide MRIs for financial reasons. Dkt. 43 at 3; dkt. 45 at 8-9. He alleges that the
"alternative treatment plan" was prescribed solely for the purpose of saving money because it was
the least expensive treatment available.
Mr. Bailey cites to various sections of a Wexford Technical Proposal, which he obtained
in discovery. See dkt. 73. The first sentence of the section on Offsite Specialty Care states,
"Wexford's goal is to help the IDOC to avoid offender transport and offsite security costs." Id. at
89. On that same page, it states, "Wexford will make every effort to minimize offsite clinic trips."
Id.
Recently in Howell, the Seventh Circuit acknowledged that if a reviewing physician had
twice denied an on-site physician's request for outside ACL reconstruction surgery and insisted
instead on physical therapy, "[i[t is not difficult to imagine how such denials might be deemed
evidence of deliberate indifference. Howell says he was in pain, there is little evidence of a viable
program of physical therapy to address his ACL tear, and avoiding surgery was likely to save
money for Wexford and/or the State." Howell, 2021 WL 405006, at *9 (finding, however, no
deliberate indifference on the part of Wexford because, unlike in this case, the denials were
consistent with advice from outside surgeons).
The designated evidence presented by Mr. Bailey could lead a reasonable jury to conclude
that Wexford policies or practices caused Dr. Byrd and Dr. Mitcheff to treat him with deliberate

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indifference. A reasonable jury could also infer that Dr. Byrd's hesitance to request an MRI sooner
was in large part due to his awareness that Wexford had a practice, even if not a written policy, of
only approving MRIs as a last resort, due to the cost. Wexford is not entitled to summary judgment.
4.

Claim Against HSA Hobson

Mr. Bailey is suing Ms. Hobson because she responded to a grievance saying that the
treatment he was receiving was appropriate and because he believed she was Dr. Byrd's boss and
had the authority to send him to the hospital for an MRI but refused to do so. Dkt. 76-4 at 17-18.
The undisputed record, however, reflects that Ms. Hobson was not, in fact, Dr. Byrd's boss, nor
did she have the authority to recommend or approve an MRI or outside consultation. Ms. Hobson
never directed nor interfered with Mr. Bailey's treatment. Her only involvement was to review his
medical records and respond to a grievance on behalf of the medical staff.
There is no evidence that Ms. Hobson knowingly turned a blind eye to any inappropriate
or harmful treatment by Dr. Byrd or other providers. See e.g., Berry v. Peterman, 604 F.3d 435,
443 (7th Cir. 2010) ("Although a medical care system requires nurses to defer to treating
physicians' instructions and orders in most situations, that deference may not be blind or
unthinking, particularly if it is apparent that the physician's order will likely harm the patient.").
As a member of the administrative staff, Ms. Hobson could defer to the medical providers'
judgment as long as she was responsive to Mr. Bailey. Id. at 440 ("As a nonmedical administrator,
Peterman was entitled to defer to the judgment of jail health professionals so long as he did not
ignore [the inmate plaintiff].").
No reasonable jury could find that Ms. Hobson was deliberately indifferent to Mr. Bailey's
knee injury. She is entitled to summary judgment in her favor.
IV. Conclusion

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For the reasons discussed above, the motion for summary judgment filed by the Medical
Defendants, dkt. [74], is granted in part and denied in part. Summary judgment is granted in
favor of HSA Hobson but denied as to the claims brought against Dr. Byrd, Dr. Mitcheff, and
Wexford. No partial final judgment shall issue at this time.
The Magistrate Judge is requested to set this matter for a status conference to direct the
further development of the claims against Dr. Byrd, Dr. Mitcheff, and Wexford. These claims will
be resolved by settlement or trial.
The clerk is directed to terminate H.S.A. Kimberly Hobson as a defendant on the docket,
as well as defendant Warden Richard Brown. See dkt. [94].
IT IS SO ORDERED.

Date: 2/16/2021

Distribution:
CHRISTOPHER R. BAILEY
121747
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
All electronically registered counsel

Magistrate Judge Doris L. Pryor

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