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NEVILLE v. TRUE

September 12, 1995

GEORGE D. NEVILLE, Plaintiff,
v.
PAGE TRUE, CYNTHIA ALSTON, M.D., EDWIN LOPEZ, M.D., and UNITED STATES MARSHALS SERVICE, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendants' motion for summary judgment. For the following reasons, the motion is granted.

 I. PROCEDURAL BACKGROUND

 Plaintiff filed the instant Complaint on February 5, 1993. On August 6, 1993, Defendants filed their motion to dismiss Plaintiff's Complaint for lack of jurisdiction. On August 23, 1993, the court converted Defendants' motion to one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants were instructed by the court to file the requisite statements of material facts pursuant to Local Rule 12(M). The court also ordered Plaintiff to file his statement of material facts pursuant to Local Rule 12(N). Defendants filed their statements in a timely fashion; however, Plaintiff failed to file his requisite 12(N) statement. After repeated extensions to Plaintiff, the court granted Defendants' motion for summary judgment on February 11, 1994. Later that month, on February 28, 1994, the court struck its judgment favoring Defendants. However, the docket sheet fails to reflect this order. Instead, the docket sheet reads that the "Court will reconsider order granting summary judgment." (Doc. #35.) This docket entry does not accurately reflect the intention of the court to strike its earlier order. On April 25, 1994, Plaintiff filed his opposition to the motion, but did not file the statement of material facts.

 At this time, the court chooses to consider the merits of Defendants' motion. Since the original judgment was withdrawn, the court uses the standard applicable to a motion for a judgment as a matter of law, pursuant to Rule 56, as opposed to a motion to reconsider pursuant to Rule 60.

 II. FACTS1

 On February 5, 1993, Plaintiff George D. Neville ("Neville"), a pro se plaintiff then residing at the federal Metropolitan Correctional Center *fn2" ("MCC") in Chicago, Illinois, filed a complaint against Page True, the warden of MCC, Dr. Cynthia Alston ("Alston"), the Clinical Director at MCC, Dr. Edwin Lopez ("Lopez"), a Medical Officer at MCC, and the United States Marshals Service ("USMS"). In his complaint, brought purportedly under 42 U.S.C. ยง 1983, Neville alleges that Defendants denied him proper and adequate medical care. Neville seeks monetary damages and injunctive relief.

 Plaintiff was being held at the MCC, awaiting trial for various violations of federal law including conspiracy to sell controlled substances, distribution in excess of one-and-a-half kilograms of "synthetic heroin," obtaining the "synthetic heroin" by misrepresentation, fraud and subterfuge, and employing and coercing a minor to violate drug laws. Neville was confined to the MCC as a pretrial detainee beginning on June 3, 1992.

 At the time of his initial confinement, Neville had a pre-existing heart condition, poor circulation, and problems with his lower extremities. On August 1, 1992, Neville was transferred to a medical facility and treated for his maladies. After five days, Neville was returned to the MCC, where he remained pending sentencing and assignment to another correctional facility.

 Neville alleges that while in pretrial detention at MCC, his legs were "bursting open," causing blood to "rush out of them." Neville further contends that Defendants refused for more than three months to administer treatment for his leg injuries. After the three months, according to Neville, Defendants finally allowed him to receive treatment from a surgeon at Hyde Park Hospital, which helped improve his condition of ill-being. He was treated there on two occasions. However, Neville asserts, Alston failed to provide sufficient "follow-up" medical treatment. Neville also alleges that the marshals would needlessly escort him to a holding cell, purportedly to wait for a physical examination, but would return him to his assigned cell when the appointments never materialized. Neville contends that he experienced physical discomfort and suffering while forced to sit on a steel bench in the holding cells and, on one occasion, fainted due to the "sick feelings." After passing out, Neville was transported to the MCC hospital. Doctor Alston administered oxygen to Neville and bandaged Neville's wrist as part of his treatment.

 Neville also alleges that on another occasion, following a court appearance on August 28, 1992, he reported to Lopez. *fn3" According to Neville, Lopez examined him and told him that nothing could be done for him at MCC. Neville contends that he tried to contact Lopez later that day, but was informed that Lopez was absent. As a result, Neville alleges that had to wait two days for rebandaging of his legs.

 However, the facts show that Lopez examined Neville and explained that his leg injuries were due to a skin breakdown secondary to the decreased blood flow. This decreased flow was caused by the deteriorating condition of Neville's heart. Lopez then offered to refer Neville to a vascular surgeon or cardiologist, but Neville refused in hopes that he could get his own doctor via a court order. Two days after the examination by Lopez, Neville requested medical treatment due to his "bursting" leg veins. An in-person physical examination revealed no active bleeding or significant changes in his legs since the examination by Lopez. Therefore, the medical staff re-bandaged Neville's legs and returned him to his cell.

 Neville also complains that the MCC medical staff continuously failed to provide sufficient and proper medical treatment. However, the MCC records show that the MCC medical staff examined and treated Neville's legs on 19 occasions in the first 105 days he was detained at MCC. Further, the medical staff treated or examined Neville an additional five times for shortness of breath, two times for urinary complaints, three times for dizziness, and numerous undocumented times for blood pressure checks and for other assorted complaints. Neville was prescribed many medications and underwent a great number of tests for various conditions. In addition to the treatment provided by the MCC staff, Neville was transported to and treated by three outside hospitals, namely Northwestern Hospital, Hyde Park Hospital, and Chicago Osteopathic Hospital, at which he was treated at least 16 different times. *fn4" Neville had the opportunity to consult with a member of ...


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