United States District Court, N.D. Illinois, Eastern Division
December 9, 2005.
EDWARD HOLMES, Plaintiff,
DR. KUL SOOD and WEXFORD HEALTH SOURCES, INC., Defendants.
The opinion of the court was delivered by: GERALDINE BROWN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Edward Holmes ("Holmes") brought this action pursuant
to 42 U.S.C. § 1983, alleging that Dr. Kul Sood ("Dr. Sood") and
Wexford Health Sources, Inc. ("Wexford") (collectively,
"Defendants") violated Holmes' civil rights by deliberate
indifference to his medical needs when Holmes was incarcerated at
the Will County Adult Detention Facility ("WCADF"). (Second Am.
Compl. ¶¶ 1, 5-19.) [Dkt 33.] Particularly, Holmes claims that
Defendants' failure to treat his abdominal pain and distention
properly necessitated subsequent surgery and treatment. (Id.)
Holmes also alleges pendent state law claims of intentional
infliction of emotional distress and respondeat superior. (Id.
¶¶ 20-28.) Defendants have moved for summary judgment. [Dkt 66.]
The parties have consented to the jurisdiction of a Magistrate
Judge pursuant to 28 U.S.C. § 636(c). [Dkt 22, 23.] For the
reasons set forth below, Defendants' motion for summary judgment
is granted as to Holmes' intentional infliction of emotional
distress and respondeat superior claims, granted as to Holmes §
1983 claim against Wexford, and denied as to Holmes' § 1983 claim
against Dr. Sood. FACTUAL BACKGROUND*fn1
A. Relationship Between Wexford and Dr. Sood
Wexford contracted with WCADF to provide medical care to the
inmates. (Pl.'s LR Resp. ¶ 2.) In 2001, Wexford employed a full
time nursing staff and a Medical Director/physician at WCADF.
(Defs.' LR Resp. ¶ 3; Pl.'s LR Ex. E at § 2.1.) Dr. Sood was the
Medical Director for WCADF on a contract basis with Wexford,
working approximately 12 hours a week at WCADF. (Pl.'s LR Resp. ¶
3; Defs.' LR Resp. ¶ 5.)
The medical unit at WCADF also had eight or nine registered
nurses who assisted the doctor, administered medication,
responded to inmate requests, and implemented the doctor's
orders. (Pl.'s LR Ex. C, Dr. Kul Sood Dep. Vol. I at 87; Pl.'s LR
Ex. N, Affidavit of Christina Keenan ¶ 3.) The nurses did not
have decision-making authority for the treatment of patients;
rather, the decisions for treatment plans and whether to send
patients for outside medical care were the responsibility of Dr.
Sood. (Keenan Aff. ¶ 3.) In 2001, Dr. Sood had sole
decision-making responsibility for ordering tests for the inmates
at WCADF. (Sood Dep. Vol. I at 76-77.) As the Medical Director,
Dr. Sood had final responsibility for supervising medical and
treatment decisions for the care provided to patients at WCADF,
and was responsible for Holmes' medical care and treatment while
he was detained at WCADF. (Defs.' LR Resp. ¶ 9; Pl.'s LR Ex. O ¶
31.)*fn2 B. Holmes' Health Prior to Incarceration
Prior to his incarceration, Holmes had chronic abdominal
distention, and suffered from chronic abdominal pain and a
chronic orthopedic condition. (Defs.' LR Ex. C, Dr. Saeed
Darbandi Dep. at 52; Defs.' LR Resp. ¶ 10.) On July 28, 2001,
prior to his incarceration, Holmes was seen by Dr. Saeed Darbandi
who found that Holmes had a mildly distended abdomen with some
lower abdominal tenderness, no guarding, no rebound tenderness,
and no masses. (Darbandi Dep. at 31-32.) The finding of no
guarding and rebound tenderness means that the patient did not
require immediate surgery. (Id.)
C. Holmes' Health During Incarceration
Holmes was incarcerated at WCADF from September 13, 2001 to
October 12, 2001. (Pl.'s LR Resp. ¶¶ 1, 6.) During that time,
Holmes suffered from stomach pain, constipation, diarrhea,
nausea, vomiting, and difficulty eating and digesting food.
(Defs.' LR Resp. ¶ 11; Defs.' LR Ex. B, Edward Holmes Dep. at
126-27, 130-32.)*fn3 At the time he was incarcerated, Holmes
told Wexford employees that he had chronic pain, recently had a colostomy
reversed, and his stomach hurt.*fn4 (Pl.'s LR Resp. ¶ 7.) At
that time, Holmes' abdomen was distended and he provided a
history of abdominal distention for years. (Id. ¶ 8; Holmes
Dep. at 91-92.) Holmes also informed the medical staff that he
had a history of colon cancer. (Defs.' LR Resp. ¶ 32.) Holmes did
not actually have colon cancer, but testified that he had
previously been told by a physician that he did. (Id.) Holmes
was taking pain medication, including Vicoprofen and Methadone at
the time he entered WCADF. (Holmes Dep. at 91-92; 98-100.) Dr.
Sood authorized the continuation of Vicoprofen (a narcotic pain
reliever), which had been prescribed by Holmes' outside doctor as
a pain reliever. (Pl.'s LR Resp. ¶ 37; Defs.' LR Ex. F, Dr. Kul
Sood Dep. Vol.II at 38.) Vicoprofen can cause constipation and
abdominal problems. (Sood Dep. Vol. II at 38.) The Vicoprofen was
not prescribed to treat Holmes' abdominal condition. (Id. at
During his detention at WCADF, Holmes was visibly ill. (Defs.'
LR Resp. ¶ 17; Holmes Dep. at 119, 224.) The nurses saw Holmes
every day. (Defs.' LR Resp. ¶ 19; Holmes Dep. at 94-95.) Dr. Sood
personally saw Holmes on several occasions and was regularly
informed of his condition through review of his medical chart and
phone calls from the nursing staff. (Defs.' LR Resp. ¶ 19; Keenan
Aff. ¶ 8; Sood Dep. Vol.II at 40-41.) On September 14, 2001,
Holmes was seen by medical personnel at WCADF, complaining of
chest pain, and the medical staff noted that his abdomen was very
distended with pain of an unknown etiology. (Pl.'s LR Resp. ¶ 38;
Defs.' LR Resp. ¶ 35.) He also complained of chronic hip,
abdominal and intestinal pain, and fistula drainage, as well as a
history of carcinoma with multiple surgeries. (Pl.'s LR Resp. ¶
39; Defs.' LR Resp. ¶ 36.) On the other hand, Holmes reported that he had a good bowel
movement and was passing gas. (Pl.'s LR Resp. ¶ 39.) His abdomen
was reported as distended but he had good bowel sounds. (Id.)
As a result of this examination, Dr. Sood prescribed "continue
present management." (Id. ¶ 40.) Dr. Sood prescribed Clonidine
(a blood pressure medicine) twice daily for Holmes, unrelated to
Holmes' abdominal condition. (Defs.' LR Resp. ¶ 37.)
On September 15, 2001, Dr. Sood was informed of Holmes'
condition and he prescribed Vicoprofen for pain. (Id. ¶ 38.)
On September 16, 2001, Holmes submitted a written inmate health
service request complaining of a fistula in his rectum, which is
a chronic condition, a history of carcinoma, constipation,
vomiting, and bleeding in his rectum. (Pl.'s LR Resp. ¶ 42;
Defs.' LR Resp. ¶¶ 39, 40.) That day, a nurse recorded that
Holmes complained of "constipation for a couple of " (sentence
was not completed), as well as reversal of colostomy. (Defs.' LR
Resp. ¶ 40.) When inmates complain of constipation for a couple
of days, the nurses follow a standard protocol of giving the
inmate milk of magnesia. (Pl.'s LR Resp. ¶ 42.) Dr. Sood reviewed
the September 16, 2001 request for medical care, and Holmes was
given milk of magnesia. (Defs.' LR Resp. ¶ 41.) However, Dr. Sood
testified that if there had been a sudden onset of abdominal
distention, nausea, vomiting, constipation, and low bowel sounds,
he would have sent Holmes to the hospital. (Id. ¶ 77; Sood Dep.
Vol. II at 120-21.)
Dr. Sood conducted a physical examination of Holmes on
September 17, 2001 and noted that his abdomen was "questionable
to evaluate," meaning "hard to evaluate at that time," because of
distention and/or tenderness. (Sood Dep. Vol.II at 57-58, 65-66.)
During the physical examination, Dr. Sood found that Holmes'
abdomen was abnormal, "tender-tense" with diffuse tenderness, and "masses, questionable to evaluate." (Pl.'s LR Resp. ¶ 43; Sood
Dep. Vol.II at 65.) Dr. Sood prescribed Colace (a stool softener)
and Zantac (an antacid) twice a day for thirty days for abdominal
discomfort. (Pl.'s LR Resp. ¶ 44; Defs.' LR Resp. ¶ 45.) Even
though Dr. Sood had difficulty evaluating Holmes' abdomen due to
distention and/or diffuse tenderness, he did not take any other
steps to evaluate Holmes' abdomen. (Defs.' LR Resp. ¶¶ 21, 43;
Sood Dep. Vol.II at 171-72.) Because of Holmes' medical history
and symptoms it was important to evaluate for masses or
enlargements of the intestine. (Id. ¶ 44.) Dr. Sood could have
evaluated Holmes' intestinal tract through diagnostic studies
such as x-rays, obstructive series films, or ultrasound. (Id. ¶
22.) Dr. Himmelman, one of Holmes' experts, believes that after
that examination, Dr. Sood should have sent Holmes to have an
obstructive series of abdominal x-rays and surgical consultation.
(Defs.' LR Ex. E, Robert Himmelman Dep. at 103.) However, Dr.
Himmelman admitted that on September 17, 2001, Holmes apparently
did not have an acute surgical abdomen. (Id. at 105.)
On September 21, 2001, Dr. Sood was informed of Holmes'
condition and he continued the prescription for Vicoprofen.
(Defs.' LR Resp. ¶ 50.) Dr. Sood also reviewed Holmes' medical
records from Silver Cross Hospital and learned that Holmes had a
chronic abdominal condition, including a history of sigmoid
stricture, pancreatitis, a previous colostomy, and
ileus.*fn5 (Id. ¶¶ 46, 47.) Through those records, Dr.
Sood learned that Holmes had been hospitalized in July 2001 with
complaints of abdominal pain and nausea, and that a dilation of
Holmes' colon at that time was successfully treated without
surgical intervention by adjusting his medications, providing
intravenous fluids, enemas and a nasogastric tube. (Id. ¶¶ 48, 92; Pl.'s LR
Ex. M, Holmes' medical records W001004-W001014.)
On September 26, 2001, Nurse Keenan noted that Holmes
complained of abdominal pain, denied constipation, had a normal
bowel movement, and had run out of medication. (Sood Dep. Vol. II
at 77-78.) Dr. Sood physically examined Holmes on September 26,
2001, and his notes document Holmes' complaints of abdominal pain
and distention. (Defs.' LR Resp. ¶ 51.) Dr. Sood testified that
Holmes was not in acute distress, his vital signs were stable,
his abdomen was distended, bowel sounds were active, and there
was no guarding or rebound. (Sood Dep. Vol.II at 79.) At that
time, Dr. Sood prescribed Tylenol 3 for pain. (Defs.' LR Resp. ¶
52; Himmelman Dep. at 84.) Dr. Sood recorded that Holmes' abdomen
was "very hard to evaluate organomegaly."*fn6 (Id.) Dr.
Sood was unable to palpitate Holmes' liver or spleen or any
specific organ or mass in the abdominal cavity. (Pl.'s LR Ex. P,
Dr. John Clark Dep. at 100.) Even though Dr. Sood currently has
no memory of how distended Holmes' abdomen was on September 26,
2001, he testified that his examination that day showed that
Holmes was stable and not in acute distress. (Sood Dep. Vol. II
at 79-81.) However, Dr. Himmelman testified that there is some
"incongruence between what . . . [Dr. Sood] said in his
examination and how he treated [Holmes]," because even though Dr.
Sood noted that Holmes was not in any acute distress, he still
prescribed Tylenol 3 for pain. (Himmelman Dep. at 84-85.)
On September 27, 2001, Dr. Sood was informed about Holmes'
condition and prescribed Vicoprofen and Tylenol 3. (Defs.' LR
Resp. ¶ 54.)
On September 30, 2001, Holmes refused to take Colace (a stool
softener) because it was "making [him] want to vomit." (Pl.'s LR Resp. ¶ 49; Holmes Dep.
In the last couple of weeks that Holmes was incarcerated at
WCADF, Holmes was constipated, his stomach was distended, and he
thought that he was going to die. (Defs.' LR Resp. ¶ 59; Holmes
Dep. at 116-19.) In October 2001, Holmes was emaciated and his
stomach was extremely distended. (Defs.' LR Resp. ¶ 60; Pl.'s LR
Ex. X, Timothy Smith Dep. at 42-45). In his Response to
Defendants' Motion for Summary Judgment, Holmes attached
photographs of his abdomen that were taken on October 15, 2001.
(Pl.'s LR Ex. L, Photographs and Affidavit of Marilyn Holmes ¶¶
6, 7.) Marilyn Holmes,*fn7 Mr. Holmes' wife, took these
photographs at the Silver Cross Hospital and swears that the
photographs are a "fair, accurate and true depiction of Mr.
Holmes on October 14 and 15, 2001 and for at least,
approximately, one week prior to his release from the Will County
Jail." (Id.) Those photographs show that Holmes was grossly
distended, which would have been obvious to any
On October 8, 2001, Holmes was so sick that he could not get up
for the correctional head count and, as a result, was punished by
the correctional staff and given three hours of segregation.
(Defs.' LR Resp. ¶ 58; Holmes Dep. at 109-10.)
Dr. Sood was informed of Holmes' condition throughout October
11 and 12, 2001. (Sood Dep. Vol. II at 108-13.) On October 11, 2001, Holmes submitted an
inmate health service request, complaining of soft bowel
movements, abdominal pains and vomiting, but denying
constipation. (Med. Record No. W001027.) His abdomen was hard and
his bowel sounds were low. (Sood Dep. Vol. II at 86-88.) Medical
progress notes from October 11 show abdominal distention, hard
abdomen, pain, vomiting, missed meals, and soft bowel movements.
(Defs.' LR Resp. ¶ 62.) At 2:00 p.m. on October 11, 2001, Holmes'
bowel sounds were low in all four quadrants and his abdominal
girth was 40 inches. (Id. ¶ 63.) At this time, Holmes was in
abdominal distress. (Id. ¶ 65.) However, Dr. Sood testified
that he was not concerned about the abdominal distress because of
Holmes' history of abdominal surgeries and distress. (Sood Dep.
Vol. II at 93-94.) That evening, Holmes thought he was "impacted"
and complained of abdominal pain, and his bowel sounds were low.
(Id. at 108, 111; Med. Record No. W001028.) Holmes was given a
cup to obtain a stool sample to determine whether there was blood
in his stool, but the test showed no blood. (Pl.'s LR Resp. ¶
52.) At 11:40 p.m., Holmes had diarrhea. (Defs.' LR Resp. ¶ 67.)
In the early morning hours of October 12, 2001, Dr. Sood was
notified that Holmes was complaining of pain, his bowel sounds
were diminished in all four quadrants, and he had diarrhea.
(Id. ¶ 68.) The medical progress notes document that at 11:00
a.m., Holmes told the medical staff that he was throwing up blood
and the medical staff noted that Holmes had one loose watery
stool with no blood in stool, abdominal distention, diminished
bowel sounds in all four quadrants, and an abdominal girth
measuring 42 inches. (Id. ¶ 69; Sood Dep. Vol. II at 118.) At
that time, Dr. Sood prescribed Kaopectate for diarrhea. (Pl.'s LR
Resp. ¶ 53.)
On October 12, 2001, Holmes' abdomen measured 42 inches. (Sood
Dep. Vol. II at 118.) According to Holmes and his wife Marilyn,
that is about 10 inches larger than his normal waist size.
(Holmes Dep. at 83-85; Pl's LR Ex. K, Marilyn Holmes Dep. at
39-41.) Timothy Smith, another inmate at WCADF, testified that Holmes' stomach appeared fairly
normal when he entered WCADF on September 13, 2001, but that
during the next two to three weeks it had started swelling bigger
and bigger each day. (Smith Dep. at 42-45.)
Julie Sterr, a social worker who regularly worked with
detainees at WCADF, intervened with the medical staff on Holmes'
behalf several times in the weeks prior to his release. (Pl.'s LR
Ex. D, Julie Sterr Dep. at 6-7, 10-16, 25-26.) Sterr concluded
that Holmes' condition was life-threatening, with symptoms of a
bowel obstruction requiring treatment. (Id. at 12, 18, 25-26.)
She made multiple requests for Holmes to be provided the
treatment he required. (Id. at 12-18, 25-26.) Defendants admit
that Sterr appeared before Judge Wozack and requested that he
order Holmes' release from jail due to his health condition, even
saying "You got to let him go, they're going to kill him."
(Defs.' LR Resp. ¶ 72; Sterr Dep. at 15-18.) Holmes was released
from custody at approximately 7:45 p.m. on October 12, 2001.
(Defs.' LR Resp. ¶ 74.) Holmes' wife picked him up and took him
directly to Silver Cross Hospital where his doctors had a room
waiting for him. (Id.)
Holmes' expert concluded that Holmes' pain and distention
increased during his detention at WCADF, and upon leaving the
facility he was found to have dilation of his colon. (Defs.' LR
Resp. ¶ 16; Pl.'s LR Ex. G, James L. Franklin Expert Report.)
Because his colon was dilated, it was not functioning properly to
expand and contract in order to expel waste from the body.
(Defs.' LR Resp. ¶ 16.) Colon dilation can be decompressed by
"placing the patient on intravenous fluids, nasogastric
decompression, attempting to withdraw narcotic medications and
correcting any electrolyte imbalance (low potassium)." (Id. ¶
90.) Other conservative methods of treating colon dilation
include use of a rectal tube and small tap water enemas. (Id.)
Decompressing colon dilation can also be achieved with
colonoscopy. (Id. ¶ 91.) However, that procedure is more
invasive, and thus is generally used after conservative measures have failed, but prior
to surgery. (Id.) Dr. Sood did not take any of those steps.
Upon reviewing the photographs taken by Marilyn on October 15,
2001, depicting what she asserts was Holmes' condition for at
least one week prior to his release from WCADF, Dr. Sood
testified that he does not recall Holmes looking like that when
he was at WCADF, and if Holmes had looked like that he would have
referred him to the hospital. (Photographs and Marilyn Aff. ¶¶ 6,
7; Sood Dep. Vol. II at 119-20.) Dr. Sood testified that he did
not order abdominal x-rays or refer Holmes to an outside facility
because of Holmes' chronic abdominal condition, multiple
surgeries, and previous medical record. (Sood Dep. Vol. II at
198, 202.) However, Dr. Sood admitted that a chronic abdominal
condition does not eliminate the possibility of the patient
developing an acute condition, such as a bowel obstruction.
(Id. at 202-03.) Dr. Sood knows that abdominal distention,
pain, constipation, nausea, vomiting, and low bowel sounds are
symptoms of a bowel obstruction, which if left untreated can lead
to death. (Id. at 172-74; Sood Dep. Vol. I at 119.) Defs.' LR
Resp. ¶ 78.) Dr. Sood also testified that based on Holmes'
history of abdominal problems, he would have referred Holmes to
the hospital if Holmes' symptoms would have changed suddenly and
included a sudden onset of abdominal distention, nausea,
vomiting, constipation, and low bowel sounds. (Sood Dep. Vol. II
at 120-21.) From September 13, 2001 to October 12, 2001, Dr. Sood
was informed that Holmes had experienced acute abdominal pain,
abdominal distention, nausea, vomiting, constipation, and low
bowel sounds. (Pl.'s LR Resp. ¶ 6; Defs.' LR Resp. ¶ 79; Keenan
Aff. ¶¶ 6, 8.)
Dr. James Franklin, one of Holmes' expert witnesses, testified
that he does not believe anyone at WCADF intended to injure
Holmes, but that they were trying to treat his symptoms and were trying to provide what they thought was appropriate medical
attention.*fn9 (Defs.' LR Ex. D, Dr. James L. Franklin Dep.
at 59-60.) Dr. Franklin criticized Dr. Sood's treatment of Holmes
as not "particularly appropriate," and stated that the only
correct thing done was the physical examination of Holmes. (Id.
at 60-61, 82, 96-98, 128-32.) Furthermore, Dr. Franklin opined
that when Dr. Sood had difficulty examining Holmes' abdomen
properly by touch (because of the distention), diagnostic
studies, such as an x-ray, were necessary. (Id. at 97, 109,
148-50.) Dr. Franklin testified that although subsequent events
proved that Holmes did not have a mechanical bowel obstruction,
the possibility of obstruction would have been part of Dr.
Franklin's analysis when Holmes presented with increasing
abdominal distention in September and October 2001. (Id. at 99,
149-50.) Dr. Franklin criticized Dr. Sood's failure to refer
Holmes out for a series of x-rays or other diagnostic studies.
(Id. at 97, 132, 149-50.) Instead, Dr. Sood provided Holmes
with "symptomatic" treatment with continued narcotic pain
medications, laxatives, and a stool binding agent. (Id. at 59.)
Dr. Franklin indicated his opinion that those prescriptions were
not the proper medical treatment for Holmes' condition, as it
deteriorated. (Franklin Report.) According to Holmes' experts, he
should have been treated with nasogastric tube suctioning,
intravenous fluids, withdrawal of narcotic medication, small tap
water enemas and/or colonoscopic intervention. (Id.; Pl.'s LR
Ex. I, Ronald Himmelman Expert Report.)*fn10 D. Holmes' Health After Release
Holmes was admitted to Silver Cross Hospital at approximately
8:00 pm. on October 12, 2001, with abdominal distention, but did
not have his first abdominal x-ray until the following day.
(Pl.'s LR Resp. ¶ 19; Defs.' LR Resp. ¶ 93.) Dr. Darbandi saw
Holmes at Silver Cross Hospital on either October 14, 2001 or
October 16, 2001.*fn11 (Darbandi Dep. at 16, 39-40.) When he
first saw Holmes, he did not believe immediate surgery was
necessary, but rather decided to correct Holmes' electrolytes,
repeat the x-ray, and watch him clinically to see if there was
any improvement. (Id. at 40-41.) There was an attempt to reduce
Holmes' colon dilation through conservative measures, including a
colonoscopic intervention. (Defs.' LR Resp. ¶ 94.)
Dr. Darbandi decided to operate on Holmes because of the size
of the colon dilation, the x-ray findings, severe tenderness and
guarding upon examination, and because Holmes was still in a lot
of pain and discomfort with no improvement. (Darbandi Dep. at
41.) Dr. Darbandi testified that based on his symptoms, Holmes
had a high chance of bowel perforation. (Id. at 42.) Dr.
Darbandi performed an exploratory laparotomy and a total
colectomy, removing portions of Holmes' colon and leaving him
with an ileostomy. (Id. at 14, 17, 39-42, 65.) During surgery,
Dr. Darbandi found that Holmes had extensive chronic distention
all the way to the rectum and his colon was dilated approximately
16 to 17 centimeters. (Id. at 62, 64.) Dr. Darbandi testified
that he does not believe that Holmes had a mechanical obstruction
of the bowel in October 2001. (Id. at 42.) Dr. Darbandi also
opined that if Holmes had less dilation when he presented at
Silver Cross Hospital, surgery may have been avoided. (Id. at
65-66.) That is consistent with Dr. Franklin's opinion that early intervention may have prevented the need for surgery. See
After the first surgery, Holmes underwent a second surgery to
remove the ileostomy and restore intestinal continuity. (Franklin
Report; Darbandi Dep. at 44-46.) Subsequently, Holmes experienced
complications from that surgery, specifically an anastomosis
leak. (Darbandi Dep. at 44.) After those complications, Holmes
was taken back to the operating room and ended up having an
ileostomy again. (Id. at 45.) Holmes had additional
complications with sepsis, a wound infection, which resulted in a
long hospital course from which he eventually recovered. (Id.)
The court may properly grant summary judgment "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). A genuine issue of material fact exists
"if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine
issue of material fact exists, the court must construe all facts
and draw all reasonable and justifiable inferences in favor of
the non-moving party. Id. at 255. The moving party bears the
initial burden to demonstrate the absence of a genuine issue of
material fact and that judgment as a matter of law should be
granted in the moving party's favor. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has met the
initial burden, the non-moving party must designate specific
facts showing that there is a genuine issue for trial. Id. at
324. The non-moving party must support its contentions with
admissible evidence and may not rest upon the mere allegations in
the pleadings or conclusory statements in affidavits. Id. See also Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.
1994) (non-moving party is required to present evidence of
"evidentiary quality" (i.e., admissible documents or attested
testimony, such as that found in depositions or in affidavits)
demonstrating the existence of a genuine issue of material fact).
"[N]either `the mere existence of some alleged factual dispute
between the parties' . . . nor the existence of `some
metaphysical doubt as to the material facts,' is sufficient to
defeat a motion for summary judgment." Chiaramonte v. Fashion
Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997) (quoting
Anderson, 477 U.S. at 247 and Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Thus,
"[t]he mere existence of a scintilla of evidence in support of
the [non-moving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for the
[non-moving party]." Anderson, 477 U.S. at 252.
I. Holmes' § 1983 Claims
A. § 1983 claim against Wexford
Defendants argue that Wexford is entitled to summary judgment
on Holmes' § 1983 claim because the allegations against Wexford
appear to be entirely vicarious, and § 1983 does not provide for
vicarious liability. (Defs.' Mot. ¶¶ 6, 8, 10; Defs.' Mem. at 5.)
In his response, Holmes states that he "does not oppose . . .
summary judgment on the separate and independent claim against
Wexford under a Monell theory of liability." (Pl.'s Resp. at
5.) Thus, summary judgment in favor of Wexford on Holmes § 1983
claim is granted.
B. Holmes' § 1983 claim against Dr. Sood Defendants also argue that Dr. Sood is also entitled to summary
judgment on Holmes' § 1983 claim because Holmes is unable to
prove that Dr. Sood acted with deliberate indifference as
required by § 1983. (Defs.' Mot. ¶ 11; Defs.' Mem. at 3-5.)
Prison officials violate the Eighth Amendment's proscription
against cruel and unusual punishment when they display
"deliberate indifference to serious medical needs of prisoners."
Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim of
deliberate indifference to a serious medical need contains both
an objective and a subjective component. Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005). To satisfy the objective
component, a prisoner must demonstrate that his medical condition
is "objectively, `sufficiently serious.'" Farmer v. Brennan,
511 U.S. 825, 834 (1994) (quotation omitted). To satisfy the
subjective component, a prisoner must demonstrate that prison
officials acted with a sufficiently culpable state of mind. Id.
1. Objective element
A serious medical condition is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would perceive the need for a doctor's
attention. Greeno, 414 F.3d at 653. Defendants do not dispute
that Holmes' condition was objectively serious, which the record
demonstrates. First, upon entering WCADF, Holmes informed Wexford
employees that he had chronic abdominal pain and had just had a
colostomy reversed. Second, many lay people recognized Holmes'
need for medical treatment. Holmes testified that one
correctional officer told him, "Your time is running out, you
ain't got too many more days left." (Holmes Dep. at 116-17.)
Holmes testified that Officer Flannagan also called out for help
on his behalf. (Id. at 117-18.) Timothy Smith testified that
Holmes' stomach started swelling bigger and bigger each day. (Smith Dep. at 42.) Finally, Julie Sterr
testified that she was concerned that Holmes' condition was
life-threatening and requested Holmes' release from jail, telling
the judge, "You got to let him go, they're going to kill him."
(Sterr Dep. at 12, 15-18.)
2. Subjective element
The subjective element of deliberate indifference requires that
the official "know of and disregard an excessive risk to
inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference."
Farmer, 511 U.S. at 837. However, a prisoner does not have to
show that the official intended or desired the harm that
transpired. Greeno, 414 F.3d at 653. Whether a prison official
acted with deliberate indifference is a question of fact and "a
factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious."
Farmer, 511 U.S. at 842.
Defendants correctly point out that neither medical malpractice
nor a mere disagreement with a doctor's medical judgment amounts
to deliberate indifference. See Chapman v. Keltner,
241 F.3d 842, 845 (7th Cir. 2001) (neither alleged negligence nor gross
negligence is sufficient); Snipes v. DeTella, 95 F.3d 586, 591
(7th Cir. 1996) (evidence of difference of opinion as to whether
one course of treatment is preferable to another is
insufficient); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.
1996) (the Eighth Amendment is not a vehicle for bringing claims
for medical malpractice); accord Oliver v. Deen, 77 F.3d 156,
159 (7th Cir. 1996). However, in order to prevail on an Eighth
Amendment claim for deliberate indifference, "a prisoner is not
required to show that he was literally ignored by the staff."
Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000). In Greeno, the plaintiff complained to the prison staff of
severe heartburn and occasional vomiting, and informed the prison
staff of a family history of peptic ulcer disease.
414 F.3d at 649. The prison staff treated the plaintiff's symptoms by
prescribing Maalox and noting in his chart that chronic peptic
ulcer and gastro-esophageal reflux disease needed to be ruled
out. Id. However, despite those notations, the prison staff
failed to perform any testing and prescribed Maalox and Tagamet,
which did not help the plaintiff's pain. Id. at 649. The
Seventh Circuit reversed summary judgment in favor of the
defendants, finding that a prisoner is not required to show that
he was literally ignored. Id. at 653-54. The court rejected the
defendants' contention that the plaintiff's claim should fail
because he received some treatment, noting that that argument
"overlooks the possibility that the treatment [the plaintiff] did
receive was `so blatantly inappropriate as to evidence
intentional mistreatment likely to seriously aggravate' his
condition." Id. at 654 (quotation omitted). The Seventh Circuit
found that "a factfinder could infer as much from the medical
defendants' obdurate refusal to alter [the plaintiff's] course of
treatment despite his repeated reports that the medication was
not working and his condition was getting worse." Id.
In Sherrod, the plaintiff presented with pain in his abdomen
and symptoms including right lower quadrant abdominal pain, pain
on palpation, and pain with eating or moving. 223 F.3d at 608.
The defendants acknowledged the risk of appendicitis, which they
documented in his charts, but failed to perform the tests needed
to rule out appendicitis. Id. at 611. Rather, the medical staff
placed the plaintiff on a liquid diet, enemas and pain
medication, which did not ameliorate his condition. Id. The
Seventh Circuit held that summary judgment was not appropriate
because the evidence raised questions of material fact as to
whether the prison medical staff exhibited deliberate
indifference by returning the plaintiff to his cell despite the
appendicitis symptoms. Id. Likewise, in this case, there are facts from which the jury
could infer that Dr. Sood knew that Holmes faced a substantial
risk of serious harm and disregarded that risk by failing to take
reasonable measures. Deliberate indifference is a question of
fact, and if a risk was obvious, the factfinder may conclude that
the defendant knew of a substantial risk. As discussed above, lay
people testified that the risk to Holmes' health was obvious. The
photographs depicted in Pl.'s LR Ex. L show that Holmes was
grossly distended, which would have been obvious to any
layperson. When the photographs of Holmes were shown to him at
his deposition, Dr. Sood testified that he does not remember
Holmes looking like that when he was at WCADF, but he admitted
that if Holmes had looked like that, he would have referred him
to the hospital. (Sood Dep. Vol. II at 119-20.) Also, Dr. Sood
admitted that Holmes' symptoms of abdominal distention, pain,
constipation, nausea, vomiting, and low bowel sounds could have
been caused by an obstruction, and that an obstruction can lead
to death. (Sood Dep. Vol. II at 172-74; Sood Dep. Vol. I at 119.)
Although Dr. Sood testified that he did not refer Holmes to an
outside facility because of his chronic condition and previous
record, Dr. Sood admitted that Holmes' chronic condition did not
preclude the possibility that Holmes was in fact suffering from a
bowel obstruction. (Sood Dep. Vol. II at 198, 202-03.) From all
of the above facts, a reasonable jury could find that Dr. Sood
knew of a substantial risk to Holmes' health.
Defendants argue that the only criticism Holmes' experts have
expressed in their depositions is Dr. Sood's failure to obtain
abdominal x-rays, which, they argue, would at most support a
claim of negligence, not deliberate indifference. (Defs.' Mem. at
4-5; Defs.' Reply at 2.) However, that simply is not true. One of
Dr. Franklin's criticisms of Dr. Sood was that Holmes should have
been referred out for x-rays and other diagnostic studies.
(Franklin Dep. at 97, 109, 132, 148-50.) However, Dr. Franklin also criticized Dr. Sood for treating
Holmes symptomatically, without any attempt to evaluate the cause
of his symptoms. (Id. at 59.) Dr. Franklin opined that although
subsequent events proved that Holmes did not have a mechanical
bowel obstruction, the possibility of an obstruction would have
been part of Dr. Franklin's analysis when Holmes presented with
his symptoms. (Id. at 99, 149-50.) Further, Dr. Franklin
testified that the only thing Dr. Sood did right was to perform a
physical examination on Holmes. (Id. at 60-61, 82.) Dr.
Franklin further indicated his opinion that that the
prescriptions Dr. Sood provided could not reasonably be described
as proper medical treatment. (Franklin Report.) Holmes' experts
opined that Holmes should have been treated with nasogastric tube
suctioning, intravenous fluids, withdrawal of narcotic
medication, small tap water enemas and/or colonoscopic
intervention. (Id.; Himmelman Report.) Dr. Sood did not provide
any of those treatments. Dr. Darbandi testified that surgery may
have been avoided if Holmes had less dilation when he arrived at
Silver Cross Hospital. (Darbandi Dep. at 65-66.) Dr. Franklin
opined that conservative measures may have been successful and
surgery avoided if the problem was detected earlier. (Franklin
Report.) Thus, a reasonable jury could find that Dr. Sood
disregarded the risk to Holmes' health. Based on all of the
above, there is a genuine issue of material fact and summary
judgment is inappropriate.
As the Seventh Circuit observed in Greeno, a prisoner does
not need to show that he was literally ignored. Despite the fact
that Holmes received medical attention and pain medication, a
factfinder could conclude that the treatment Holmes received was
so blatantly inappropriate as to evidence deliberate indifference
likely to seriously aggravate his condition, based on Dr. Sood's
refusal to alter Holmes' course of treatment despite his repeated
reports that the medication was not working and his condition was
getting worse. See Greeno, 414 F.3d at 654. Thus, summary judgment is not appropriate on Holmes' § 1983 claim against Dr.
II. Holmes' intentional infliction of emotional distress
In order to establish a claim for intentional infliction of
emotional distress under Illinois law, a plaintiff must show
that: (1) the defendant's conduct was truly extreme and
outrageous; (2) the defendant knew that there was a high
probability that his or her conduct would cause severe emotional
distress, or intended for his conduct to cause severe emotional
distress; and (3) the conduct in fact caused severe emotional
distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).
Defendants argue that both Wexford and Dr. Sood are entitled to
summary judgment on Holmes' intentional infliction of emotional
distress claim because Holmes provided no evidence: (1) that Dr.
Sood or Wexford did anything that they thought was harmful to
Holmes; (2) that any of the treatment rendered by Dr. Sood was in
any way motivated by an abuse of power; or (3) that Dr. Sood's
conduct rose to the level which is beyond all bounds of decency
or that which cannot be tolerated in a civilized society. (Defs.'
Mem. at 5-7.)
Holmes has not presented facts sufficient to allow a reasonable
jury to find intentional infliction of emotional distress. In
fact, Holmes' response to the motion for summary judgment on this
issue consists of three paragraphs and does not attempt to
demonstrate what evidence would establish the elements of
intentional infliction of emotional distress.
Holmes' own experts both testified that they saw no evidence
that Dr. Sood was intentionally trying to harm Holmes. Holmes
does not offer any evidence to the contrary. Holmes merely
responds that because he was incarcerated, he had no other option
than to rely on Dr. Sood to save his life and that by refusing to provide treatment, Dr. Sood
willfully caused Holmes to suffer excruciating pain and come very
close to death. (Pl.'s Resp. at 14.) Holmes has failed to meet
his burden as he did not designate specific facts showing there
is a genuine issue for trial on his intentional infliction of
emotional distress claim. See Celotex, 477 U.S. at 324.
Holmes argues that all of the facts establishing Dr. Sood's
"deliberate indifference" are sufficient to establish intentional
infliction of emotional distress for Rule 56 purposes. (Pl.'s
Resp. at 15.) However, if that were true, every violation of §
1983 would also be an intentional infliction of emotional
distress claim. Furthermore, Holmes' argument ignores the
elements of a claim of intentional infliction of emotional
distress as established in McGrath. During oral argument,
Holmes' counsel was unable to cite any precedent in which a
failure to act constituted intentional infliction of emotional
Accordingly, Defendants' motion for summary judgment on Holmes'
intentional infliction of emotional distress claim is granted.
III. Holmes' respondeat superior claim against Wexford
There is no respondeat superior liability under § 1983. See
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 (7th Cir.
2002). Because summary judgment is granted on the intentional
infliction of emotional distress claim, there is no underlying
cause of action for Holmes' respondeat superior claim. Therefore,
because there is no proper claim of respondeat superior, summary
judgment in favor of Wexford is granted.
CONCLUSION For the reasons discussed above, Defendants' Motion for Summary
Judgment is granted in part and denied in part. Judgment is
entered in favor of both Defendants on Counts II and III and in
favor of Defendant Wexford Health Services on Count I. Summary
judgment is denied as to Defendant Kul Sood on Count I.
IT IS SO ORDERED.
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