The opinion of the court was delivered by: Harold A. Baker United Stated District Judge
This cause is before the court for consideration of the defendants' motions for summary judgment. [d/e 59, 61].
The plaintiff, Lawrence Willis, brought this action pursuant to 42 U.S.C. §1983 alleging that his constitutional rights were violated by 22 defendants at the Pontiac Correctional Center. The Defendants include Lieutenants Scrogum and Dallas; Correctional Officers Ganieany, Altenbomer, McCormick, Tangman, Baker, Akinson and Rubach; Superintendant M. Melvin; Assistant Wardens Cox and Luster; Illinois Department of Corrections Directors Orr and Walker, Warden Mote; Administrative Review Board Member Melody Ford*fn1 ; Investigator Wilson; Dr. Funk; Dr.Vade and Medical technicians Allen, Williams and Brady.
On January 24, 2005, the court conducted a merit review of the plaintiff's 46 page complaint and found that he had adequately alleged 17 violations of his constitutional rights against the defendants in their individual capacities only. See January 24, 2005 Court Order. There are two motions for summary judgment before the court. However, the motions do not address all of the plaintiff's claims.
The first motion for summary judgment was filed by Defendants Dr. Funk and Dr. Vade. The second motion for summary judgment was filed by Defendants Mote, Cox, Luster, Walker, Orr and Ford. The defendants are challenging the plaintiff's claims that:
1) Dr. Vade was deliberately indifferent to the plaintiff's serious medical condition on August 17, 2003;
2) Defendants Funk, Mote, Luster, Ford, Cox, Orr and Walker violated the Eighth Amendment when they were informed that the plaintiff was beaten by correctional officers on several occasions and needed medical care, but no action was taken;
3) The defendants retaliated against the plaintiff for his grievances and complaints by the use of excessive force, denying meals and tampering with meals; and
4) All of the defendants participated in a conspiracy to cover up the incidents of excessive force and retaliation.
The plaintiff was transferred and had difficulty obtaining his legal document in order to provide a response to the dispositive motions. The plaintiff was given additional time and has now filed responses to the motions.
The following facts are taken from the statement of undisputed facts, the plaintiff's response to the statement of undisputed facts and the exhibits provided by the parties.
The plaintiff's complaints against Dr. Funk pertain to his role as Medical Director. Specifically, the plaintiff alleges that Dr. Funk failed to treat the plaintiff or acknowledge that the plaintiff was denied medical treatment after he was assaulted by prison guards Dr. Funk says he never personally examined the plaintiff. However, Dr. Funk says on December 9, 2002, he received a letter from the plaintiff stating that he had been assaulted by staff and he was denied medical attention by Dr. Funk's staff. Dr. Funk responded the same day with a memorandum to the plaintiff stating that:
[m]edical concerns are to be directed to your cellhouse CMT who will evaluate you for treatment or appropriately refer you. Alternatively, you may send a yellow "Medical Request" form to the healthcare unit. (Def. Memo, Ex. B-2).
Dr. Funk received additional correspondence from the plaintiff on December 11, 2002 , which stated that the CMT's would not stop by the plaintiff's cell. The plaintiff then asked the doctor to submit a medical form on his behalf. Dr. Funk again responded on the same day providing the same information to the plaintiff on how to properly address his claims. The doctor also told the plaintiff that he would forward a copy of the plaintiff's letter to the cellhouse CMT's.
Dr. Funk says the plaintiff's medical records indicate that he was seen by a medical physician on the next day, December 12, 2002. Dr. Bulatovic examined the plaintiff in the health care unit and the plaintiff alleged that he had been assaulted on December 7, 2002. Dr. Bulatovic observed a contusion on the plaintiff's left cheek. He did not observe any other bruises, lumps, abrasions or bite marks. Dr. Bulatovic prescribed Motrin, and concluded that the plaintiff's injuries did not coincide with the plaintiff's claims.
Dr. Funk claims he was not informed of the plaintiff's claims that his medical needs were again ignored after he was assaulted on December 26, 2002. Nonetheless, the doctor states that the medical records indicate that the plaintiff was provided medical treatment on December 27, 2002.
Dr. Vade examined the plaintiff on this occasion. Dr. Vade says the plaintiff's face was swollen, but there was no evidence of bleeding. Dr. Vade ordered x-rays of the plaintiff's facial bones and chest. He prescribed Motrin and warm compress pack and instructed the plaintiff to follow-up with a physician after the X-rays. Dr. Vade says he did not believe the plaintiff's injuries put him in any risk nor did he believe the plaintiff was suffering from a serious medical condition. (Dr. Vade Aff, p. 2). The X-rays later revealed no abnormalities.
Dr. Funk received another letter from the plaintiff on January 13, 2003 asking why he had not receive his medical records dated December 12, 2002 and December 27, 2002. The letter did not contain any allegations that the plaintiff had been denied medical treatment or complaints about the treatment he had received. Dr. Funk responded by telling the plaintiff that he could only obtain copies of medical records from the medical records department.
Dr. Funk says he was never informed of the plaintiff's allegations that he was assaulted and denied medical care on January 15, 2003, but medical records show the plaintiff received medical care on January 16, 2003.
Dr. Funk says on June 16, 2003, the plaintiff alleged that CMT Brady refused to give him treatment when he claimed that a cup of liquid soap was thrown in his eyes. Dr. Funk says complaints against CMTs are handled by the Nursing Director, not the Medical Director. Nursing Director Ms. Ellinger responded to the grievance and spoke to the CMT. The CMT had no recollection of any conversation with the plaintiff about liquid soap. The plaintiff did not request any follow up medical care concerning this incident.
Dr. Vade next saw the plaintiff on August 19, 2003. The plaintiff said he had been assaulted and then threatened to kill himself in order to see a doctor. Dr. Vade observed abrasions on the plaintiff's forehead, both sides of his face and his lower lip. There was no sign of bleeding. The doctor prescribed two Tylenol tablets and prescribed additional tablets if needed for pain. He also placed the plaintiff on suicide watch and ordered x-rays. The x-rays revealed no additional injury to the plaintiff. Dr. Vade says in his medical opinion, he did not consider the plaintiff to be suffering from a serious medical condition on August 19, 2003. Nonetheless, the doctor says he did attend to the plaintiff's complaints and ordered follow-up care.
Dr. Funk says he was never informed of the plaintiff's additional claims that he was assaulted on December 12, 2002, April 30, 2003 or August 17, 2003. Dr. Funk says based on his review of the plaintiff's letters, grievances and medical records, it appears the plaintiff failed to follow the proper protocol on various occasions throughout his incarceration at Pontiac Correctional center. Dr. Funk says in his medical opinion, the plaintiff "was not suffering from a serious medical need" during his incarceration. (Funk Aff., p. 5).
The plaintiff admits that he did not intend to allege that Dr. Funk retaliated against him by harassing him, using excessive force, denying meals, tampering with meals or threatening him. (Plain Resp, p.2, #5)
The plaintiff also clarified in his deposition and his response to the statement of undisputed facts that his Eighth Amendment claim against Defendants Mote, Cox, Luster, Walker, Orr and Ford is based on their failing to protect him from staff brutality. (Plain. Dep., p. 15) (Plain. Resp., p. 3)
The plaintiff says his claims of staff assaults were investigated by the Internal Affairs Department at Pontiac Correctional Center. The plaintiff says Chief Investigator Corey Wilson interviewed him about four times. (Plain. Depo, p. 16) The plaintiff also says his claims were investigated by the Illinois State Police after Wilson informed them of his claims. (Plain. Depo, p. 18). The plaintiff says Wilson did not begin his investigation until after the third staff assault on December 26, 2002. The plaintiff says he was first interviewed by the state police on January 15, 2003.
The plaintiff claims he sent numerous letters to Defendants Walker, Orr and Melody Ford. However, the plaintiff admits he has never personally talked to them about his claims. (Plain. Depo., p. 7, 9, 10) The plaintiff says Defendant Walker has never responded to any of his correspondence. The plaintiff claims Defendant Orr did respond to two of his letters. He has provided a copy of only one response dated July 15, 2003. Orr states that the letter is in response to the plaintiff's complaint to the Governor. "Please be advised that the Illinois State Police are conducting an investigation and appropriate action will be taken based on the conclusion of the investigation. " (Plain Resp, Orr Ltr) The plaintiff says he received responses from Administrative Review Board Chair person Melody Ford to two of his letters. Again, the plaintiff has provided a copy of one response. Ford informed the plaintiff that his grievance has been submitted past the 60 day time frame and would not be addressed.
The plaintiff has also submitted several letters from Defendant Luster. Letters dated December 30, 2002; January 6, 2003; May 5, 2003 and July 8, 2003 indicate that due to the allegations made in a letter from the plaintiff, the letter was forwarded to Internal Affairs for handling. Another letter dated January 22, 2003, states that Defendant Luster received the plaintiff's grievances dated December 7, 12, and 28, 2002 involving staff conduct. Two of the grievances were submitted to the warden, but returned as they were not deemed emergency grievances. The plaintiff was advised that he needed to forward the grievances to his counselor. The third grievances was also not properly submitted and was a not submitted as an ...