The opinion of the court was delivered by: Harold A. Baker United States District Court
Before the court are the defendants, Dr. Stephen Rivera and Dr. Kul Sood's summary judgment motion  and the plaintiff's response .
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). Further, this burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Credibility questions "defeat summary judgment only '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other citations omitted).
Fed. Rule Civ. Pro. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986).
The plaintiff originally brought this lawsuit on September 5, 2000. She filed an amended complaint , brought pursuant to 42 U. S. C. Section 1983 on June 24, 2004. Drs. Rivera and Sood, filed their respect answers and affirmative defenses [110 and 111] to the amended complaint. The State of Illinois defendants' summary judgment motions [70 and 71] were granted on February 24, 2006.
Caldwell, pro se prisoner, claims the defendants, Dr. Rivera and Dr. Sood violated her rights under the Eighth Amendment when they failed to provide her with appropriate medical care. The defendants argue that summary judgment must be granted in their favor because there is no genuine issue of material fact that: (1) as to Dr. Rivera, Caldwell failed to exhaust administrative remedies; (2) as to Dr. Sood, he lacks the requisite personal involvement; (3) if the court does not grant summary judgment based on the two former issues, neither defendants was deliberately indifferent to the plaintiff's serious medical needs; and (4) both defendants are qualifiedly immune from damages.
A. Allegations Against Dr. Rivera
Dr. Rivera is referred to in the following paragraphs of the Amended Complaint: 12, 20, 21, 22, 25, 27, 28, 31, 32, 33,46, 102, 103, 114, 115, 145, 155, 160, 162, relief paragraphs l(b), l(c), 2(c), 2(d) and 3. Additionally, Caldwell alleges that Dr. Rivera violated her rights in paragraphs 114 through 121 - though his name is not mentioned in all of those paragraphs.
Specifically, Caldwell alleges that (1) in May 1999, Rivera changed her psychiatric prescription from Paxil to Sinequan; (2) On May 4, 1999, Rivera allegedly authorized the use of force against Caldwell for medical treatment; and (3) On May 4, 1999 Rivera allegedly authorized the use of four-point restraints against Caldwell. Dr. Rivera denies these allegations.
B. Allegations Against Dr. Sood
Dr. Sood is referred to in the following paragraphs of the Amended Complaint: 14, 123, 124, 125, 126, 127, 128, 163 (plaintiff alleges that Sood was also involved in paragraphs 122 through l32), relief paragraphs l(b), 2(c) and 3.
Specifically, Caldwell alleges that: on May 6, 1999, Sood allegedly ordered Caldwell to take an HIV test following her assault of staff by throwing her blood on them and allegedly withheld treatment of her until she took the HIV test. Dr. Sood denies these allegations.
Statement of Undisputed Facts*fn1
A. Caldwell Did Not Exhaust As To Dr. Rivera
1. Terri Anderson is the Chairperson of the Illinois Department of Corrections ("IDOC") Administrative Review Board ("ARB")
As part of those duties, she reviews the appeals of inmate grievances to the ARB. Appealing to the ARB, as the Corrections' Director's designee, is the final administrative step for appeals of inmate grievances. (Anderson Aff., ¶ 3).
2. Ms. Anderson conducted a thorough search of the ARB records maintained by her office for grievances filed by Caldwell, inmate register No. B07089. Anderson Aff., 77. That search revealed that there were no grievances filed by Caldwell to the ARB, in accordance with Department of Corrections Rule 504F, regarding the following issues:
(1) whether Dr. Rivera changed her psychiatric prescription from Paxil to Sinequan in May of 1999;
(2) whether Dr. Rivera authorized the use of force against Caldwell for medical treatment in May of 1999; and
(3) whether Dr. Rivera authorized the use of four-point restraints on Caldwell on May 4th or 5th 1999. Id. From November 1, 1998 to July 1999, Dr. Rivera was employed by Addus Health Care, Inc ("Addus") as a psychiatrist at the Dwight Correctional Center ("Dwight") on a part-time basis. Addus contracts with the State of Illinois, Department of Corrections to provide medical services in correctional facilities.
3. Dr. Rivera reviewed Caldwell's medical records from late 1998 through December 1999, (see Bates labeled pages 151-359) which reveal that he saw plaintiff a total of 7 times from December 1998 to June 8, 1999, which is the last time Rivera saw her. (Rivera Aff., ¶ 3-4).
4. Although Rivera does not have the medical record of his visit from November 3, 1998, the prescriptions (Ex. A, p. 230) indicate that he prescribed Ms. Caldwell Parnelor and stopped the anti-depressant Trazodone (brand name: Desyrel) she had been previously prescribed. (Rivera Aff., ¶ 5).
5. Parnelor is used to treat mental/mood problems such as depression. It may help improve mood and feelings of well-being, relieve anxiety and tension, help you sleep better, and increase your energy level. This medication belongs to a class of medications called tricyclic antidepressants. It works by affecting the balance of certain natural chemicals neurotransmitters) in the brain. (Rivera Aff., ¶ 6).
6. On December 1, 1998, Rivera saw Ms. Caldwell for a psychiatric visit (Ex. A, pp. 150, 230, 358). She was refusing all medications at that time, including the antidepressant Parnelor which he had prescribed for her the previous month. She stated she wanted to be eligible for the work release program and is trying to do it without psychiatric medications. (Ex. A, p. 358). She denied any side effects. Rivera stopped the Pamelor since she was refusing all psychiatric medications and was not a candidate for forced medications. He scheduled a follow up in one month. Id. (Rivera Aff., ¶ 7).
7. On January 5, 1999, Dr. Rivera saw Ms. Caldwell for a psychiatric visit (Ex. A, pp. 151, 177). She was refusing all psychotropic medications at that time, and reported that she was doing well without them. She denied any depression. No psychiatric medications were clinically indicated based on her self reports and Rivera's personal observations of her. Rivera scheduled a routine follow up in one month. (Rivera Aff., ¶ 8).
8. On February 2, 1999, Dr. Rivera saw Ms. Caldwell for a psychiatric visit (Ex. A, pp. 151, 178). She was refusing all psychotropic medications at that time, and reported that she was doing well without them. She denied any depression, suicidality, homicidality, psychosis, mania or psychiatric problems. She had no complaints on this visit. No psychiatric medications were clinically indicated based on her self reports and Rivera's personal observations of her. Rivera scheduled a routine follow up in one month. (Rivera Aff., ¶ 9).
9. On March 1, 1999, Ms. Caldwell refused to see Dr. Rivera. (Rivera Aff., ¶ 10).
10. On April 1, 1999, Dr. Rivera saw Ms. Caldwell for a psychiatric visit (Ex. A, pp. 153, 180). She was refusing all psychotropic medications at that time, and reported that she was doing well without them. She denied any depression, suicidality, homicidality, psychosis, mania or psychiatric problems. She had no complaints on this visit. No psychiatric medications were clinically indicated based on her self reports and Rivera's personal observations of her. Dr. Rivera scheduled a routine follow up in three months. (Rivera Aff., ¶ 11)).
11. On May 4, 1999 at 11:30 a.m., Dr. Rivera saw Ms. Caldwell in her room in the mental health unit. Earlier that day she reported throwing blood on the correctional officers and was subsequently locked down, (Ex. A, p. 359). She was refusing to talk with anybody except Gene Peterson, the psychologist. She was uncooperative and would not answer Dr. Rivera's questions. She did not appear psychotic. Id. She was still refusing all medications. (See p. 154). It was Dr. Rivera's conclusion that her difficulty at this time was behavioral and that she was not psychotic as he had followed her for many months. (Ex. A, p. 359). Rivera noted that she had not been on any psychotropic medication for the past 5 or 6 months due to the fact that she refused it and denied psychiatric problems. Id. During that times she was free of psychosis and major behavioral problems. It was Rivera's belief that she was acting out, and he recommended segregation for the incident earlier that day. Rivera did not believe that putting her on forced medications was warranted. Rivera scheduled follow up on an as needed basis only. (Rivera Aff., TI 12).
12. On May 4, 1999, at approximately 10:05 pm, Ms. Caldwell's medical records indicate that Dr. Rivera gave an order approving plaintiff to be placed in mental health therapeutic restraints for up to 16 hours for her medical safety and for the safety of correctional staff. (Ex. A ...