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Thomas v. Funk

March 23, 2007


The opinion of the court was delivered by: Harold A. Baker United States District Judge


This cause is before the court for consideration of the defendants' motions for summary judgment. [d/e 111, 113]


The plaintiff, Michael Thomas, originally brought this action pursuant to 42 U.S.C. §1983 alleging that his constitutional rights were violated at the Pontiac Correctional Center. The plaintiff's surviving defendants including Dr. Arthur Funk; Dr. Suresh Vade; Medical Director Vuksan Bulatovic; Warden Stephen Mote; Medical Technician Richard Joyal; Correctional Officers Christian Paul, Leo Smith, James Livingston and Shane Hendrickson; Counselor Wesley Wiles; Grievance Officer Terri Kennedy; Lieutenants Patrick Hobart and Cletus Shaw. The plaintiff has the following surviving claims:

1) Defendants Dr. Funk, Dr. Vade, Bulatovic, Mote, Paul, Smith, Livingston, Hendrickson, Wiles, Kennedy, Hobart and Shaw violated the Eighth Amendment when they ignored or delayed treatment for the plaintiff's serous medical condition.

2) Defendant Dr. Funk retaliated against the plaintiff in violation of the First Amendment when he ignored or delayed care for the plaintiff's medical condition due to numerous grievances filed by the plaintiff.

3) Defendant Hendrickson violated the plaintiff's Eighth Amendment rights when he confiscated the plaintiff's prescribed stool softener after surgery causing the plaintiff increased pain.

4) Defendant Joyal violated the plaintiff's Eighth and Fourteenth Amendment rights when he conducted a rectal examination of the plaintiff in view of other inmates and correctional officers.

All claims are against the defendants in their individual capacities.

The plaintiff alleges that he suffered from severe internal and rectal pain, but staff and doctors intentionally ignored his symptoms for months until he was finally allowed to have surgery for an anal fistula in November of 2003.

The court notes that the defendants do not define "fistula" in their initial motion for summary judgment. Stedman's Medical Dictionary defines a fistula as an abnormal passage from one epithelial surface to another epithelial surface and an "anal fistula" is defined as a fistula opening at or near the anus. Stedman's Medical Dictionary 149930 (27th ed.2000).

The defendants have filed motions for summary judgment. The plaintiff has filed numerous responses and the defendants have filed replies.


The following facts are taken from the defendants statement of undisputed facts, the plaintiff's response and the attached exhibits. .

Defendant Bulatovic says he was the acting Medical Director at Pontiac Correctional Center from February 14, 2003 to July 28, 2003. During that time, he did not see the plaintiff as a patient. When the plaintiff made a request to be seen at the health care unit, he was referred to a medical technician. Therefore, Bulatovic says he personally did not evaluate the plaintiff for any medical condition nor was he involved in deciding what medical care the plaintiff should receive. Bulatovic says he may have responded to any grievances or correspondence the plaintiff sent to the medical department during the time he was acting Medical Director. However, the only letter Bulatovic is aware of is dated July 21, 2003 in which he responds to the plaintiff's concerns about hemorrhoids. Bulatovic tells the plaintiff he must either direct medical concerns to the cell house CMT to evaluate what treatment is needed or the plaintiff could send in a medical request slip.

Defendant Stephen Mote says he is the warden at Pontiac Correctional Center which houses over 1500 inmates. Mote says he is not a licensed medical professional and has no medical training. Correctional Officers Paul, Smith, Livingston, Hendrickson, Wiles, Kennedy, Hobart and Shaw all state they are also not medical professionals and have no authority to authorize or deny medical treatment to an inmate. All deny ever refusing medical treatment for the plaintiff.

The medical records at Pontiac Correctional Center show that the plaintiff was seen by medical personnel in the Health Care Unit 13 times from June 16, 2003 to November 13, 2003. However, the plaintiff says medical staff ignored his symptoms. The plaintiff says he filed numerous grievances, sent letters and made numerous requests for medical care but his condition was ignored. The following events are listed in chronological order:

June 17, 2003 Medical exam: Dr. Vade was working as a staff physician during the relevant time frames of the plaintiff's complaint. Dr. Vade says he first saw the plaintiff on June 17, 2003. During that visit, the plaintiff stated he was having problems with his bowel movements and did not believe he had a bowel movement in four days. Dr. Vade claims the plaintiff did not want to be examined. Dr. Vade believed the plaintiff was constipated and encouraged the plaintiff to increase fluids and physical activity. Dr. Vade also prescribed a laxative for the plaintiff. The plaintiff says he did not refuse any physical examination and states that Dr. Vade told him an exam was not necessary.

August 3, 2003 Grievance: The plaintiff writes that he has been suffering with bowel pain for the last month and a half. The plaintiff states he has seen medical staff, but they just tell him to drink more water. The plaintiff says he has noticed blood in the toilet and has a discovered an unusual hole near his rectum. The plaintiff says it discharges pus and fluids and is very painful. The plaintiff repeats that he is in severe pain and can not sleep or lay down. The grievance was forwarded to the Medical Director who told the plaintiff the procedures to get medical assistance.

August 19, 2003 Medical Exam: The plaintiff saw Dr. Vade again on this day. The plaintiff stated he had a red-green discharge from his rectum and complained of itching. The doctor asked the plaintiff about any sexual activity and the plaintiff denied participating in this conduct. Dr. Vade examined the plaintiff and found "the patient's appearance was within normal limits." (Def Mot, Vade Aff, p. 2) The plaintiff did have a hemorrhoid, but no discharge was noted.

Dr. Vade educated the plaintiff about sexually transmitted diseases and advised him to follow up if he noted any further discharge.

August 23, 2003 grievance: The plaintiff again states he has a hole in near his rectum and has noticed a discharge. The plaintiff states he is in pain and needs medical care. The plaintiff says he has seen Dr. Vade, but claims the doctor never took the time to see the hole the plaintiff told him about. The grievance was refereed to the medical department.

Medical Director response: Dr. Funk was the Medical Director at Pontiac Correctional Center from June, 2003 through December of 2005. The first time he says the plaintiff wrote to him was in August of 2003 concerning the discharge from his rectum and the care he received. Dr. Funk says he reviewed the plaintiff's medical records for his most recent care and responded to the plaintiff. Dr. Funk wrote a letter to the plaintiff on August 27, 2003 telling the plaintiff that a rectal examination was the appropriate examination for the symptoms the plaintiff complained of. The plaintiff was also advised that a rectal examination could not be performed without the patient's cooperation. Dr. Funk told the plaintiff he could be reevaluated at sick call and reminded him how to obtain medical care at the institution. Dr. Funk did not provide any direct care to the plaintiff on this occasion.

August 28, 2003 grievance: This grievance is written in the form of a letter to Warden Mote asking for help for his medical condition. It is not clear if the document was received.

September 9, 2003 grievance: The plaintiff says he has shown the grievance counselor the blood and puss that he is suffering with and still cannot get medical care. The plaintiff again repeats his medical problems and asks for care.

September 21, 2003 grievance: The plaintiff again asks for medical treatment for the hole near his rectum and says the pain is "unexplainable." (Plain. Resp., Ex 10) The plaintiff says "it feels like my intestine is coming out of my body." Id.

September 23, 2003 letter: The plaintiff sends a letter to Dr. Funk again complaining about his medical condition and the pain he is in. The plaintiff's letter includes a diagram illustrating the hole near his rectum.

Medical Director response: Dr. Funk responded with a letter to the plaintiff on September 25, 2003, telling the plaintiff he would be scheduled for the medical director clinic within the next two weeks.

September 28, 2003 letter: The plaintiff sends a letter to his grievance counselor again telling of his medical problem.

September 30, 2003 Medical Exam: Dr. Vade says the plaintiff stated he believed he had some kind of hole inside of him which he believed was in his intestine. The plaintiff again complained of a discharge from his rectum. Dr. Vade examined the plaintiff and noted that he "appeared to be within normal limits with the exception of a small area near his anus which was red in color." (Def. Memo, Vade Aff, p. 2) The doctor observed no discharge. Dr. Vade noted that the plaintiff had previously been prescribed penicillin and pain pills. Dr. Vade says the plaintiff was then "provided educational information regarding his condition." Id.

September 30, 2003 Grievance: The plaintiff says he met with Dr. Vade and told him about the hole near his rectum and his belief that he also had a hole now internally near his intestine. He says the doctor said this could not be true and asked the plaintiff if he was gay. The plaintiff denied any sexual activity and showed the doctor the letter he had written to Dr. Funk with the diagram of his problem. The plaintiff also showed Dr. Funk the external hole near his rectum, but the doctor told him it was a "superficial" hole and not that bad. (Plain. Memo, Ex 15) The plaintiff says officers in the room during his examination laughed at him.

October 1, 2003 Medical Exam: Dr. Funk saw the plaintiff in the medical director's clinic. Dr.Funk states that the plaintiff was complaining about a hole in his rectum. He indicated that he had difficulties going to the bathroom, had a discharge and pain. Dr. Funk examined the plaintiff and noted a "small inflamed hemorrhoidal tag." (Def. Memo, Funk Aff, p. 2). The plaintiff also complained of pain during the examination. The doctor noted that there were no masses and no discharge. The doctor specifically noted there was no fistula or hole near the rectum. The doctor noted that the plaintiff's weight had increased from previous visits.

Dr. Funk says he diagnosed the plaintiff as "having a small, inflamed hemorrhoid who likely also had an anal fissure." (Def Memo, Funk Aff, p. 3) Dr. Funk prescribed an antibiotic, a hemorrhoidal suppository, an Anusol cream, and a laxative. The doctor advised the plaintiff to ...

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