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Clark v. Somolio

August 7, 2007

ALF CLARK, PLAINTIFF,
v.
EDDIE SOMOLIO, ET AL DEFENDANTS



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

ORDER

This cause is before the court for consideration of the defendants motion for summary judgment. [d/e 39].

I. BACKGROUND

The plaintiff, a federal prisoner, filed this lawsuit pursuant to Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) claiming that his Eighth Amendment rights were violated at the Federal Correctional Institution in Pekin, Illinois. The plaintiff is suing five defendants in their individual capacities including: Clinical Director Eddie Samalio, Physicians Assistant Jackson, Physicians Assistant Harris Hansen, Clinical Director Dalmasi, and Clinical Director Angel Ortiz. The plaintiff says the defendants violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical condition. Specifically, the plaintiff alleges that surgery was approved to repair his hernia, but the defendants delayed the procedure for four years.

II. FACTS

The defendants provided 61 paragraphs of undisputed facts with their motion. The plaintiff, who is proceeding pro se, did not directly respond to these allegations, but instead claims that ten of the facts asserted are not correct. The plaintiff does not state why the assertions are incorrect, nor does he point the court to any specific documentation in his Statement of Undisputed Facts. Therefore, the following facts are taken from the defendants' motion, the plaintiff's response and the provided documentation.

The plaintiff arrived at the Federal Correctional Institution in Pekin, Illinois (Herein FCI Pekin) in April of 2000 and still remains at this institution. Each of the named defendants was employed as a medical employee at some time during the plaintiff's incarceration.

The basis of the plaintiff's claim that the defendants were deliberately indifferent to his serious medical needs is the defendants failed to have his right inguinal hernia surgically repaired. The plaintiff was also treated for a variety of other medical problems at FCI Pekin including kidney pain, a heart condition, gastroesphogeal reflux disease, glaucoma, abdominal pain, urination problems, nausea, cardiac arrhythmia, hypertension, chronic ear pain, neck pain, and headaches. However, the plaintiff says his complaint is based only on the defendants deliberate indifference to his hernia. (Def. Mot, Plain. Depo, p. 14).

Physician's Assistant Hansen says on December 19, 2002, the plaintiff told him he believed his hernia had increased in size since 1989 and he complained of pain that increased with standing, walking or exercise. (Def. Mot, Hansen Aff, p. 1) Hansen referred the case to Dr. Ortiz and prepared a form so the plaintiff's case could be considered by the Utilization Review Committee. This committee determines the appropriateness of sending an inmate to an outside consultant for treatment that is not routinely provided at FCI Pekin.

Hansen says he saw the plaintiff on several other occasions, but the "plaintiff never complained to me against regarding the same type of pain that was clearly connected to his inguinal hernia." Id. Hansen says he also never believed any subsequent complaints of pain were related to the hernia, but instead to possible kidney stones and this possibility was "thoroughly investigated." Id. Hansen further notes that he never refused pain medicine to the plaintiff and the plaintiff never asked him for stronger medications.

Dr. Ortiz was a staff physician at FCI Pekin from April 7, 2002 to November 3, 2002 and from January 24, 2005 to March 3, 2006. Dr. Ortiz says he reviewed the note for P.A. Hansen and spoke to the plaintiff on the next day, December 20, 2002. The plaintiff told the doctor that his "hernia was occasionally painful in his groin area during the last month." (Def. Mot., Ortiz Aff., p. 1).

Dr. Ortiz says on January 8, 2003, the Utilization Review Committee considered the plaintiff's hernia. The committee determined the plaintiff's condition was a "level three, priority four condition." Id. Level three is considered "medically acceptable- but not medically necessary is treatment that is not exclusively for the convenience of the patient (routine hernia repair, noncancerous kin lesions, etc.)" (Def. Memo, Group Ex. #1, p 2). Dr. Ortiz says:

Plaintiff's condition was considered a low priority because the inguinal hernia was fully reducible without warmth or swelling. A hernia of this type may cause occasional discomfort and restrict a patient's physical activity, but is not considered medically urgent. Of the various medical complaints that plaintiff was being treated for (chest pains associated with pericarditis, gastroesphogeal reflux disease, glaucoma, abdominal pain, cardiac arrhythmia), his hernia was considered the least significant health risk. (Def. Memo, Ortiz Aff., p. 1)

On September 24, 2003, Dr. Ortiz says he chose to defer repair of the plaintiff's hernia...

"until procedures investigating his kidney stones were concluded because it was my personal opinion that the potential kidney problems raised more significant medical issues than his hernia. Proceeding with the hernia repair would have extended and complicated efforts to properly diagnose and treat kidney stones. Id.

Dr. Ortiz says the plaintiff received on-going medical care for various other complaints, but did not complain of symptoms associated with his hernia again before Dr. Ortiz left FCI Pekin. Dr. Ortiz says he left on November 3, 2003, and returned on January 25, 2005.

Dr. Ortiz says he was not made aware of any ongoing hernia problem until the plaintiff mentioned it to Dr. Ortiz again in May of 2005. Dr. Ortiz said that the plaintiff would first need to be evaluated by a cardiologist. The plaintiff saw a cardiologist who ordered additional tests. Upon the completion of those tests, the cardiologist cleared the plaintiff for hernia surgery. This was the last contact Dr. Ortiz had with the plaintiff concerning his hernia. Dr. Ortiz says medications were prescribed for the plaintiff'smedical conditions and the plaintiff never complained to Dr. Ortiz that his pain medication was inadequate.

Dr. Dalmasi was a staff physician from June 1, 2003 from November 27, 2004.Dr. Dalmasi says he saw the plaintiff for medical complaints such as nausea and chest pain, but the first person to mention the plaintiff's hernia was the plaintiff' urologist. The urologist examined the plaintiff on December 29, 2003 and speculated that the hernia might be contributing to some of the plaintiff's "right flank pain.' (Def. Memo, Dalmasi Aff, p. 1) The urologist recommended a CT scan and cystoscopy which were approved as well as Tylenol for the plaintiff's abdominal pain. Dr. Dalmasi says on January 21, 2004 he ...


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