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Evans v. Firkus

September 7, 2007

CHAD EVANS, PLAINTIFF,
v.
GREG FIRKUS ET AL. DEFENDANTS.



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

Order

This case proceeds on the following claims:

1) The conditions in lock-down during July, 2003, in Logan Correctional Center violated the plaintiff's Eighth Amendment right to be free from cruel and unusual punishment and his right to equal protection under the Fourteenth Amendment.

2) The plaintiff's placement in a segregation cell where he had to sleep on a wet floor, when other dry segregation cells with beds were unoccupied, violated the plaintiff's Eighth Amendment right to be free from cruel and unusual punishment.

3) The plaintiff suffered and/or continues to suffer deliberate indifference to his serious medical needs.

4) The plaintiff was retaliated against for exercising his First Amendment right to file grievances or lawsuits.

5) The defendants took adverse action against the plaintiff in order to chill his First Amendment right to file grievances/lawsuits.

6) The defendants violated the plaintiff's procedural due process rights in disciplinary proceedings.

(d/e 15, case management order).

Before the Court are motions for summary judgment filed by the defendants and a motion to compel filed by the plaintiff.

Motion for Summary Judgment by Dr. Irshad(d/e 118)

(Medical Treatment at Logan Correctional Center for Hernia, Cyst, and Lipoma)

I. Undisputed Facts*fn1

1. Chad Evans was incarcerated at the time he filed his lawsuit. He is currently incarcerated in Robinson Correctional Center.

2. This lawsuit concerns events that occurred during his incarceration in Logan Correctional Center from June 2002 to February 2005.

3. Dr. Irshad is a physician licensed to practice medicine in the State of Illinois. (Dr. Irshad Aff.)

4. In the course of his practice as a physician, Dr. Irshad served as the Medical Director at Logan Correctional Center from February 2003 to October 2004. (Dr. Irshad Aff.) In the course of his practice as a physician at Logan, Dr. Irshad saw Plaintiff. (Dr. Irshad Aff.)

5. Plaintiff's claims against Dr. Irshad regard Plaintiff's hernia, a ganglion on Plaintiff's wrist, and a lipoma on Plaintiff's back. (Plaintiff's Deposition, p. 4-5). Plaintiff withdrew his claim regarding his broken nose. (d/e 127, ¶5).

6. Mr. Evans' hernia developed when he was working out, lifting weights, at Galesburg prison, the date is unclear. (Plaintiff's Deposition, p. 9; Complaint p. 14). He went to the doctor at Galesburg but nothing was done. (Complaint p. 14). He was transferred to Dixon at an unspecified date and given a truss to wear. Id. He was then transferred to Pontiac where the truss was confiscated. He then transferred to Sheridan where again he received no truss or medical treatment for his hernia. Id. Mr. Evans still has the hernia, which is located in his lower abdomen. (Plaintiff's Deposition, p. 5.).

7. The hernia is reducible. Plaintiff testified in his deposition that the hernia is now about 50% bigger (about the size of a racquetball) and that it comes out about twice a week, when he has to push in back in. At Logan, the hernia was smaller than a racquetball but bigger than a golf ball. At his deposition in January 2007, the hernia was not "out" and therefore was "barely" visible. (Plaintiff's Dep. P. 6). He testified that the hernia had come out more while he was at Logan. Id.

8. Plaintiff testified that his day does not involve much physical activity because his hernia does not allow it. (Plaintiff's Deposition, p. 31; d/e 127 ¶ 17). He is able to take classes, go to meals, and participate in other non-physical activities. (Plaintiff's Deposition, pp. 32.33.)

He does not exercise or play sports because of the hernia. When the hernia is out he has problems going to the bathroom. Id. at 8-9. At the time of his deposition (January 5, 2007), Plaintiff was incarcerated in Big Muddy Correctional Center. He had not seen anyone at Big Muddy about his hernia. (Plaintiff's Dep. p. 14).

9. Plaintiff has a ganglion cyst on his right wrist. A ganglion cyst is a gelatinous fluid-filled sac under the skin commonly found at the wrist joint, but may be found on other locations. The cyst may resolve on its own as the fluid levels rise and decrease in the cyst.

10. Plaintiff asserts that his right wrist hurts more when used, and he uses the wrist frequently for doing homework and writing letters. Plaintiff is able to reduce the size of the cyst by flexing his wrist and slamming it up against a wall or something which allows the fluid to come out of it. (Plaintiff's Deposition, pp. 18-19.)

11. Mr. Evans also had a "lipoma" on his back which has since been removed. (Plaintiff's Deposition, pp. 20-21.) A lipoma is a pocket of fatty tissue. The lipoma had been present on the Plaintiff's back since sometime in 2000 or 2001. (Plaintiff's Deposition, p. 22.) The lipoma grew in size over the course of time. (Plaintiff's Deposition, p. 22.)

12. Plaintiff had difficulty sleeping with the lipoma because of its location on his back. He could sleep on his stomach, but would still have trouble due to movement during sleep. (d/e 127 ¶ 14). He also had difficulty bending and sitting in a chair with a back because doing so put pressure on the lipoma, digging into his spine. Plaintiff testified that the lipoma was painful when touched. (Plaintiff's Deposition, p. 24.)

13. Plaintiff believes the lipoma was approximately the size of a golf ball at the time he saw Dr. Irshad. (Plaintiff's Deposition, p. 24.).

14. In February 2000, at Dixon Correctional Center, Plaintiff was issued a truss for his hernia. The truss was apparently not allowed to transfer with him out of Dixon. Plaintiff asserts that the truss helped prevent the hernia from popping out, which enabled him to engage in regular work and exercise. (Plaintiff's Dep. p. 10). Attached to the Complaint are affidavits from other inmates who witnessed Plaintiff attempt to exercise or play softball but had to stop, holding the hernia area in apparent pain.

15. On June 28, 2002, Plaintiff was seen at Logan. Plaintiff complained of pain to his right testicle that he thought might be attributable to his hernia or perhaps cancer. The doctor ordered a sonogram which was performed in October 2002. The sonogram indicated no masses, but did indicate possible "subclinical right epididymitis."

16. The first time Dr. Irshad personally saw Plaintiff was February 4, 2003. (Dr. Irshad Aff-B.) Dr. Irshad's note of that date reads as follows:

S (subjective): Erythema with itching and scaly lesion on and around the eyelids and nose some three months. Has tried already local steroid.

O (objective): Blood pressure 122/80. Ganglion cyst or lipoma on right wrist Lipoma on back Chronic low back pain with right leg radiculopathy History of back sprain disc syndrome.

A (assessment): Lipoma, ganglion cyst, disc syndrome. Lupus

P (plan): Discontinue HCT (diuretic or water pill for the plaintiff's previously diagnosed high blood pressure)

Naproxen 500 mg BID (twice a day) for 30 days Check BP (blood pressure) once a week for 4 weeks Return to call in one month (Dr. Irshad Aff-B.)

17. Pursuant to his examination of Mr. Evans, Dr. Irshad documented Mr. Plaintiffs' complaints of itchiness around his eyelids and nose. Dr. Irshad prescribed Naproxen to address the itching and scaly lesions. He noted the patient had a ganglion cyst or lipoma on his right wrist, as well as one on his back. The Naproxen prescribed could also serve to address the back pain of which Plaintiff complained. Dr. Irshad scheduled Plaintiff to be seen in one (1) month for reevaluation. He discontinued the HCT (diuretic) as he no longer found it to be necessary for Plaintiff. According to Dr. Irshad's affidavit, Mr. Evans did not appear to be in distress. (Dr. Irshad Aff.)

18. Plaintiff asserts that he told Dr. Irshad about his hernia during the February 4, 2003 visit. Plaintiff asserts he told Dr. Irshad of pain using the restroom and having to push on his hernia area to reduce the hernia. Plaintiff says he asked Dr. Irshad for a truss like the one he had been issued in Dixon. Plaintiff says Dr. Irshad did not examine the hernia or look at Plaintiff's sonogram results. Instead, Dr. Irshad only responded that Plaintiff could not have surgery or a truss. (d/e 127, Ex. 2, ¶ 9-13). Dr. Irshad also reportedly only "poked" at the lipoma on Plaintiff's back, saying there was nothing he could do. Id. ¶¶ 17-18.

19. Dr. Irshad next saw Mr. Evans on March 4, 2003 for his follow-up visit as previously indicated. At that time, Dr. Irshad examined Mr. Evans. His note states as follows:

S (subjective): Off HCT (diuretic) BP (blood pressure) - normal Naproxen not tolerated. Still has pain. Chronic back pain since 3 months

O (objective): BP (blood pressure) 126/82 Lungs clear Heart NSR (normal sinus rhythm)

Periorbital edema due to seasonal allergies A (assessment): Hypertension On no medication Blood pressure - normal NSAIDS (non-steroidal anti-inflammatory drugs) - not tolerated Seasonal allergies P (plan): D/C (discontinue) Naproxen.

No further treatment (Exhibit 1-C.)

20. In Dr. Irshad's opinion, Plaintiff had previously been diagnosed with hypertension. Pursuant to Dr. Irshad's examination, Plaintiff's hypertension was under control to the point that he no longer needed medication for that condition. Mr. Evans reported that the Naproxen he was taking for his prior complaints, was not agreeable with him. Dr. Irshad therefore discontinued the medication and ordered no new medication as none was medically indicated nor desired by the patient. The chronic back pain of which Mr. Evans complained did not appear to be related to the lipoma as a lump of fatty tissue is not something that would cause back pain. Accordingly, there was no treatment indicated at the time in Dr. Irshad's opinion. (Dr. Irshad Aff.)

21. Plaintiff asserts that he brought up all the same complaints on March 4, 2003 (hernia, back lipoma, wrist ganglion), but that Dr. Irshad again told him nothing would be done and that the hernia "would not kill" Plaintiff. (d/e 127 ΒΆ 19). Plaintiff avers that he told Dr. Irshad he wanted the lipoma and ganglion removed, as had been done at Dixon for a cyst above Plaintiff's eyebrow. According to Plaintiff, Dr. Irshad then slammed a book on Plaintiff's wrist, in an ...


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