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English v. Smith

September 15, 2008

ANTHONY ENGLISH PLAINTIFF,
v.
DR. KEVIN SMITH, DR. LAWRENCE NGU, BARBARA MILLER, DR. PARTHA GHOSH, DR. FAISAL AHMED, DR. ADRIAN FEINERMAN, PENNY GEORGE, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Anthony English, a state prisoner currently incarcerated at Menard Correctional Center ("Menard"), brought this civil rights action under 42 U.S.C. § 1983. Plaintiff claims that, after he suffered a broken ankle, doctors and administrators at Stateville Correctional Center ("Stateville") and Menard violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. Defendants are Dr. Lawrence Ngu, staff physician at Stateville; Drs. Kevin Smith and Partha Ghosh, medical directors at Stateville; Barbara Miller and Penny George, Health Care Unit Administrators at Stateville; and Drs. Faisal Ahmed and Adrian Feinerman, medical directors at Menard. Defendants seek summary judgment, arguing that the undisputed facts show that they did not act with deliberate indifference and, alternatively, that Plaintiff did not exhaust administrative remedies prior to bringing suit. For the reasons discussed below, the motions for summary judgment are granted.

FACTS

The facts are drawn from the Plaintiff's and the Defendants' Local Rule 56.1 filings.*fn1 On June 10, 2002, Plaintiff injured his ankle during a basketball game at Stateville, where he was incarcerated. (Miller 56.1 ¶ 9.) Within a couple of days, Plaintiff was taken to the University of Illinois at Chicago Hospital ("UIC"), where he was diagnosed with an ankle fracture with subluxation--in other words, a minor dislocation. (Ghosh 56.1 ¶ 8.) UIC doctors performed surgery on his ankle on June 21 and placed Plaintiff in a short leg cast. (Id. ¶ 9.) The following day, Plaintiff was returned to Stateville, where he recuperated at the Stateville Health Care Unit ("HCU"). (Id. ¶ 10.) On July 15, Plaintiff met again with the doctors at UIC, who recommended that he return in three weeks to determine whether the cast could be removed. (Id. ¶ 11.) Two days later, Plaintiff was discharged from the Stateville HCU and given a permit for a pair of crutches and another permit for three months for a low bunk and a low gallery.*fn2 (Id. ¶ 12.)

On July 16, 2002, Stateville Medical Director, Defendant Dr. Smith, signed a form approving the UIC doctor's recommendation that he return to UIC for a follow-up appointment. Nevertheless, for unexplained reasons, Plaintiff was not brought back to UIC for the recommended follow-up appointment. (Ex. 3 to English 56.1(b).) The medical records department at Stateville was responsible for scheduling outside appointments, although the parties dispute whether a separate form from a Stateville physician was required before the department would schedule such an appointment. (Ghosh Resp. to Pl.'s Statement of Material Facts ¶ 10.) It is also unclear from the record whether the July 16, 2002 form, or any other such form, was ever sent to the medical records department.

Stateville medical staff included medical technicians ("med techs") who were responsible for making rounds among the prisoners in the general population and scheduling prisoners for "sick call," permitting them to be seen by a prison doctor. (English 56.1(b) at 27.) While his ankle remained in a cast, Plaintiff claims that he made repeated requests to one or more med techs to be placed on sick call in order to have his cast removed, and that med techs informed him that he was on the schedule. (Id.) Plaintiff was not in fact seen by a doctor during this time, however, and his cast was not removed until the HCU staff finally removed it on November 26, 2002, nearly four months after the date on which UIC doctors had recommended he return for a reevaluation. (Miller 56.1 ¶ 14.) Defendant Dr. Ngu, a staff physician at Stateville, had some interaction with Plaintiff while Plaintiff remained in the HCU in June and July 2002, but did not see him at all between Plaintiff's discharge from the HCU on July 17 and November 26, when Plaintiff had his cast removed. (English 56.1(b) at 26; Ghosh 56.1 ¶ 29.)

Defendant Barbara Miller was the HCU Administrator at Stateville from 1994 to January 2003.*fn3 (Miller 56.1 ¶ 2.) In that position, Miller handled administrative matters for the infirmary and the med techs (Id. ¶ 29), including such issues as "not enough time for lunch, too much work, union issues, [if] somebody spoke unprofessionally to them, [and] things like that." (Miller Dep. 8:22-24, Ex. B to Miller 56.1.) She also regularly made rounds in the HCU infirmary "to monitor safety and sanitation" (Miller's Resp. to Pl.'s Statement of Material Facts ¶ 4), but played no role in any medical decisions made by those personnel. (Miller 56.1 ¶ 19.) Plaintiff claims that on the day his cast was removed, Miller "[had] the med techs go check the cellhouses to see if anybody else had casts on."

(English Dep. 81:8-10, Ex. K to Ghosh 56.1), but Miller disputes this assertion.*fn4 (Miller Dep. 24:6-20, Ex. B to Miller 56.1.) Miller also did not handle med tech requests that an inmate be placed on sick call; the medical records department and its supervisor did. (Miller 56.1¶ 31.) Plaintiff has not named any member of the medical records department or any medical technician as a defendant.

At some point before his cast was removed in late November, Plaintiff claims, he filed an emergency grievance with the Warden to have his cast removed, but the grievance was returned to him on the ground that it was not an emergency. (English 56.1(b) at 27.) Plaintiff also claims that he then mailed the returned grievance to the counselor on his cell-block. (Id.) None of the parties have presented any records of Plaintiff's requests to go on sick call, the sick call log itself, or of the two grievances he claims to have filed.

After his cast was removed, Plaintiff began a course of physical therapy, attending eighty-five sessions between December 2002 and August 2003. (Ghosh 56.1 ¶ 16.) (The record does not reveal which medical personnel, if any, directed or supervised this physical therapy regimen.) Also, during this time, he returned to UIC on at least four separate occasions for follow-ups, as he continued to experience pain and stiffness in his ankle. (Id. ¶¶ 17-20.) Each UIC follow-up was approved either by Smith or by Defendant Dr. Ghosh, who succeeded Smith as the medical director at Stateville in May 2003.*fn5 (Smith Aff. ¶ 10, Ex. E to Ghosh 56.1; Ghosh Aff. ¶¶ 4-6, Ex. D to Ghosh 56.1; Ghosh 56.1 ¶ 4.) These follow-ups revealed that Plaintiff continued to have limited range of motion in his ankle, osteoporosis from disuse, and degenerative joint disease of the ankle. (Id.) Plaintiff's expert, Dr. Thomas Limbird, suggests that these lingering problems may have been caused or exacerbated by the amount of time Plaintiff's ankle remained in a cast, stating that the "length of immobilization experienced by [Plaintiff] has a detrimental effect on cartilage and may lead to arthritis which can cause pain and stiffness of the immobilized joint."*fn6 (Limbird Aff. ¶¶ 4(I)-(J), Ex. 1 to English 56.1(b).) Records from the UIC follow-up visits show, however, that Plaintiff had full dorsiflexion*fn7 and a CT scan showed that the fibula fracture in his ankle had healed. (Ghosh 56.1 ¶ 19.) Plaintiff claims that, at his last appointment at UIC on August 11, 2003, the UIC doctor recommended that he return in three months and undergo corrective surgery. (English 56.1(b) at 28.) Plaintiff's expert asserts that arthroscopic surgery is in fact the "current accepted best treatment for pain and stiffness suffered after a break and prolonged immobilization." (Limbird Aff. ¶ 4(K), Ex. 1 to English 56.1(b).) In any event, the doctor's notes from that appointment make no reference to surgery, but do show that the doctor recommended he return in three months. (Ex. 4 to English 56.1(b).) Ghosh approved that recommendation. (Id.)

On October 29, 2003, just before the three-month period recommended by UIC doctors for Plaintiff's next appointment had lapsed, Plaintiff was transferred to Menard. (Ghosh 56.1 ¶ 21.) As medical director at Stateville, Ghosh was responsible for, at a minimum, determining whether Plaintiff had any procedures or treatments scheduled that would require that a "medical hold" be placed on Plaintiff's transfer. (Ghosh Resp. to Pl.'s Statement of Material Facts ¶ 23.) A medical hold would have prevented Plaintiff's transfer to Menard until after any pending treatment was administered. (Id.) On October 14, 2003, Ghosh "reviewed the plaintiff's medical chart and determined there was no pending medical procedures or treatment scheduled for plaintiff at UIC, and therefore, no reason for a medical hold . . . ." (Ghosh Aff. ¶ 11, Ex. D to Ghosh 56.1.)

Plaintiff was examined by the medical director at Menard, Defendant Dr. Ahmed, upon his transfer. (Feinerman 56.1 ¶¶ 2, 5.) Ahmed's notes from the examination show that he found that Plaintiff's ankle was fully weight-bearing and that physical therapy was no longer needed. (Ex. 7 to English 56.1(b).) Dr. Ahmed therefore discontinued the use of Plaintiff's ankle brace and declined to place Plaintiff in physical therapy. (Id.) Plaintiff has not returned to UIC since his transfer to Menard, nor did he meet with Ahmed again after the initial examination. (English 56.1(b) at 28; Feinerman 56.1 ¶ 10.) Within a week of his transfer to Menard, Plaintiff filed a grievance with his counselor regarding continuing pain in his ankle, but did not receive a response. (English 56.1(b) at 28.) Plaintiff alleges that he continues to suffer pain in his left ankle and that walking without the brace causes him to overextend the ankle, causing additional pain. (Pl.'s 2d Am. Compl. ¶ 23.)

Defendant Dr. Feinerman assumed the duties of medical director at Menard at some point (the parties do not specify when) prior to when Plaintiff filed his second amended complaint. (Feinerman ΒΆ 3.) Plaintiff's claim against Feinerman is apparently based upon Feinerman's failure to schedule an outside appointment for Plaintiff even though he had access to ...


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