The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is a Motion for Summary Judgment and supporting memorandum (Docs. 44 & 45), filed by defendant Vipin K. Shah, M.D. ("Dr. Shah"). Plaintiff has filed an opposing Response and supporting memorandum (Docs. 52 & 53), to which Dr. Shah has replied (Doc. 56). Plaintiff filed this 42 U.S.C. § 1983 civil rights action against Dr. Shah, along with two other Defendants, for alleged violations of his Eighth and Fourteenth Amendment right to be free from cruel and unusual punishment, namely that the three Defendants were deliberately indifferent to his serious medical needs. Dr. Shah moves for summary judgment because he believes the evidence fails to show he acted with deliberate indifference towards
Plaintiff. Plaintiff's mere disagreement with his course of treatment, Dr. Shah argues, does not give rise to a deliberate indifference claim. Conversely, Plaintiff believes the evidence establishes that questions of material fact exist regarding whether the totality of the circumstances surrounding Dr. Shah's treatment of Plaintiff's condition can be considered "deliberately indifferent" in terms of a constitutional violation. Reviewing the briefs and the evidence on the record, the Court finds summary judgment is warranted.
Plaintiff Rick Knight was incarcerated with the Illinois Department of Corrections on a four-year sentence (Doc. 2 - Complaint, ¶ 11). While incarcerated, Plaintiff was housed at the Vandalia Correctional Center ("Vandalia") in Vandalia, Illinois, starting on January 27, 2005 through April 2006 (Id. at ¶ 12; Doc. 45, p. 2). Several months prior to his incarceration, Plaintiff underwent arthroscopic surgery in July 2004 to repair a torn rotator cuff in his right shoulder (Doc. 2, ¶ 10). Dr. Shah served as the Facility Medical Director for Vandalia in 2005 (Doc. 44, Ex. B -Shah Aff., ¶ 1). Plaintiff was first seen by Dr. Shah on January 31, 2005, during which time he informed Dr. Shah and the medical staff that he had two prior surgeries on his right shoulder to reconstruct a torn rotator cuff (Id. at ¶ 3; Doc. 2, ¶ 13). Due to his shoulder problems, Plaintiff requested a pass to sleep on the lower bunk in his cell, which Dr. Shah agreed to issue (Doc. 44, Ex. B, ¶ 3; Doc. 2, ¶ 14).
While working on an assigned road crew on February 16, 2005, Plaintiff re-injured his right shoulder (Doc. 2, ¶¶ 16-17 & 20). Plaintiff reported his injury to the on-duty nurse once he arrived back at Vandalia and the next day, February 17, 2005, he reported to Dr. Shah for a medical examination (Doc. 44, Ex. E - Plf's depo., 28:19-22; 43:7-44:9; Doc. 44, Ex. A - Plf's medical records, pp. 9). Dr. Shah prescribed Plaintiff ibuprofen, gave him a sling and ordered an x-ray of Plaintiff's re-injured right shoulder (Doc. 44, Ex. A, p. 9; Doc. 44, Ex. B - Shah Aff., ¶ 4). Plaintiff states that he was only given the sling and the x-ray was only ordered because Plaintiff himself requested it (Doc. 44, Ex. E, 56:21-57:10). Additionally, Dr. Shah issued Plaintiff a no-work pass for one week (Id.).
The x-ray was taken on February 23, 2005 (Doc. 44, Ex. A, p. 9). On February 24, 2005, Plaintiff saw Dr. Shah for a follow-up examination (Doc. 44, Ex. A, p. 10). As before, Plaintiff continued to express that he was in great pain and requested to see a shoulder specialist (Doc. 44, Ex. E, 58:21-59:8). Dr. Shah discontinued Plaintiff's work camp and issued a pass for light-duty work only, as well as continued his ibuprofen prescription (Doc. 44, Ex. B, ¶ 5). Dr. Shah reviewed the x-ray report on March 3, 2005 and observed that the x-ray did not reveal an abnormality, dislocation or fracture. Therefore, he concluded Plaintiff was suffering from a shoulder sprain (Id. at ¶ 6; Doc. 44, Ex. A, p. 11).
Plaintiff then saw Dr. Shah on March 7, 2005, complaining that a few days earlier, while taking a shower, his shoulder popped out of position, causing more pain (Doc. 44, Ex. A, p. 12, Ex. E, 60:17-61:13). That same day, Dr. Shah ordered an MRI of Plaintiff's shoulder (Doc. 44, Ex. B, ¶ 7). Plaintiff's medical records indicate that on March 9, 2005, an appointment was scheduled (presumably at Dr. Shah's direction) for Plaintiff to see Dr. Gray, offsite, regarding his shoulder on March 15, 2005 (Doc. 44, Ex. A, p. 13). Dr. Gray is an orthopedic surgeon (Doc. 44, Ex. B, ¶ 9). On March 15, 2005, Plaintiff met with Dr. Gray for an initial examination. Dr. Gray recommended Plaintiff return for another evaluation after he was able to review the MRI of Plaintiff's shoulder (Id.; Doc. 44, Ex. C - Plaintiff's offsite medical reports, p. 1). Dr. Gray also recommended Plaintiff be prescribed ibuprofen for inflammation and Tylenol #3 for his pain (Id.). Plaintiff complains that although he was supposed to receive the Tylenol #3 at least every four to six hours, he received it in the pill line only twice a day (Doc. 44, Ex. E, 62:2-64:7). At the time, from the x-ray, Dr. Gray was unable to see any indication of a tear in Plaintiff's right rotator cuff (Doc. 44, Ex. C, p. 1).
The MRI report came back*fn1 , indicating that Plaintiff did, in fact, have a tear in his right rotator cuff (Doc. 44, Ex. C, pp. 2-3). On April 7, 2005, Dr. Shah obtained the MRI report and confirmed this diagnosis (Doc. 44, Ex. B, ¶ 11). Plaintiff later went to his follow-up examination with Dr. Gray on May 6, 2005, who also confirmed Plaintiff had a tear in his right rotator cuff (Doc. 44, Ex. C, p. 4). Dr. Gray recommended Plaintiff see Dr. Lee, who is a shoulder specialist and continued his ibuprofen prescription (Id.). On May 26, 2005, Plaintiff met with Dr. Lee, who also identified the rotator cuff tear and instructed Plaintiff to continue his physical therapy twice a week for two weeks (Id. at 5-6). Dr. Lee also prescribed a different anti-inflammatory called Daypro (Id. at 6; Doc. 44, Ex. E, 70:4-19). Lastly, he informed Plaintiff that if he chose to undergo a third surgery on his shoulder, there was a chance he could lose motion or have incomplete relief of pain (Doc. 44, Ex. C, p. 6).
Plaintiff's final examination with Dr. Lee occurred on June 27, 2005 (Doc. 44, Ex. A, p. 31). During this appointment, Dr. Lee explained that because of Plaintiff's two prior shoulder surgeries, it was difficult to ensure a good prognosis if he were to undergo a third surgery (Doc. 44, Ex. C, p. 10). However, Dr. Lee said Plaintiff, if he so elected, could chose to undergo surgery either while incarcerated or wait until he was released from prison (Id.). If he chose surgery while incarcerated, Dr. Lee believed Plaintiff would not be a good candidate for any extensive reconstructive endeavors (such as tendon transfers) (Id.). However, Plaintiff stated he would prefer to have Dr. Lee operate on his shoulder while he was incarcerated because of the pain he was experiencing and also because he was unsure of his health care options once released from prison (Id.). Dr. Lee intended to perform arthroscopic surgery in order to try to diagnose the extent of Plaintiff's shoulder injury. If it appeared amenable to repair, he would attempt to do so, but if it did not, he would leave the shoulder as it was and Plaintiff would need to address the injury later on, with more formal surgery (Id.). Lastly, Dr. Lee prescribed Ultracet for Plaintiff's pain and they awaited approval of the proposed arthroscopic surgery (Id.). Plaintiff claims he never received any Ultracet (Doc. 44, Ex. E, 73:13-20).
Because Plaintiff was incarcerated, the request for surgery needed to be approved by the Illinois Department of Corrections ("IDOC") (Doc. 44, Ex. B, ¶ 16). Dr. Shah states that he submitted Plaintiff's request to IDOC, including the recommendation by Dr. Lee, but it was ultimately denied (Id.). Dr. Shah also appealed the initial denial. Upon review of Dr. Shah's appeal, IDOC Medical Director, Willard Elyea, M.D., determined that the denial was appropriate based on Dr. Lee's finding that "With multiple surgeries it's harder and harder to ensure good prognosis. While he is incarcerated I do not believe he is a good candidate for any extensive reconstructive endeavors such as tendon transfers." Instead, Dr. Elyea instructed Dr. Shah to continue to follow up with Plaintiff's condition, prescribe physical therapy and anti-inflammatory medication (Doc. 44, Ex. D - 9/12/05 letter from Dr. Elyea to Dr. Shah). Plaintiff has since been released from incarceration but has not had any further surgeries on his right shoulder (Doc. 44, Ex. E, 78:1-2).
Summary judgment is appropriate under the Federal Rules of Civil Procedure when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of establishing the absence of factual issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In response to a motion for summary judgment, the non-movant may not simply rest on the allegations as stated in the pleadings. Rather, the non-movant must show through specific evidence that an issue of fact remains on matters for which the non-movant bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324).
No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); accordStarzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). "[P]laintiff's own uncorroborated testimony is insufficient to defeat a motion for summary judgment." Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 939 (7th Cir. 1997). In other words, summary judgment may not be averted merely by the non-moving party "baldly contesting his adversary's factual allegations," but instead, the Plaintiff must come forth with probative evidence to substantiate the allegations of the ...