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Villareal v. Walker

March 24, 2009


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


This case proceeds on the following claims: 1) Eighth Amendment failure to protect; 2) Eighth Amendment deliberate indifference to serious medical needs; and 3) retaliation for the exercise of First Amendment rights. Before the court are two motions by the plaintiff to compel responses to his first request for production of documents and a motion to file a supplemental pleading filed by the plaintiff.

Only the second claim is now before the court: deliberate indifference to the plaintiff's serious medical needs. The medical defendants have moved for summary judgment, which is granted for the reasons below.


Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).

Undisputed Facts

The court finds the following facts undisputed for purposes of this order only. The court has drawn factual inferences in the plaintiff's favor. However, many of the plaintiff's averments are inadmissible hearsay or allegations not based on personal knowledge and not supported by admissible evidence. Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.

1. On April 6, 2005, the plaintiff was incarcerated in Stateville Correctional Center. That night, about 6:30 p.m., other inmates crushed the plaintiff's left hand in a steel door. Around 10:30 p.m., the plaintiff was escorted to the health care unit. The nurse note states that the plaintiff arrived with his hand wrapped in a bloody towel, reporting that he had dropped a property box on his hand. The nurse's note reports puncture wounds and swelling to the plaintiff's left hand. Defendant Dr. Ghosh was notified and directed that the plaintiff be admitted to the infirmary for 23 hour observation, to be followed up with in the morning. Dr. Ghosh also ordered ice to be applied to the plaintiff hand and dressing changes. The plaintiff avers that his hand was swollen twice its size, that he was bleeding profusely and that he could see his bonds and tendons through the holes in his hands. The plaintiff avers that he "laid there, in the infirmary, in puddles of my own blood and in agonizing pain" throughout the night.

2. Dr. Ghosh saw the plaintiff the next morning (April 7, 2005) at around 11:00 a.m. and ordered an x-ray. The x-ray showed fractures of the second, third and fourth metacarpal. Dr. Ghosh directed that the plaintiff be sent in a state car to St. Joseph's Hospital in Joliet, Illinois. The plaintiff was admitted to the hospital that day, and Dr. Fanto performed surgery on the plaintiff's hand. On or about April 9, 2005, Dr. Fanto discharged the plaintiff, with "strict instruction to keep his left hand elevated, keep the dressing clean and dry and do not remove the dressing."

Dr. Fanto also ordered a follow-up visit in one week to change the dressing and inspect the wound.

3. The plaintiff was transported from the hospital and admitted to the Stateville infirmary on or about April 9, 2005. Dr. Aguinaldo admitted the plaintiff to the infirmary. In the infirmary, the plaintiff received pain medication and antibiotics.

4. Dr. Ghosh saw the plaintiff on April 11, 2005. In Dr. Ghosh's judgment, the plaintiff was routinely progressing. Dr. Ghosh directed that the plaintiff keep his hand elevated and that he be allowed to take baths carefully so that his bandage did not get wet. Dr. Ghosh saw the plaintiff the next day, too, and ordered daily baths, hand elevation, Tylenol and Augmentin when available. Dr. Ghosh saw the plaintiff on April 14, 2005, and ordered that the Augmentin be continued and that the plaintiff go to the orthopedic for a follow up visit the next day.

5. On April 17, 2005, the plaintiff was referred for x-rays and a follow up visit with the orthopedic clinic. The report from the follow up visit indicates that no infection was present. A new splint was applied and some sutures were removed. The consultant directed that the plaintiff keep his hand elevated, keep his dressing clean and dry, and return to the office in one week.

6. The plaintiff saw Dr. Fanto on April 25, 2005. Dr. Fanto's report noted a complete dressing change and improved swelling. The report also reflected that the "K-wire" and sutures were removed, and a short-arm splint applied. He recommended an x-ray of the plaintiff's hand, to be reviewed at the "next office visit." It is not clear, however, when Dr. Fanto wished to see the plaintiff again. Dr. Ghosh approved the recommendation for the x-ray, which was done on April 28, 2005. Dr. Ghosh reviewed that x-ray on May 10, 2005, which made no recommendations or adverse findings.

7. On May 26, 2005, the plaintiff was transferred from Stateville Correctional Center to Western Correctional Center. It does not appear that the plaintiff saw Dr. ...

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