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Giampaolo v. Shaw

March 27, 2009

DOMINICK GIAMPAOLO, PLAINTIFF,
v.
FRANK SHAW ET. AL., DEFENDANTS.



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

SUMMARY JUDGMENT ORDER

This cause is before the court for consideration of various pending motions including the defendants' motions for summary judgment. [d/e 118, 121].

The court notes that the plaintiff has filed motions asking to withdraw his claims against Wexford Health Sources, Dr. Ravanam and Nurse Furnald. [d/e 155, 163]. In support of his motion, the plaintiff states that since he has been denied discovery and the appointment of counsel, he is unable to litigate these claims. The record before the court belies the plaintiff's allegation The plaintiff has demonstrated through his submissions to the court that he is capable of representing himself. The plaintiff filed an amended complaint adding claims and defendants [d/e 53] He cites to case authority and is able to argue the application of the law to the facts in his case. And, he has actively participated in the litigation of his case. The motion to withdraw is therefore denied. The plaintiff has filed responses to the pending motions for summary judgment which the court will consider.

I. BACKGROUND

The plaintiff, a state prisoner, brought his lawsuit pursuant to 42 U.S.C.§1983 claiming that his constitutional rights were violated at the Hill Correctional Center. The plaintiff has the following claims against 10 defendants:

a) Defendants Nurse Rita Furnald, Dr. Ravanam, Lois Mathes and Wexford Health Services violated the plaintiff's Eighth Amendment rights when they were deliberately indifferent to the plaintiff's medical condition for approximately three months. Specifically, the plaintiff says he was denied prescription medications and examinations causing him to suffer severe ulcer pain, intestinal pain, migraines and back pain.

b) Defendants Mark Spencer, Leonard Palmer and Robert Schisler violated the plaintiff's right to meaningful access to the courts by failing to provide him adequate time in the law library and thereby preventing him from filing an appeal.

c) Defendant Lewis violated the plaintiff's Eighth Amendment rights when he was deliberately indifferent to the plaintiff's health and safety. Specifically, the plaintiff says Lewis failed to provide proper clothing for frigid winter temperatures causing him to become ill.

d) Defendant Collinson violated the plaintiff's First Amendment rights when he took several books from the plaintiff without any legitimate reason.

e) Defendant Shaw violated the plaintiff's Eighth Amendment rights to be free from cruel and unusual punishment based on the living conditions at Hill Correctional Center. The plaintiff says he suffered physically when he was forced to live in a very small cell with another inmate and not allowed sufficient time outside his cell.

II. FACTS

The plaintiff was incarcerated at Hill Correctional Center (herein Hill) from late 2004 to late 2006. The plaintiff is now housed at Danville Correctional Center and no longer has contact with the individual defendants.

Defendant Lois Lindorff Mathes says she is a registered nurse. However, she works as an administrator at Hill Correctional Center. Mathes says she does not recall ever providing medical care or treatment to the plaintiff. In addition, Mathes says she cannot make medical diagnosis nor prescribe medications. A request to see a doctor does not come through the Health Care Unit, but goes directly to the scheduling nurse. (Def. Memo, Mathes Aff, p. 1)

Defendant Mathes says when any offender at Hill requests that a prescription be refilled, a doctor is asked to review his medical record. In addition, if an inmate believes he is not being seen or treated in a timely manner, he may send an inmate request form to the Health Care Unit. Mathes says during the plaintiff's stay at Hill, she did not receive any request slips from the plaintiff in relation to scheduling or an alleged denial of prescription medication. (Def. Memo, Mathes Aff, p. 1)

Defendant Reita Furnald is a nurse at Hill and says the plaintiff was one of her patients. Furnald says she cannot prescribe medications to offenders. "Instead, I implement the patient's medical plan in accordance with the physician's instructions." (Def. Memo, Furnald Aff. p. 2)

Furnald says when the plaintiff arrived at the correctional center, his only medications were "Zantac (generally used to treat ulcers), MVI (multivitamin), and Bentyl(generally used to treat irritable bowel syndrome)." (Def. Memo, Furnald Aff. p. 1) After his arrival, the plaintiff was also prescribed Tagamet (generally used to treat ulcers).

On January 30, 2005, a doctor prescribed Tylenol for the plaintiff and he was told to return to the Health Care Unit as needed. Doctors saw and evaluated the plaintiff again on four occasions from February 6, 2005 to April 19, 2005.

Nurse Furnald says she also works the medication line at night which is used to hand out previously prescribed medications. Furnald says inmate who need to be evaluated for non-emergency conditions are instructed to submit a sick call request. Occasionally, Furnald says patients with acute non-emergency symptoms, who have not previously been evaluated at sick call, have been provided with non-prescription Tylenol or Advil for temporary relief until they can be seen at sick call. Those in need of immediate care are taken to urgent care. (Def. Memo, Furnald Aff. p. 3) Furnald adds that if the nurses on the evening medication line also attempted to conduct sick call, patients would not receive their prescribed medications at the appropriate time. Therefore, disrupting the medication line could impact the health of other patients. If a patient like the plaintiff wanted to be re-evaluated for a chronic condition, he would be instructed to put in a sick call request so he could be properly evaluated during the nurse sick call.

Nurse Furnald says on April 22, 2005, she noted in the medical records that the plaintiff's information was to be provided to a doctor for his review of the plaintiff's request for prescription refills. The plaintiff was seen the following day by a nurse for complaints of pain to his right leg. He was instructed to return to the Health Care Unit as needed. (Def. Memo, Furnald Aff. p. 4)

On April 28, 2005, the plaintiff requested to be moved to cells where there was more smoking instead of his non-smoking location. He was also seen by mental health staff for an anxiety disorder. On May 2, 2005, the plaintiff's prescription for Bentyl was returned unused. The medical records indicate the plaintiff was scheduled to be seen by a doctor on May 11, 2005, but apparently he refused. (Def. Memo, Furnald Aff. p. 4) The doctor noted that the plaintiff needed to come to sick call if he thought he needed an inhaler. The plaintiff was seen by mental health staff on this day.

The plaintiff was seen by medical staff on May 15, 2005; May 17, 2005 and May 26, 2005. On June 10, 2005, Nurse Furnald made another notation that the plaintiff was requesting a refill of Tylenol for neck and back pain as well as his multivitamin. The plaintiff was seen in the Health Care Unit on June 24, 2005 and was scheduled for a doctor's visit. However, on July 11, 2005, the plaintiff was taken to Stateville Correctional Center on a court writ and was not able to make the appointment. The plaintiff remained at Stateville until July 26, 2005. (Def. Memo, Furnald Aff. p. 5)

On August 5, 2005 the plaintiff was evaluated by mental health staff and a note was made for him to follow up with a medical doctor. On August 6, 2005, Nurse Furnald indicated that the plaintiff was requesting refills of Tagmat and Bentyl and was requesting a lower bunk permit.(Def. Memo, Furnald Aff. p. 6) Nurse Furnald says "[a]t no time was (the plaintiff) at risk of serious harm, because he had only to submit a sick call request in order to be properly evaluated and treated in the healthcare unit." (Def. Memo, Furnald Aff. p. 6)

Dr. Srinivas Ravanam says the plaintiff was one of his patients when the plaintiff was incarcerated at Hill. On August 6, 2005, a nurse wrote in the medical records that the plaintiff was requesting that two prescriptions for Tagamet and Bentyl be refilled. The nurse also noted that the plaintiff had spina bifida and has requested a low bunk permit renewal. Dr. Ravanam says he reviewed the file on August 8, 2005 and scheduled the plaintiff for a doctor's appointment. (Def.Memo, Dr. Ravanam Aff, p. 1-2).

Dr. Ravanam says there were potential side effects with the medications and he wanted to evaluate the plaintiff before renewing the prescriptions. "There was, in my opinion as a medical doctor, no serious risk of harm to (the plaintiff) from waiting until he could be properly evaluated before prescribing him the requested medication." (Def.Memo, Dr. Ravanam Aff, p. 2).

Dr. Ravanam says he personally evaluated the plaintiff on August 24, 2005, and prescribed Tagamet, Tylenol and Bentyl as well as approving the lower bunk permit. Dr. Ravanam says this was his only contact with the plaintiff.

In his deposition, the plaintiff says he is not sure when his prescriptions ran out, but he thinks it was in mid May of 2005. (Plain. Depo, p. 76). The plaintiff says when he told Nurse Furnald that his prescriptions had run out, she told him to put in a sick call request. (Plain Depo, p. 74-75) The plaintiff states that he did not believe he should have to submit a sick call request to renew a prescription, and does not remember whether he ever submitted such a request. (Plain Depo, p. 104-105)

Joe Ebbitt is the Manager or Risk Management at Wexford Health Sources, Inc. Ebbitt says Wexford had a contract to provide healthcare services at Hill Correctional Center from March 1, 2004 to June 30, 2007. However, at the beginning of July 2005, there was a threat of a strike by certain Wexford employees and the State of Illinois announced that it was canceling its contract with Wexford. Ebbitt says as a result, Wexford had no contractual obligation to provide health care services to Hill Correctional Center or any other Illinois prison from July of 2005 through December 16, 2005. (Def. Memo, Ebbitt Aff, p. 1-2)

Defendant Frank Shaw says he served as the Warden at Hill Correctional Center from August 1, 2005 to August 1, 2006. Shaw says offenders in general population were allowed two day room periods each day for a total of 3 hours. In addition, five days of every week they were allowed an additional hour of yard time. Offenders were given approximately 30 minutes out of their cells for each meal for a total of one and a half hours. Therefore, Shaw estimates that the plaintiff would generally receive about 6 hours out of his cell each day if he chose to take advantage of the opportunities afforded to inmates. (Def. Memo, Shaw Aff. ,p. 1) The plaintiff disagrees and states that he estimate he was allowed out of his cell for approximately 2 hours and 15 minutes. (Plain. Resp. P. 6) However, the plaintiff, in his complaint, stated that all inmates received one and a half hours of day room time and about six hours of yard time. (Comp, p. 6) The plaintiff also does not count the time out of his cell for meals.

Defendant Shaw adds that the amount of time an offender was allowed out of his cell and the frequency of double ceiling was "a function of the availability of staff and building resources." (Def. Memo, Shaw. Aff, p. 1)

Defendant Shaw says he does not recall the plaintiff ever notifying him of any medical problems he was experiencing due to too little time out of his cell or double ceiling. Shaw states that he has assigned the review of inmate grievances to a designee, and it is a designee's signature on the plaintiff's grievance. (Def. Memo, Shaw Aff.,p. 2)

Defendant Gil Lewis says he is a Correctional Supply Supervisor at Hill. His job duties include supervising the receiving, storing, issuing and delivery of all items at Hill. During the time period that the plaintiff was at Hill, each offender was issued a lined winter coat, a stocking cap, blue pants, blue shirts, leather boots, socks, T-shirts and underclothes. In addition, an offender could purchase gloves, lined jackets, sweatshirts, sweat pants, thermal tops and thermal bottoms in the commissary. (Def. Memo, Lewis Aff, p. 1). The plaintiff disagrees and states that he was not provided a lined winter coat, nor a raincoat. In his deposition, the plaintiff stated that he did not purchase any additional clothing because the money that ...


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