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Powers v. Deatherage

March 30, 2009

THOMAS POWERS, PLAINTIFF,
v.
LARRY DEATHERAGE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the court are the Defendants, DR. ARTHUR FUNK and DR. SALEH OBAISI's summary judgment motion [215], Plaintiff's response [226] and Defendants' reply [227].

Standard

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). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). 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).

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.

Background

The Plaintiff, a state prisoner, filed a complaint pursuant to 42 U.S.C. §1983, alleging that the Defendants violated his rights under the Eighth Amendment to the United States Constitution. In Count I, the Plaintiff claims that his Eighth Amendment rights were violated because he has bone degeneration and arthritis in his hip yet the defendants refused to allow him a walking cane or a lower berth in a bunk bed. This is the only count remaining against Dr. Funk and Dr. Obaisi. Case Management Order dated January 10, 2008 (doc. # 205). The Court has jurisdiction pursuant to 28 U.S.C. §§1331 and 1343.

Undisputed Material Facts*fn1

1. The Plaintiff's claims against Dr. Funk and Dr. Obaisi concern the years 2001 through 2003. Deposition at 69, line 11-21.

2. On May 3, 2001, the Plaintiff had a medical history taken at Joliet Correctional Center. Among other things, the Plaintiff reported that he had no mobility limitations and that he used no assistive devices. Funk Affidavit at 16; Reception & Periodic Medical History, dated May 3, 2001.

3. The Intrasystem Transfer Form that accompanied the Plaintiff from the Winnebago County Jail (WCJ) made no mention of any significant medical history concerning the Plaintiff's hip either. Funk Affidavit, ¶17; Intrasystem Transfer Form, dated May 3, 2001.

4. The Plaintiff transferred to Pontiac Correctional Center on May 24, 2001. No significant medical history concerning the Plaintiff's hip was reported in the health status sheet accompanying him from Joliet Correctional Center. Furthermore, the only medical issues complained of by the Plaintiff upon his arrival at the Pontiac Correctional Center concerned urinary retention and a nasal problem. Funk Affidavit, ¶18; Health Status dated May 22, 2001, and Transfer Reception Screening, dated May 24, 2001.

5. On May 30, 2001, the Plaintiff was seen by Dr. Bulatovic at Pontiac Correctional Center for complaints of left hip pain for more than three to four months, localized right shoulder pain, and localized lower back pain (LBP). The Plaintiff also complained of difficulty urinating and Dr. Bulatovic noted that the Plaintiff was taking Hytrin for his prostate. Funk Affidavit, ¶19; Medical progress notes dated May 30, 2001.

6. The Plaintiff had a blood pressure of 130/80, a temperature of 98.4°F, a pulse of 68 beats per minute, and respirations of 18 breaths per minute. The Plaintiff was alert and oriented to person, place, and time (AAOx3). He reported no known drug allergies (NKDA), no peptic ulcer disease (PUD), and no melena (black tarry feces due to the interaction of intestinal secretions with blood). Funk Affidavit, ¶20; Medical progress notes dated May 30, 2001.

7. Dr. Bulatovic observed that the mechanical axis deviation of the Plaintiff's lower limbs (MAD) - gait were within normal limits (WNL). The Plaintiff's left hip joint was intact and he had a full range of motion (ROM). No spinal or muscle tenderness was observed to the back, and the Plaintiff bent over and touched his toes. His right shoulder was observed to be intact with a full range of motion (ROM). In Dr. Bulatovic's assessment (A), the Plaintiff had a lower back pain (LBP), right shoulder pain, left hip pain, and dysuria (difficult urination). Dr. Bulatovic educated (ED) the Plaintiff on range of motion (ROM) exercises and provided him with 21 Motrin, 600 mg, to be taken by mouth (PO) three times (TID) a day, and he prescribed Hytrin for the dysuria. He also directed for a follow-up (f/u) in sick call (s/c) in two weeks. Funk Affidavit, ¶21; Medical progress notes dated May 30, 2001.

8. The following day, on May 31, 2001, medical director Arthur Funk, M.D. reviewed the chart and noted that the Plaintiff had a history of dysuria (difficulty urinating). Dr. Funk ordered an x-ray of the Plaintiff's left hip; a prostrate specific antigen test (PSA, used to screen for prostate cancer); a complete blood count (CBC, i.e., a panel of tests including a white blood cell count, white blood cell differential, red blood cell count, hemoglobin, hematocrit, platelet count, mean corpuscular volume, mean corpuscular hemoglobin, mean corpuscular hemoglobin concentration, and red cell distribution width); comprehensive metabolic panel (CMP, i.e., a group of 14 specific tests, including glucose, calcium, sodium, potassium, CO2 {carbon dioxide, bicarbonate}, chloride, BUN (blood urea nitrogen), creatinine, albumin, total protein, alkaline phosphatase, alanine aminotransferase, aspartate aminotransferase, and bilirubin), and a microscopic urinalysis (U/A). Funk Affidavit, ¶22; Medical progress notes dated May 31, 2001.

9. On June 4, 2001, the Plaintiff's left hip was x-rayed. The Plaintiff's left hip was x-rayed front to back (anteroposterior or AP) and from the side with the leg bent so that it resembles that of a frog (frog leg lateral). At the request of Dr. Funk, the radiologist Nicholas Skezas, M.D., of Springfield, Illinois, reviewed the x-rays and prepared a report of his findings. The radiologist found no evidence of fracture or dislocation. He reported deterioration (degenerative changes), including mild joint space narrowing and large osteophyte (bony outgrowth) formation, especially at the lower-middle (infereomedial) margin of the bone in the thigh's (femoral) head. From the x-rays, the radiologist was not otherwise made aware of (appreciated) any other bony or other abnormalities of the muscle, fat, and skin (soft tissue) pertaining to the evaluation (focal). It was the radiologist's impression that the Plaintiff had degenerative joint disease. Funk Affidavit, ¶23; Radiological report dated June 7, 2001.

10. Degenerative joint disease, also known as osteoarthrosis, arthritis, or osteoarthritis, is mainly related to aging and generally results in the cushioning between the bone joints wearing away resulting in pain and stiffness. Funk Affidavit, ¶24.

11. On June 13, 2001, the Plaintiff was seen by Dr. Ngu for a follow-up (f/u) visit as prescheduled. The Plaintiff complained of persistent left hip pain, but reported no recent trauma. In the objective (o) portion of his note, Dr. Ngu observed that the Plaintiff (PT or patient) appeared to be in no distress. He also observed that the Plaintiff had recently had an x-ray taken which revealed that he had degenerative joint disease (DJD). In Dr. Ngu's assessment (a), the Plaintiff had stable degenerative joint disease in his left hip. In the plans portion of his note, Dr. Ngu prescribed Motrin, 600 mg, to be taken by mouth (PO) three times a day (TID) as needed (PRN) with food. Dr. Ngu also prescribed range of motion (ROM) exercises and instructed the Plaintiff to follow up (f/u) as needed (PRN). Funk Affidavit, ¶25; medical progress notes dated June 13, 2001.

12. On June 22, 2001, the Plaintiff was seen by a correctional medical technician (CMT). In the subjective (s) portion of his note, the correctional medical technician wrote that the Plaintiff stated he needed his skin and lungs tested and that he was still in pain with his hip. In the objective (o) portion of his note, the correctional medical technician wrote that the Plaintiff complained of a bad work environment and hip pain. In the plan (p) portion of his note, the correctional medical technician wrote that he would refer the Plaintiff to sick call (S/C) for evaluation. Funk Affidavit, ¶26; Medical progress notes dated June 22, 2001.

13. On June 27, 2001, however, when the Plaintiff appeared for sick call to be seen by the medical doctor, the Plaintiff (PT or patient) refused to sign the P96 (money voucher form for the $2.00 co-pay) and left the room. This was witnessed by correctional medical technician (CMT) Cox. Funk Affidavit, ¶27; Medical progress notes dated June 27, 2001.

14. On July 13, 2001, the Plaintiff was seen by a registered nurse (R.N.) and given a Hepatitis B injection. Funk Affidavit, ¶28; Medical progress notes dated July 13, 2001.

15. On July 19, 2001, psychiatrist Andrew Kowalkowski, M.D., noted that the Plaintiff had failed to show for his appointment. Dr. Kowalkowski continued the Plaintiff's prescription for mental-health medication, and wrote that the Plaintiff was to return to the clinic (RTC) the next month. Funk Affidavit, ¶29; Medical progress notes dated July 19, 2001.

16. On August 6, 2001, Dr. Funk, the Medical Director, noted that the chart had been reviewed prior to Plaintiff's transfer and there were no pending procedures. Funk Affidavit, ¶30; Medical progress notes dated August 6, 2001.

17. On August 7, 2001, Registered Nurse (RN) Judy Ellinger completed the health status form for an Illinois Department of Corrections transferring facility. She noted that the Plaintiff was taking no medications, except for those related to his mental health. Funk Affidavit, ¶31; Health status form dated August 7, 2001.

18. While the Plaintiff was at Pontiac, Dr. Funk had an x-ray taken, and made determinations as to what treatment he thought was warranted. Deposition at 35, lines 5-9.

19. The Plaintiff has been doing stretching exercises most of his life and has done them continuously since his incarceration. Deposition at 41, lines 4-10.

20. While he was at Pontiac Correctional Center in 2001, he worked as a porter, which required him to walk, carry, and lift. Deposition at 39, lines 11-16.

21. The Plaintiff also performed stretching exercises. Deposition at 39, lines 17- 20.

22. The Plaintiff has been doing stretching exercises most of his life and has done them continuously since his ...


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