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Mounson v. Chandra

July 9, 2009

HENRY MOUNSON, PLAINTIFF,
v.
RAKESHA CHANDRA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on three Reports and Recommendations of Magistrate Judge Wilkerson (Docs. 82, 83 and 84).*fn1 In his Report and Recommendation at Doc. 82 (R&R 82), Judge Wilkerson recommends that summary judgment be granted on the merits in favor of Defendant Kwasniewski on Plaintiff Henry Mounson's claim that she was deliberately indifferent to his serious medical needs in that she did not place him on "watch" to prevent him from hurting himself. Also in R&R 82, Judge Wilkerson recommends that summary judgment be granted on the merits in favor of Defendants Clover and Couch on Mounson's claims that they subjected him to unconstitutional conditions of confinement.

In his Report and Recommendation at Doc. 83 (R&R 83), Judge Wilkerson recommends that summary judgment be granted in favor of Defendants Folsom and Hilliard on Mounson's claim that they used excessive force against him, because Mounson failed to exhaust his administrative remedies as to this claim. Judge Wilkerson also recommends in R&R 83 that summary judgment be granted in favor of Defendants Osman and Hosch on Mounson's claim that they denied him access to the courts, because Mounson failed to exhaust his administrative remedies as to this claim. In R&R 83, Judge Wilkerson further recommends that summary judgment be granted in favor of Defendants Folsom and Hilliard on Mounson's claim that they retaliated against him, because Mounson failed to exhaust his administrative remedies as to this claim. Judge Wilkerson also recommends in R&R 83 that summary judgment be granted on the merits in favor of Defendant Caliper on Mounson's claim that she was deliberately indifferent to his serious medical needs in that she did not order that he undergo a liver biopsy or recommend that he be placed on an experimental drug therapy. Finally, in R&R 83, Judge Wilkerson recommends that summary judgment be granted on the merits in favor of Defendants Wright, Stewart and Neighbors on Mounson's claim that they used excessive force in the course of placing him in protective restraints.

In his Report and Recommendation at Doc. 84 (R&R 84), Judge Wilkerson recommends that summary judgment be granted on the merits in favor of Defendant Powers on Mounson's claim that Powers was deliberately indifferent to Mounson's serious medical needs in that he did not order that Mounson undergo a liver biopsy or place Mounson on an experimental drug therapy. Judge Wilkerson further recommends in R&R 84 that summary judgment be granted on the merits in favor of Defendant Chandra on Mounson's claim that he used excessive force when he ordered Mounson be placed in protective restraints. In R&R 84, Judge Wilkerson also recommends that summary judgment be granted on the merits in favor of Defendant Walton on Mounson's claim that she used excessive force when she inserted a urinary catheter. Finally, Judge Wilkerson recommends in R&R 84 that summary judgment be granted on the merits in favor of Defendants Chandra, Stevens and Pepper on Mounson's claims that they subjected him to unconstitutional conditions of confinement.

Standard of Review

After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).

Mounson filed an objection to the R&Rs in which he reiterates his request for appointed counsel in order to properly prosecute this action. Mounson argues that he is ill with cancer and the attendant treatment he is undergoing, and has thus been unable to respond to Defendants's summary judgment motions. The Court notes that Mounson, in fact, did respond to the motions, attaching records he asserts prove that Defendants Powers and Caliper acted with deliberate indifference to his serious medical condition, hepatitis C. He also argued that the attachments to his response showed that he was prevented from exhausting his administrative remedies. The R&Rs submitted by Judge Wilkerson took these documents and arguments into account. The Court construes Mounson's objection as a reiteration of the objections he raised in his brief in response to Defendants's summary judgment motions.*fn2

ANALYSIS

I. Deliberate Indifference Claim Against Dr. Powers

Mounson objects that he has presented evidence from which a trier of fact could reasonably find that Dr. Powers was deliberately indifferent to Mounson's serious medical needs in violation of the Eighth Amendment.

A. Facts

Mounson was diagnosed with Hepatitis-C in 1998. Since that time, medical personnel at Tamms have periodically drawn his blood and tested Mounson's blood aminotransferase levels (ALT). Elevated ALT levels are an indicator that the hepatitis-C virus is causing liver damage. Between 2000 and April 2007, lab reports indicate that Mounson's ALT levels were either normal or slightly elevated. In addition to the blood draws, Dr. Powers periodically conducts a physical exam, palpitating Mounson's liver and checking for jaundice. Dr. Powers avers that Mounson shows no symptoms of hepatitis-C, and therefore, treatment is not indicated. Mounson counters that he is entitled to more than "only having my stomach touched or felt on by M.D. Powers every 6 months to a year and to have my blood drawn every six months." He contends that the literature he has read regarding hepatitis-C indicates that a liver biopsy is the most accurate way to assess whether or not the virus has damaged the liver. He contends that Dr. Powers's refusal to perform a biopsy constitutes cruel and unusual punishment in violation of the Eighth Amendment.

B. Discussion

The Supreme Court has recognized that "deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 104 (1976). In order to prevail on this claim, the plaintiff must show that his condition was "objectively, sufficiently serious" and that "prison officials acted with a sufficiently culpable state of mind." Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (internal citations omitted). A prisoner raising an Eighth Amendment claim must show that he not only suffered, but that prison officials inflicted the suffering, either deliberately or recklessly. Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence, gross negligence, or even recklessness as the term is used in tort cases is not enough; the conduct must be reckless in the criminal sense. Farmer v. Brennan, 511 U.S. 825, 836-37 ...


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