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Johnson v. Pollion

March 24, 2010

OMAR JOHNSON, PLAINTIFF,
v.
RASHIDA POLLION, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Before the Court is defendants' combined motion for summary judgment (Doc. No. 47). Plaintiff Omar Johnson filed this § 1983 action to challenge the conditions of his confinement at Menard Correctional Center. He alleges that defendants Rashida Pollion and Adrian Feinerman responded with deliberate indifference to his serious medical need for treatment of asthma in 2005 and 2006. The motion is opposed (Doc. No. 60).

I. Summary Judgment Standard

Summary judgment is proper where "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The fact presented are construed in the light most favorable to the non-moving party and all reasonable and justifiable inferences are drawn in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To survive a summary judgment motion, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Vanasco v. Nat'l-Louis Univ., 137 F.3d 962, 965 (7th Cir.1998).

II. Background

The material facts, viewed in Johnson's favor, are summarized as follows. Prior to his incarceration, Johnson was diagnosed with asthma. He received treatment for his symptoms, including prescribed medications. He arrived at Menard Correctional Center in 1999.

The severity of Johnson's asthma symptoms fluctuate, depending upon the climate. Since June, 2000, his medical condition has been evaluated numerous times. For five years, he participated in a clinic for those who suffer chronic asthma. During these clinics, Johnson provided information about the nature and frequency of his symptoms. Various individuals assessed his ailment and his treatment needs. They prescribed an inhaler, which Johnson used to maintain good control of his symptoms, without experiencing medication side effects. The instructions issued with the inhaler warned that asthma may deteriorate acutely over a period of hours.

Defendant Pollion worked at the prison as a nurse practitioner. She had authority to prescribe medications and also had authority to discontinue prescribed medications. Pollion assessed Johnson's asthma on several occasions. She seemed rushed and frustrated and explained that she had insufficient time to review patient records. On one occasion, she forgot to give Johnson a breath test. On another occasion, she became irritated when Johnson posed questions. Yet another time, she questioned Johnson about his hair and seemed completely disinterested in his medical status.

On June 13, 2005, Pollion assessed Johnson's asthma as mild and noted that he was using prescribed medicine about twice a day. At that time, she made plans to discontinue his inhaler medicine in the future (Doc. No. 47-2, p. 25).

On October 11, 2005, Pollion discontinued Johnson's Albuterol inhaler. Pollion discontinued the medication because her assessment of Johnson's medical status led her to believe that his asthma was mild and under good control. She wrote that Johnson did not use the medication "much at all."

At the time, Pollion had been informed that Johnson recently used the inhaler to control his symptoms three times each month. Pollion advised Johnson to report to the prison's heath care unit if he was having breathing problems and promised to issue a call pass so that Johnson's status could be reviewed the following February. Pollion did not schedule Johnson for a check-up and did not arrange for further participation in the chronic asthma clinic. Pollion anticipated that support staff would arrange his follow-up care. Inmates are not at liberty to visit the health care unit without being called by a doctor or nurse.

Pollion's decision to discontinue the inhaler treatment departs from her prior decision and other decisions by doctors, nurse practitioners, registered nurses, and physician's assistants. For example, Dr. Feinerman ordered an inhaler and a follow-up appointment with the asthma clinic after Johnson reported that he "seldom" used the medicine (Doc. No. 47-2, p. 10).

Johnson had minimal access to asthma medication for approximately nine months and no access to the resources of the asthma clinic. In late April or early May, 2006, he suffered asthma attacks. During these attacks, he felt pain, a hard cramping sensation in his chest and lungs, lost sleep, had difficulty breathing, and felt anxious. He sent several requests to the health care unit, seeking care. At times, he was able to ease his symptoms by using another inmate's asthma medicine.

At about the same time, Johnson was assigned to a work detail in the health care unit, and happened to see defendant Feinerman in a hallway. Johnson stopped Feinerman and explained that he was having breathing problems at night due to asthma, that he had submitted sick call slips to no avail, and that he had been excluded from the chronic care clinic. Feinerman encouraged Johnson to put in additional sick call requests and speculated that his continued participation in the clinic might have been viewed ...


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