The opinion of the court was delivered by: Harold A. Baker United States District Judge
Wednesday, 29 December, 2010 10:25:01 AM
Clerk, U.S. District Court, ILCD
Case Management Order and Summary Judgment
The plaintiff, currently incarcerated in Western Illinois Correctional Center, suffers from difficulty moving his bowels and intense abdominal pain. He alleges that the defendants have been deliberately indifferent to his plight. While the court does not doubt the plaintiff's medical problems and pain therefrom, the record shows that Dr. Brown, the treating physician at the plaintiff's prison, was not deliberately indifferent to the plaintiff's plight. Dr. Brown referred the plaintiff to outside specialists and followed those specialists' recommendations for diagnostic testing and treatment. The only reasonable inference allowed by the record is that Dr. Brown tried to help the plaintiff, who suffers from hard-to-diagnose and hard-to-treat abdominal pain. That is not deliberate indifference. Accordingly, summary judgment is granted for Dr. Brown. Since there is no underlying constitutional violation, summary judgment is mandated for the rest of the defendants as well.
Before the Court are the defendants' respective summary judgment motions, which are 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). This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. "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. 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). "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). 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).
The events here occurred from December 2005 through March 2008, during which time Defendant Dr. Lowell Brown worked at Western Illinois Correctional Center, where the plaintiff was and is incarcerated. Dr. Brown stopped working at Western on July 25, 2008. (d/e 151, p. 16, ¶ 1).
Before the plaintiff's incarceration he had surgeries in which he asserts that parts of his stomach, intestine or colon were removed, but the details are sketchy. (d/e 155-2, p. 9; d/e 155-2, p. 36; d/e 142-1, p. 15). He also had surgeries during his incarceration in Stateville, but it is hard to pin those down, too. (d/e 155-2, p. 15; d/e 142-1, p. 15; d/e 151, p. 1, ¶ 4). The plaintiff asserts that he was transferred from Stateville to Western Illinois Correctional Center in 2003. (d/e 155-2, p. 12). According to the plaintiff, he was still recovering from a surgery when he came to Western. (d/e 155-2, p. 1). He was prescribed a therapeutic diet of six small meals a day for four months. (d/e 155-2, p. 26). However, that special diet was apparently discontinued for the stated reason that the plaintiff was failing to adhere to it. (d/e 155-2, pp. 26-33). It does not appear that Dr. Brown was involved with this, however.
On December 7, 2005, the plaintiff was admitted to Illini Community Hospital for complaints of chest pain and abdominal discomfort. (d/e 08-3183). The admission report, authored by Dr. Eller, noted a "very large abdominal hernia .. . tender to the touch." (d/e 155-2, p. 37). After the plaintiff returned to Western from the hospital, he filed a grievance seeking repair of his hernia and complaining that his bowels had not moved from December 5, 2005 to December 20, 2005, (d/e 12-1, pp. 1-2). He also wrote an emergency grievance to the IDOC Director about his need for hernia surgery and his painful problem with moving his bowels. (d/e 12-1, p. 7-).
On January 29, 2006, Dr. Brown saw the plaintiff for gastrointestinal trouble and dysphagia.*fn1 Noting the plaintiff's hernia and gastrointestinal problems, Dr. Brown referred the plaintiff to Dr. Hermes, a gastrointestinal specialist. (d/e 142, p. 2, undisputed fact 3).*fn2 Dr. Hermes saw the plaintiff on February 17, 2006. Dr. Hermes' report states that the plaintiff's primary complaints at that time were trouble swallowing, weight loss, a protrusion through his rectum, and difficulty moving his bowels. (d/e 142-1, p. 6). Dr. Hermes recommended an upper endoscopy and a colonoscopy. (d/e 142-1, p. 6; d/e 142, p. 2, undisputed fact 5).
Dr. Brown followed these recommendations, and the plaintiff had upper and lower endoscopies on March 22, 2006. (d/e 142, p. 3, undisputed fact 6; d/e 142-1, p. 7). Dr. Hermes discovered considerable internal hemorrhoids likely accounting for the prolapse sensation that he experiences with bowel movements. He also has Billroth II anatomy in his upper digestive system. There is some gastritis, which I think may benefit from Carafate 1 gram q.i.d. before meals and at bedtime since his serum gastrin level was low and it is unlikely the inflammation is due to acid secretion. He also had a subtle distal esophageal diverticulum, which may account for intermittent symptoms of dysphagia that he described.
(d/e 142-1, p. 7; d/e 142-1, p. 11). Dr. Hermes recommended "[c]ontinued use of stool softeners and fiber supplementation as needed and topical therapy to the hemorrhoids for inflammatory changes. Will follow up with gastric biopsies once available." (d/e 142-1, p. 12 ).
The plaintiff problems did not abate. In April, 2006, Dr. Brown referred the plaintiff to Dr. Petty, a surgeon, for evaluation of the plaintiff's hernia. (d/e 142-1, p. 13). In addition to the hernia, the plaintiff complained of pain after eating and abdominal bloating. (d/e 142-1, p. 16). Dr. Petty diagnosed the plaintiff with a "reducible incisional hernia." (d/e 142-1, p. 14). Dr. Petty described an "obvious midline hernia just above the umbilicus, which measures 6 x 6 cm." (d/e 142-1, p. 15). Dr. Petty noted that he was not convinced that this explains all of his abdominal pain problems. I think it is certainly reasonable to repair and see what kind of impact that has on his symptoms. However, I cautioned him that this may not relieve his postprandial pain and bloating. He may have post-gastrectomy syndrome, gastroparesis, etc. If he continues to have problems following hernia ...