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Ray A. Fox, By and Through His Guardian Rose Fox v. Constantine Peters

December 19, 2011

RAY A. FOX, BY AND THROUGH HIS GUARDIAN ROSE FOX, PLAINTIFF,
v.
CONSTANTINE PETERS, TERRY MCCANN, FORMER WARDEN OF STATEVILLE CORRECTIONAL CENTER, WEXFORD HEALTH SOURCES, INC., IVETTA SANGSTER, LPN, DAVID BARNES, CMT, SEAN ROYCROFT, ROYCE BROWN-REED, OFFICER CURTIS, OFFICER M. BREWER, J. PASQUA, MARLON BROWN, J. ENCARNACION, MICHAEL R. BORKOWSKI, JOSEPH P. SHEEHY, KAREN FRYER, JAMES F. BECKER, UNKNOWN CORRECTIONAL OFFICERS, AND UNKNOWN MEDICAL PERSONNEL, DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Ray A. Fox's Third Amended Complaint (Dkt. No. 109) alleges that defendants Dr. Constantine Peters, Terry McCann, Wexford Health Sources, Inc. ("Wexford"), Ivetta Sangster, David Barnes, Sean Roycroft, Royce Brown-Reed, Rosaline Curtis,*fn1 Michael Brewer, Marlon Brown, Julius Encarnacion, Michael Pasqua, Michael Borkowski, Karen Fryer, Joseph Sheehy, James F. Becker, unknown correctional officers, and unknown medical personnel violated his Eighth Amendment rights through deliberate indifference to his serious medical needs by failing to provide him the medication and medical attention he needed to avoid suffering an epileptic seizure. Before the court now are two motions for summary judgment. The first seeks summary judgment on behalf of Rashad, Fryer, Brown-Reed, Pasqua, Brown, McCann, Sheehy, Brewer, Borkowski, Barnes, and Encarnacion. Dkt. No. 184. The second seeks summary judgment on behalf of Wexford, Sangster, Roycroft, and Becker. Dkt. No. 188. Dr. Peters has not moved for summary judgment. For the following reasons, the court grants summary judgment as to McCann, Sangster, Brown-Reed, and Roycroft. Summary judgment is not appropriate, however, as to Barnes, Wexford, Becker, Rashad, Fryer, Pasqua, Brown, Sheehy, Brewer, Borkowski, and Encarnacion.

BACKGROUND

During the fall of 2007, Fox was an inmate at the Northern Reception Center of the Stateville Correctional Center ("NRC") in Joliet, a prison run by the Illinois Department of Corrections ("IDOC"). Dkt. No. 186 ("IDOC SOF") ¶ 1. Wexford at that time had contracted with IDOC to provide medical care for inmates at NRC. Dkt. No. 190 ("Wexford SOF") ¶ 2. Fox had suffered from seizures since approximately age 15. Dkt. No. 195-2 ("PSOF") ¶ 1. Prior to his arrival at the NRC, Fox had been taking Dilantin and Phenobarbital each day to treat his seizures. PSOF ¶ 4. When Fox arrived at Stateville on September 24, 2007, Dr. Constatine Peters examined him and prescribed 200 grams of Dilantin and 30 grams of Phenobarbital daily to treat his seizures. Id.

There were two ways that inmates received medicine at the NRC. Id. ¶ 12. Sometimes the inmate was permitted to keep the medicine in his cell and administer it himself (called "keep on person" or "maintenance" medications). Id. In that case, the corrective medical technicians (CMTs) delivered the medication. Otherwise, the nurses administered the medication one dose at a time (called "watch take" medications). Id. In either case, the CMTs and nurses at the NRC kept Medication Administration Records ("MARs") that indicated when they gave medication to inmates. Wexford SOF ¶ 17.

The defendants have submitted Fox's MAR for Dilantin for September 2007. Dkt. No. 190, Ex. F. The MAR contains the prescription label which indicates that Fox was to take two 100 mg capsules of Dilantin daily from September 24, 2007 to October 24, 2007. Id.; see also Dkt. No. 190, Ex. E, at 157-68. David Barnes was the CMT assigned to deliver Barnes's Dilantin medication on September 25, 2007. According to Barnes, Fox's Dilantin was a maintenance medication that should have been delivered in a blister pack containing thirty tablets, or a fifteen-day supply, of Dilantin. Dkt. No. 190, Ex. E, at 168-70. Barnes initialed the MAR on September 25, which he testified indicated that he in fact gave Fox a blister pack containing thirty tablets of Dilantin on that day. Id. at 168. Barnes also testified that as a CMT, he distributed only maintenance medications, and that nurses would give out any watch take medications. Id. at 85-86.

Phenobarbital is a watch take medication. Wexford SOF ¶ 20. James Becker, a nurse at the NRC, initialed Fox's MAR for September 27, 29, and 30, and October 1-5. Nurse Sean Roycroft initialed Fox's MAR on September 26. Wexford SOF ¶22; PSOF ¶ 16. There are unidentified initials on the MAR for September 25 and 28, and October 6. Wexford SOF ¶¶ 21, 24, 25.

The inmates in the cells adjoining Fox's cell testified that from about October 2 until October 7, Fox repeatedly told passers-by that he did not have his medication and that he needed them to bring him his medication. PSOF ¶¶ 18-19. Although the inmates do not indicate which people specifically were passing by, CMTs Michael Borkowski, Karen Fryer, and Joseph Sheehy, and correctional officers Michael Brewer, Marlon Brown, Julius Encarnacion, Michael Pasqua, and Rosalina Rashad all were on duty for at least one shift during the period October 2-7. Id. ¶¶ 112-16, 125-27. Moreover, each of the correctional officers was required to make rounds every 30 minutes during his or her shift, and each of the CMTs would have circulated through the prison while distributing medication, so they each in their routine procedure passed near Fox's cell. Id. ¶¶ 109, 118-19.

According to the inmates, the people who passed by Fox's cell responded by telling him, "We'll get to you later," "The next shift will handle it," "Let the med tech know when you see him going by," and the like. Id. ¶ 20. In addition, the inmates looked into Fox's cell on several occasions from October 2-7, and reported that food had piled up in Fox's cell, that they saw Fox in a curled up fetal position shaking, and that Fox looked sick. Id. ¶ 19. One inmate in an adjoining cell also testified that Fox complained to a correctional officer on the second shift a day or two before October 7 that Fox had been vomiting, had diarrhea, tremors, and the shakes, and that he needed to see a doctor and needed his medication. Id. ¶ 18.

On October 6, 2007, Barnes examined Fox in his cell after an unidentified correctional officer called for help after discovering that Fox vomited on his blanket and clothes. IDOC SOF ¶ 26;PSOF ¶ 123. At the examination, Fox informed Barnes that he had vomited once, had urinated on himself, and had a headache, sore throat, and chills. IDOC SOF ¶¶ 31-32. Fox also told Barnes that "I take Dilantin." Id. ¶ 28. Barnes took Fox's blood pressure, pulse, respiration, and temperature, all of which were normal. Id. ¶¶ 29-30. Moreover, Barnes noted that Fox was alert and "oriented times 3." Id. ¶ 30. Barnes determined that Fox was suffering from the flu and prescribed fluids, rest, and Tylenol. Id. ¶¶ 33-34. Barnes also referred Fox to the Health Care Unit for an evaluation by a physician by placing him on sick call, a process that meant Fox would see a physician in two to three days. Dkt. No. 197 ("Pl.'s Resp. to IDOC SOF") ¶¶ 26, 34.

On October 7, Nurse Ivetta Sangster found Fox unresponsive in his cell when she arrived to deliver his Phenobarbital. PSOF ¶ 5. Prison officials transferred Fox to Provena St. Joseph Hospital, where he was diagnosed with inter-cranial hemorrhaging from a ruptured aneurysm. Id. ¶ 10. According to the reports of Fox's experts, the injury was the result of a seizure or seizures he suffered while at the NRC. Id. ¶ 5. Because of the injury, Fox has suffered permanent brain damage that limits his cognitive functioning and ability to lead a normal lifestyle. Id. ¶ 11.

LEGAL STANDARD

A grant of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a motion for summary judgment, the court must consider the facts before it in the light most favorable to the ...


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