The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Thursday, 19 April, 2012 11:18:18 AM
Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se and incarcerated in Stateville Correctional Center, pursues various claims arising from incidents which occurred during his incarceration in Western Illinois Correctional Center. Defendants moved for summary judgment in June, 2012. The case was subsequently transferred to this Court in September, 2012.*fn1
On March 29, 2012 the Court entered a text order granting and denying the summary judgment motions. This opinion is the written explanation for that ruling. The remaining Defendants will be directed to file supplemental summary judgment motions in order to ensure that justiciable issues remain for trial.
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment 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). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the non-movant "cannot produce admissible evidence to support the [material] fact." Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the non-movant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists. Id.; Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). "In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the light most favorable to the non-movant, with material factual disputes resolved in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the non-movant. Id.
I. Motion for Summary Judgment by the Medical Defendants Plaintiff pursues claims against the following Defendants who are employed by Wexford Health Sources, Inc. ("the Medical Defendants"):
Defendants Buchanan, Brown, Ring, Thornton, Ashcraft, Hazelrigg, and Wexford Health Sources, Inc.. Plaintiff does not individually address the Medical Defendants' proposed disputed facts. For the most part, he reiterates his allegations and attaches exhibits he believes support those allegations.*fn3 The Court has accepted Defendants' proposed statement of facts as true, to the extent the facts are material and supported by their cites to the record, and to the extent not disputed by Plaintiff's responses. CDIL-LR 7.1(D).
The facts show that Plaintiff was transferred to Western Correctional Center in February, 2007. His medical records reveal that at that time he had "external hemorrhoids and a history of H. Pylori*fn4 with treatment on November of 2006." (Undisputed Fact 7, d/e 123). Dr. Brown saw Plaintiff on April 23, 2007 for "complaints of headaches, perineal pain, and rectal bleeding." (Undisputed Fact 10, d/e 123). Dr. Brown diagnosed a lower gastrointestinal bleed, prescribed Hytrin, Tylenol, and Afrin, and scheduled Plaintiff for a follow-up appointment in two weeks. Id.
On May 7, 2007 Dr. Brown saw Plaintiff and ordered a "complete blood count, an H. Pylori test, Metamucil and Afrin." (Undisputed Fact 11, d/e 123). When the H. Pylori test came back positive, Dr. Brown ordered a "rapid treatment regime," which the Court presumes is a regimen of antibiotics. (Undisputed Fact 12, d/e 123). On May 29, 2007, Dr. Brown determined that the treatment had not worked. He prescribed Metamucil, Disalcid, and Bentyl and discussed Plaintiff's case with Dr. Hermens, a gastroenterologist at the Quincy Medical Group. Dr. Hermens explained to Dr. Brown that H. Pylori infections are "notoriously slow to react." (Undisputed Fact 14, d/e 123).
On July 30, 2007 Plaintiff saw Dr. Hermens, who noted that Plaintiff "complained of right lower quadrant abdominal pain, constipation and rectal bleeding." (Undisputed Fact 16, d/e 123). Dr. Hermens recommended upper and lower endoscopies, which were performed on September 7, 2007. Dr. Brown saw Plaintiff in a follow-up visit on September 10, 2007 and noted that Plaintiff's colon test had been negative, that Plaintiff had pre-pyloric gastritis, and that the H. Pylori test was pending. Dr. Brown diagnosed Plaintiff with gastritis and migraines and prescribed Zantac, Prilosec, Maalox, and Tylenol. (Undisputed Fact 22, d/e 123).
According to the medical records, Plaintiff saw someone about a lump in his calf on November 30, 2007. The notes state that a pea-sized lump was felt. The plan was to refer Plaintiff to "NSC if painful or increase in size." (d/e 123-2, p. 8). The Court presumes that "NSC" means nurse sick call. Plaintiff signed a refusal to go to sick call about his calf on December 7, 2007. (Plaintiff's Dep. p. 77). Plaintiff testified that he was forced to sign the refusal or go to segregation, but he does not explain this. Id. He also seems to assert that he never refused to go to sick call, but he does not explain the contradiction in his deposition. Pourghoraishi v. Flying J., Inc., 449 F.3d 751, 759 (7th Cir. 2006)(affidavit contradicting earlier deposition should be disregarded).
Medical records from February 10, March 5, and March 10, 2008 indicate that Plaintiff refused to see the nurses or the physician's assistant and had refused to sign the refusal form. (d/e 123-2, p. 14). However, Plaintiff testified in his deposition that he never refused this medical treatment. (Plaintiff's Dep. p. 71). On May 5, 2008, Plaintiff reported pain and bleeding in his stool.
According to Plaintiff's deposition, he was late to the medicine line on January 30, 2008 because his cell door was broken. Nurse Thornton, Nurse Ashcraft, or some other nurse refused to give Plaintiff his medicine. Plaintiff does not recall what medicine he was supposed to receive, and the parties have not illuminated the record. (Plaintiff's Dep. pp. 152-154). Plaintiff filed a grievance about this incident, claiming that the nurse had said, "n-, get the f- away from the window." (140-8, p. 7).
Plaintiff further testified in his deposition that on March 11, 2008 he was made to wait four hours at the nurses' station to see Dr. Brown,*fn5 while other inmates who came after him received treatment. According to Plaintiff, one of the nurses said, "'That n- can sit there [sic] all day. He can wait until we get ready to see him. That's what he get for writing us up.'" (Plaintiff's Dep. p. 159).*fn6 Plaintiff eventually did get to see Dr. Brown that day. Plaintiff wrote a grievance about this incident, but whether a response was given is not clear. (d/e 140-8, p. 1). Plaintiff also maintained in his deposition that unidentified nurses refused to give him unspecified medicine on March 15, 2007 and May 24, 2007. (Plaintiff's Dep. p. 176).
On June 28, 2008 Plaintiff declared his fourth hunger strike but ended the strike later that morning. (Undisputed Fact 28, d/e 123). He was transferred to Menard Correctional Center on July 30, 2008. (Undisputed Fact 28, d/e 123).
Plaintiff alleges in his Amended Complaint that, in November 2007, Plaintiff complained to Defendant Dr. Brown about "bleeding from my stomach and that I had extreme pain in private areas. I also explained I had a large knot inside my left leg calf." (Amended Complaint, p. 3, d/e 48). Dr. Brown allegedly did nothing, either because he is "known to be senile" or because he intentionally ignored Plaintiff's complaints.
However, Plaintiff's evidence does not support these allegations. As set forth above, Plaintiff was seen by the medical staff for complaints about a lump in his calf of November 30, 2007 and the plan was to refer Plaintiff to nurse sick call if the lump became painful or increased in size. (d/e 123-2, p. 8). No evidence suggests that Plaintiff had a serious medical need in November 2007 that went unattended. Further, Plaintiff admits that at least on one occasion he refused to see the nurses about this problem. There is no evidence that Dr. Brown knew that Plaintiff was suffering from a serious medical need regarding his leg or refused to treat the problem. At most, the evidence shows that the nurses did not think it necessary to refer Plaintiff to Dr. Brown unless the problem persisted, and Plaintiff disagreed with that decision.*fn7 There is no evidence that the nurses' assessment was incorrect, much less deliberately indifferent. There is also no evidence regarding what treatment should have or could have been given.
As for Plaintiff's intestinal problems, Dr. Brown did know about these problems and was attentive to them, referring Plaintiff to an outside consultant for tests and following that consultant's recommendations. Plaintiff argues that he could have been spared unnecessary pain and bleeding, but he does not explain what more Dr. Brown could have done.*fn8 Plaintiff also contends that Dr. Brown delayed treatment, but no delay is evident from the record. Dr. Brown began trying to treat Plaintiff's ailments from the first appointment in April 2007 and referred Plaintiff to a specialist just a few months later.
In sum, Plaintiff's response offers no evidence that Dr. Brown was
deliberately indifferent to Plaintiff's serious medical needs in
violation of Plaintiff's Eighth Amendment rights. There being no
apparent adverse action taken by Dr. Brown against Plaintiff,
Plaintiff's retaliation claim necessarily fails as well.*fn9
Plaintiff alleges in his Amended Complaint that Defendant Buchanan (the Director of Nursing) refused to put Plaintiff on the list to see a doctor on December 3, 2007, January 23, 2008, and February 11, 2008. She allegedly retaliated against Plaintiff for trying to "go over her head" to see a doctor by directing the other nurses to retaliate against Plaintiff.
These allegations remain unsupported by evidence. The record shows that Nurse Buchanan instructed Plaintiff to "follow procedure and sign up for Nurse Sick Call in your housing unit." (d/e 140-4, p. 35). No reasonable inference arises that Plaintiff was suffering from a serious medical need for which he should have been allowed to bypass Nurse Sick Call. Plaintiff was already being treated by Dr. Brown for his intestinal problems, and he has no evidence that the watch-and-wait approach for his calf problem was a substantial departure from accepted professional standards. Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2010)( "'A medical professional acting in his professional capacity may be held to have displayed deliberate indifference only if the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.'")(quoted cite omitted).
Nor is there any evidence that requiring Plaintiff to follow the nurse sick call procedure was in retaliation for any of his grievances. No evidence suggests that Nurse Buchanan directed the other nurses to retaliate against Plaintiff. Because Plaintiff's allegations against Nurse Buchanan lack evidentiary support, summary judgment is mandated for Buchanan.
C. Nurses Ring, Thornton, Ashcraft, and Hazelrigg Plaintiff alleges in his Amended Complaint that these nurses denied him prescribed medication and access to a doctor and called him racial slurs. He further alleges that these nurses took these actions in retaliation for Plaintiff's prior grievances against them. (Amended Complaint, d/e 48, p. 3).
Plaintiff's allegations about being denied prescribed medication are not well developed. The dates of these denials appear to be January 30, 2008, as well as March 15, 2007 and May 24, 2007. However, Plaintiff does not identify the medicines that were denied him on any of these occasions. The Court does not see any prescribed medicines in the medical records for March 15, 2007, except for Plaintiff's inhaler for his mild asthma, which appeared to be well-controlled, and Plaintiff does not contend that he was denied his inhaler. (d/e 12-3, pp. 20-23). In sum, the Court sees no evidence that Plaintiff was denied medications on March 15, 2007 because Plaintiff does not appear to have been prescribed medicines on that date.
Plaintiff filed a grievance on 5/24/07 about the denial of prescribed medicines by Defendant Nurse Hazelrigg and Defendant Officer Bradbury. (d/e 140-10, p. 2). Plaintiff had been prescribed medicines in April, 2007 for migraines and rectal bleeding (d/e 123-1, p. 26), but whether these were the medicines denied is not stated. Plaintiff does not appear to know what medicine he was denied. A response to the grievance indicates that the prescription for two of Plaintiff's prescribed medicines (Hytrin and Tylenol) had run out on May 23, 2007 and had not been renewed by May 24. (d/e 140-12, p. 3). If that is true, no deliberate indifference occurred. However, the Court cannot accept the grievance response as evidence of the truth of the matter asserted. The nurses provide no affidavits. Accordingly, this claim will remain in for further development.
The next denial of medication allegedly occurred on January 30, 2008. According to Plaintiff's grievance about the incident, an unidentified nurse at med-line refused to give him his medication, claiming that she did not have to follow the doctor's orders. (d/e 140-8, p. 7). This nurse then allegedly called Plaintiff a racial slur and told him to "get the f- away from the window," sentiments purportedly echoed by officers at the scene. The response to the grievance states that the nurse denied the allegations and maintained that she had told Plaintiff to come back during med line. No affidavits from the nurses are offered regarding this incident either.
In sum, the Court does not have enough information to decide whether the purported May 24, 2007 and January 30, 2008 denials of medication might amount to deliberate indifference to any of Plaintiff's serious medical needs.*fn11 These claims will remain in for further development.
Additionally, at this point Plaintiff's retaliation claims against these nurses will survive summary judgment. Discerning exactly what grievances or protected First Amendment activity sparked which alleged retaliation is difficult. Plaintiff does not point to specific grievances which he believes sparked specific retaliatory conduct. Simply attaching all grievances filed over a period of time and labeling every adverse action retaliation for those grievances is not enough. Many of the grievances were filed after an adverse action by one defendant, and Plaintiff makes no plausible connection between that grievance and later retaliatory action by a different defendant. Additionally, many of the grievances were against correctional officers having nothing to do with the nurses or with Plaintiff's medical care.
The Court has been able to identify some grievances in Plaintiff's response that might plausibly be relevant to his retaliation claims against these nurses. Plaintiff filed a grievance on 12/03/07 against Defendant Buchanan and other nurses for refusing to treat a painful knot in Plaintiff's leg. (d/e 140-9, p. 11).*fn12 Another grievance dated 12/17/07 complains about the nurses' interpersonal skills and questions their ability to "play doctor." (d/e 140-8, p. 11). A grievance dated 12/26/07 asks to be seen by a doctor besides Dr. Brown and accuses the nurses of refusing to refer Plaintiff to the doctor for his purported internal bleeding. (d/e 140-12, p. 8). A grievance dated 1/12/08 claims that Dr. Brown was senile and the nurses either would not or could not treat him. (d/e 140-9, p. 8).*fn13 Another grievance dated 1/23/08 accuses Defendant Nurse Buchanan and another nurse of improperly charging Plaintiff for prescribed medicine and threatening him with segregation (d/e 140-8, pp. 22-23). Additionally, he filed a grievance against the nurses on 1/30/08 regarding the refused medication and another on 2/28/08 about his calf.
On this record, these grievances could have been a possible catalyst for the alleged retaliation by nurses on March 11, 2008. On that date, Plaintiff was allegedly intentionally kept waiting to see Dr. Brown for at least four hours. Plaintiff asserts that one of the nurses remarked essentially that the Plaintiff could wait all day because of the grievances he filed and his reports to Wexford. While being forced to wait for a doctor does not alone violate the Constitution, the wait might be a sufficiently adverse action to support a retaliation claim. See Bridges v. Gilbert, 557 F.3d 541, 550 (7th Cir. 2009)(adverse action not unconstitutional in and of itself becomes unconstitutional if done in retaliation for the exercise of a constitutional right, provided the action would deter person of "ordinary firmness" from exercising right in future); Babcock v. White, 102 F.3d 267, 276 (7th Cir. 1996)("The federal courts have long recognized a prisoner's right to seek administrative or judicial remedy of conditions of confinement, . . . as well as the right to be free from retaliation for exercising this right.").
Plaintiff alleges other retaliatory acts as well. He alleges that Nurse Ashcraft told her husband to put Plaintiff in segregation for filing grievances against her, wrote a false disciplinary report against Plaintiff, and "forced" Plaintiff to sign medical co-payment vouchers. (Amended Complaint, d/e 48, p. 4). Being required to co-pay for medical care is not a retaliatory act. However, the false ticket and segregation might rise to actionable retaliation. The Court does not have enough information to determine whether this claim survives summary judgment. The Court cannot tell the date this occurred or the disciplinary report at issue. Plaintiff also alleges that Nurse Hazelrigg wrote false disciplinary reports in retaliation for his grievances, but the Court has no further information on those allegations. (Amended Complaint, d/e 48, p. 4). Plaintiff needs to identify the disciplinary reports at issue, and the nurses need to submit affidavits. Thus, at this point the retaliation claim will remain in against all the nurses except for Nurse Buchanan. The Court sees nothing to suggest that Nurse Buchanan was personally involved in or directed the retaliation.
Plaintiff also pursues an equal protection claim in regards to these incidents based on the alleged racially derogatory names he was called.
"[R]acially derogatory language, while unprofessional and deplorable, does not violate the Constitution. . . [citations omitted]. Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws." Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)(citations omitted). Racially derogatory language is evidence of racial animus, however, and thus can be used to prove an element of an equal protection claim. Id. at 612 n.3. Though the inference is weak, at this point the Court cannot rule out an equal protection claim based on the denials of medicine on May 24, 2007 and January 30, 2008, and the wait room incident on March 11, 2008. Further development of the record may show otherwise.
C. Defendant Wexford Health Sources, Inc. ("Wexford") Plaintiff alleges that Wexford engaged in a conspiracy to cover up the constitutional violations of the nurses and Dr. Brown. The Court has concluded that Nurse Buchanan and Dr. Brown did not violate Plaintiff's constitutional rights, so Plaintiff's claim against Wexford necessarily fails as it relates to Dr. Brown and Nurse Buchanan. Sallenger v. City of Springfield, 630 F.3d 499, 504 (7th Cir. 2010)("[A] ...