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Matthew E. Horton v. Dr. Kimberly Birch and Dr. Obaisi

August 22, 2012


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:


Wednesday, 22 August, 2012 03:22:35 PM Clerk, U.S. District Court, ILCD


Plaintiff, proceeding pro se, alleges deliberate indifference to his serious medical needs regarding his foot during his incarceration in the Illinois Department of Corrections. Now before the Court is Defendants' motion for summary judgment. Because Defendants' motion demonstrates that they were not deliberately indifferent to any of Plaintiff's medical needs, Defendants' motion will be granted.


"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.


Plaintiff came to the IDOC on November 24, 2009, where he was first taken to Stateville Correctional Center. His medical condition was described as insulin-dependent, type II diabetes, high blood pressure, and a gunshot wound from July of that year, with artery repair. (Defs.' Undisp. Facts 2-3, d/e 130.) He was transferred to Vienna Correctional Center on December 28, 2009, where his medical records noted that he had blisters and corns on his feet. (Defs.' Undisp. Fact 5, d/e 130.)

The next month Plaintiff told a nurse that foot surgery had been recommended for him by a podiatrist, and he asked if he could wear tennis shoes instead of the standard issue prison shoes. A medical record from a podiatrist dated October 10, 2008, over one year before Plaintiff's incarceration, appears to reflect that Plaintiff presented complaining of a callus on his right foot, gradually worsening over two years. The records appear to reflect that an x-ray uncovered some kind of bone deformity in Plaintiff's right foot, and that the podiatrist discussed surgical options with Plaintiff. (10/10/08 History & Physical form, p. 2, Plf.'s Exhibit, d/e 149).

Defendant Dr. Birch first saw Plaintiff on January 15, 2010, in Vienna Correctional Center at the diabetes clinic. Plaintiff complained of a callus on his right foot. Dr. Birch prescribed high blood pressure medication, baby aspirin, insulin, and right foot soaks. Dr. Birch saw Plaintiff ten days later, again for the callus on his right foot. She soaked his foot, shaved down the callus, applied salicylic acid and a cover pad. According to Dr. Birch, Plaintiff reported "feels much better," but Plaintiff denies saying this. (Pl.'s Dep. p. 34, d/e 130.) Dr. Birch saw Plaintiff again about three weeks later, on February 8, 2010, to reevaluate the callus. She repeated the treatment she had given at Plaintiff's prior visit. Plaintiff testified in his deposition that he told Dr. Birch that her treatments would not fix the problem because he had a deformity in his foot which required surgery to fix.

Plaintiff had several other visits to the medical unit at Vienna Correctional Center during March and April, 2010, but those visits did not deal with Plaintiff's foot. (Defs.' Undisp. Facts 22-26, d/e 130.) Dr. Birch saw Plaintiff on May 4, 2010 in the diabetes clinic, where Dr. Birch stressed to Plaintiff the importance of controlling his diabetes. A few weeks later, on May 26, 2010, Dr. Birch again shaved Plaintiff's right foot callus. Plaintiff was paroled from Vienna Correctional Center two days later, on May 28, 2010.

In Dr. Birch's opinion, Plaintiff had good blow flow and pulses in his feet, and he did not need a referral to a podiatrist, foot surgery, or diabetic shoes at any time while the doctor was responsible for Plaintiff's care. (Birch Aff. ¶ 33, d/e 130-1.)

Plaintiff wound up back in the IDOC about two months after he was paroled. This time he was sent to Logan Correctional Center, where Defendant Dr. Obaisi worked. On August 17, 2010, Dr. Obaisi reviewed Plaintiff's records and prescribed high blood pressure medicine, a baby aspirin, and daily blood sugar readings. He also directed Plaintiff to be scheduled in the diabetes clinic. About one week later, Dr. Obaisi personally examined Plaintiff, who was requesting a low bunk and diabetic shoes. Dr. Obaisi prescribed a low bunk, a new insulin prescription, a hemoglobin A1C test, and a puma bar for ...

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