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Gregory Ashford v. Dr. Shah

August 23, 2012

GREGORY ASHFORD, PLAINTIFF,
v.
DR. SHAH, TARA GOINS, AND MAJOR S. MCKEE, DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough United States District Judge

E-FILED

Thursday, 23 August, 2012 11:05:24 AM Clerk, U.S. District Court, ILCD

OPINION SUE E. MYERSCOUGH, U.S. District Judge:

Plaintiff, proceeding pro se, alleges deliberate indifference to his serious medical need for treatment for a fractured index finger, an injury which he incurred during his incarceration in Western Illinois Correctional Center in the Fall of 2009. Now before the Court are Defendants' respective motions for summary judgment, which will be granted for the reasons below.

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.

FACTS

The events occurred during Plaintiff's incarceration in Western Illinois Correctional Center. On November 12, 2009, Plaintiff fractured his index finger in a fight with another inmate. He was given ice, Motrin, and an Ace wrap. An x-ray taken the next day showed a "fracture of the distal end of the second metacarpal with slight volar angulation of the distal fracture fragment." (11/16/09 radiology report, attached to Amended Complaint, d/e 21.)

Defendant Dr. Shah worked at the time for Wexford Health Sources, Inc. ("Wexford"), as a traveling doctor for various prisons and jails. Dr. Shah examined Plaintiff on November 20, 2009, prescribed Motrin, and advised Plaintiff to keep his hand elevated. He also put in a request to send Plaintiff for an orthopedic consult, indicating the consult was urgent, and approved Plaintiff for a low bunk permit. (Def. Shah's Undisp. Fact 11, d/e 42.) Dr. Shah saw Plaintiff again three days later and noted "ok to see hand specialist." (11/23/09 medical progress note, d/e 42-2, p. 12.) A few days later Plaintiff was approved for referral to an orthopedist by Dr. Agrawal, who worked in "Utilization Management" at Wexford Health Sources. (Def. Shah Undisp. Fact 14, d/e 42.)

On December 21, 2009, Plaintiff was taken to see orthopedist Dr. Mark Greene. Another x-ray was taken which showed "[o]ld healing fracture seen at the distal end of the second metacarpal with the callus [new bone growth] in satisfactory alignment." (12/21/09 x-ray, attached to Amended Complaint, d/e 21)(bracketed material added by Defendant Shah.) Dr. Greene recommended that the injured finger be "buddy taped" to the second finger, advised Plaintiff to work on his range of motion, and recommended a six-week follow up appointment. (outpatient progress note attached to Amended Complaint, d/e 21, p.

22.). According to Plaintiff, Dr. Greene told him at this appointment there was nothing he could do because the fracture had already started healing. (Amended Complaint ¶ 10, d/e 21; Pl.'s Dep p. 17, d/e 42-1.) Plaintiff understood this to mean that his hand had not healed properly, that the delay in getting him to Dr. Greene was to blame, and that the finger would have to be rebroken in order to set it correctly.

On January 12, 2010 another x-ray was taken, which showed "significant healing change and callus formation seen in the distal shaft of the second metacarpal without positional change from 11-13/2009." (1/14/10 radiology report, attached to Amended Complaint, d/e 21.) Dr. Shah's notes from this day state that the hand was healing and contemplated a follow up with Dr. Greene. (Def. Shah's Undisp. Fact 26, d/e 42). Dr. Shah contacted Wexford for a referral to Dr. Greene for the follow up, but Wexford determined that Plaintiff would be monitored on site. (Shah Aff. ¶ 29, d/e 42-6; Non Approved Wexford Form dated 1/25/2010, d/e 42-2.) The plan was for Dr. Shah to monitor the healing and, if need be, put in again for a consult with Dr. Greene.

On February 1, 2010, Dr. Shah again discussed with Wexford's Utilization Management Department the possibility of a referral to Dr. Greene. Denying the request, Wexford instead recommended that Dr. Shah call Dr. Greene to clarify the latter's recommendations. (Non Approved Wexford Form dated 2\8\10, d/e 42-2, p. 36.) Dr. Shah appealed the denial, which Wexford again denied, instructing Dr. Shah again to call Dr. Greene. (Non Approved Wexford Form dated 2\8\10, d/e 42-2, p. 36.) Dr. Shah left messages for Dr. Greene on March 3 and March 9, 2010, but received no return call.

On May 11, 2010, a Wexford Utilization Management doctor approved Plaintiff for a follow up visit with Dr. Greene. Dr. Greene saw Plaintiff on June 14, 2010, and noted that Plaintiff had "40 degree flexion, full extension, and a smooth slight catch." (Def. Shah's Undisp. Fact 41, d/e 42.) Dr. Green scheduled orthopedic surgery for an "implant arthroplasty." Id. Dr. Shah does not explain this procedure, but the Court believes that the procedure involves ...


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