The opinion of the court was delivered by: G. Patrick Murphy United States District Judge
Plaintiff, currently an inmate at Tamms Correctional Center ("Tamms"), filed this action under 42 U.S.C. § 1983 claiming excessive force and deliberate indifference to serious medical need. Defendant Marvin F. Powers, who is a physician employed by Wexford Health Sources, Inc, and was a treating physician and medical director at Tamms, filed a motion for summary judgment based on qualified immunity (Doc. 42) which is currently before the Court. Plaintiff has filed a response to the motion (Doc. 54). For the reasons set forth below, Defendant Marvin F. Powers's motion is GRANTED, and Defendant Powers is DISMISSED from this action with prejudice.
Plaintiff alleges that on December 5, 2008, while being escorted back to his cell, Defendants Watkins, Johnson and Vaughn assaulted him, resulting in neck and body pain, then refused to allow a nurse to examine him (Docs. 1, 17). Plaintiff also alleges that he made written requests for medical treatment to Defendant Powers, but Powers denied Plaintiff's requests and directed Tamms nursing staff to deny Plaintiff medication. Plaintiff claims that the pain he experienced from the assault lasted for approximately 30 days and was so intense that he was unable to stand or walk around his cell without discomfort (Doc. 1, p. 4).
Plaintiff's medical records indicate that on December 6, 2008, at 4:15 a.m. he declared a hunger strike because he "want[ed] a regular diet" (Doc. 43-3, p. 1-3). Medical staff observed Plaintiff every few hours. He ended his hunger strike at 4:10 p.m. the same day. None of the medical observation notes contain complaints about his neck or other pains. At 9:00 p.m. on December 6, 2008, an unidentified nurse noted that Plaintiff had "no other complaints at this time" (Doc. 43-3, p. 5). On December 7, 2008, Plaintiff requested and was given Tylenol, but he did not complain of neck or back pain (Doc. 43-4, p. 1). He continued to be monitored by medical staff on December 8, 2008. He made no complaints about the December 5, 2008 use of excessive force, or of pain in his neck on that day (Doc. 43-4 and 43-5).
On December 12, 2008, C. Malone, RN, examined Plaintiff. Plaintiff complained of severe pain on the left side of his neck and in his left shoulder. He described the pain at ten on a scale from one to ten. The nurse, however, indicated Plaintiff was laughing and joking with officers during nurse sick call, and he displayed no grimacing or guarding (Doc. 43-6, pp. 1-2). He also complained of numbness in his right hand and on the right side of his face. The nurse referred Plaintiff "to MD next available line" (Doc. 43-6, p. 3).
Defendant Powers saw Plaintiff on December 15, 2008 (Doc. 43-1, Exh. A, Powers Affidavit). Plaintiff complained of numbness on the right side of his face and left shoulder pain. Dr. Powers noted, "there is no evident deformity of left shoulder, not tender, not reflecting any discomfort, is cuffed behind back." Dr. Powers did not prescribe any medications (Doc. 43-7).
In response to the motion for summary judgment, Plaintiff asserts by declaration that Defendant Powers did not examine him in December 2008, and the medical record showing an exam occurred were falsified. Plaintiff declares that he personally gave medical request slips to nurses who visited his wing on December 5, 8, 12, 16, 22, 27, and 31, 2008, and January 5, 2009. Plaintiff states that the medical request slips made Defendant Powers aware that he was in "agonizing and acute" pain, yet Dr. Powers refused to treat him. Further, Plaintiff claims Defendant Powers instructed the nursing staff at Tamms to deny him pain medication. Plaintiff maintains that in November 2008, Defendant Powers told him that he had never lost a lawsuit because "it is so easy to go back and change a medical report to look like it's authentic." Plaintiff also claims that all of the medical records submitted with the motion for summary judgment by Defendant Powers, including nurses' treatment notes, were falsified. Plaintiff asserts that he did not receive any medical treatment until January 2009, at which time a nurse prescribed Ibuprofen for pain (Doc. 54, pp. 15-18).
Plaintiff also submits the affidavit of fellow inmate Donny White. White avers that Dr. Powers told him he falsified medical records and that he taught the nurses at Tamms to falsify records. A nurse told White that Defendant Powers instructed the nurses to routinely falsify medical treatment notes to avoid lawsuits. White further avers that Tamms nurses told him that Defendant Powers told them not to treat Plaintiff, except for providing him with his insulin shots (Doc. 54, pp. 19-20).
The standard applied to summary judgment motions filed under Rule 56 is well-settled and has been succinctly stated as follows.
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether a genuine issue of material fact exists, [the court] must view the record in a light most favorable to the nonmoving party. Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial. The evidence must create more than some metaphysical doubt as to the material facts. A mere scintilla of evidence in support of the non-movant's position is insufficient; a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion.
Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001) (internal citations and quotations omitted). "We often call summary judgment, the 'put up or shut up' moment in litigation, by which we mean that the non-moving party is required to marshal and present the court with the evidence she contends will prove her case. And by evidence, we mean evidence on which a ...