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Harris v. Talbot

United States District Court, Seventh Circuit

May 23, 2013

BOBBY HARRIS, Plaintiff,
DR. PAUL TALBOT, Defendant.


DAVID G. BERNTHAL, Magistrate Judge.

Plaintiff, proceeding pro se, was housed at Danville Correctional Center at all times relevant to this cause of action. Now before this Court is Defendant Talbot's Motion for Summary Judgment [d/e 43] on Plaintiff's claim for deliberate indifference to Plaintiff's serious medical needs.

Summary judgment will be granted. Plaintiff has not come forth with evidence sufficient to create a genuine issue of material fact as to whether Defendant Talbot was aware of a substantial risk of serious harm to Plaintiff and consciously disregarded that risk during the times Plaintiff sought medical services for his eye condition and for new contact lenses.

At the outset, the Court notes that Plaintiff's compliance with the federal and local procedural rules when responding to Defendant Talbot's Motions for Summary Judgment was lackluster at best. The Court specifically notes that included in the documents attached to Plaintiff's Sur-Reply to Defendant Talbot's Reply in support of his Motion for Summary Judgment was what appears to be an alternate and extended version of the Response Plaintiff originally filed on November 13, 2012. Plaintiff neither explains the inclusion of his alternate Response (for lack of a better term) with his Sur-Reply, nor does he explain why the Response attached to his Sur-Reply is different from that originally filed. Indeed, Plaintiff makes no reference to that alternate Response in his Sur-Reply whatsoever.[1] Accordingly, the Court will only consider the Response Plaintiff originally filed on November 13, 2012, and will not consider the alternate Response attached to his Sur-Reply. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); Greer v. Bd. of Educ. of City of Chi., 267 F.3d 723, 727 (7th Cir. 2009) (providing that "a lawsuit is not a game of hunt the peanut"). Further, the Court had to expend a considerable amount of time sorting through which facts were disputed or undisputed, material or immaterial in Plaintiff's Response given its less than straightforward organization. Nevertheless, in the interest of avoiding further delay in this matter, the Court will not order Plaintiff to re-file his Response and Sur-Reply that more fully comply with the federal and local procedure rules.


"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 nonmovant "cannot produce admissible evidence to support the [material] fact." Fed.R.Civ.P. 56(c)(1)(B). If the movant clears this hurdle, the nonmovant 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 nonmovant, with material factual disputes resolved in the nonmovant'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 nonmovant. Id.


Plaintiff arrived at Danville Correctional Center from Western Illinois Correctional Center in February 2009. (Dft's MSJ UMF #3). On June 12, 2009, Plaintiff was referred to the Gailey Eye Clinic where he saw an ophthalmologist who was going to order contact lenses with a different prescription and call when they arrived because Plaintiff's existing contacts were not fitting well. (Dft's MSJ UMF #4). The outside ophthalmologist's recommendation for new contacts was approved by the Danville Correctional Center's Medical Director. (Dft's MSJ UMF #5). On September 25, 2009, Danville Correctional Center's in-house optometrist, Matthew Jones, O.D., offered Plaintiff a three-month supply of contact lens cleaning solution. (Dft's MSJ UMF #6). Defendant Talbot is employed by Wexford Health Sources, Inc., and has served as Danville Correctional Center's Medical Director since October 26, 2009. (Dft's MSJ UMF #2). On November 23, 2009, Defendant Talbot first had contact with Plaintiff by reviewing Plaintiff's medical chart, and Defendant Talbot noted that Plaintiff had a history of having glaucoma with a questionable lens problem that required soft contact lenses. (Dft's MSJ UMF #7). On December 2, 2009, a nurse noted to Plaintiff upon him checking in that contact lens solution had been ordered and that a pass would be sent to him when the medication came into the facility. (Dft's MSJ UMF #8). On March 8, 2010, Plaintiff reported to a nurse that his prescription for Opti-Free rewetting drops ran out and that he needed more. (Dft's MSJ UMF #9). A prescription was issued for Xalatan for the glaucoma and Opti-Free rewetting drops that day. (Dft's MSJ, Medical Record p. 208). On March 9, 2010, Defendant Talbot signed the non-preferred request form that was submitted on Plaintiff's behalf for the latter to receive Opti-Free Express, a cleansing solution. (Dft's MSJ UMF #10). In March 2010, Defendant Talbot requested that the in-house optometry department evaluate Plaintiff as soon as possible for an eyeglass prescription after he reviewed Plaintiff's chart which indicated that the Regional Medical Director, Arthur D. Funk, M.D., had denied Plaintiff's request for new contact lenses. (Dft's MSJ, Talbot Aff. ¶ 7; Medical Record p. 110).

When Defendant Talbot first personally saw Plaintiff on May 6, 2010, for Plaintiff's glaucoma condition, Plaintiff's Xalatan order was still good through September 6, 2010, and Defendant Talbot determined that Plaintiff needed an optometry examination for eyeglasses as well as a funduscopy and visual field review. (Dft's MSJ UMF #12). When Defendant Talbot next saw Plaintiff on August 9, 2010, he prescribed more Xalatan drops and asked that Plaintiff follow up with optometry regarding his glaucoma. (Dft's MSJ UMF #13). Prior to that date, on April 11, 2010, the in-house optometrist, Dr. Edward L. Montwill, O.D., ordered multi-purpose lens solution. (Dft's MSJ, Medical Record p. 208). When Defendant Talbot next examined Plaintiff on August 19, 2010, he noted that Plaintiff had myopic degeneration of the right eye with a questionable high myopia and may require contact lenses, and that there was an unknown cause and effect, if any, between the use of contact lenses and open angle glaucoma. (Dft's MSJ UMF #14).

Defendant Talbot then recommended an ophthalmological evaluation on August 19, 2010, in order to determine whether Plaintiff's disease was progressing and to find out whether he would benefit or be at risk with the use of contact lenses. (Dft's MSJ, Medical Record pp. 71-74). Defendant Talbot requested a collegial review to consider an ophthalmological outside evaluation of the glaucoma and to conduct a risk/benefit evaluation of contact lenses vis-à-vis eyeglasses. (Dft's MSJ, Medical Record pp. 71-74). A collegial review was performed that same day, and the request for Plaintiff to be seen by an outside ophthalmologist was approved. (Dft's MSJ, Medical Record pp. 75-76). On August 24, 2010, Defendant Talbot noted in Plaintiff's medical chart that he contacted the outside ophthalmologist at the Gailey Eye Clinic to discuss the request for an evaluation of Plaintiff's glaucoma and need for contact lenses vis-à-vis eyeglasses. (Dft's MSJ, Medical Record p. 78). On September 20, 2010, Dr. Montwill examined Plaintiff, re-ordered contact lens solution for 180 days, re-ordered Xalatan for 180 days, and ordered artificial tears for 180 days. (Dft's MSJ, Medical Record pp. 142, 209). On September 29, 2010, Defendant Talbot requested that Plaintiff be sent on a medical furlough to the Gailey Eye Clinic. (Dft's MSJ, Medical Record p. 263). That day, the outside ophthalmologist at the Gailey Eye Clinic, Dr. Aprahamian, recommended the continued use of Xalatan for both eyes, noted that Plaintiff would need an appointment with Dr. David Imes at the Gailey Eye Clinic for a refraction and contact lens[2] prescription, and recommended a four-month follow up on his glaucoma condition. (Dft's MSJ, Medical Record p. 118). Defendant Talbot approved the recommendations on September 30, 2010. (Dft's MSJ, Medical Record p. 118).

On February 17, 2011, Defendant Talbot saw Plaintiff for his glaucoma condition and noted Plaintiff's glaucoma condition was good per the last report by Dr. Montwill and Dr. Aprahamian in September 2009, prescribed more Xalatan for it, noted that rewetting drops for Plaintiff's lenses had already been ordered, and asked that Plaintiff be scheduled for a follow-up appointment with Dr. Montwill. (Dft's MSJ, Medical Record pp. 81, 210). On April 12, 2011, Defendant Talbot prescribed Plaintiff a multi-purpose disinfecting solution for his contact lenses and instructed Plaintiff to use them as directed. (Dft's MSJ, Medical Record p. 211). New contact lenses were ordered for Plaintiff on July 26, 2011, by optometrist Peter Kehoe, O.D., and the contacts were re-fitted and then a second set were ordered on September 2, 2011. (Dft's MSJ, Talbot Aff. Exh. A). On August 24, 2011, Defendant Talbot prescribed rewetting drops for Plaintiff for six months. (Dft's MSJ, Medical Record p. 212). On September 19, 2011, Defendant Talbot authorized a medical furlough for Plaintiff to return to the Gailey Eye Clinic where he subsequently underwent an examination and visual field examination of both eyes on September 20, 2011. (Dft's MSJ, Medical Record pp. 273, 120-21). On December 12, 2011, Defendant Talbot examined Plaintiff's glaucoma condition and determined that it was good. (Dft's MSJ, Medical Record pp. 90-92).

Throughout the entire time that Plaintiff has been at Danville Correctional Center he has been on Xalatan for his glaucoma and it has kept his glaucoma stable and controlled. (Dft's MSJ UMF #34, 35). Further, until the time that Plaintiff received a new set of contact lenses in July 2011, while he was using his original pair of ...

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