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Wilkerson v. Fenoglio

United States District Court, Seventh Circuit

July 26, 2013

DAVID WILKERSON, Plaintiff,
v.
JAMES FENOGLIO, Defendant.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN UNITED STATES DISTRICT JUDGE

David Wilkerson (Plaintiff) filed suit in this Court in April 2011, alleging that various correctional officials and medical professionals were deliberately indifferent to his serious medical needs after he (paralyzed and confined to a wheelchair) was injured in the shower of the medical unit of Lawrence Correctional Center. Several Orders entered herein resulted in the dismissal of certain claims and Defendants, leaving only James Fenoglio, MD. Now before the Court is the motion for summary judgment filed by Defendant Fenoglio on April 26, 2013 (Doc. 103). Plaintiff filed a response to the motion on June 24, 2013 (Doc. 115), and Fenoglio filed a reply on July 8, 2013 (Doc. 121). For the reasons below, the Court will grant Fenoglio’s motion.

A. Procedural Background and Summary of Key Facts/Allegations

Pursuant to 42 U.S.C. § 1983, David Wilkerson, then an inmate at Lawrence Correctional Center, sued five Defendants on the theory they violated his Eighth Amendment rights by showing deliberate indifference to his medical needs after he fell off a shower chair and re-injured his back. Defendants Ryker and Walker were dismissed pursuant to the Court’s threshold review Order under 28 U.S.C. 1915A (Doc. 17). Defendant Hurford was dismissed from this case on January 29, 2013 (Doc. 94). Defendant Benton was dismissed via a July 15, 2013 Order (Doc. 125), leaving Fenoglio as the remaining Defendant.

Plaintiff has been a paraplegic since 1982, prior to his time in custody. In the summer of 2008, Defendant Hurford performed spinal surgery on Plaintiff and implanted hardware into his back (Pl.’s Affidavit, Doc. 69-2, p. 2). On October 16 2008, Plaintiff fell while trying to move himself from his wheelchair to the shower chair (Doc. 1). Plaintiff was housed in the infirmary throughout the relevant time period, because he had some open sores (Pl’s Dep., Doc. 106-1, p. 24). After the fall, Plaintiff was helped back to his bed and examined by Nurse Clevy (Pl’s Dep., Doc. 106-1 pp. 21-22). Dr. Fenoglio also examined Plaintiff on October 16, 2008 and determined that he had some bruising (Pl’s Dep., Doc. 106-1 pp. 21-22). Plaintiff continued to receive regular examinations by the nurses and by Dr. Fenoglio (Pl’s Dep., Doc. 106-1 pp. 25-26). Fenoglio performed an examination on October 22, 2008, noted Plaintiff’s complaints of low back pain, and examined Plaintiff’s back (Doc. 106-2, p. 4; Fenoglio Aff., C, ¶7).

Plaintiff was taken the Carle Institute to follow up with Dr. Hurford on November 18, 2008 (Hurford Aff., Doc. 69-2, ¶ 10). Hurford recommended more testing and concluded that Plaintiff was a candidate for additional surgery, because the implanted hardware had failed, although no explanation for the failure was recorded (Hurford Aff., Doc. 69-2, ¶ 10). Hurford attested in a sworn affidavit that Plaintiff’s need for surgery was neither urgent nor emergent and that significant pre-surgery testing would have to be accomplished first due to the inherent risks in the procedures (Hurford Aff., Doc. 69-2, ¶ 12 &13).

Dr. Fenoglio examined Plaintiff when he returned to Lawrence on November 19, 2008 (Doc. 106-2, p. 5; Fenoglio Aff. ¶ 10). Fenoglio reviewed Hurford’s recommendations and indicated that he would refer Plaintiff for the tests (Doc. 106-2, p. 5-6; Fenoglio Aff. ¶ 10).

Fenoglio also saw Plaintiff the next day; Plaintiff was complaining of pain, and Fenoglio prescribed Darvocet (Doc. 106-2 p. 5; Fenoglio Aff. ¶ 11). Fenoglio performed follow-up examinations on November 24, 2008 and December 1, 2008 (Doc. 106-2, p. 7-8; Fenoglio Aff. ¶ 13). Plaintiff had a serious of lumbar spine radiographs or plain films taken on December 6, 2012 (Doc. 106-2, p. 8; Fenoglio Aff. ¶ 14).

Fenoglio again examined Plaintiff on December 10, 2008. Fenoglio’s notes from that visit indicate that he would check with “Andrea” regarding Plaintiff’s referral for surgery (Doc. 106-2, p.9; Fenoglio Aff. ¶ 16). On that same day, Fenoglio contacted Andrea Huey, the Medical Records Director, and he scheduled an MRI for December 17, 2008, which Plaintiff received (Doc. 106-2, p.9; Fenoglio Aff. ¶¶ 16, 18).

Fenoglio examined Plaintiff on December 19, 2008, noting that lumbar spine films were needed for comparison with the MRI (Doc. 106-2, p. 11; Fenoglio Aff. ¶ 19). Fenoglio next saw Plaintiff on December 22, 2008, and indicated that the comparison films would be performed that day (Doc. 106-2, p.12; Fenoglio Aff. ¶ 20). On December 29, 2008, Fenoglio saw Plaintiff and noted that he was awaiting a surgery referral decision (Doc. 106-2, p.13; Fenoglio Aff. ¶ 21). In response to Plaintiff’s consistent complaints of pain, Fenoglio prescribed Vicodin on December 30, 2009 (Doc. 106-2, p.14; Fenoglio Aff. ¶ 22).

Fenoglio performed another examination of Plaintiff on January 6, 2009, which contained a note to ask Huey to follow up with Carle clinic (Doc. 106-2, p.15; Fenoglio Aff. ¶ 23). On January 16, 2009, Fenoglio examined Plaintiff, and Plaintiff received a CT scan (Doc. 106-2, pp. 2, 16; Fenoglio Aff. ¶¶ 24, 25). Fenoglio also performed exams on Plaintiff on January 23, January 30, and February 4 of 2009 (Doc. 106-2, pp., 17-19; Fenoglio Aff. ¶¶ 26-28).

Huey called Carle clinic on February 5, 2009 to see if Hurford had reviewed the films and made a determination, but received no answer (Doc. 106-2, p. 20; Fenoglio Aff. ¶ 29). The prison heard back from Carle clinic on February 24, 2009. Hurford orally recommended surgery and indicated that he would send his written recommendation in the mail (Doc. 106-2, p. 21; Fenoglio Aff. ¶ 30). Lawrence Correctional Center did not receive Hurford’s written recommendation until sometime between March 26, 2009 and April 2, 2009, which is when Dr. Shepard noted that Plaintiff had been referred back to Carle clinic for exploratory surgery (Doc. 106-2, pp., 22-24; Fenoglio Aff. ¶¶ 32-33). Huey called Carle Clinic on April 10, 2009 for a date for surgery. Huey received a date on April 13, 2009 (Doc. 106-2, pp. 25-26; Fenoglio Aff. ¶¶ 34, 35).

Surgery was initially scheduled for May 6, 2009. The Carle Clinic rescheduled it for May 27, 2009 (Doc. 106-2, pp., 26, 30; Fenoglio Aff. ¶¶ 35, 39). During this time, Fenoglio saw Plaintiff --on March 4, 2009, April 17, 2009, April 22, 2009, and May 6, 2009 (Doc. 106-2, pp. 22, 24, 27-28; Fenoglio Aff. ¶¶ 31, 33, 36-37). Fenoglio prescribed Vicodin for Plaintiff’s pain on the May 6, 2009 examination. Dr. Hurford performed a second surgery in May of 2009, during which he noted that some of Plaintiff’s hardware had been displaced, but Plaintiff’s spine had fused on its own and no further surgery was necessary (Doc. 69-2, p. 23-28).

Plaintiff alleges that Fenoglio failed to provide adequate, prompt medical treatment, violating Plaintiff’s rights under the Eighth Amendment to the United States Constitution by this deliberate indifference to Plaintiff’s medical needs. Fenoglio moved for summary judgment on April 26, 2013, asserting that ...


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