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Gray v. Ghosh

United States District Court, Seventh Circuit

October 3, 2013

DOIAKAH GRAY, Plaintiff,
v.
PARTHASARATHI GHOSH, RONALD SHAFFER, BRENDA THIGPEN, MARCUS HARDY, JOE SHEENY, and WEXFORD HEALTH SERVICES, INC., Defendants.

MEMORANDUM OPINION AND ORDER

GARY FEINERMAN, District Judge.

In this pro se suit under 42 U.S.C. § 1983, Doiakah Gray, an inmate in the Illinois Department of Corrections, alleges that Defendants violated his Eighth Amendment rights by acting with deliberate indifference to his foot fungus. Doc. 10. The claims against Wexford Health Services, Inc., have been dismissed. Doc. 47. The remaining defendants have moved for summary judgment; the State Defendants (Marcus Hardy, Joe Sheeny, and Brenda Thigpen) filed one motion, Doc. 76, while the Wexford Defendants (Parthasarathi Ghosh and Ronald Shaffer) filed another, Doc. 71. The motions are granted.

To prevail on his Eighth Amendment claim, Gray must show that Defendants "display[ed] deliberate indifference to a serious medical need." Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 301 (7th Cir. 2010); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference has an objective component, that the plaintiff's medical condition be "objectively serious, " and a subjective component, that the defendant "acted with a sufficiently culpable state of mind" in that they had "subjective knowledge of the risk to the inmate's health and... disregard[ed] that risk." Ibid. (internal quotation marks omitted).

As far as this court is aware, every court to have considered the question has held that a foot fungus (that is, athlete's foot) does not satisfy the objective component of an Eighth Amendment deliberate indifference claim. See Tsakonas v. Cicchi, 308 F.App'x 628, 632 (3rd Cir. 2009) (holding that "eczema of the feet [and] athlete's foot" are not objectively serious under the Eighth Amendment); Smith v. Schwartz, 2011 WL 2115831, *3 (S.D. Ill. May 26, 2011) ("Smith's allegations that he suffered chronic itching, athlete's foot, chafing, peeling skin, and a painful, infected rash on his buttocks due to an inability to shower and clean his cell while Pinckneyville was locked down do not show a serious medical condition."); Thompson v. Carlsen, 2010 WL 3584409, at *11 (N.D.N.Y. Aug.16, 2010) ("dry and cracked skin, and athlete's foot... are not serious' medical problems under Eighth Amendment standards"), report and rec. adopted, 2010 WL 3584396 (N.D.N.Y. Sep. 7, 2010); Walker v. Dart, 2010 WL 669448, *4 (N.D. Ill. Feb. 19, 2010) ("Although uncomfortable, a foot fungus, or athlete's foot, is not a serious medical need or injury."); Patterson v. Kim, 2009 WL 2982753, at *8 (W.D. Mich. Sep. 14, 2009) ("Plaintiff's alleged ingrown toenail and foot fungus are not serious medical needs' sufficient to support the objective component of an Eighth Amendment claim."); Cox v. Hartshorn, 503 F.Supp.2d 1078, 1085 (C.D. Ill. 2007) (holding that "[a] fungal foot rash" is not an objectively serious medical condition); Rush v. Schrubbe, 2007 WL 2686843, at *2 (E.D. Wis. Sept. 11, 2007) ("athlete's foot itself does not generally amount to an objectively serious medical condition"); Russell v. Ohio Adult Parole Auth., 2007 WL 129000, at *4 (S.D. Ohio Jan. 12, 2007) (same); Sanders v. Allen Cnty. Jail, 2006 WL 2578977, at *2 (N.D. Ind. Sept. 6, 2006) ("Athlete's foot, another fungal infection for which there is a substantial risk at communal showers, is not a serious harm."); Rogers v. Allen Cnty. Jail, 2006 WL 1441092, *2 (N.D. Ind. May 25, 2006) (holding that "athlete's foot" does not "constitute a serious medical need"); Calhoun v. Thomas, 360 F.Supp.2d 1264, 1287 (M.D. Ala. 2005) (holding that "athlete's foot" and "bleeding feet" do not satisfy the "first, objective inquiry"); Davis v. Lawson, 2005 WL 2293752, at *3 (N.D. Ind. Sept. 19, 2005) ("Athlete's foot is simply not a serious medical need within the meaning of [the Eighth Amendment]."); Landfair v. Sheahan, 878 F.Supp. 1106, 1112 (N.D. Ill. 1995) ("While no doubt uncomfortable, athlete's foot cannot be considered an injury serious enough to satisfy the objective component of [an Eighth Amendment deliberate indifference claim]."); see also Sledge v. Kooi, 564 F.3d 105, 107-08 (2d Cir. 2009) (holding that eczema is not objectively serious under the Eighth Amendment).

The Seventh Circuit has not directly addressed whether athlete's foot can satisfy the objective component of an Eighth Amendment deliberate indifference claim. The Seventh Circuit has, however, provided substantial guidance as to what constitutes an objectively serious medical condition. The governing standard, as set forth in Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997), provides as follows:

Deliberately to ignore a request for medical assistance has long been held to be a form of cruel and unusual punishment... but this is provided that the illness or injury for which assistance is sought is sufficiently serious or painful to make the refusal of assistance uncivilized.... A prison's medical staff that refuses to dispense bromides for the sniffles or minor aches and pains or a tiny scratch or a mild headache or minor fatigue-the sorts of ailments for which many people who are not in prison do not seek medical attention-does not by its refusal violate the Constitution.

Id. at 1372 (quoting Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996)) (alterations in original); see also Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (articulating the same standard); Slater v. Lemens, 400 F.App'x 109, 112 (7th Cir. 2010) (same); Johnson v. Doughty, 433 F.3d 1001, 1017 (7th Cir. 2006) (same); Zentmyer v. Kendall Cnty., 220 F.3d 805, 810 (7th Cir. 2000) (same).

Applying this standard, the Seventh Circuit has held that "a broad range of medical conditions may be sufficient to meet the objective prong of a deliberate indifference claim, including a dislocated finger, a hernia, arthritis, heartburn and vomiting, a broken wrist, and minor burns sustained from lying in vomit." Elyea, 631 F.3d at 861; see also King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (internal quotation marks omitted). The Seventh Circuit recently ruled that a prisoner's "claim of excruciating pain' from his skin infections" satisfied the objective prong of a deliberate indifference claim, Myrick v. Anglin, 496 F.App'x 670, 674 (7th Cir. 2012), while a two-centimeter spider bite did not where there was no indication that the prisoner was allergic to such bites, Jellis v. Hulick, 422 F.App'x 548, 550 (7th Cir. 2011). In Gutierrez itself, the court cited with approval Snipes v. DeTella, 95 F.3d 586, 591 n.1 (7th Cir. 1996), for the proposition that "a toe whose toenail had been removed did not constitute a serious medical need, although, no doubt, quite painful." Gutierrez, 111 F.3d at 1372.

These Seventh Circuit precedents are consistent with the consensus reached by courts faced with athlete's foot deliberate indifference claims. Garden variety athlete's foot is akin to the "sniffles or minor aches and pains or a tiny scratch" referenced in Gutierrez, the spider bite addressed in Jellis, and the toe without a toenail considered in Snipes, and thus does not satisfy the objective component of a deliberate indifference claim. However, as recognized by the district court in Rush, which held that "athlete's foot itself does not generally amount to an objectively serious medical condition" 2007 WL 2686843, at *2 (emphasis added), it is possible that a particular case of athlete's foot could be more severe, painful, or consequential than usual, and thus akin to the "minor burns sustained from lying in vomit" referenced in King and the "excruciating pain' from [a] skin infection" addressed in Myrick, in which case the objective component would be satisfied.

The court dismissed Gray's complaint on preliminary review under 28 U.S.C. § 1915A on the assumption that his claim involved garden variety athlete's foot. Doc. 5. In moving for reconsideration, Gray acknowledged that he had a foot fungus, but argued that his particular fungus resulted in an "infected, discolored hole between [his] toes, which caused [his] foot to go numb." Doc. 7 at 2. The "infected hole on [his] foot, " Gray argued, took his situation beyond an ordinary case of athlete's foot. Id. at 2-3. Based on Gray's description of his condition, the court vacated the dismissal and reinstated the case, holding that Gray had "stated a tenable-if borderline-Eighth Amendment claim." Doc. 9 at 2.

The question on summary judgment is whether the record supports Gray's submission that his was no ordinary case of athlete's foot, and that instead his condition developed into or caused an "infected, discolored hole" between his toes that caused his foot to go numb or resulted in some other discomfort beyond the normal consequences of athlete's foot. "[A] district court is entitled to decide [a summary judgment] motion based on the factual record outlined in the [parties'] Local Rule 56.1 statements." Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004) (internal quotation marks and alterations omitted); see also Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) ("Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings"); Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 360 (7th Cir. 2009) ("[w]e have repeatedly held that the district court is within its discretion to strictly enforce compliance with its local rules regarding summary-judgment motions"); Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005) ("We have... repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1."). Gray's status as a pro se litigant does not excuse him from complying with Local Rule 56.1. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel") (citations omitted); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F.App'x 642, 643 (7th Cir. 2011) ("[t]hough courts are solicitous of pro se litigants, they may nonetheless require strict compliance with local rules"); Wilson v. Kautex, Inc., 371 F.App'x 663, 664 (7th Cir. 2010) ("strictly enforcing Local Rule 56.1 was well within the district court's discretion, even though Wilson is a pro se litigant") (citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) ("even pro se litigants must follow rules of civil procedure").

Consistent with the local rules, Defendants filed Local Rule 56.1(a)(3) statements of undisputed facts along with their summary judgment motions. Docs. 74, 78. Each substantive assertion of fact in the Local Rule 56.1(a)(3) statements cites evidentiary material in the record and is supported by the cited material. See N.D.Ill. L.R. 56.1(a) ("The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph."). Also consistent with the local rules, Defendants filed and served on Gray a Local Rule 56.2 Notice, which explains in detail the requirements of Local Rule 56.1. Docs. 75, 79. Gray filed Local Rule 56.1(b)(3)(B) responses to Defendants' Local Rule 56.1(a)(3) statements. Docs. 84, 87. He also filed a Local Rule 56.1(b)(3)(C) statement of additional facts. Doc. 84 at pp. 6-7. Because the additional facts set forth in Gray's Local Rule 56.1(b)(3)(C) statement relate solely to the subjective component of his deliberate indifference claim, the question whether the record would allow a reasonable jury to find for Gray on the objective component turns on Defendants' Local Rule 56.1(a)(3) statements and Gray's Local Rule 56.1(b)(3)(B) responses thereto.

Gray admitted the following paragraphs of the Wexford Defendants' Local Rule ...


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