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Conley v. Birch

United States District Court, Seventh Circuit

December 2, 2013

JOSEPH CONLEY, Plaintiff,
v.
KIM BIRCH, J. BROWN, J. DAYMON, STANFORD, WEXFORD HEALTH SOURCES, INC., CAROL S. FAULESS, and PENNY GEORGE Defendants.

MEMORANDUM AND ORDER

Stephen C. Williams United States Magistrate Judge

Plaintiff filed this cause of action on January 7, 2011, alleging deliberate indifference to serious medical needs against various Defendants as a result a broken hand he suffered during an altercation. (Doc. 1). Dr. Kim Birch and Wexford Health Sources, Inc. filed a Motion for Summary Judgment on September 2, 2013. (Doc. 114). The remaining Defendants, who are all IDOC employees, also filed a Motion for Summary Judgment (Doc. 116) on September 2, 2013. Plaintiff filed his separate Responses to both Motions on October 17, 2013. (Docs. 124 and 125). Defendants filed their Replies to Plaintiff’s Response on October 21, 2013, making this Motion ripe for disposition. (Doc. 127; Doc. 128). For the reasons below, the IDOC Defendants’ Motion for Summary Judgment (Doc. 116) is DENIED in part and GRANTED in part. The Wexford Defendants’ Motion for Summary Judgment is GRANTED.

Background

Pursuant to 42 U.S.C. § 1983, Joseph Conley, an inmate at Lawrence Correctional Center, sued multiple Defendants on the theory Defendants violated his Eighth Amendment rights by showing deliberate indifference to his medical needs after he hurt his hand during an altercation with another prisoner at Vienna Correctional Center. (Doc. 1). The Court dismissed Plaintiff’s claims against Michael Randle, the Illinois Department of Corrections, Officer John Doe 1, and John Cox on threshold review pursuant to § 1915A. (Doc. 12).

Plaintiff was involved in an altercation at Vienna on December 22, 2009. (Pl’s Dep. p. 20). Plaintiff does not recall the time of day, the identity of his assailant, or the physical appearance of his assailant. (Pl.’s Dep. p. 21). The assailant swung a combination lock towards Plaintiff’s head, which Plaintiff blocked with his right hand. (Pl.’s Dep. p. 23). When the lock came into contact with Plaintiff’s hand, he heard a pop and felt excruciating pain. (Pl.’s Dep. p. 23). Approximately one hour later, Plaintiff sought out an unidentified guard that his hand was broken and that he needed to see a doctor. (Pl.’s Dep. p. 25). The guard told him that he would send Plaintiff down to healthcare, however, if healthcare determined that Plaintiff’s condition was not an emergency, he would write Plaintiff up for lying. (Pl.’s Dep. p. 28). Plaintiff went back to his unit. (Pl.’s Dep. p. 28). At approximately 8 p.m. that same day, Plaintiff told Defendant Daymon that he needed medical attention while in the med line. (Pl.’s Dep. p. 28-29). Daymon told Plaintiff he needed to sign up for sick call, but Plaintiff told her he couldn’t write due to his injured hand. (Pl.’s Dep. p. 32). Daymon took no further action. (Pl.’s Dep. p. 35).

The next day, Plaintiff again attempted to seek medical attention by informing Defendant Stanford that his hand needed medical attention while at the morning med line. (Pl.’s Dep. p. 33). Stanford told Plaintiff that she would call him back down from his dormitory to the health care unit when she was finished with the med line, but never did. (Pl.’s Dep. p. 33).

On December 23, 2009 at 8 p.m., Plaintiff once again attempted to get medical attention for his injured hand from Defendant Fauless, who again told Plaintiff that she would call him back down from his dormitory, but never did. (Pl.’s Dep. p. 24).

On December 24, 2009, Plaintiff asked Stanford for medical attention at the morning medication line. (Pl.’s Dep. p. 35). Plaintiff again repeated that he needed medical attention, and Stanford again told him that she would call him back down, but never did. (Pl.’s Dep. p. 35). Plaintiff testified that on the morning of December 24, his hand had swelled up “like a boxing glove, ” and that it was discolored. (Pl.’s Dep. p. 36). He believed that it was broken at this time because he could not move it. (Pl.’s Dep. p. 36). He showed his hand to Stanford. (Pl.’s Dep. p. 36). Plaintiff also testified that the nurse at the evening med call line, later identified as Fauless, denied him treatment for his hand as well. (Pl.’s Dep. pp. 39-40).

Med call line takes place in the health care unit itself, and inmates must arrive on the unit to get their medication. (Birch II Dep. p. 32). When an inmate requests medical attention during med line, they are asked to take a seat, and are assessed when the RN becomes available. (Potts Dep. p. 31). The policy was to have inmates in need of medical attention wait in the health care unit, not in their dormitory. (Sanford Dep. p. 47-49). An inmate might wait fifteen minutes to see a nurse in this scenario. (Potts. Dep. p. 32). Inmates routinely bring problems to the nurses’ attention during med line. (Fauless Dep. p. 58). The guards permit the inmates to linger in the health care unit when the nurses have asked them to stay. (Fauless Dep. p. 59). The nurse has discretion about which complaints need to be seen, for example Defendant Daymon testified that if an inmate complained that his hand hurt, she would ask him to wait in the health care unit if the injury was swollen, but not if it was merely painful. (Daymon Dep. pp. 50-51). Normally, after inmates receive their medication, they gather in the lobby to wait for the guard to escort the unit as a whole back up to the dormitory. (Fauless Dep. p. 60). Fauless specifically testified that she would not send an inmate with an obvious problem away and tell him to come back later. (Fauless Dep. p. 64). If an inmate had been asked to wait, he would have to sign a refusal of care to leave the health care unit. (Daymon Dep. p. 67).

Plaintiff testified that after he was again denied medical care at the evening call line on December 24, 2009, he showed Lt. Felton his hand and Lt. Felton brought him to the health care unit. (Pl.’s Dep. pp. 39-40). Plaintiff later clarified that he got in another altercation at approximately 8:30 p.m., and that he received medical attention after the guards broke up that fight. (Pl.’s Dep. p. 56). Plaintiff testified that he did not use his injured hand in this fight and that his assailant punched him twice before the guards broke up the fight. (Pl.’s Dep. pp. 57-58). The disciplinary report described both inmates throwing punches and in particular described Plaintiff “swing[ing] from behind hitting Robinson in the side of the face.” (Doc. 117-1, p. 182). Although Plaintiff testified that this fight occurred after med line, the disciplinary report indicates that it happened at approximately 6:00 p.m. (Doc. 117-1, p. 182). Plaintiff pled guilty at his adjustment committee hearing and testified that he hit inmate Robinson. (Doc. 117-1, p. 183). Plaintiff was sentenced to one month C grade and one month segregation, lost one month of good time credit, and scheduled to be transferred. (Pl.’s Dep. p. 55). Plaintiff testified the disciplinary report he received after the fight was false when it said he was seen throwing punches and that he only acted defensively, but that the guards put that in the report to make it easier to discipline him. (Pl.’s Dep. p. 104).

Nurse Potts examined Plaintiff’s hand on December 24, 2009 and placed a call to Defendant Birch. (Pl.’s Dep. p. 46). Plaintiff did not hear this phone conversation. (Pl.’s Dep. p. 47). Nurse Potts gave Plaintiff an ice pack and ibuprofen. (Pl.’s Dep. p. 48). Nurse Potts noted pain, discoloration, limited motion, and swelling. (Doc. 115-2, p. 2). The medical records also indicate that Plaintiff reported that the injury stemmed from December 22, 2009. (Doc. 115-2, p.2). Potts would not necessarily document that an injury occurred prior to an inmate reporting it, as that was a common occurrence and not that relevant. (Potts Dep. pp. 28-29). Potts has no independent recollection of Plaintiff. (Potts Dep. p. 11). Potts testified that x-rays can be telephonically ordered. (Potts Dep. p. 48). If an inmate had an obvious and severe break, the facility may refer them to Heartland Regional Medical Center for immediate treatment. (Potts Dep. p. 47).

Birch has no independent recollection of the Potts’ phone call on December 24, 2009. (Birch Dep. p. 70). Her normal procedure would have been to review the case with the nurse over the telephone. (Birch Dep. p. 72). The nurse had guidelines to follow, and could suggest an x-ray to Birch. (Birch Dep. pp. 72-73). If the patient needed further evaluation, they would be put on the list to see the doctor as soon as there was an opening. (Birch Dep. p. 74). Ice, ibuprofen, and rest would have been appropriate treatment for a nurse to administer when confronted with a patient who had swelling and discoloration on his hand. (Birch Dep. p. 75). A nurse may recommend an x-ray if the patient had a gross deformity. (Birch Dep. p. 75). Plaintiff did not have a deformity, although his hand was swollen, discolored and had limited range of motion. (Doc. 115-2, p. 2). Whether or not to recommend an x-ray was a matter of judgment, because fights at Vienna occurred frequently. (Birch Dep. p. 74). A patient who presented with swelling would have a differential diagnosis of contusion or fracture. (Birch Dep. p. 77).

Although Birch took calls on Christmas day, she did not report to work. (Birch Dep. p. 83). She also recalls taking the day after Christmas off, but cannot say for certain that she took the period until December 29, 2009 off, although she concedes it is possible. (Birch Dep. p. 84). There would have been no physicians onsite during the days that she took off. (Birch Dep. p. 84).

Birch examined Plaintiff’s on December 29, 2009 around 10:00 a.m. in the morning. (Pl.’s Dep. p. 50). Birch ordered x-rays to rule out a fracture and a follow-up visit in one week. (Pl.’s Dep. p. 50); (Doc. 115-2, p. 3); (Birch Dep. p. 88). Birch’s notes also indicate the Plaintiff’s hand had been more swollen and painful a few days prior and that he reported that “he can move it good now.” (Doc. 115-2, p. 3); (Birch Dep. p. 87). Plaintiff believed he would receive an x-ray on the following day. (Pl.’s Dep. p. 53). While Birch was the only person who could order x-rays, she was not familiar with the security procedures or concerns surrounding transport to the other facility. (Birch Dep. p. 90). Birch did not splint the hand or order an ace ...


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