United States District Court, C.D. Illinois, Springfield Division
ANDREW T. ADAMS, Plaintiff,
VIPIN SHAH and RN KESTERSON,  Defendant,
SUE E. MYERSCOUGH, District Judge.
Plaintiff, incarcerated in the Illinois Department of Corrections, pursues claims for deliberate indifference to his serious medical needs regarding his right hand. He is represented by pro bono counsel Ashley DiFilippo.
Defendants move for summary judgment, which must be denied. Though Plaintiff did receive substantial medical care for his hand, an inference of deliberate indifference cannot be ruled out regarding Plaintiff's need for effective pain medicine, a low bunk, and treatment for his hand on November 12 and December 22, 2010, after the surgery. Accordingly, this case will go to trial.
SUMMARY JUDGMENT STANDARD
"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)(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.
The Court sets forth these facts for purposes of this order only. Material disputes have been resolved in Plaintiff's favor. The Court has not considered any additional facts set forth in Plaintiff's response which were not separately set forth as required by Local Rule 7.1(D)(2)(b)(5).
In November 2009, before Plaintiff's incarceration, a flat screen television fell on Plaintiff's right hand. Plaintiff had surgery but then reinjured his hand when he punched someone with his cast on. Plaintiff did not go straight to the doctor after he reinjured his hand and was arrested before he obtained medical care.
On February 6, 2010, at the Illinois Department of Correction's Stateville Northern Reception Center, an x-ray of Plaintiff's hand revealed a fracture. Plaintiff was referred to the University of Illinois Medical Center for a surgical consultation. Surgery was recommended, and Plaintiff received that surgery on April 26, 2010. At his follow-up appointment on May 4, 2010, Plaintiff's cast was intact and he had a good range of motion.
Plaintiff did not have a way to keep his cast dry when he showered at the Reception Center. Consequently, the cast became dirty and mildewed. A nurse determined that the cast had to be replaced so she removed the cast and did her best to put a new cast on, though she admitted that she did not know what she was doing. The new cast was loose from the start.
Plaintiff had another appointment scheduled with the University of Illinois Medical Center, but Plaintiff decided to forgo that appointment so that his transfer to a prison closer to his new-born son could be processed. On May 27, 2010, Plaintiff was transferred to Western Illinois Correctional Center. By the time of Plaintiff's transfer, his new cast had become so loose that the cast was flapping around and causing Plaintiff pain. Plaintiff therefore took the cast off completely before his transfer to Western.
The medical records from the date Plaintiff arrived at Western Illinois Correctional Center reflect that Defendant Dr. Vipin Shah took a quick look at Plaintiff's hand and ordered a low bunk for Plaintiff until July 31, 2010. Plaintiff had also had a low bunk permit at the Stateville Northern Reception Center. However, for reasons not in the record, Plaintiff was not informed of Dr. Shah's order for a low bunk. In fact, whether anyone beyond the nurse and doctor knew of the low bunk order is not clear. Plaintiff was assigned an upper bunk despite the order.
On June 25, 2010, Plaintiff saw Dr. Shah about an ingrown toenail. Plaintiff asked for a low bunk, but Dr. Shah denied the request, even though Dr. Shah had already ordered a low bunk for Plaintiff through July. According to Plaintiff, Dr. Shah remarked that Plaintiff "would not be pampered here." (Pl.'s Dep. p. 104.) At this appointment, Plaintiff also asked Dr. Shah for a follow up appointment with the hand surgeon and relayed Plaintiff's concerns about needing a new cast. Id.
On or about October 10, 2010, Plaintiff fell out of his top bunk bed, injuring his right hand again. He was not able to report the injury to a guard until yard time. A different doctor, Dr. ...