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Gray v. Ghosh

United States District Court, N.D. Illinois, Eastern Division

July 3, 2014

DOIAKAH GRAY (K-70373), Plaintiff,
v.
DR. PARTHA GHOSH, DR> CATALINO BAUTISTA, DR. RICHARD SHUTE, DR. IMHOTEP CARTER, KEVIN HALLORAN, MARCUS HARDY, COLLEEN FRANKLIN, and DARRYL EDWARDS, Defendants.

MEMORANDUM OPINION AND ORDER

GARY FEINERMAN, District Judge.

Doiakah Gray, an inmate at Stateville Correctional Center, filed this pro se suit under 42 U.S.C. § 1983, alleging deliberate indifference to his medical condition in violation of the Eighth Amendment. Doc. 6. The claims against the defendants employed by the Illinois Department of Corrections-Marcus Hardy, Colleen Frankin, and Darryl Edwards-have been dismissed pursuant to a settlement. Docs. 109, 111. The defendants employed by Wexford Health Sources, the provider of health care services to Stateville prisoners-Dr. Partha Ghosh, Dr. Richard Shute, Dr. Catalino Bautista, Dr. Imhotep Carter, and Kevin Halloran-have moved for summary judgment. Doc. 96. The motion is granted in part and denied in part. The claims against Dr. Shute, Dr. Bautista, and Kevin Halloran are dismissed, while the claims against Dr. Ghosh and Dr. Carter will proceed to trial.

Background

Before proceeding with a recitation of the facts, the court addresses Gray's belated motion for leave to file a Local Rule 56.1(b)(3)(C) statement of additional material facts. Doc. 115. The Wexford defendants filed along with their summary judgment motion a Local Rule 56.1(a)(3) statement of facts. Doc. 96-1. Gray filed an opposition brief and a Local Rule 56.1(b)(3)(B) response, Docs. 99-100, but not a Local Rule 56.1(b)(3)(C) statement of additional facts. The Wexford defendants then filed a reply brief in support of their motion. Doc. 103. At that point, the summary judgment record closed.

Months later, Gray moved for leave to file a Local Rule 56.1(b)(3)(C) statement of additional facts. Doc. 115. As a justification for his late filing, Gray complains that the Wexford defendants did not serve him with a Local Rule 56.2 notice, which informs pro se litigants of the requirements and procedures for opposing a summary judgment motion. Id. at 2. If in fact the Wexford defendants' (alleged) failure to serve Gray with a Local Rule 56.2 notice deprived him of the knowledge that he could file a Local Rule 56.1(b)(3)(C) statement of additional facts along with a Local Rule 56.1(b)(3)(B) response, then the court would have granted his motion. But it is beyond dispute that Gray knew full well that he could have filed a Local Rule 56.1(b)(3)(C) statement. By the time his response papers were due in this case, Gray had received Local Rule 56.2 notices in at least two other cases. See Gray v. Cent. Pub'n Review Comm., No. 11 C 4870 (N.D. Ill.), Doc. 86 (Dec. 19, 2012); Gray v. Ghosh, No. 12 C 194 (N.D. Ill.), Doc. 75 (Nov. 29, 2012). In fact, Gray actually filed Local Rule 56.1(b)(3)(C) statements of additional facts in those cases. See Gray, 11 C 4870, Doc. 94 at 11-12 (Jan. 7, 2013); Gray, 12 C 194, Doc. 84 at 6-7 (Dec. 14, 2012). There accordingly is no legitimate excuse for Gray's failure to timely file a Local Rule 56.1(b)(3)(C) statement in this case, and thus no legitimate justification to re-open the summary judgment record. See Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992) (holding that the summary judgment movant's failure to serve a Local Rule 56.2 notice on a pro se non-movant is without legal significance "if no prejudice resulted."); Timms v. Frank, 953 F.2d 281, 286-87 (7th Cir. 1992) ("[I]n light of Timms's inability to show that the lack of notice prejudiced her, the district court's grant of summary judgment is affirmed."); Santiago v. United Air Lines, Inc., 969 F.Supp.2d 955, 959-60 (N.D. Ill. 2013). Gray's motion for leave to file a Local Rule 56.1(b)(3)(C) statement of additional facts is therefore denied.

The following facts are stated as favorably to Gray as permitted by the record and Local Rule 56.1. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). Gray is an inmate at Stateville Correctional Center. Doc. 100 at ¶ 1. He first reported chest pains in August 2000. Id. at ¶ 3. On December 22, 2005, he had an electrocardiogram ("EKG"), which reported a "normal sinus rhythm." Id. at ¶ 4; Doc. 96-4 at 31.

In 2006, Gray was sent to the medical facility at the University of Illinois at Chicago ("UIC"), where he had a cardiac evaluation with a Holter heart monitor. Doc. 100 at ¶ 5. The record does not include a report of the results, but a June 29, 2006, report from the attending UIC cardiologist, Dr. Adhir Shroff, states that Gray's "holter did not demonstrate any significant electrical abnormalities despite the pt having symptoms." Id. at ¶ 7 & p. 18. Dr. Shroff did diagnose Gray with hypertension, prescribed blood pressure medication, directed that Gray's blood pressure be checked once a month, and further directed that he see a cardiologist in one year. Id. at ¶ 7. Gray had another EKG on November 3, 2008, which revealed a "normal sinus rhythm." Id. at ¶ 8; Doc. 96-4 at 38.

On August 19 and 25, 2010, Gray was evaluated for heart palpitations. Doc. 100 at ¶¶ 10-11. On October 14, 2010, during an examination by Dr. Ghosh, Stateville's medical director at the time, Gray complained that he experienced heart palpitations once or twice per day, with each episode lasting thirty to forty seconds, as well as shortness of breath, dizziness, and slight chest pain. Id. at ¶¶ 12-13. Dr. Ghosh's progress notes state that Gray reported that he had experienced similar heart palpitation episodes seven to eight years earlier. Id. at ¶ 14; Doc. 96-4 at 42.

On October 14, 2010, Gray had another EKG, which again revealed a "normal sinus rhythm." Doc. 100 at ¶ 15; Doc. 96-4 at 43. That same day, Dr. Ghosh prepared a referral for Gray to see a cardiologist at UIC. Doc. 100 at ¶ 16. On November 1, 2010, lab reports showing a complete metabolic panel and blood count for Gray were sent to UIC. Id. at ¶ 17.

On December 20, 2010, Wexford's utilization management physician, non-defendant Dr. Garcia, concluded that the request to send Gray for a cardiology consultation was "not authorized" due to "insufficient information." Id. at ¶ 19 & p. 27. Dr. Garcia's notes state:

Received request from Dr. Ghosh for cardiology evaluation for a 32-year-old patient with history of episodic palpitations 1 to 2 times a day. Last for about 30 seconds. Complains of lightheadedness. No SOB. No chest pain. Report symptoms have been present for approximate 3 months. Reviewed by Dr. Garcia who requests current and any recent past EKG reports, chest x-ray report, and medication list.

Id. at p. 27. The Local Rule 56.1(a)(3) statement and Local Rule 56.1(b)(3)(B) response reference no reports from Dr. Ghosh and provide no indication that he arranged to send the materials that Dr. Garcia had requested. Dr. Ghosh's tenure as Stateville's medical director ended on March 31, 2011. Id. at ¶ 35.

On April 14, 2011, Dr. Shute, the new Stateville medical director, signed a document indicating that an alternate medical plan for Gray would be put in place. Id. at ¶ 20. The Local Rule 56.1(a)(3) statement and Local Rule 56.1(b)(3)(B) response do not reference any other notes or reports from, or examinations by, Dr. Shute. Nor do Local Rule 56.1(a)(3) statement and Local Rule 56.1(b)(3)(B) response reference any reports or notes from Dr. Bautista, who was Stateville's medical director from May 31, 2011, to July 24, 2011. Id. at ¶ 36. Gray was never examined by either Dr. Shute or Dr. Bautista. Id. at ¶¶ 31, 33. Kevin Halloran, the Chairman of Wexford Health Sources, had no direct involvement in the care or treatment of Gray. Id. at ¶ 44.

The record contains no indication that Gray was examined by a physician or given additional tests until March 2012. On March 9, 2012, Dr. Carter, who replaced Dr. Bautista as Stateville's medical director on July 25, 2011, ordered a 12-lead EKG for Gray and prescribed Propranolol and Prilosec. Id. at ¶¶ 21, 38. Dr. Carter noted that Gray had experienced chronic but non-severe heart palpitations for eight years, and that he had been given a full cardiac exam with a Holter monitor in 2006. Id. at ¶¶ 22-23. Dr. Carter further noted that Gray's heart rate had no thrill or gallop, and he ordered an EKG, a TSH (possibly a Thyroid Stimulating Hormone test), and a CMP (Comprehensive Metabolic Panel). Id. at ¶¶ 24-25. (Gray denies that a TSH and a CMP were performed, but the record material he cites does not show this, so his denial is disregarded.) The EKG from March 15, 2012, like Gray's prior EKGs, showed "normal sinus ...


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