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Todd v. Korte

United States District Court, S.D. Illinois

February 25, 2015



MICHAEL J. REAGAN, Chief District Judge.


Plaintiff Nathaniel Todd, currently incarcerated at Western Illinois Correctional Center, filed this case on November 21, 2012, alleging officials at Lawrence Correctional Center acted with deliberate indifference to his knee and back pain. (Doc. 1). After threshold screening, Plaintiff was permitted to proceed on his deliberate indifference theory against three Defendants: Wexford, Martin, and Fenoglio. (Doc. 13).

Plaintiff filed a Motion to Amend his Complaint. (Doc. 17). The Court reviewed the proposed amended complaint, and granted leave to file it. (Doc. 29). The Court found that the Amended Complaint stated a colorable claim against Elaine Hardy, as well as a claim for injunctive relief. (Doc. 29). The Court further found that S.A. Godinez, as director of the Illinois Department of Corrections, and Marc Hodge, as Warden of Menard Correctional Center, were the appropriate defendants for purposes of injunctive relief. (Doc. 29). Defendant Martin was granted summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies. (Doc. 135). IDOC has transferred Plaintiff twice since he filed the suit, and ultimately the Court determined that Jeff Korte, as Warden of Plaintiff's current institution, is (along with Godinez) an appropriate party for injunctive relief. (Doc. 157). At present, Plaintiff's case comprises deliberate indifference claims against Hardy, Fenoglio, and Wexford Health Sources, and official-capacity claims against Defendants Godinez and Korte.

The case comes before the Court on respective Motions for Summary Judgment filed by Defendants Fenoglio, Hardy, and Wexford (the "Wexford Defendants") (Doc. 146) and Defendants Godinez and Korte (the "IDOC Defendants") (Doc. 150). The Court also addresses Plaintiff's Second Motion for a Preliminary Injunction (Doc. 138). The motions have fully ripened.

For the reasons explained below, the Court GRANTS in part and DENIES in part the Wexford Defendants' Motion for Summary Judgment. (Doc. 146). The Court DENIES the IDOC Defendants' Motion for Summary Judgment. (Doc. 150). And finally, the Court DENIES Plaintiff's Motion for a Second Preliminary Injunction. (Doc. 138).


Summary judgment-which is governed by Federal Rule of Procedure 56-is proper only if the admissible evidence considered as a whole shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 517 (7th Cir. 2011) (citing FED. R. CIV. P. 56). The party seeking summary judgment bears the initial burden of demonstrating-based on the pleadings, affidavits and/or information obtained via discovery-the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

After a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011) ("When a summary judgment motion is submitted and supported by evidence... the nonmoving party may not rest on mere allegations or denials in its pleadings"). A mere scintilla of evidence supporting the non-movant's position is insufficient to overcome summary judgment; a non-movant will prevail only when it presents definite, competent evidence to rebut the motion. Estate of Escobedo v. Martin, 702 F.3d 388, 403 (7th Cir. 2012); Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012). Summary judgment is only appropriate if, on the evidence provided, no reasonable juror could return a verdict in favor of the non-movant. Carlisle v. Deere & Co., 576 F.3d 649, 653 (7th Cir. 2009).

The Court's role on summary judgment is not to evaluate the weight of the evidence, to judge witness credibility, or to determine the truth of the matter, but rather to determine whether a genuine issue of triable fact exists. Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). The Court considers the facts in a light most favorable to the non-movant-here, Plaintiff. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009).


Plaintiff was incarcerated at Lawrence Correctional Center from December 2010 through June 14, 2013. (Doc. 1, pp. 6, 14). Prior to his time in prison, Plaintiff had been receiving health care services in the Chicago area. With his Complaint, Plaintiff submitted progress notes covering a variety of issues, including back pain and knee pain. (Doc. 1-7, pp. 1-7). During his deposition, Plaintiff testified that he had two discs removed from his back in September 1995. (Pl.'s Dep. p. 3). He started experiencing knee pain in 1996. (Pl.'s Dep. p. 3). Lakeside VA performed an operation to remove bone spurs from Plaintiff's knee in 2001. (Pl.'s Dep. p. 11). Plaintiff also testified that he had a second back surgery that same year. (Pl.'s Dep. p. 6). Circle Family Care of Chicago, Illinois, evaluated Plaintiff for right knee pain in April of 2008. (Doc. 1-5, p. 19).

In May of 2008, Plaintiff was evaluated by Resurrection Heath Care of Chicago, Illinois, for various issues, including bone spurs and right knee pain. (Doc. 1-5, pp. 21-28). They performed a radiology study on Plaintiff's right knee on May 19, 2008 that shows "moderate degenerative changes." (Doc. 1-5, p. 26). The CCBHS Ambulatory and Community Health Network Community Access Program referred Plaintiff for an MRI on his right knee in 2008; it showed a complex tear in the medial meniscus and "severe" tricompartmental osteoarthritis. (Doc. 1-5, pp. 8-11).

The Cook County Bureau of Health Services performed a radiology study on Plaintiff's knee in February 2009, which showed "moderate degenerative changes." (Doc. 1-5, p. 15). They performed a study on Plaintiff's lumbosacral spine on October 23, 2009. That study showed severe degenerative changes at L4/5 and L5/S1.

In November 2009, Cermark Health Services of Cook County recommended NSAIDS (non-steroidal anti-inflammatory) painkillers and a total knee replacement when released from IDOC custody due to osteoarthritis in the right knee, decreased range of motion, and decreased extension. (Doc. 1-5 pp. 12-14).

Plaintiff testified at the hearing on his First Motion for a Preliminary Injunction that he had attempted to present those pre-incarceration records to Martin and Fenoglio at Menard multiple times; that they would never look at them. (Doc. 122, p. 5).

Plaintiff saw Fenoglio at the Combo Chronic Clinic at Lawrence Correctional Center on January 13, 2011. (Doc. 147-1, p. 1). Fenoglio signed a low bunk permit for Plaintiff. (Doc. 147-1, p. 2) (Doc. 149). Fenoglio next saw Plaintiff on February 10, 2011, because Plaintiff was refusing his blood sugar checks. (Doc. 147-1, p. 3). Plaintiff was argumentative; Fenoglio asked him to leave before he could conduct an examination. (Doc. 147-1, p. 3). However, Fenoglio made a note to get a release for Plaintiff's prior medical records. (Doc. 147-1, p. 3). A Heath Care Administrator note indicates that Plaintiff signed such a release on February 18, 2011. (Doc. 147-1, p. 4).

Fenoglio testified he did not recall ever looking at Plaintiff's prior medical records until his deposition in this case. (Fenoglio Dep. p. 16). He did not recall following up when he did not receive Plaintiff's medical records after the February 18, 2011 appointment. (Fenoglio Dep. p. 16). Fenoglio deponed that-while he usually reviewed a patient's medical history-he would not look at the whole chart or every page in the chart. (Fenoglio Dep. p. 13). Fenoglio stated he would look at various reports in a patient's medical record; he does not recall looking at any reports from Plaintiff's medical records. (Fenoglio Dep. p. 13).

Fenoglio saw Plaintiff again on February 18, 2011 to address Plaintiff's report that he had been diagnosed with prostate cancer. (Doc. 147-1, p. 5). Fenoglio's subjective assessment of that date indicates that Plaintiff ambulated easily without a limp and hopped up on the exam table. (Doc. 147-1, p. 5). Plaintiff testified that he told Fenoglio during this visit that he had knee and back pain. (Doc. 147-2, p. 4). Fenoglio told Plaintiff those issues would have to be addressed separately because he was only there to discuss Plaintiff's prostate cancer and diabetes that day. (Doc. 147-2, p. 4).

Plaintiff saw Defendant Hardy on April 28, 2011. (Doc. 147-1, p. 6). He had been referred for evaluation of his right knee. (Doc. 147-1, p. 6). Hardy noted Plaintiff's knee had limited movement and only 80% extension. (Doc. 147-1, p. 6). Hardy did not find any evidence of crepitus, a type of grating or cracking noise from the joints, or instability. (Doc. 147-1, p. 6). Hardy noted that Plaintiff reported that he needed his knee replaced. (Doc. 147-1, p.6). Hardy ordered an X-ray; ordered Plaintiff's outside medical records; and prescribed Ultram (a pain reliever), an iron supplement, and a topical analgesic balm. (Doc. 147-1, p. 6). The X-rays were taken on May 3, 2011. (Doc. 147-1, p. 7). They noted degenerative changes "with prominent periarticular osteophyetes" and a bony exostosis. (Doc. 147-1, p. 7). The X-ray also noted degenerative changes and spurring in Plaintiff's lumbar spine. (Doc. 14701, p. 7). The impression also noted hypertrophy and sclerosis. (Doc. 147-1, p. 7). The report did not assign a value judgment (e.g. "mild" or "severe") to the severity of Plaintiff's conditions. (Doc. 147-1, p. 7). Fenoglio testified that in the absence of such language, he would have to look at the X-rays themselves to make a determination. (Fenoglio Dep. p. 20). But he testified that he never reviewed the May 2011 X-rays. (Fenoglio Dep. p. 20).

Plaintiff next saw Fenoglio on July 1, 2011. (Doc. 147-1, p. 8). Fenoglio reported that Plaintiff was again argumentative during this visit, and that he alleged that his diet and medication was increasing his pain. (Doc. 147-1, p. 8). Fenoglio further noted that Plaintiff's X-rays showed arthritis in Plaintiff's right knee and back, and diagnosed him with osteoarthritis. (Doc. 147-1, p. 8). Fenoglio increased Plaintiff's Ultram prescription. (Doc. 147-1, p. 8).

Between June 21, 2011 through July 22, 2011, Plaintiff refused his medication 17 times. (Doc. 147-6). Plaintiff frequently refused all of his medication without singling out one particular medication over the other. (Doc. 147-6). Plaintiff never agreed to sign a refusal form, and some of the documented refusals indicate that Plaintiff failed to come to his cell door to receive the medication. (Doc. 147-6).

Fenoglio saw Plaintiff again on July 25, 2011. (Doc. 147-1, p. 9). Plaintiff reported that the Ultram was not working, and Fenoglio prescribed Tylenol instead. (Doc. 147-1, p. 9). Fenoglio testified during his deposition that he made the switch because he reviewed the medical records and saw that Plaintiff had been refusing the Ultram. (Fenoglio Dep. p. 11). He also testified that Tylenol is a lighter pain medication and that he made the switch to a lighter medication and not a stronger one because Plaintiff was refusing his medication. (Fenoglio Dep., p. 11). Fenoglio did not know why Plaintiff refused his medication. (Fenoglio Dep., p. 11). Tylenol is an accepted treatment for osteoarthritis. (Fenoglio Dep., p. 11). Fenoglio prescribed a cane during the same visit, which Plaintiff agrees helped him to walk. (Doc. 147-1, pp. 9-10) (Doc. 147-2, p. 6).

Plaintiff saw Fenoglio on October 4, 2011, and told him that the Tylenol was not working. (Doc. 147-1, p. 12). Fenolgio wrote him a prescription for Norco and renewed the Tylenol as well. (Doc. 147-1, pp. 12-13; Fenoglio Dep., p. 11). Plaintiff refused his Norco medication 28 times between October 5, 2011 and October 27, 2011. ...

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