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Ozsusmlar v. Szoke

United States District Court, S.D. Illinois

March 30, 2015

DR. DAVID SZOKE, Defendant.


DONALD G. WILKERSON, Magistrate Judge.

Now pending before the Court is the Motion for Summary Judgment filed by Defendant, Dr. David Szoke, on March 14, 2015 (Doc. 56) and the response thereto, filed on January 5, 2015 (Doc. 76). For the reasons set forth below, the Motion is GRANTED.


Plaintiff, Mustafa Ozsusamlar, was incarcerated at the United States Penitentiary in Marion, Illinois (USP Marion) from August 4, 2008 to July 16, 2012 (Mustafa Ozsusamlar Affidavit, ¶ 3, Doc. 76-1). Plaintiff and Defendant stipulate that Defendant, Dr. David Szoke, was the Clinical Director at USP Marion from November 12, 2006 to August 1, 2009, and again from August 29, 2010, to April 6, 2013 (Doc. 56 at 2; Doc. 46 at 2). During this time period, Plaintiff suffered from serious medical problems including kidney stones, inguinal hernia, dental problems, and a "head infection." Plaintiff alleges that Defendant was deliberately indifferent to Plaintiff's medical needs involving his kidney stones, inguinal hernia, dental problems and head infection.

All facts are construed in a light most favorable to Plaintiff. Miller v. Gonzalez, 761 F.3d 822, 826 (7th Cir. 2014). The parties do not disagree as to a number of facts regarding Plaintiff's medical conditions and the treatment received; much of the statement of facts is undisputed. Any material disagreement, however, will be highlighted below.

Kidney Stones

In May, 2008, prior to Plaintiff's arrival at USP Marion in August, 2008, he was diagnosed with possible kidney stones, it was recommended that he undergo a CT scan, and he was prescribed 800 mg of Motrin, a pain medication. After Plaintiff's arrival at USP Marion he was initially examined by Dr. Szoke and has kidney issues were discussed - there does not appear to be a dispute that Plaintiff's pain medication was discontinued. (Ozsusamlar Aff. ¶ 6). From 2008 to 2011, Plaintiff was treated by other medical professionals at the prison who ordered urinalyses (which revealed no abnormalities) and discussed Plaintiff's kidney stones (David Szoke Declaration ¶¶ 4-6, Doc. 56-5). On June 30, 2009, Plaintiff was prescribed Ibuprofen, 600 mg, for dental pain (Doc. 56-7, p. 51). On August 31, 2010, Plaintiff indicated that he passed 3 small kidney stones and that he had pain in his lower back; he was referred to a "mid-level practitioner" (i.e. physician's assistant) for a follow-up examination ( Id. 98).

On January 20, 2011, Plaintiff wrote a note to Dr. Szoke indicating that he was in significant pain (a 9 or 10 on a 10-point scale) and that the Ibuprofen was not effective - he identified 3 ailments, kidney stones, hernia, and "pain and difficulty walking" and requested medical attention ( Id. 203). In a handwritten note, Dr. Szoke stated that surgical intervention was not recommended, that the Ibuprofen would be discontinued, and that he should save the kidney stone and present it to sick call (Szoke Dec. ¶ 7; Doc. 56-7, p. 203).[1] On April 28, 2011, Plaintiff appeared at sick call complaining of pain "daily when lying down, and when walking" (Doc. 56-7, p. 164). Plaintiff was again prescribed Ibuprofen (400 mg, 3 times per day for 21 days as need) "only for significant pain, not for routine usage, " and an x-ray was ordered ( Id. 166). The Ibuprofen was refilled on June 20, 2011 and Plaintiff was referred for a urology consultation because of "chronic kidney stones" ( Id. 161-2).

The urology consultation, however, was "deferred" by USP Marion's Utilization Review Committee (of which Dr. Szoke was the Chair) in favor of an evaluation by the Clinical Director or a Staff Physician, i.e. Dr. Szoke ( Id. 190). It does not appear from the medical records that such an evaluation occurred with Dr. Szoke; instead, Plaintiff was seen by other medical personnel on August 11, 2011 and October 25, 2011 with respect to his kidney stones (Doc. 56-6, p. 5-6).

When Plaintiff next saw Dr. Szoke, on December 21, 2011, he requested "Lithotripsy, " a procedure used to break up and remove kidney stones (Szoke Dec. ¶ 15). Dr. Szoke informed Plaintiff that "kidney stones are treated symptomatically, unless they are not passed" and that his kidney stones would be managed "emergently" ( Id. 15, Doc. 56-7, p. 249). This course of treatment was continued through 2012 - Plaintiff was not referred to an urologist nor was he scheduled for surgery.

Dr. Szoke states, and Plaintiff does not dispute, that when Plaintiff was transferred in July 16, 2012 to the Federal Correctional Institution at Fairton, New Jersey, the course of treatment remained unchanged (Szoke Dec. ¶ 19). Dr. Szoke further states that the treatment of a kidney stone depends on its size, what it is made of, and whether it is obstructing the urinary tract. If the stone passes through the urinary tract in less than 24 hours and is not accompanied by a fever or kidney infection, no intervention is required except pain medication and the intake of a lot of fluids. Dr. Szoke further states that Plaintiff spontaneously passed his kidney stones, was never observed to be in acute distress, and that "while I do not doubt that he may have experienced pain during that process, I believed Plaintiff was receiving appropriate medical treatment" ( Id. 20).

Inguinal Hernia

Plaintiff's declaration includes a few opaque factual allegations regarding Defendant's treatment of his inguinal hernia. The parties agree, however, that Dr. Szoke examined Plaintiff on August 8, 2008 and diagnosed an inguinal hernia that was "non-surgical... non incarcerated... and reducable [sic]" ( Id. 21). This diagnosis was noted by other medical personnel on August 28, 2008 (Doc. 56-6, p. 1) and by Dr. Ladove on October 29, 2008 ( Id. 2). However, Plaintiff asserts that during Dr. Szoke's August 2008 examination, he was told that his "left testicle problem [i.e. the inguinal area] would be fixed within four to six months" (Ozsusamlar Dec. ¶ 8). Plaintiff also claims that Defendant ordered him to "write a sick call request" so that a Physician Assistant could x-ray his hernia ( Id. 9). Plaintiff then contends that, on June 20, 2012, almost four years later, Defendant finally approved a hernia operation ( Id. 26). Defendant states that his surgical referral was based on his "examination at the time, " Plaintiff's chronic complaints, and "giving Plaintiff the benefit of the doubt" (Szoke Dec. ¶ 27). The Utilization Review Committee approved a surgery consultation; however, Plaintiff was transferred before the consultation occurred ( Id.; Doc. 56-7, p. 305).

Medical records show that Plaintiff did eventually receive a surgical consultation at FCI Fairton (Doc. 56-7, p. 309). Plaintiff's hernia was confirmed "reducible" and the consulting surgeon ...

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