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Velazquez v. Larkin

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

July 27, 2015

JOSE VELAZQUEZ, Plaintiff,
v.
NICOLE LARKIN AND DAN SUMULONG, Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS M. DURKIN, District Judge.

Jose Velazquez alleges that medical staff at Kane County Jail were deliberately indifferent to his medical needs while he was an inmate at the Jail in violation of the Eighth Amendment. See R. 7. Specifically, Velazquez alleges that Jail employees Nicole Larkin, an emergency medical technician, and Dan Sumulong, a nurse, failed to provide timely and sufficient care for an ankle injury Velazquez suffered in 2011 that allegedly continues to cause him pain. See id. Larkin and Sumulong have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. R. 62. For the following reasons, their motion is granted.

Legal Standard

Summary judgment is appropriate "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than "a mere scintilla of evidence" and come forward with "specific facts showing that there is a genuine issue for trial." Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Background

On May 2, 2011, Velazquez was scheduled for an appointment with a dentist outside the Jail to address several dental problems that were causing him pain. R. 67 ¶¶ 6-8. Velazquez's hands and feet were shackled for his trip to the dentist. Id. ¶ 9; R. 73 ¶ 1. As Velzquez walked to the vehicle that would take him to the dentist, his feet shackles became caught in a drainage grate, which caused him to fall and injure his left foot and ankle. R. 67 ¶ 10; R. 73 ¶ 1.

Larkin came to help Velazquez about three minutes after his fall. R. 67 ¶¶ 11-12; R. 73 ¶ 5. Velazquez testified he was in such "extreme pain" that he told Larkin not to touch his ankle, R. 64-2 at 17 (18:6-13), but Larkin was able to remove the shackles and examine Velazquez's ankle. R. 73 ¶ 5; R. 67 ¶ 12. An "EMT Note" included in Velazquez's medical records states that Velazquez's ankle had "minimal bruising" and there was no "deformity noted anywhere upon physical examination." R. 64-4 at 44.[1] Velazquez testified that his ankle was purple and blue and "very swollen." R. 64-2 at 22 (23:9-10).[2]

Velazquez testified that he asked to be taken to the hospital. R. 64-3 at 4 (16:1-3). Instead he was taken to his dental appointment, R. 67 ¶ 16, and Larkin told him that she would call the doctor to arrange an x-ray. Id. ¶ 15. Velazquez testified that he was not given any pain medication, ice, or any other form of ankle support before going to the dentist. R. 64-3 at 6-7 (24:17-25:1, 26:24-27:2). His medical records, however, state that he was given ice. R. 64-4 at 44.

Velazquez testified that he saw Larkin and Sumulong upon his return from the dentist, R. 67 ¶ 19, although this is not reflected in his medical records. R. 73 ¶ 13. Velazquez also testified that Larkin and Sumulong took him back to his unit in a wheelchair, R. 67 ¶ 22, and gave him ice and Ibuprofen, id. ¶ 19, but denied him a cane, crutch, or walker. R. 64-3 at 6-7 (24:20-25:2). Velazquez testified further that he asked again to go to the hospital for an x-ray, but Larkin told him that the Jail did not have an x-ray technician or doctor available, and that he would see Dr. Sood four days later on May 6 when Dr. Sood was scheduled to be at the Jail. R. 67 ¶ 21.[3] Velazquez's medical records show that Dr. Sood was contacted the day Velazquez fell and Dr. Sood prescribed 600 mg of Motrin, twice a day, for three days. R. 64-4 at 23.

Velazquez testified that he saw Larkin and Sumulong each night between May 2 and May 5 and they provided him with pain medication, but continued to deny him a crutch, cane, or walker. R. 64-3 at 8 (29:12-32:8). A note in Velazquez's medical records dated May 5 states that his "ankle [was] swollen [and] discolor[ed], " but that Velazquez was "in no distress" and that he had "no distress on palpitation of the ankle." R. 64-4 at 42; R. 67 ¶ 26.

On May 6, four days after his fall, Velazquez had an appointment with Dr. Sood. See R. 64-4 at 43. Dr. Sood ordered an x-ray and changed Velazquez's medication from Motrin to Naprosyn, id., but he did not send Velazquez to the hospital. R. 64-3 at 9 (34:6-8). Velazquez testified that Dr. Sood also gave him a wrap for his ankle and a shoe that supported his foot with a Velcro strap. Id. at 9 (33:15-34:5). However, Dr. Sood's note regarding the May 6 examination does not record that Dr. Sood gave Velazquez a wrap or special shoe. See R. 64-4 at 43. Velazquez also testified that Dr. Sood told him that "if he would have seen my foot or if he would have received the call, he would have stated to go to the hospital." R. 64-3 at 9 (33:3-5).[4] Velasquez had an x-ray of his ankle on May 11 that revealed swelling to the soft tissue but no fracture or dislocation. R. 67 ¶ 31; R. 64-4 at 132.

Velazquez testified that the medical staff monitored his ankle in the weeks following his appointment with Dr. Sood. R. 64-3 at 9 (34:22-35:1). Velasquez also testified that "the swelling went down" after "two [or] three weeks, " but "the pain never went away." Id. (35:2-8). Velasquez's medical records, however, reflect that he did not return to the Jail's health care unit until August 4, 2011, when he expressed concern about how his diabetic condition might complicate the healing of a blister on his right foot. R. 64-4 at 40. Velasquez's medical records do not reflect that he ever complained about his ankle injury again.

At his deposition on October 9, 2014, Velazquez appeared with a cane, and testified that he used a cane to walk because of pain in his left ankle. R. 64-3 at 10 (38:13-18). Velazquez also testified that a doctor at the correctional facility where he is currently incarcerated "diagnosed [his] foot as maybe possibly having a recurring, like, sprain or nerve damage.... due to the fact of the lack of attention I got when I had the fall.... It wasn't wrapped. It should have been wrapped right away, and they didn't wrap it. That's what he said ...


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