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Cuellar-Ramirez v. Kruse

United States District Court, S.D. Illinois

June 30, 2016

DR. KRUSE, Defendant.

          Salvador Cuellar Ramirez, Plaintiff, Pro Se.


          STEPHEN C. WILLIAMS, Magistrate Judge.


         Plaintiff, Salvador Cuellar-Ramirez, who is currently incarcerated at the Eden Correctional Institution in Eden, Texas, brought a pro se civil rights claim pursuant to 42 U.S.C. §1983. (Doc. 1, p.2). Plaintiff filed his claim on April 24, 2014, in the Northern district of Texas. (Doc. 1). The case was later transferred to this Court on June 17, 2014. (Doc. 14, p.1). Plaintiff's claim arose during his incarceration at Federal Correctional Institution Greenville ("FCI-Greenville"). (Doc. 1). His claim was later construed to include Dr. Kruse ("Defendant") as a Defendant based on allegations that he knowingly and purposely delayed care for Plaintiff's eye problem, both before and after surgery, and all other defendants were dismissed. (Doc. 14, p. 4).

         On February 1, 2016, Defendant moved for Summary Judgment. (Doc 40.) Plaintiff did not file a response to Defendant's Motion for Summary Judgment, therefore, the Court considers Plaintiff's failure to respond an admission of the merits of Defendant's motion. SDIL Local Rule 7.1(c). See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (a failure to respond constitutes an admission that there are no undisputed material facts). For the following reasons the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED. (Doc. 40).


         Plaintiff was incarcerated at FCI-Greenville from January 5, 2010, to August 8, 2012. (Doc. 40-3, p. 3). The day he arrived there, his medical screening revealed a history of Diabetes and hypertension; he was prescribed medications and placed in the Choric Care Clinic ("CCC")-A clinic providing access to physicians at least once every twelve months, or more often if clinically indicated. (Doc. 40-3, p. 3, 15). Later, on January 12, 2010, during Plaintiff's first visit to the CCC, blood tests and a vision screen were ordered By PA-C Adesanya. (Doc. 40-3, p. 21). The initial eye exam was ordered because patients suffering from diabetes are at a higher risk for eye damage. (Doc. 40-3, p. 3 n. 4). Plaintiff also visited Health Services on February 2 and 25, 2010, but neither appointment was due to complaints about his eyesight; the first appointment was to renew Plaintiff's hypertension and diabetes medications; the second appears to be a routine check-up. (Doc. 40-3, p. 25-27).

         Defendant began working at FCI-Greenville as the Clinical Director on January 30, 2011. (Doc. 40-3, p. 2). As the Clinical Director, Defendant was responsible for overseeing the clinical functions of the Health Services Department. (Doc. 40-3, p. 2). Defendant's position required him to evaluate whether or not inmates required health care from a provider outside FCI-Greenville. (Doc. 40-3, p. 2-3). Though Defendant is a general practitioner, he is not trained nor qualified to treat the eye condition that affected Plaintiff. (Doc. 40-3, p. 11). Defendant duties, instead, were to refer patients to a specialist for diagnosis and treatment. (Doc. 40-3, p. 11). Additionally, as clinical director, Defendant did not oversee administrative functions; instead, the Health Services Administrator held this responsibility. (Doc. 40-3, p.2) Because of mandatory training when Defendant was first hired, Defendant was unable to see patients between January 31 to February 11, and March 15-31, 2011. (Doc. 40-3, p. 2).

         Plaintiff first began complaining of vision problems March 1, 2010, when Plaintiff reported to Dr. Montogmery- a direct contract optometrist-that he had broken his glasses. (Doc. 40-3, p. 2, 4, 30). The exam showed that Plaintiff's had a "narrow Angle non-occludable hyperopic/Presbyopic, " which should be monitored. (Doc. 40-3, p. 31). Dr. Montgomery ordered a follow-up in six months and new glasses for Plaintiff. (Doc. 40-3, p. 31). Plaintiff did not receive these glasses for three months. (Doc. 40-6, p.9-10). Dr. Harvey-the Regional Medical Director for the North Central Region of the BOP- cosigned Dr. Montgomery's order. (Doc. 40-3, p. 4, 33).

         During the next four medical appointments, which spanned from March 25, 2010, to September 29, 2010, Plaintiff did not complain of visions problems. (Doc. 40-3, p. 34, 37, 42, 47). These visits consisted of a sore throat, and additional visits aimed at refilling Plaintiff's medication for his chronic conditions. (Doc. 40-3, p. 34, 44-45, 49). These prescriptions consisted of one 81 MG tablet of Aspirin taken once daily for 180 days, a 5 MG tablet of GlyBURIDE taken twice daily for 180 days, a 5 MG tablet of Lisinopril, ½ tablet taken once daily for 180 days, and a 500 MG tablet of MetFORMIN taken twice daily for 180 days. (Doc. 40-3, p. 64). During these visits, Plaintiff's current conditions were described as "not improved/same, " or "improved" (Doc. 40-3, p. 39, 44, 49). None of these visits were cosigned or approved by Defendant. (Doc. 40-3, p. 41, 46, 51).

         Plaintiff's complaints of vision problems resumed during an appointment on October 4, 2010, but were not due to eyeglass complications. (Doc. 40-3, p. 52.) There, Dr. Montgomery examined Plaintiff and determined that Plaintiff was suffering from a narrowing iris angles with a potential for occlusion/diabetic retinopathy, and requested a consult for a laser peripheral iridotomy ("LPI"), followed by a retina consult. (Doc. 40-3, p. 53). At some point, Dr. Harvey approved this request, and Naphcare scheduled an appointment. (Doc. 40-3, p. 4).

         Dr. Maher examined Plaintiff as the consult on October 26, 2010, and recommended a LPI for Plaintiff's right eye. (Doc. 40-3, p. 57). Plaintiff received this recommended procedure two months later on December 27, 2010, without complication. (Doc. 40-3, p. 58). Dr. Maher's post-operation plan called for a prescription for Xibrom, to be administered twice a day for five days, and a follow-up in 1-2 weeks for a LPI in his left eye. (Doc. 40-3, p. 58). The medical records indicate that this medication was non-formulary, and was substituted with Dictofenac, which called for an application of three times a day for five days. (Doc. 40-3, p. 61). Plaintiff testified in his deposition that he did not receive these drops until 1-2 days after this appointment. (Doc. 40-6, p. 13). Plaintiff also testified that once he received the medication, he took the drops for five days as prescribed, but does not indicate whether they were taken twice-daily or three-times daily. (Doc. 40-6, p. 13). Administrative medical records confirm the above assessment, the prescribed meds and changes to those orders, and confirm that the prison received the Dr. Maher's plan and notes. (Doc. 40-3, p. 59, 61). Dr. Harvey cosigned Dr. Maher's orders the next day, and PA-C Adesanya reviewed them on January 4, 2011. (Doc. 40-3, p.60).

         Plaintiff's had another medical appointment on January 20, 2011, but again did not complain of vision problems. (Doc. 40-3, p. 62-63). This appointment took place at the CCC and was not the follow-up requested by Dr. Maher's office following the surgery. (Doc. 40-3, p. 62). There, PA-C Adesanya examined Plaintiff and assessed that Plaintiff's hypertension and Diabetes were improving, and made requests for new blood tests and renewed Plaintiff's hypertension and diabetic prescriptions. (Doc. 40-3, p. 64). Adesanya instructed Plaintiff to follow-up as needed. (Doc. 40-3, p. 64). Dr. Harvey cosigned these orders the same day. (Doc. 40-3, p. 66).

         It appears that Plaintiff was scheduled to see Dr. Maher on February 23, 2011, but it is not clear if this appointment was to be the follow-up that was recommended following the surgery. (Doc 40-3, p. 68). Regardless, Dr. Maher's office cancelled this appointment the day before. (Doc. 40-3, p. 68). Lee Pollman, a registered health information administrator and Health Services Administrator ("RHIA/HSA"), completed this administrative note. (Doc. 40-3, p. 68).

         Defendant's first involvement occurred on April 11, 2011, when he cosigned Plaintiff's April 8, 2011, appointment at the CCC. (Doc. 40-3, p. 69, 74). At this appointment, PA-C Adesanya again examined plaintiff. (Doc. 40-3, p. 69). The medical records indicate that Plaintiff "[felt] fine, " but he has not been fully compliant with his medication. (Doc. 40-3, p. 69). Plaintiff appeared well, with no distress, but his glaucoma was the "same/not improved, " based on a status date of December 28, 2010. (Doc. 40-3, p. 64, 72). All tests carried out during the exam were normal. (Doc. 40-3, p. 71). PA-C Adesanya again renewed Plaintiff's prescription plan for his hypertension and diabetes. (Doc. 40-3, p. 72). Plaintiff was to follow-up "as needed." (Doc. 40-3, p. 73).

         Sometime after the April 8 appointment, Plaintiff's vision in his left eye began to deteriorate further. (Doc. 40-3, p. 76). Plaintiff filed a medical request to the Health Care unit seeking an eye doctor on May 17, 2011. (Doc. 40-3, p. 76). In this request, Plaintiff indicated that he was having problems seeing out of his left eye; that his vision was "blurry, " that the left eye was tearing excessively, and that "[prior to his surgery] this wasn't happening."(Doc. 40-3, p. 76). Plaintiff expressed concerns that these complications in his left eye were also affecting his right eye. (Doc. 40-3, p. 76). Plaintiff requested to be seen "as soon as possible" by the medical staff. (Doc. 40-3. p. 76). Plaintiff testified in his deposition that he informed the medical staff that his eyesight was getting worse following his surgery. (Doc. 40-6, p. 14). This request was not reviewed until June 3, 2011, in which a cursory response of, "[plaintiff] on call to see me, " was provided by unknown personal.[1] (Doc. 40-3, p. 76).

         Having not gotten a response to the first request, Plaintiff sent an additional medical request to "Pollman/Medical" roughly 3 weeks later on June 6, 2011. (Doc. 40-3, p. 77). In this request, Plaintiff explained that he was experiencing severe headaches, and he could no longer see out of his left eye. (Doc. 40-3, p. 77). Plaintiff felt that these complications might be a result of his surgery, and that he "urgently needed to be seen by a doctor." (Doc. 40-3, p. 77). Additionally, Plaintiff requested an interpreter for the visit because he was concerned that his lack of proficiency in English would preclude him from comprehending the diagnoses. (Doc. 40-3, p. 77). Pullman responded the same day, and informed plaintiff that these concerns could not be due to his surgery because it was performed on his right eye, rather than his left. (Doc. 40-3. p. 77). The response further informed Plaintiff that the same procedure performed on his right eye was scheduled to be performed on his left, and if he has any problems prior to that appointment, he will need to sign up for a sick call and discuss it with the P/A. (Doc 40-3, p. 77).

         Two weeks after the second request, Dr. Montgomery saw Plaintiff on June 20, 2011. (Doc. 40-3, p. 78). Using a translator, Plaintiff informed Dr. Montgomery that his left eye was very blurry, that his right eye was cloudy, and he was seeing spots. (Doc. 40-3, p. 78). Dr. Montgomery's exam indicated that Plaintiff's left eye still had a very narrow angle, showed decreased vision and a vitreous hemorrhage, and that he needed a LPI consult "ASAP", and then a retina consult. (Doc. 40-3, p. 79). The following day Defendant cosigned this plan. (Doc. 40-3, p. 81).

         The medical records indicate that on June 21, 2011, Melany Goldstein, an RN, entered an administrative note regarding Dr. Montgomery's plan. (Doc. 40-3, p. 82). The note indicates Plaintiff was currently scheduled for laser eye surgery on August 19, 2011, but because Dr. Montgomery requested an earlier date, and Plaintiff's urgent need for a retinologist consult, HSA and Jeffery Notts were informed to schedule an earlier surgery, if possible. (Doc. 40-3, p. 82). Defendant cosigned this note on the same day. (Doc. 40-3, p. 83). Defendant declares in an affidavit that he reviewed Dr. Montgomery's notes and asked the staff to obtain an earlier appointment. (Doc. 40-3, p. 6). A subsequent administrative note completed the same day by Jeffery Nott, notes that the mid-July reschedule was for a consult appointment rather than surgery. (Doc. 40-3, p. 85).

         Plaintiff missed an appointment with Defendant at the CCC on July 14, 2011, and the appointment was rescheduled. (Doc. 40-3, p. 86).

         Based on the request for an earlier appointment, Dr. Fleming examined Plaintiff on July 15, 2011. (Doc 40-3, p. 91). Aspects of Dr. Fleming's exam are illegible, but it is clear that he found a vitreous hemorrhage in Plaintiff's left eye. (Doc. 40-3, p. 91). Dr. Fleming's exam notes were not sent back with Plaintiff the day of the appointment; rather, HSA received them on July 18, 2011, via fax. (Doc. 40-3, p. 87, 91). Defendant's review of the actual notes occurred on July 25, 2011. (Doc. 40-3, p. 92). Though earlier records indicate that Plaintiff was already scheduled for an August 19 LPI surgery for his left eye, Dr. Fleming merely ...

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