United States District Court, S.D. Illinois
Salvador Cuellar Ramirez, Plaintiff, Pro Se.
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS, Magistrate Judge.
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.
Â§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).
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).
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).
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).
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).
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, Â½
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).
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).
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).
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).
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).
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).
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. (Doc. 40-3,
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).
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).
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).
missed an appointment with Defendant at the CCC on July 14,
2011, and the appointment was rescheduled. (Doc. 40-3, p.
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