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Toliverr v. Olmsted

United States District Court, S.D. Illinois

August 15, 2016



          NANCY J. ROSENSTENGEL United States District Judge.

         Plaintiff Anthony Toliver is an inmate in the custody of the Illinois Department of Corrections at Menard Correctional Center. He filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that prison officials violated his constitutional rights while he was incarcerated at Pinckneyville Correctional Center. He was permitted to proceed against Defendants Darin Olmsted, Cynthia Jordan, and an unnamed nurse on one count of deliberate indifference to a serious medical need in violation of the Eighth Amendment (Doc. 6).

         This matter is currently before the Court on the Motion for Summary Judgment filed by Defendants Olmsted and Jordan on February 29, 2016 (Doc. 49), to which Tolliver filed a response (Docs. 54, 55). For the reasons set forth below, the motion is granted.


         Anthony Toliver was diagnosed with Bell’s Palsy on July 9, 2013, and prescribed prednisone to treat the condition (Doc. 50-1, p. 12). For patients with Bell’s Palsy, one side of the face is temporarily paralyzed due to damage or trauma to a facial nerve. Bell’s Palsy Fact Sheet, Nat’l Inst. Of Neurological Disorders & Stroke, (last visited Aug. 15, 2016). The condition can cause drooping of the eyelid and the corner of the mouth and headaches, among other things. Id. Prednisone, which is a steroid used to reduce inflammation and swelling, has been shown to be effective in treating Bell’s Palsy. Id.

         On July 18, 2013, Tolliver was still experiencing swelling and severe pain on the left side of his face (Doc. 50-1, p. 3; Doc. 50-2, p. 3). He was seen by a nurse at 9:50 a.m., and Tolliver reported that the left side of his face and head was “pulsating, ” that he’d had a headache for a week, and his pain was a 10 out of 10 (Doc. 50-1, p. 3). The nurse gave him Tylenol and a cool compress and referred him to a doctor (Id.). It seems that the Tylenol and cool compress were ineffective, at least in the long-term, because that evening at around 11:00 p.m., Tolliver stopped Defendant Olmsted, a correctional officer, in front of his cell (Doc. 50-2, p. 3, Doc. 50-3, p. 1). According to Olmsted, Tolliver said that he had a “real bad headache” and that he was suffering from Bell’s Palsy (Doc. 50-3, p. 1). Tolliver testified that he also showed Defendant Olmsted that his face was swollen and told Olmsted that his medication wasn’t working and he needed to see a nurse (Doc. 50-2, pp. 3, 6).

         Olmsted informed his supervisor about Tolliver’s complaints and contacted the healthcare unit (“HCU”) (Doc. 50-2, pp. 3, 4; Doc. 50-3, p. 1). According to Olmsted, the HCU staff told him that “Tolliver’s condition was not life-threatening and that the doctor would be in the following morning” (Id. at p. 2). When Olmsted did not immediately return to Tolliver’s cell, Tolliver repeatedly pressed his emergency call button to no avail (Doc. 50-2, p. 3). Tolliver claims that Olmsted finally came back to his cell until around 2:00 a.m. and told him that the HCU said there was nothing they could do for him (Id. at pp. 3, 4). There was no other significant interaction between Tolliver and Olmsted after this 2:00 a.m. exchange.

         Later that morning, at around 5:00 or 6:00 a.m. when Tolliver was released from his cell to go to the chow hall for breakfast, he sought help from Cynthia Jordan, who was a lieutenant (Doc. 50-2, p. 4). She told Tolliver that she was aware of his situation but there was nothing she could do because the doctor was not in (Id.). Tolliver again requested to go to the healthcare unit, but Jordan told him to get in line for breakfast (Id.). When he finished breakfast, Tolliver approached Jordan again and told her that he needed to go to the healthcare unit. He claims that she told him to get back into line or he would be sent to segregation (Id. 5). When Tolliver balked, Jordan placed Tolliver in handcuffs and escorted him to his cell (Id.).[1] Jordan told Tolliver that she would call the nurse, and after making the call, she informed Tolliver that the doctor would be in at 7:00 a.m. and that he would see the doctor then (Id.). Tolliver had no further relevant interaction with Jordan.

         Tolliver testified that he spoke to a nurse that morning when she came through the cell house, and the nurse gave him some Tylenol and told him that he was scheduled to see the doctor (Doc. 50-2, p. 5). Tolliver’s medical records indicate that he was, in fact, scheduled to see the doctor on July 19th, but the appointment had to be rescheduled because Tolliver was moved (Doc. 50-1, p. 15). The medical records further indicate that Tolliver was not seen on at Nurse Sick Call on July 22nd because he had been moved to a different cell (Id.). On July 23rd and 24th, Tolliver refused to be seen at Nurse Sick Call, stating that he was “supposed to see the doctor” (Id. at p. 16). On July 25th, Tolliver was finally seen by a doctor (see Doc. 50-1, p. 17). The notes in the medical record from that visit, however, are illegible (see id.).


         The standard applied to summary judgment motions under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:

Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A “material fact” is one identified by the substantive law as affecting the outcome of the suit. A “genuine issue” exists with respect to any such material fact . . . when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” On the other hand, where the factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is nothing for a jury to do. In determining whether a genuine issue of material fact exists, we view the record in the light most favorable to the nonmoving party.

Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).

         In order to prevail on a claim for deliberate indifference to a serious medical need, there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, a plaintiff must demonstrate that his medical condition was “objectively, sufficiently serious.” Greeno v. Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation marks omitted). Second, a plaintiff must demonstrate that the ...

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