United States District Court, C.D. Illinois
WILLIE J. JOHNSON, Plaintiff,
GERRY BUSTOS, et al., Defendants.
E. SHADID UNITED STATES DISTRICT JUDGE.
claims that Defendants failed to treat his Hepatitis C during
his eight month detention in the Rock Island County Jail. On
April 7, 2016, the Court granted summary judgment to
Defendants Bustos, Fisher, Schuetz, and Hernandez. The Court
denied Dr. Peterson's original summary judgment motion
and directed him to file another summary judgment motion with
his affidavit attached explaining the basis for his treatment
decisions. (4/7/16 Order.)
Peterson has filed his second summary judgment motion, but
the Court will first address Plaintiff's renewed motions
for appointed counsel. The Court does not have the authority
to require an attorney to accept pro bono appointment on a
civil case such as this. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). In determining whether the Court
should attempt to find an attorney to voluntarily take the
case, the question is “given the difficulty of the
case, does the plaintiff appear competent to litigate it
himself?" Pruitt, 503 F.3d at 654-55 (7th Cir.
2007). Plaintiff still appears competent to proceed pro se.
He has obtained his relevant medical records and the
transcript of an expert appointed in a case pending in this
district regarding the treatment of inmates with Hepatitis C
in the Illinois Department of Corrections (08-cv-2282). He
has personal knowledge of his attempts to obtain treatment
from Dr. Peterson and Dr. Peterson's response. His
pleadings adequately convey his positions and demonstrate
some knowledge of civil procedure. And, though Hepatitis C is
a complex disease, the focus here is on whether Dr. Peterson
was deliberately indifferent, the determination of which does
not require expert testimony on the particular facts of this
case, as will be seen below. See Ledford v.
Sullivan, 105 F.3d 354, 359 (7th Cir. 1997)(on
particular facts of case, expert not necessary to determine
whether defendants were deliberately indifferent).
to Dr. Peterson's second motion for summary judgment, the
Court concludes that no rational juror could find that Dr.
Peterson was deliberately indifferent to Plaintiff's
Hepatitis C. Plaintiff was diagnosed with Hepatitis C about
two months before his detention at the Rock Island County
Jail, but he was asymptomatic, and an ultrasound of
Plaintiff's abdomen was normal, as was a physical
examination of his liver and spleen. (5/6/14 History &
Physical by Dr. Glickenberger; 6/13/14 Clinic Progress Note,
d/e 41-3.) The plan from the outside clinic was to perform an
“EGD”-esophagogastroduodenoscopy-to check for
varices, which are enlarged veins in the esophagus. (d/e 64,
p.11; www.mayoclinic.org (search for esophageal
varices)(last visited 9/13/16). The plan was also to send
Plaintiff for a hepatology consult.
was arrested before he obtained the EGD or the hepatology
consult, and the outside clinic does not treat incarcerated
persons. At the jail, Dr. Peterson ran some labs which showed
that one of Plaintiff's liver function numbers was
slightly elevated (39, where 37 or less is normal). (8/12/14
lab results, d/e 41-2.) Dr. Peterson ordered an ultrasound of
Plaintiff's abdomen, which was unremarkable. (9/23/14
report, d/e 41-2.) Follow up liver function tests in February
of 2015 were completely normal, with Plaintiff's liver
function numbers no longer elevated. (d/e 68.) Dr. Peterson
avers that, “[o]n two occasions when the Plaintiff
complained of issues which could indicate a progression of
Hepatitis C, appropriate blood tests were ordered and in my
professional judgment the results of those tests did not
indicate any treatment for Hepatitis C was required or would
provide any health benefits, therefore no treatment was
ordered.” (Dr. Peterson Aff. para. 10.)
spent about eight months at the jail under Dr. Peterson's
care until Plaintiff was transferred to the IDOC in March
2015. Plaintiff is currently being monitored in the
IDOC's Hepatitis C clinic but has not yet been referred
to begin treatment. (65, pp. 3-8.) A case is currently
pending in this district before Judge Baker, which,
simplified, challenges the IDOC's current policy of
providing Hepatitis C treatment only to inmates with a
fibrosis stage of 3 or 4. Orr v. Elyea, 08-cv-2282
argues that Dr. Peterson was deliberately indifferent by not
ordering an EGD and referring Plaintiff for a hepatology
consult, as the outside clinic had planned to do before
Plaintiff was arrested. But Plaintiff does not dispute that
he was asymptomatic both before and after his incarceration
or that his diagnostic tests both before and after his
incarceration were normal, with the exception of a slightly
elevated liver function in August 2014. Dr. Peterson
exercised his professional judgment, relying on these tests
to conclude that no treatment was needed.
points to the testimony of a court-appointed expert in case
08-cv-2232, which supports an inference that all inmates with
Hepatitis C should be treated, regardless of the stage of
their fibrosis. The expert also testified that an inmate
should have at least nine months to one year left on his
sentence before receiving treatment, in order to account for
the required work-up, treatment, and follow-up time. (Dr.
Batey Dep. p. 43, d/e 64.) Plaintiff was only at the jail for
eight months, so even under the expert's recommendation,
Plaintiff would not have received Hepatitis C treatment. The
expert's testimony does not suggest that Dr.
Peterson's decision was improper much less deliberately
indifferent. Roe v. Elyea, 631 F.3d 843, 857 (7th
Cir. 2011)(Deliberate indifference arises “‘if
the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or
standards, as to demonstrate that the person responsible
actually did not base the decision on such a
judgment.'”)(quoting Sain v. Wood, 512
F.3d 886, 894-95 (7th Cir. 2009). As for the EGD, Plaintiff
has no evidence that an EGD was medically necessary,
particularly given that Plaintiff's other diagnostic
tests were normal. See, e.g., www.mayoclinic.org
(esophageal varices can be caused by cirrhosis, but there is
no evidence that Plaintiff has developed cirrhosis).
Plaintiff's motions for appointed counsel are denied (62,
Peterson's second summary judgment is granted (59).
clerk of the court is directed to enter judgment in favor of
Defendants and against Plaintiff.
Defendants may file a motion for costs within the time
allotted by local rule. If Plaintiff objects to the
imposition of costs based on Plaintiff's indigency,
Plaintiff must file his trust fund ledger from the past 12
months with his objections to the imposition of costs.
Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the entry
of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to
appeal in forma pauperis should identify the issues Plaintiff
will present on appeal. See Fed. R. App. P. 24(a)(1)(c). If
Plaintiff does choose to appeal, he ...