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Alvarez v. Wexford Health Sources, Inc.

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

December 5, 2016

WEXFORD HEALTH SOURCES, INC., et al., Defendants.



         Having sprained his ankle playing basketball while incarcerated at Stateville Correctional Center (“Stateville”), Plaintiff Ignacio Alvarez sought medical treatment for the sprain and chronic pain he experienced. Dissatisfied with the medical care he received, he filed this § 1983 deliberate indifference suit against Defendants Wexford Health Sources, Inc. (“Wexford”), Arthur Funk, M.D., Imhotep Carter, M.D., and Saleh Obaisi, M.D. (collectively, the “Wexford Defendants”), as well as Marcus Hardy and Royce Brown-Reed (collectively, the “IDOC Defendants”). Both the Wexford and IDOC Defendants have filed motions for summary judgment. Because Alvarez cannot demonstrate that Dr. Carter, Dr. Funk, Hardy, or Brown-Reed acted with deliberate indifference to his ankle injury and he has abandoned his claim against Wexford, the Court grants judgment in their favor. But because questions of fact exist as to whether Dr. Obaisi's treatment of Alvarez demonstrates deliberate indifference, Alvarez's claim against Dr. Obaisi must proceed to trial.


         Alvarez challenges the medical care and treatment he received while an inmate at Stateville. Hardy was Stateville's warden from 2009 to 2012. Brown-Reed was Stateville's health care unit administrator during the relevant time. Wexford, a private corporation, has a contract with the Illinois Department of Corrections (“IDOC”) to provide medical services to inmates at IDOC facilities, including Stateville. Dr. Funk has served as Wexford's Regional Medical Director for the Northern Region of Illinois, which includes Stateville, since 2005.[2] Dr. Carter was a physician and Stateville's medical director from July 25, 2011 to May 10, 2012. Dr. Obaisi followed Dr. Carter as Stateville's medical director beginning in August 2012, although he worked as a physician there before assuming the medical director position.

         On August 11, 2011, Alvarez injured his left ankle playing basketball in Stateville's night yard. A medical technician took Alvarez from the yard in a wheelchair to the health care unit infirmary, where nurses evaluated his ankle and gave him an ice pack. They admitted Alvarez to the infirmary, where he received pain medication. Alvarez's medical chart indicates he suffered from swelling, bruising, tenderness, limited range of motion, and joint pain that night. The next morning, Dr. Carter evaluated Alvarez. He diagnosed Alvarez with a left ankle sprain and sent him out for x-ray imaging. When Alvarez returned, he received crutches and pain medication and was discharged to his cell. A correctional officer informed Alvarez that his x-ray did not reveal a break. Dr. Carter prescribed Alvarez a medical permit for crutches and a lay-in until August 15, 2011. Alvarez recalls using the crutches for approximately four to eight weeks. Alvarez periodically placed his name on the sick call for follow-up examinations. Sometimes, however, he could not make appointments because Stateville would be on lockdown. When the medical staff at Stateville did see him, they prescribed Alvarez medication to alleviate the pain in his ankle. Alvarez acknowledges that he always had enough pain medication.

         After tending to Alvarez immediately after his injury, no one on the medical staff saw him again until December 1, 2011. Before that, however, on October 12, he wrote to Dr. Carter, copying Dr. Funk, Brown-Reed, and Hardy, to complain that he had not been seen by a doctor or orthopedic specialist after August 12 even though he was in acute pain. He also wrote separate letters that same day to Dr. Carter, asking for an MRI, and to Hardy, asking for additional help, because he believed his injury was more serious than diagnosed.[3]

         On November 22, Alvarez requested a nursing appointment to follow up on his ankle injury. A nurse saw him on December 1, and noted subjective complaints of left ankle pain and swelling. She recommended a follow-up with a doctor. On December 9, Dr. Anton Dubrick saw Alvarez, who also noted complaints of ankle pain and swelling, and prescribed pain medication and another follow-up after a new x-ray was taken. On December 15, the x-ray came back negative. On January 10, 2012, Alvarez wrote to Hardy, asking again for an MRI and to see a foot specialist.[4]

         On January 31, 2012, Dr. Carter saw Alvarez. He noted that Alvarez had recurrent pain in his left ankle but no new injury. Based on this and the negative x-ray from December, Dr. Carter diagnosed Alvarez with post-traumatic tendonitis and recommended a steroid injection to relieve his pain. Alvarez received a cortisone shot on February 2. On February 12, Alvarez again wrote to Dr. Funk asking for help in obtaining medical treatment.[5] On March 13, Alvarez did not appear for a physical. But on March 15, he saw Dr. Carter, reporting that the cortisone shot did not relieve his ankle pain. Dr. Carter referred Alvarez to the University of Illinois Chicago Medical Center (“UIC”) for an orthopedic evaluation of his foot. Wexford reviewed and approved the referral on March 19. It took until June 14 for Alvarez to see the UIC orthopedic physician.[6] An x-ray taken at UIC came back negative.[7] The UIC orthopedic physician recommended physical therapy, an ankle brace, and a follow-up, and Alvarez received a list of exercises he could perform inside his cell. Alvarez testified he tried performing the exercises but that his mobility did not improve. Alvarez also did not return to UIC for a follow-up.

         On the same day as his UIC visit, Alvarez was also seen at the health care unit at Statesville. Notes from that day indicate Alvarez could walk on his left ankle without distress. On June 30, Alvarez saw Dr. Obaisi and discussed the UIC specialist's findings with him. Dr. Obaisi prescribed pain medication for him and noted plans to follow up on the UIC specialist's recommendations. On August 25, a nurse measured Alvarez for an ankle brace and noted in his file that she placed an order for it. On September 4, 2012, Alvarez's follow-up appointment was rescheduled because Dr. Obaisi was not present that day. That same day, Alvarez wrote Dr. Obaisi complaining that he had yet to receive the treatment recommended by the UIC orthopedic specialist and asking for Dr. Obaisi's help in receiving it.[8] Alvarez next saw Dr. Obaisi on September 26. Dr. Obaisi noted no acute findings although he acknowledged that Alvarez had not yet received his ankle brace.

         Alvarez did not receive his ankle brace until April 2, 2013.[9] Alvarez testified that he subsequently decided to stop wearing his ankle brace and allowed the medical permit authorizing the brace's use to expire because the brace was not working, making the brace “useless” because he still experienced pain. Doc. 115 ¶ 34. Alvarez did not consult with any doctor or medical staff in deciding to stop wearing the brace. On August 30, 2013, Alvarez's order for physical therapy was cancelled, based on the fact that he had not complained of ankle pain since September 2012. Alvarez did receive physical therapy for his ankle between August and November 2014. When Alvarez saw Dr. Obaisi on December 29, 2014, Dr. Obaisi noted that, since receiving physical therapy, Alvarez had not had ankle pain. In their professional medical opinions, having reviewed Alvarez's medical records, Dr. Carter, Dr. Obaisi, and Dr. Funk testified that their own involvement and all Wexford-employed healthcare personnel's medical care and treatment of Alvarez complied with all applicable community standards of medical care.

         Regarding administrative grievances surrounding his medical treatment, Alvarez filed a formal grievance in which he sought “proper medical attention specifically an M.R.I. on ankle” on September 4, 2011. Doc. 115-1 at 46. On December 27, Anna McBee, a grievance officer, denied Alvarez's grievance after reviewing his medical records, which indicated that Alvarez appeared to be receiving appropriate medical attention. Hardy signed off on McBee's findings on January 3, 2012. Alvarez appealed the denial of his grievance on January 25, 2012. On June 18, 2012, IDOC's administrative review board recommended denying the grievance based on Alvarez receiving continued treatment for his ankle. On July 8, 2012, Alvarez filed a new grievance, asking for his UIC medical files and requesting treatment based on the recommendations of the UIC orthopedic physician. Hardy denied the grievance as an emergency, indicating it should be filed through the normal process.


         Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56 & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


         I. Motion to Strike and Other Procedural Issues

         Before addressing the merits of Alvarez's claim, the Court must address several procedural issues. The Court's summary judgment procedures differ from Local Rule 56.1, in that this Court requires the parties to submit a joint statement of undisputed facts. See Sweatt v. Union Pac. R.R. Co., 796 F.3d 701, 711-12 (7th Cir. 2015) (affirming this Court's summary judgment case management procedures). The party opposing summary judgment may, however, submit additional facts it contends demonstrate a genuine issue of material fact in its response, providing citations to supporting material. Id.; Judge Sara L. Ellis, Case Procedures, Summary Judgment Practice, FUM5tZmA==. These additional facts must be genuinely disputed; the non-moving party may not use the response as an opportunity to sidestep the joint process. See Judge Sara L. Ellis, Case Procedures, Summary Judgment Practice (“The parties may not file - and the Court will not consider - separate statements of undisputed facts.”). Here, Alvarez includes in his responses his own narrative of facts, citing not only to the parties' joint statement but also to additional supporting material where his recitation of the facts is not supported by the joint statement. Defendants take issue with Alvarez providing his own narrative, arguing that this undermines the joint process. The Court agrees that, to the extent Alvarez relies on undisputed facts, those facts should have been included in the joint statement of facts. But as Defendants must admit, some of Alvarez's additional facts are disputed, allowing the Court to consider them in resolving the pending motions.

         Additionally, the Wexford Defendants, joined by the IDOC Defendants, move to strike the declaration of Edgar Naranjo, which Alvarez attached to his response to the Wexford Defendants' motion for summary judgment.[10] Alvarez did not provide Defendants with a copy of Naranjo's declaration prior to filing his response to the summary judgment motions.[11]Naranjo's declaration is dated June 6, 2016 and was filed by Alvarez (and first received by Defendants) on August 1, 2016. Fact discovery closed on January 16, 2015. Although the Court recruited counsel for Alvarez after that date, his counsel represented to the Court on October 7, 2015 that he did not need further discovery. As the parties worked on their joint statement of facts, with Defendants providing declarations from Dr. Carter, Dr. Funk, and Dr. Obaisi at that time, Alvarez did not do the same. Instead, Alvarez chose to disclose Naranjo's declaration almost four months after the parties submitted their joint statement of facts and Defendants filed their summary judgment motions, attempting to raise additional issues that should have been explored prior to the parties expending time and money on the joint statement of facts and crafting their arguments for summary judgment based on the known universe of facts. This unfairly prejudiced and surprised Defendants. See Bamcor LLC v. Jupiter Aluminum Corp., 767 F.Supp.2d 959, 970 (N.D. Ind. 2011) (“A party cannot wait until the opposing side points out it lacks evidence to procure evidence to support its claim.”). As a result, Defendants cannot be faulted for not having acted during discovery to depose Naranjo, having received little indication that Alvarez would attempt to rely on his testimony to defend against summary judgment. Cf. Buffone v. Rosebud Rests., Inc., No. Civ. A 05C5551, 2006 WL 2425327, at *3 (N.D. Ill. Aug. 21, 2006) (refusing to bar witness at trial who was identified by plaintiff at deposition but not in Rule 26(a)(1) disclosure where defendant did not exercise diligence in attempting to depose witness prior to close of discovery after ...

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