United States District Court, S.D. Illinois
MEMORANDUM AND OPINION
G. WILKERSON United States Magistrate Judge.
pending before the Court is the Motion for Summary Judgment
filed by Defendants John Shepherd, M.D., Robert Shearing,
M.D., Samuel Nwaobasi, M.D., Fe Fuentes, M.D., John Coe,
M.D., and Wexford Health Sources, Inc. on November 21, 2016
(Doc. 223). For the reasons set forth below, the Motion is
GRANTED IN PART AND DENIED IN PART.
Jaryan Gills, an inmate in the custody of the Illinois
Department of Corrections (“IDOC”), initiated
this lawsuit on August 5, 2013 pursuant to 42 U.S.C.
§1983 alleging his constitutional rights were violated.
Plaintiff's first two complaints (his original complaint
and his first amended complaint), were dismissed without
prejudice for their failure to state a viable claim against
any named defendant (see Docs. 7 and 13). At the
direction of the Court, Plaintiff filed a second amended
complaint that was screened pursuant to 28 U.S.C. §
1915A. In his second amended complaint, Plaintiff alleges
that officials at Stateville Correctional Center, Menard
Correctional Center, and Lawrence Correctional Center failed
to adequately address his complaints of pain related to his
inguinal hernia and bullet fragments lodged in his body.
Following the screening of Plaintiff's complaint, he was
allowed to proceed on a claim of deliberate indifference
against Defendants Arthur Funk, Nikki Malley, Warden
Harrington, Warden Atchison, Dr. John Coe, Debbie Denning,
Charles Fasano, Dr. Fuentes, S.A. Godinez, Pam Grubman, S.
Nwaobasi, Jaclyn O'Day, Reynolds, N. Saneth, Dr. Robert
Shearing, J. Shephard, and Louis Shicker (see Doc.
16). Plaintiff was also allowed to proceed against Defendant
Wexford Health Sources for allegedly implementing policies
and practices denying Plaintiff medical care (see
the Court sought to assign counsel to represent Plaintiff in
this matter noting that discovery was more complex than
anticipated due to the number of defendants and the fact that
Plaintiff was transferred from an institution where at least
some of the alleged actions took place. Accordingly, Attorney
Robert H. Fredian was assigned as counsel for Plaintiff in
this matter on January 8, 2016 (see Docs. 165 and
172). On January 28, 2016, Defendant Funk was dismissed
without prejudice due to Plaintiff's failure to exhaust
his administrative remedies as to his claim against this
Defendant prior to filing his lawsuit (see Doc.
183). Recently, Defendants Atchison, Denning, Fasano,
Godinez, Grubman, Harrington, Malley, O'Day, and
Reynolds-Thompson were dismissed on motion by Plaintiff
(see Docs. 234 and 245).
the parties' consent to the Magistrate Judge, this matter
was referred, in its entirety, to the undersigned on
September 12, 2016 and a new schedule was entered. In
accordance with the Amended Scheduling Order, Defendants Coe,
Shearing, Fuentes, Nwaobasi, Shepherd, and Wexford filed a
motion for summary judgment (Doc. 223) that is now before the
Court. Plaintiff, through counsel, filed his timely response
objecting to Defendants' motion on December 21, 2016
(Doc. 226). Defendants filed a reply that will be considered
in accordance with the Court's January 30, 2017 Order
claims in this matter relate to medical treatment, or alleged
lack thereof, for his inguinal hernia and lodged bullet
fragments while Plaintiff was incarcerated at Menard
Correctional Center (“Menard”) and Lawrence
Correctional Center (“Lawrence”).
was transferred to Menard on June 11, 2011 and, soon after
his arrival, it was noted that Plaintiff suffered from a left
inguinal, reducible hernia (Plaintiff's Medical Records,
Doc. 224-2, p. 2). Defendant Dr. Nwaobasi first examined
Plaintiff's hernia on August 3, 2011, noting Plaintiff
complained of pain related to his hernia (Deposition of Dr.
Samuel Nwaobasi, Doc. 226-2, p. 17; see Doc. 224-2,
p. 3). Following a physical examination of Plaintiff in the
cell house, Defendant Nwaobasi assessed his hernia as being
“partially reducible, ” meaning that although his
hernia could be pushed in, it would come out again (Doc.
226-2, pp. 17, 19; see Doc. 224-2, p. 3). Defendant
Nwaobasi did not address Plaintiff's pain issue during
his examination, which, he admits, he should have done (Doc.
226-2, p. 18). Plaintiff was seen again by Defendant Nwaobasi
on August 4, 2011 so that he could be examined in the
healthcare unit (id. at p. 19). At this examination,
Plaintiff indicated that his hernia was causing him pain in
his groin down to his scrotum (Doc. 226-2, p. 20; Doc. 224-2,
p. 4). Defendant Nwaobasi diagnosed Plaintiff with a
reducible, left direct inguinal hernia and advised Plaintiff to
avoid strenuous exercises and activities (id.).
Defendant Nwaobasi also prescribed Motrin for Plaintiff to
take as needed and indicated he should be reassessed in six
months (Doc. 226-2, p. 21; Doc. 224-2, p. 4).
was next seen for complaints of his hernia on November 3,
2011 by Dr. Krieg (who is not a defendant in this lawsuit)
(Deposition of Dr. John Shepherd, Doc. 226-3, p. 15; see
also Doc. 224-2, p. 5). Dr. Krieg noted Plaintiff had
been complaining of his left inguinal hernia since 2009
(id.). Dr. Krieg assessed Plaintiff with a left
inguinal hernia and indicated that his plan was to refer
Plaintiff to a surgeon (Doc. 226-3, p. 16; Doc. 224-2, p. 5).
In accordance with Dr. Krieg's plan, Defendant Dr.
Shepherd presented Dr. Krieg's request for surgery in
Collegial Review on November 10, 2011 (Doc. 226-3, p. 16;
see Doc. 224-2, p. 7). During the Collegial Review
(which is also synonymous with Utilization Management), Dr.
Baker and Defendant Shepherd discussed Dr. Krieg's
examination and it was determined that Plaintiff's hernia
would be managed conservatively with activity restrictions
and NSAIDs, and Defendant Shepherd would reassess Plaintiff
in a “few months” and re-present his case if
needed (Doc. 226-3, p. 16; Doc. 224-2, p. 7). Defendant
Shepherd then examined Plaintiff on November 21, 2011, making
an objective finding that the hernia was small and
“easily reducible” (Doc. 226-3, p. 17;
see Doc. 224-2, p. 8). Defendant Shepherd
recommended Plaintiff take Motrin as needed and indicated
Plaintiff should be reassessed in two months (id.).
was again examined by Defendant Shepherd on January 19, 2012
wherein it was noted that Plaintiff had a history of left
inguinal hernia for three years (Doc. 226-3, p. 18;
see Doc. 224-2, p. 9). After examining Plaintiff,
Defendant Shepherd described Plaintiff's hernia as
“nonscrotal” with “no incarceration, no
strangulation” and recommended that Plaintiff not
engage in any heavy lifting, weightlifting or excessive
sports (id.). Defendant Shepherd prescribed
Plaintiff 400 milligrams of Motrin to take as needed for
pain; however, Defendant Shepherd testified that Plaintiff
did not specifically complain about any pain or discomfort he
was experiencing and Defendant Shepherd did not ask if
Plaintiff was experiencing pain (id.). Plaintiff was
not examined by Defendant Shepherd after January 19, 2012.
next time Plaintiff's hernia was assessed was on June 2,
2012 by Defendant Nwaobasi (Doc. 226-2, p. 22; see
Doc. 224-2, p. 10). Defendant Nwaobasi noted that
Plaintiff's hernia was “reducible but tender”
and issued Plaintiff a low bunk permit and reissued
Plaintiff's prescription for Motrin (Doc. 226-2, p. 23;
see Doc. 224-2, p. 10). Defendant Nwaobasi never
recommended Plaintiff for surgery as he only recommends
surgery for patients whose hernia is incarcerated or
strangulated (Doc. 226-2, pp. 23-24). On August 27, 2012,
Plaintiff was examined by a nurse practitioner for a
follow-up appointment for his hernia (see Doc.
224-2, p. 11). At this appointment, the nurse practitioner
noted that Plaintiff's hernia was “small” and
mildly tender with palpation (id.). Plaintiff's
Motrin was reordered and he was reeducated on the plan for
conservative treatment (id.). Plaintiff was seen by
a physician, Defendant Dr. Fuentes, on October 19, 2012 at
which time Plaintiff presented with a history of left hernia
pain for the past four years (Deposition of Dr. Fe Fuentes,
Doc. 226-4, p. 10; see Doc. 224-2, p. 12). Defendant
Fuentes examined Plaintiff, noting an objective finding of a
reducible, left inguinal hernia (id.). Defendant
Fuentes issued Plaintiff a prescription for 400 milligrams of
Motrin three times a day as needed and indicated he should be
reexamined in four months (id.). Defendant Fuentes
testified that she would not have prescribed Motrin “as
needed” if Plaintiff described his pain as severe (Doc.
226-4, p. 10). Defendant Fuentes did not review any of
Plaintiff's medical records prior to examining him on
October 19, 2012 (id. at p. 11). Plaintiff saw
Defendant Fuentes on one more occasion on January 15, 2013,
at which time Defendant Fuentes again noted Plaintiff's
subjective complaint of left inguinal hernia for four years
with pain (Doc. 226-4, p. 11; see Doc. 224-2, p.
13). Defendant Fuentes conducted a physical examination and
diagnosed Plaintiff with a “reducible left inguinal
hernia, ” renewed Plaintiff's prescription for
Motrin, and indicated he was to return as necessary
(id.). Defendant Fuentes testified that
Plaintiff's hernia did not increase in size in the time
between his October, 2012 and January, 2013 appointments;
however, Defendant Fuentes never measured Plaintiff's
hernia (Doc. 226-4, p. 13).
was not seen for complaints related to his hernia by any
medical personnel at Menard between his appointment with
Defendant Fuentes on January 15, 2013 and his transfer to
Lawrence on April 24, 2013 (Deposition of Dr. John Coe, Doc.
226-5, p. 12; see, generally, Doc. 224-2). However,
prior to his transfer to Lawrence, Plaintiff wrote two
letters to the Medical Director at Menard, Defendant Dr.
Shearing, complaining about the medical treatment for his
hernia and lodged bullet fragments (see Docs. 226-10
and 226-11). Defendant Shearing only recalls receiving one
letter written by Plaintiff dated February 20, 2013
(Deposition of Dr. Robert Shearing, Doc. 226-6, p. 8). In his
February 20, 2013 letter, Plaintiff recites what he perceives
as failures in the medical treatment he received at Menard
for treatment of his inguinal hernia. Plaintiff specifically
addresses the fact that he did not have a support belt and
was only being provided Ibuprofen, which, he asserts, was not
effective in treating his severe, constant pain (Doc. 226-11,
p. 3). Plaintiff further explains that the staff was
“fully aware of [his] condition and constant severe
pain, ” but he could not get surgery because the State
does not have any money (id. at p. 4). Plaintiff
asks Defendant Shearing to use his authority and seek
approval of surgery to treat his hernia (id.).
Defendant Shearing responded to Plaintiff's letter on
March 13, 2013 indicating that he reviewed Plaintiff's
medical records and, with respect to Plaintiff's medical
treatment for his inguinal hernia, Defendant Shearing writes
that “[Plaintiff] ha[s] been examined many times and
the hernia has always been reducible” and “[i]n
the event the hernia becomes non-reducible in the future,
surgery may be indicated. However, for now there is no
medical necessity for surgery” (Doc. 226-12, p. 2).
undisputed that while at Menard Plaintiff received the
following prescription orders for Motrin: August 4, 2011,
Motrin 400 mg three times a day for two months, ordered by
Defendant Dr. Nwaobasi; November 10, 2011, Motrin 400 mg
three times a day for two months, as needed, ordered by Dr.
Shepherd; January 19, 2012, Motrin 400 mg twice a day for two
months, as needed, ordered by Dr. Shepherd; March 31, 2012,
Motrin 400 mg four times a day for three months, as needed,
ordered by a nurse practitioner; June 2, 2012, Motrin 400 mg
three times a day for two months, ordered by Defendant Dr.
Nwaobasi; August 27, 2012, Motrin 400 mg three times a day
for two months, as needed, ordered by a nurse practitioner;
October 19, 2012, Motrin 400 mg three times a day for four
months, ordered by Defendant Dr. Fuentes; January 15, 2013,
Motrin 400 mg three times a day for one month, ordered by
Defendant Dr. Fuentes (see Affidavit of Robert
Shearing, M.D., Doc. 224-8, pp. 1-2). It is further
undisputed that Plaintiff was issued 400 mg tablets of
Motrin, based on his requests for refills of his
prescription, on the following dates in the following
amounts: August 6, 2011 - 90 tablets; November 18, 2011 - 30
tablets; December 15, 2011 - 30 tablets; January 22, 2012 -
30 tablets; April 3, 2012 - 30 tablets; June 5, 2012 - 90
tablets; July 24, 2012 - 33 tablets; August 29, 2012 - 30
tablets; October 22, 2012 - 90 tablets; January 17, 2013 - 90
tablets (see Id. at pp. 2-3).
mentioned above, Plaintiff was transferred to Lawrence on
April 24, 2013 (Doc. 226-5, p. 12; see Doc. 224-2,
p. 17). Soon thereafter, on May 12, 2013, Plaintiff was seen
by Dr. Butalid (who is not named as a defendant) regarding
his left inguinal hernia and retained bullet fragments (Doc.
226-5, p. 14; Doc. 224-2, p. 18). Dr. Butalid described
Plaintiff's hernia as reducible, advised Plaintiff to
avoid lifting and straining, and ordered Tylenol as needed
and a hernia belt for support (Doc. 226-5, p. 15;
see Doc. 224-2, p. 18). Per Defendant Dr. Coe's
orders, Plaintiff's hernia belt was ordered on May 14,
2013 (see Doc. 224-2, p. 19). Plaintiff was then
examined by Defendant Coe the following day (see Id.
at p. 20). Following an examination, Defendant Coe found that
Plaintiff's left inguinal hernia was easily reducible,
mildly tender, and came down to the external ring, indicating
that the hernia was approximately three or four centimeters
between the internal and external rings (Doc. 226-5, p. 16;
see Doc. 224-2, p. 20). Defendant Coe prescribed
Plaintiff stool softeners, but did not prescribe pain
medication as Dr. Butalid had provided a prescription for
pain medication a few days prior (Doc. 226-5, p. 16).
Defendant Coe did not consider Plaintiff a surgical candidate
on this date as his hernia was easily reducible and could be
managed with a hernia belt (id.). On July 2, 2013,
Plaintiff was issued a hernia belt (see Doc. 224-2,
p. 21). Plaintiff's hernia was next evaluated on December
30, 2013 by Defendant Coe (Doc. 226-5, p. 17; see
Doc. 224-2, p. 22). Defendant Coe noted that the hernia was
reducible, but did not provide any additional directives
concerning treatment or management for Plaintiff's hernia
hernia was not examined again until December 11, 2014 when he
presented at nurse sick call (see Doc. 224-2, pp.
23-32). Plaintiff testified that during this time he
attempted to see a physician and submitted requests for
medical care, but “nobody was doing anything, ”
which Plaintiff attributed to an issue he was having with a
correctional officer at that time (Doc. 226-1, pp. 17-18).
When Plaintiff was able to visit the healthcare unit on
December 11, 2014 for an assessment of his hernia, he noted
his pain was at an “8” on scale of one to ten
(see Doc. 224-2, p. 32). Plaintiff also indicated
that the hernia belt was not helping (id.).
Plaintiff was not referred to see Defendant Dr. Coe
(id.). On December 16, 2014, a nurse practitioner
performed a routine chart review of Plaintiff's medical
record and renewed his permit for a hernia belt, ordered
medication for constipation, and declined to renew
Plaintiff's permit for a low bunk (Doc. 226-5, p. 20;
see Doc. 224-2, p. 33). Plaintiff's hernia was
not examined again until he was transferred to Stateville on
February 2, 2015 (Deposition of Dr. Saleh Obaisi, Doc. 226-7,
p. 12). Dr. Obaisi, a physician at Stateville, examined
Plaintiff on May 4, 2015 during which time Plaintiff
complained of a left inguinal hernia that had been present
since 2009 (id. at p. 13). Following a physical
examination, Dr. Obaisi (who is not named as a defendant),
diagnosed Plaintiff with an uncomplicated reducible left
inguinal hernia and prescribed Plaintiff Motrin 400
milligrams twice a day for thirty days (id. at pp.
13-14). Despite his findings that the hernia was reducible
and “uncomplicated, ” Dr. Obaisi ...