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Harriss v. Larson

United States District Court, S.D. Illinois

February 22, 2017

DARIUS HARRIS, Plaintiff,
v.
DENNIS LARSON, VIPIN SHAH, and ZACHARY ROECKEMAN, Defendants.

          REPORT AND RECOMMENDATION

          DONALD G. WILKERSON United States Magistrate Judge

         This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Preliminary Injunction filed by Plaintiff on June 21, 2016 (Doc. 103). For the reasons set forth below, it is RECOMMENDED that the Motion be DENIED and that the Court adopt the following findings of fact and conclusions of law.

         Introduction

         Plaintiff is proceeding on the Fourth Amended Complaint, filed on December 8, 2015 (Doc. 65), alleging that he was denied adequate medical care related to a knee and finger injury beginning in August 2010 while he was incarcerated at the Western Illinois Correctional Center and the Big Muddy River Correctional Center. Due to various Orders, Plaintiff is proceeding on the following claims:

Count 1: Eighth Amendment claim for deliberate indifference to his serious medical needs related to his knee and finger injury against Defendants Dennis Larson and Vipin Shah beginning in August, 2010
Count 2: Eighth Amendment claim for deliberate indifference to his serious medical needs related to his knee and finger injury in August 2010 against Defendant Nurse L. Bradbury.

(Docs. 64, 87, and 121).

         Zachary Roeckeman (the Warden at Big Muddy River CC) also remains in this suit solely for the purpose of perfecting injunctive relief. In his request for preliminary injunctive relief, Plaintiff seeks an MRI of his right knee, to be sent for a follow-up appointment to Dr. Jeffrey McIntosh, who performed an ACL replacement and partial meniscectomy surgery, and appropriate medical care. A hearing on this motion was held on July 14, 2016 in conjunction with a Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), hearing on a motion for summary on the exhaustion of administrative remedies (Doc. 88). At the hearing, Plaintiff testified along with Dr. Roderick Matticks, a board certified physician who has worked in correctional medicine since 2000 and who reviewed the medical records in this matter. Since the filing of the motion and the hearing, Plaintiff has been appointed counsel.

         Findings of Fact

         Plaintiff had an MRI of his right knee on June 30, 2015 (after he filed this lawsuit but before he filed his Fourth Amended Complaint). It revealed that the “Anterior Cruciate Ligament” (ACL) in his right knee was “totally disrupted” (Doc. 103, p. 7). Plaintiff was referred to an outside surgeon, and after some confusion about what surgery he needed, he was operated on by Dr. Jeffrey McIntosh who performed a total ACL reconstruction and a partial meniscectomy on September 14, 2015. Plaintiff underwent physical therapy for the following 6 weeks.

         On April 16, 2016, after Plaintiff was transferred to Graham CC (where he is currently housed), he began to have pain and inflammation in the knee. He was seen by Dr. Francis Kayira (who is not a Defendant herein) on June 3, 2016 who ordered an x-ray and Meloxicam for inflammation. Dr. Kayira also performed a physical examination, finding “no swelling, well healed scars, and that Plaintiff was able to ambulate well” (Doc. 109-1, p. 2). The x-ray revealed a “small effusion” which could indicate an injury because of excess fluid (Id.). On June 17, 2016, Meloxicam was replaced with Ibuprofen at Plaintiff's request. As a follow up to the effusion, on June 28, 2016, another x-ray was ordered that was “completely normal” with no effusion. As indicated at the hearing, the report notes no acute findings with respect to Plaintiff's surgery site. Dr. Kayira states that there is no basis for another MRI or any surgical evaluation at the time of his affidavit.

         At the hearing, Plaintiff indicated that the Ibuprofen helped with the pain and inflammation; however, he nonetheless wants an MRI and a follow-up appointment with the surgeon because he is concerned about the underlying causes of the pain almost a year post-op. He also testified that Dr. Kayira did not perform any physical tests.

         Dr. Matticks testified that there was nothing in Plaintiff's medical record that would necessitate another MRI or a follow-up appointment with Plaintiff's surgeon. In describing the steps that would be taken in Plaintiff's situation (pain post-ACL repair), Dr. Matticks testified that an x-ray would be the first step. The next step would be to perform various physical examinations, Lachman, Anterior Drawer Test, Pivot Shift, and Lag. Dr. Matticks noted that the records indicate that a physical examination of Plaintiff's knee was performed (although it is not clear which one of these tests, or all, were performed by Dr. Kayira). Dr. Matticks further testified that pain or discomfort after ACL surgery is not unheard of and could be caused by overuse and scarring and that recovery from the type of surgery that Plaintiff had would take time.

         Dr. Matticks admitted that an x-ray would not detect issues with the ACL or muscles but a physical exam would. Thus, injury to the ACL is detected first ...


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