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Ayoubi v. Altez

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

February 27, 2017

FIRAS M. AYOUBI, Plaintiff,
CARLOS ALTEZ, et al., Defendants.


          CHARLES RONALD NORGLE Judge United States District Court

         Firas Ayoubi ("Plaintiff) sues physician assistant Carlos Altez ("Altez"), Cook County Sheriff Thomas Dart ("Dart"), Chairwoman of the Department of Correctional Health at Cermak Health Services of Cook County ("Cermak") Dr. Connie Mennella ('"Mennella"), and Cook County (collectively, "Defendants") pursuant to 42 U.S.C. § 1983 for deliberate indifference to Plaintiffs objectively serious medical need. In particular, the claim against Altez is in his individual capacity for treatment of Plaintiff s condition allegedly in violation of Plaintiff s Fourteenth Amendment rights; the claims against Dart and Mennella are in their official capacities for alleged systemic deficiencies at the Cook County Department of Corrections ("CCDOC") and Cermak; and Cook County remains in this litigation for indemnification purposes only. Before the Court is Defendants' motion for summary judgment. For the following reasons, the motion is granted.

         I. BACKGROUND

         Plaintiff, a thirty-one-year-old male, has been detained at the CCDOC since December 2012. Altez served as a licensed physician assistant at Cermak, Dart is the Cook County Sherriff, and Mennella chaired the Department of Correctional Health at Cermak. In roughly August 2013, Plaintiff developed a one-centimeter lump beneath the areola of his left nipple. He described the pain associated with the lump as an uncomfortable prickling pain and burning feeling. At another time, he characterized the pain as "like getting pricked with a needle from the inside out." PL's Resp. to Defs.' Statement of Facts ("PRDSOF") ¶ 4. In other instances, Plaintiff described the pain as discomfort. Deposition testimony shows that on some occasions Plaintiff stated that his pain was constant and at other times sporadic. It never in any way interfered with his daily activity as an inmate.

         On January 15, 2014, Plaintiff received medical treatment for a different health problem, but he did not notify the medical provider about the lump. On February 1, 2014, Plaintiff filled out a Health Service Request ("HSR") seeking treatment for the painful lump. The HSR indicated increasing pain and size. The next day, Plaintiff saw Nurse Elizabeth Santos ("Santos") and asked for pain medication. Santos declined to provide pain medication at this initial appointment. Instead, Santos booked an appointment for Plaintiff to see Altez on February 26, 2014. On February 13, 2014, Plaintiff completed another HSR in which he reiterated his pain and stated that he had not received pain medication. On February 15, 2014, later Santos gave Plaintiff twelve 200mg tablets of ibuprofen.

         On February 26, 2014, Plaintiff saw Altez regarding the lump. Plaintiffs vitals were taken prior to seeing Altez. At the appointment, Altez conducted a physical examination of Plaintiffs chest, including the areola. Altez ultimately diagnosed Plaintiff with gynecomastia. Gynecomastia is the excessive growth of the male mammary glands, generally associated with metabolic derangements that lead to estrogen accumulation, testosterone deficiency, and hyperprolactinemia. In some cases, gynecomastia may develop to the stage at which milk is produced, commonly called lactation. Although not as common in males in their twenties, as Plaintiff was at the time of his February 26, 2014 diagnosis, the condition is relatively common among infants, adolescents, and men over fifty.

         Altez's treatment notes indicate that Plaintiff complained of sharp and intermittent chest pain. Plaintiff alleges that Altez made light of Plaintiff s condition by laughing while asking whether Plaintiff was lactating and that he was embarrassed as a result of Altez's asking such a question. Plaintiff asked Altez for pain medication but claims that Altez declined to provide the medication at that point. However, Altez did prescribe the antibiotic clindamycin, which is used to treat serious infections. Altez also ordered several blood tests, including a complete blood count with differential to test Plaintiffs blood cell and platelet count, a follicle-stimulating hormone test to evaluate Plaintiffs testicular function and spermatozoids production, and a thyroid stimulate hormone test to determine if Plaintiff had thyroid abnormalities. Additionally, Altez ordered an ultrasound of Plaintiff s left breast and nipple, which took place on March 4, 2014, six days later. The ultrasound was used to confirm the gynecomastia diagnosis and to rule out other (and potentially malignant) breast conditions such as cancer or an abscess. Plaintiffs deposition also reflects that he underwent a second ultrasound to check his other breast. Plaintiff was scheduled for a follow-up appointment on March 19, 2014. He was not treated with pain medication in the interim.

         At the March 19, 2014 appointment, Altez discussed the ultrasound results with Plaintiff. The results confirmed the gynecomastia diagnosis. The test did not reveal any other abnormalities. Plaintiff asserts that Altez made additional embarrassing comments and again did not prescribe pain medication. For example, Plaintiff claims that Altez stated that Plaintiff could handle the condition because he is a "big boy, " Id. at 63:10, that the hospital was not "University of Chicago Hospital, " PRDSOF, Ex. B, 63:21-64:1, and that Altez fist-bumped him, presumably an alternative to a handshake. While the "big boy" term should have been buttoned, that the prison treatment center was not the "University of Chicago Hospital" was starkly accurate. Ultimately, Plaintiff alleges that the bases of his deliberate indifference claim as to the March 19, 2014 visit are the aforementioned comments and gestures by Altez and Altez's decision not to prescribe the amount of medication Plaintiff desired.

         Altez informed Plaintiff that if the gynecomastia did not go away on its own, Plaintiff could have a surgeon "cut it off." Id. at 55:24-56:6. Liposuction and mastectomies are treatment options when gynecomastia persists. Plaintiff was later taken to a plastic surgeon at Stroger Hospital for a consultation the regarding the surgical removal of the growth on his areola. He informed the plastic surgeon that he would consider the possibility. Ultimately, Plaintiff declined the surgical removal of the lump beneath the areola of his nipple because he "was worried about the scar for cosmetic reasons." Id. at 71:11-12. He was also concerned after the plastic surgeon informed him about the risks attendant to surgery, which is routine medical practice in order to obtain informed consent from a patient.

         Contrary to Altez's medical opinion, Plaintiff alleges that gynecomastia is a serious condition. Plaintiff stated at his deposition that his sources for this conclusion are articles that his former cellmate provided to him. Plaintiff also could not remember the authors of any of these articles. In his deposition, however, Plaintiff acknowledges that the gynecomastia did not limit him at all outside of experiencing pain, embarrassment, and repeatedly visiting outside hospitals.

         After declining surgery, on April 9, 2014, Plaintiff submitted another HSR, claiming constant and severe pain and stating that he had not received pain medication. In response, Plaintiff was scheduled for an appointment with Nurse Lisa Locke ("Locke"). Locke did not provide pain medication. On April 30, 2014, however, Santos gave Plaintiff another twelve 200mg tablets of ibuprofen, though Plaintiff asserts that it was for an unrelated ailment. On June 3, 2014, Plaintiff was prescribed pain medication for his gynecomastia. The record reflects that Altez took notes on his computer "on every visit, " Id. at 56:20-21, in order to maintain computerized records of Plaintiff s treatment.

         Plaintiff was also able to purchase eight pain pills per week from the CCDOC commissary for the duration of the treatment at issue. The commissary sold two pills for about 45 cents. Plaintiff stated in his deposition he accessed the commissary for these pills ''regularly." Id. at 134:18. Additionally, he acknowledged that "the pain medicine the nurse was giving me, the Tylenols or Advil packs [were] . . . several packs more than I'm allowed to buy on the commissary. . ." Id. at 166:17-20.

         In sum, Plaintiff received numerous tests, declined the surgical removal of the growth on his areola, and consistently received and purchased pain and other medication. That notwithstanding, Plaintiff alleges that Altez was deliberately indifferent because Altez failed to treat to Plaintiffs pain and made light of Plaintiff s condition. Plaintiff submitted his Complaint on June 9, 2014.


          A. Standard of Review

         "Summary judgment is appropriate when 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Northfield Ins. Co. v. City of Waukegan, 701 F.3d 1124, 1128 (7th Cir. 2012) (quoting Fed.R.Civ.P. 56(a)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013) (internal quotation marks and citation omitted). "On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson v. LibertyLobby, Inc., 477 U.S. ...

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