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Roberts v. Dawalibi

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

March 8, 2017

Earl Roberts Y-15872, Plaintiff,
v.
Dr. Salim Dawalibi, Defendant.

          OPINION AND ORDER

          Jeffrey T. Gilbert Magistrate Judge

         In this pro se civil rights action pursuant to 42 U.S.C. § 1983, Plaintiff Earl Roberts, who is currently in state custody, contends that he received constitutionally inadequate medical care for athlete's foot when he was detained at the Cook County Jail. Pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, the parties consented to the jurisdiction of a United States Magistrate Judge for all proceedings, including entry of final judgment. (ECF No. 33.) Defendant Salim Dawalibi, M.D., has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 73.) For the reasons discussed below, Dr. Dawalibi's motion is granted in its entirety.

         I. NORTHERN DISTRICT OF ILLINOIS LOCAL RULE 56.1

         Local Rule 56.1 sets out a procedure for presenting facts that are germane to a party's request for summary judgment pursuant to Fed.R.Civ.P. 56. Specifically, Local Rule 56.1(a)(3) requires the moving party to submit "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). Each paragraph of the movant's statement of facts must include "specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1(a). The opposing party must file a response to each numbered paragraph in the moving party's statement, "including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." L.R. 56.1(b)(3)(C). The nonmoving party may also present a separate statement of additional facts "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(C). "[I]f additional material facts are submitted by the opposing party . . ., the moving party may submit a concise reply in the form prescribed in that section for a response." L.R. 56.1(a).

         Because Roberts is proceeding pro se, Dr. Dawalibi served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Northern District of Illinois Local Rule 56.2. (ECF No. 75.) The notice explained how to respond to Dr. Dawalibi's summary judgment motion and Local Rule 56.1 statement of facts and cautioned Roberts that the Court would deem Dr. Dawalibi's factual contentions admitted if Roberts failed to follow the procedures delineated in Local Rule 56.1. Dr. Dawalibi also filed a motion for summary judgment (ECF No. 73), a supporting memorandum (ECF No. 76), and a Local Rule 56.1(a)(3) Statement of Material Facts (ECF No. 74). Roberts filed a response to Dr. Dawalibi's statement of facts (ECF No. 93), but did not submit a memorandum setting forth his position. Dr. Dawalibi then filed a reply memorandum (ECF No. 104) focusing on alleged deficiencies in Robert's response to his statement of facts.

         Although courts construe pro se pleadings liberally, see Thomas v. Williams, 822 F.3d 378, 385 (7th Cir. 2016), a plaintiff s pro se status does not excuse him from complying with federal and local procedural rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) (holding that "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"); Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009) ("even pro se litigants must follow procedural rules")- The Court will discuss facts that Roberts has attempted to contest below, but to the extent that he did not otherwise respond to Dr. Dawalibi's statement of facts, the Court will accept Dr. Dawalibi's "uncontroverted version of the facts to the extent that it is supported by evidence in the record." Keeton v. Mornings tar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). Notwithstanding any admissions, however, the Court has interpreted Roberts' filings generously consistent with his pro se status and will construe his submissions, as well as the record evidence (which includes his deposition in this case), in the light most favorable to him, to the extent that he has either pointed to evidence in the record or could properly testify himself about the matters asserted. Sistrunk v. Khan, 931 F.Supp.2d 849, 854 (N.D. 111. 2013); Fed.R.Evid. 602. With these standards in mind, the Court turns to the relevant facts.

         II. BACKGROUND

         Roberts entered the Cook County Jail as a pretrial detainee in November 2011. (ECF No. 74, Def.'s SOF, at ¶ 1.) Dr. Dawalibi is a primary care physician who practices at Cermak Health Center and provides medical care to detainees at the Cook County Jail. (Id. at ¶ 20; ECF No. 74-2, Dawalibi Dec, at ¶ 3.) Roberts is not aware of Dr. Dawalibi's medical training, does not know where he attended medical school, and is unfamiliar with any training Dr. Dawalibi received when he began working at Cermak. (ECF No. 74-1, PL's Dep., at 102:3-15.) Dr. Dawalibi's experience as a primary care physician qualifies him to diagnose athlete's foot (also known as tinea pedis), and he has diagnosed this condition throughout his career.[1] (ECF No. 74, Def.'s SOF, at ¶¶ 13, 20.)

         At an unknown point during his stay at Cook County Jail, but before his feet began to itch and burn, an unknown individual at the Jail prescribed a "dry skin cream" for Roberts. (ECF No. 74-1, PL's Dep., at 39:1-7; 72:11-17.) Roberts used the cream on various areas of his body, including his feet. (Id. at 72:22-73:4.)

         According to Roberts, the "first day" his feet started itching and burning was January 6, 2014. (ECF No. 74, Def.'s SOF, at ¶¶ 2-3; ECF No. 74-1, PL's Dep., at 39:11-12.) He contends that this caused him to experience difficulty walking. (ECF No. 74, Def.'s SOF, at ¶ 3.) Roberts asserts that he had an appointment with Dr. Dawalibi on January 6, 2014, [2] (Id. at ¶ 4.) Cermak's records, however, indicate that Dr. Feldman, not Dr. Dawalibi, saw Roberts on January 6, 2014, to treat acid reflux. (Id. at ¶ 10.) Dr. Feldman's notes from January 6, 2014, reflect her opinion that Roberts' skin was "[i]ntact, no rash." (Id. at ¶ 11.) Dr. Dawalibi denies examining Roberts at any time during January 2014. (Id. at ¶ 9.)

         During his deposition, Roberts testified that during his purported January 6, 2014 appointment with Dr. Dawalibi, he told Dr. Dawalibi that his feet were "burning" so Dr. Dawalibi "examined [Roberts'] feet by . . . eye contact nature, just looked at them, because he's not a foot doctor." (ECF No. 74-1, PL's Dep., at 37:7-16.) Roberts "probably stayed in there talking to [Dr. Dalawibi] maybe, per se, about-could have been 45 minutes to an hour. [Dr. Dawalibi] was checking over [Roberts] for other things that he hadn't called [Roberts] down there for, " as well as evaluating Roberts' feet. (Id. at 36:18-37:1.) Roberts testified that he did not ask Dr. Dawalibi for cream or other medication for his feet. (ECF No. 74, Def. SOF, at ¶ 7.) At the end of the alleged appointment, Roberts contends that Dr. Dawalibi stated, "Earl, I'm not, per se, a foot doctor; I'm going to have to set you up for an appointment with a podiatrist." (Id. at 35:12-36:6.)

         Roberts then saw Dr. Dawalibi enter a request for a podiatrist appointment into the computerized scheduling system, although he could not see the date selected by Dr. Dawalibi. (Id. at 41:18-42:6.) The record reflects that on January 30, 2014, Plaintiff was seen by Dr. Doyle, a podiatrist. Dr. Doyle's handwritten consultation notes state, "Resolved. Tinea Pedis - no tx. needed."[3] (ECF No. 74, Def. SOF, at ¶ 12.)

         In response to a grievance Roberts filed about ongoing issues with his feet, on March 5, 2014, Roberts was called to see the nursing supervisor. (ECF No. 74-1, Pl, 's Dep., at 44:8-19.) Dr. Dawalibi "happened to be walking by" as Roberts voiced concerns about a lack of follow-up care for his feet, and said, "Earl, what's going on?" (Id. at 46:1-9.) According to Roberts, after he explained that he had not yet seen the podiatrist, Dr. Dawabili said, "Come over here in my office; we're going to talk about it. [Dr. Dawalibi] went in there. He put in another date for me to see this podiatrist." (Id. at 46:12-15.) When Roberts was in Dr. Dawalibi's office, Dr. Dawalibi also examined Robert's feet. (Id. at 46:16-20.) Dr. Dawalibi determined that Roberts was experiencing foot odor and had dead skin on his feet with no signs of infection. (ECF No. 74, Def.'s SOF, at ¶ 17.) Dr. Dawalibi did not observe that Robert' feet were bleeding or that he had any difficulty walking, but he nevertheless referred Roberts to a podiatrist. (Id. at ¶¶ 16-19.) Roberts testified that he did not know if Dr. Dawalibi conducted an investigation regarding the podiatrist appointment after this interaction. (ECF No. 74-1, PL's Dep., at 103:18-23.)

         After the podiatrist appointment promised on March 5, 2014, did not materialize, Roberts submitted additional grievances, (Id. at 67:16-68:5.) Roberts contends that during a June 2014 appointment with a "fill-in doctor for Dr. Dawalibi, " who was on vacation, he again complained that he had not seen the podiatrist. (Id. at 47:19-48:16.) According to Roberts, the doctor told him that he had "a very serious case of athletic feet, " prescribed "athletic foot cream" and Tylenol, and expressed concern about Roberts' use of the prescription dry skin cream on his feet. (Id. at 48:20-49:23; 54:16:-21; 63:6-8.) At that point, Roberts alleges that his feet were bleeding and he "was peeling chunks of skin off [his] feet." (Id. at 50:2-15.)

         On July 3, 2014, Physician's Assistant Barbara Davis saw Roberts in connection with his feet. (ECF No. 74, Def.'s SOF, at ¶ 21) According to Roberts, the peeling skin problem had persisted and he was still experiencing bleeding. (Id. at ¶ 22.) Physician's Assistant Davis diagnosed Plaintiff with athlete's foot and prescribed antifungal cream. (Id. at ΒΆ 23.) Her ...


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