United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
Jeffrey T. Gilbert Magistrate Judge
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.
NORTHERN DISTRICT OF ILLINOIS LOCAL RULE 56.1
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.
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.
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.
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. (ECF No. 74, Def.'s SOF, at
¶¶ 13, 20.)
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.)
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,  (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.)
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.)
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." (ECF No. 74, Def. SOF, at ¶ 12.)
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.)
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.)
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 ¶ 23.) Her ...