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Brown v. Ghosh

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

March 29, 2017

TERRY JEROME BROWN, Plaintiff,
v.
DR. PARTHASARATHI GHOSH, DR. IMHOTEP CARTER, DR. SALEH OBAISI, C/O SHAWNNEL GRUBBS, C/O CHRISTOPHER MEDIN, MARCUS HARDY, WARDEN RANDY PFISTER, [1] ROYCE BROWN REED, MADONA MAIKAITIS, NURSE TIFFANY UTKE, NURSE CYNTHIA GARCIA, NURSE ALETHA HARPER and NURSE WENDY DYBAS, Defendants.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Terry Brown is incarcerated at Stateville Correctional Center. In this lawsuit, Brown alleges that employees of the Illinois Department of Corrections (“IDOC”) and IDOC's medical services provider, Wexford Health Sources, Inc. (“Wexford”), acted with deliberate indifference toward his medical conditions and retaliated against him for filing suit, in violation of 42 U.S.C. § 1983.

         Brown suffers from a serious spinal condition called spinal stenosis. He alleges that Defendants displayed deliberate indifference to this condition by (a) wrongfully confiscating his neck brace, losing it, and failing to provide a new one for six months; (b) failing to arrange for him to attend a necessary follow-up appointment for eight months after a difficult surgery; and (c) ignoring treatment instructions from his surgeon. Brown also suffers from glaucoma, and claims that certain prison and medical staff forced him to keep necessary medication in his cell, thereby rendering it subject to confiscation. Finally, he claims that the prison's doctor refused to renew the permit for his crutch in retaliation for filing this suit.

         Brown sued numerous IDOC staff and Wexford staff, and some have been dismissed from the suit. The remaining defendants, Shawnel[2] Grubbs, Royce Brown-Reed, and Marcus Hardy (the “IDOC Defendants”), and Nurses Madonna Maikaitis, Wendy Dybas, Aletha Harper, Tiffany Utke, and Cynthia Garcia, along with Doctors Imhotep Carter and Saleh Obaisi (the “Wexford Defendants”) have moved for summary judgment.

         BACKGROUND

         Brown has been an inmate at the Stateville Correctional Center since October 1, 2009. (Pl.'s Additional Statement of Facts in Resp. to IDOC Statement of Facts [hereinafter “Pl.'s SOF to IDOC] [168-1], at ¶ 47.) He claims that prison staff have been deliberately indifferent to his medical conditions in a variety of ways during his imprisonment at Stateville, as described below. The court views the record in the light most favorable to the party opposing a motion for summary judgment, here, Brown. Dawson v. Brown, 803 F.3d 829, 832 (7th Cir. 2015).

         I. Issues Related to Brown's Spine

         Brown has suffered from spinal stenosis, a degenerative joint disease, since prior to arriving at Stateville in October 2009. (Pl.'s SOF to IDOC ¶¶ 51, 61.) Brown utilized a neck brace and cane for his condition upon entering the facility (id. at ¶ 47), and continued to wear the brace whenever he left his cell (except to shower) (id. at ¶¶ 49), until it was taken from him in late October 2011. (Id. at ¶ 54; Pl.'s Resp. to IDOC Defs.' Rule 56.1 Statement [hereinafter Pl.'s Resp. to IDOC SOF] [168-1], at ¶¶ 31-34.)

         Stateville regulations require inmates to possess a permit for any medical equipment they have. (IDOC Defs.' Local Rule 56.1 Filing [hereinafter IDOC SOF] [155], at ¶ 26.) If an inmate possesses a piece of medical equipment without a valid medical permit, it is considered contraband and subject to confiscation. (Id.) Brown was issued a medical permit for his neck brace when he entered the facility. (Pl.'s SOF to IDOC ¶ 48.) Dr. Parthasarathi Ghosh, the medical director at Stateville from 2003 to March 2011 (Dep. of Dr. Parthasarathi Ghosh, Ex. C to Wexford Defs.' Local Rule 56.1(3) Statement of Facts [hereinafter “Ghosh Dep.”] [150-3], at 13:19-14:2), renewed the permit on in July 2010 (Pl.'s SOF to IDOC ¶ 52), and November 2010, after which it was set to expire on June 30, 2011. (Id. at ¶ 53.)

         There is a dispute about the status of Brown's permit after these dates. Brown asserts that a doctor at Stateville ordered the permit renewed for another six months after a medical appointment on June 17, 2011 (Pl.'s Resp. to IDOC SOF ¶ 36(a)), and there are medical notes that either reflect a staff member reviewing the permits or ordering them renewed. (Ex. 10 to Pl.'s Resp. to IDOC SOF [168-11]).[3] The identity of the person who wrote the notes is uncertain, made more complicated by the fact that Dr. Ghosh left his position as medical director in March 2011 (Ghosh Dep 13:23-24), and Dr. Imhotep Carter, the medical director that succeeded him, did not assume the job until July 25, 2011. (Wexford Defs.' Local Rule 56.1(3) Statement of Facts [hereinafter Wexford SOF] [150], at ¶ 14.) Regardless, Brown apparently did not receive the permit, as he informed a nurse at a medical appointment on August 28, 2011 that he still needed it. (Pl.'s Resp. to IDOC SOF ¶ 36(c); IDOC, Offender Outpatient Progress Notes (Aug. 10, 2011), Ex. 11 to Pl.'s Resp. to IDOC SOF [168-12] (noting “I need my permits renewed”).) He still had not received the renewed permit on October 27, 2011 when he filed a grievance about the matter. (Pl.'s Resp. to IDOC SOF ¶ 36(b); Offender's Grievance #4070 (Oct. 27, 2011), Ex. 6 to Pl.'s Resp. to IDOC SOF [168-7].)

         IDOC asserts that Brown was well aware that his permit had expired, was not renewed, and was not valid after June 30, 2011, citing portions of Brown's deposition in which he admits that he “did not have an up-to-date permit, ” and admits that the permit he possessed earlier had expired. (Dep. of Terry Brown, Ex. B to Wexford SOF [hereinafter Pl.'s Dep.] [150-2], at 84:6- 12; 218:8-21.) Brown contends that although he had not yet received a physical copy of the renewed permit, it was “renewed, ” in the sense that the medical staff had ordered the permit renewed on June 17. (Pl.'s Resp. to IDOC SOF ¶ 36.)

         Either way, it is undisputed that Brown was wearing his neck brace on October 28, 2011 without possessing a valid, physical permit for it. (IDOC SOF ¶¶ 31-34.) Correctional Officer Shawnel Grubbs pulled Brown out of a line of prisoners on the way to the cafeteria for a random shakedown. (Id. at ¶ 31.) Grubbs recalls that he observed Brown without a permit. (Dep. of Shawnel Grubbs, Ex. F. to IDOC SOF [hereinafter “Grubbs Dep.] [155-5], at 47:13.) From his testimony, it appears that Grubbs either confiscated the neck brace on the spot (id. at 49:12-14 (“I bagged it and tagged it . . . it was turned into personal property.”)), or took Brown to segregation where the guards in the segregation unit seized the brace. (Id. at 53:18-19 (“The neck brace was taken upon arrival to seg. He didn't give it to me.”).) Brown asserts that Grubbs could have done any number of things instead of taking his neck brace, or causing it to be taken in segregation, such as following up with the healthcare unit to determine the validity of the permit, but Grubbs did not. (Pl.'s SOF to IDOC ¶ 54.) Grubbs agreed that he could have “jump[ed] through the hoops to do [Brown] a favor of keeping the brace.” (Grubbs Dep. 52:20- 24.) Presumably, Grubbs was referring to calling the healthcare unit to determine whether Brown had a valid permit which, according to Grubbs, could take between ten minutes and two hours. (Id. at 38:18-39:2.) Grubbs also testified that most of the time he gave inmates a “pass” if they did not have a valid medical permit on them, provided their “demeanor and attitude [were] correct” (id. at 39:14-17), or he would follow up at the inmate's cell to determine whether he had a valid medical permit. (Id. at 39:22-40:6.)

         It is undisputed that Brown was deprived of his neck brace for months. The neck brace taken from him during the October 28, 2011 incident was never returned (Pl.'s SOF to IDOC ¶ 56), and he did not get a new brace until May 30, 2012. (Id. at ¶ 63.) The Defendants contend that the neck brace was not, in fact, medically necessary. (IDOC Mem. in Support of Mot. for Summ. J [hereinafter IDOC Br.] [154], at 6 (arguing that “Plaintiff cannot demonstrate that he was harmed as a result of the conduct of Grubbs”); Wexford Defs.' Mem. in Supp. of Summ. J. [hereinafter Wexford Br.] [149], at 6 (Brown's “request for the various permits should be denied as they are not medically necessary and would not cure any of his current ailments.”).)

         In his briefs, Brown contends that the brace was in fact “vital and necessary” (Pl.'s Opp'n to IDOC Defs.' Mot. for Summ. J. [hereinafter Pl.'s Br. Opp. to IDOC] [168], at 9; Pl.'s Opp'n to Wexford Defs.' Mot. for Summ. J. [hereinafter Pl.'s Br. Opp. to Wexford] [169], at 11), and that as a result of losing the brace “[h]e was in constant pain for months, ” and “[h]e was worried about whether a fall or even a jostle could cause catastrophic and permanent damage to his neck.” (Pl.'s Br. Opp. to IDOC 12; see also Pl.'s Br. Opp. to Wexford 11.) Brown has maintained all along that the purpose of the brace was to stabilize his neck to prevent unnecessary painful movement and to protect him in the event of a fall or other external injury. In one grievance, filed October 27, 2011, he stated that he was in pain and that he was at risk of internal injuries because he did not have the brace. (See Offender's Grievance #4070.) In his deposition, he testified that he currently wears the neck brace when he is in pain so that his neck will not move if he falls. (Pl.'s Dep. 249:17-23.) He further states that having the brace confiscated “would cause me a pain and suffering with my spine.” (Id. at 264:17-18.) In a grievance filed before he got the brace back on May 2, 2012 (Offender's Grievance #K-76895 (May 2, 2012), Ex. E to 3d Am. Compl. [112-5]), Brown complains that “I am [in] much pain and the neck brace will [illegible] me [] from Moving my Neck so much which go to my Spine that causes [illegible] lot pain . . . .” (Id.) Finally, Brown reported to medical staff at the University of Illinois at Chicago (“UIC”) hospital, when the prison referred him there for potential surgery to improve his condition, that “the pain is never relieved, but soft collar and hot packs help to reduce severity of pain.” (Discharge Summary (Jul. 11, 2012), Ex. 24 to Pl.'s Resp. to IDOC SOF [168-25].)[4]

         The record includes some inconclusive information on the medical necessity of the brace from medical professionals. As described below, Brown eventually had surgery on his neck to prevent further degeneration of his condition. Dr. Konstantin Slavin, the surgeon at UIC who examined Brown in preparation for the surgery, was questioned about the need for a brace at his deposition. Initially, Slavin explained that he prescribed a neck brace to stabilize Brown before surgery:

Q: . . . At this time our recommendation is for the patient's neck to be immobilized in a hard collar . . . . Do you see that?
A: Yes, I do.
Q: And why was the recommendation that the patient's neck should be immobilized in a hard collar?
A: That's a standard recommendation for situations like this.
Q: What are the risks if it's not immobilized?
[objection omitted]
A: It's hard to say. It looks like he was without a collar for at least . . . a year and six months[5] prior to seeing him on that day since the original MRI in December of 2010, so we suggested having it . . . hoping to stabilize his neck and avoid having any new symptoms prior to the surgery.
Q: So his condition could have gotten worse if he wasn't wearing the neck brace?
[objection omitted]
A: Yes, we were concerned that would be the case.

(Dep. of Dr. Konstantin Slavin, Ex. G to IDOC SOF [hereinafter “Slavin Dep.”] [155-6], at 23:20- 24:22.) Dr. Slavin also recognized, however, that a neck brace would not prevent the degeneration of Brown's condition. (Slavin Dep. 27:8-11 (“Neck brace is more of a protective measure, I wouldn't call it a treatment”); id. at 30:21-31:2 (“Q: Would wearing a neck brace help reduce the progression of myelopathy[?] A: Not as I know. Q: What about the progression of cervical stenosis? A: I don't think so.”); id. at 43:17-18 (“I don't know if wearing a collar makes people better or worse.”); id. at 43:24-44:2 (“I thought [the x-rays showed the condition as] slightly worse, but I cannot ascribe it to wearing or not wearing a collar.”).)

         The remaining medical testimony on this issue all comes from Defendants. Dr. Ghosh suggested that the brace was issued to “comfort” Brown, but provides no further details:

Q: Why would you issue him a cervical collar?
A: Well, he said he needed a brace, something for his neck, so I thought I would issue him one. Not that it's curative, just to give him some comfort.

(Ghosh Dep. 32:2-6.)

         Dr. Carter was the medical director of Stateville between July 25, 2011 and May 13, 2012. (Pl.'s Resp. to Wexford Def.'s Rule 56.1 Statement [hereinafter “Pl.'s Resp to Wexford SOF”] ¶ 14.) On October 11, 2011, Carter and another doctor, identified in Dr. Carter's deposition only as “Dr. Baker, ” reviewed Brown's treatment plan. (Dep. of Dr. Imhotep Carter, Ex. E to Wexford SOF [hereinafter “Carter Dep.”] [150-5], at 36:15-38:20.) Dr. Carter described a neck brace as a “conservative measure” to treat Brown's spinal condition; he did not say anything else about the function of the neck brace. (Carter Dep. 38:9-20.)

         Dr. Obaisi has only been employed with Wexford since July 2012 (Dep. of Dr. Saleh Obaisi (Jun. 1, 2015), Ex. 1 to Pl.'s Resp. to Wexford SOF [hereinafter “Obaisi Jun. 1, 2015 Dep.”] [169-2], at 52:11-21), and only examined Brown after Brown's spine surgery. (See Obaisi Jun. 1, 2015 Dep. 49:12-51:12 (reviewing July 13, 2012 medical notes)). Obaisi does not offer an opinion on the necessity of the neck brace during the period before Brown had surgery.

         Brown's spinal condition is degenerative, and the prison medical staff ultimately referred him to UIC for evaluation of his worsening condition. Precisely who made the referral, or what prompted it, is not clear from the record. On April 16, 2012, Brown saw Dr. Slavin at UIC, who recommended that Brown have surgery on his spine, though the record is unclear as to what surgery Dr. Slavin suggested on that date. (Pl.'s SOF to IDOC ¶ 57.) It was at that appointment that Dr. Slavin recommended that Brown's neck be stabilized in a hard-collar brace. (Slavin Dep. 23:19-24:22.) In response, Stateville's central supply staff did give Brown a neck brace, though it was a soft-collar brace, not the hard collar that Slavin requested. (Pl.'s SOF to IDOC ¶ 63; Receipt (May 30, 2012), Ex. 23 to Pl.'s Resp. to IDOC SOF [168-24].) Brown had another appointment with Dr. Slavin on May 7, 2012, at which Dr. Slavin advised an anterior cervical discectomy and fusion at the C5-C6 and C6-C7 levels. (Slavin Dep. 18:7-12.) The surgery was intended to stop the progression of Brown's disease and relieve pain. (Id. at 19:10-20:3.) Brown had the surgery on July 3, 2012 (Pl.'s SOF to IDOC ¶ 65), and stayed in the hospital for eight days due to complications. (Id. at ¶ 66.) Upon his discharge on July 11, 2012, UIC recommended a follow-up appointment in two weeks. (Id. at ¶ 67.)

         In fact, however, the appointment was not scheduled to occur until August 17, 2012. (Id. at ¶ 71.)[6] This initial delay is not explained by Defendants. And the appointment did not take place on August 12. On that date, Nurse Madonna Maikaitis discovered that Brown had a lift in his shoe for which she believed he did not have a permit. (Id.) Nurse Maikaitis responded to the discovery by refusing to permit Brown to leave Stateville for his scheduled appointment. The record does not disclose how Nurse Maikaitis became aware of the lift nor why prohibiting an inmate from seeing the doctor was an appropriate sanction for possession of a lift without a permit-a sanction that presumably inconvenienced the doctor at UIC as well. Nurse Maikaitis testified at her deposition that there was a blanket policy at Stateville that if an inmate did not have a permit for a medical device, the inmate could not take the device out of the prison (Dep. of Madonna Maikaitis, Ex. H to Wexford SOF [hereinafter “Maikaitis Dep.”] [150-8], at 32:3-22), but the court is uncertain why she did not simply seize the lift and send Brown on his way.

         Nurse Maikaitis further testified that between 30 and 60 days after Dr. Obaisi became the medical director, he established a policy that nurses could call him and get a “telephone order” to allow an inmate to take a medical device out of the prison. (Maikaitis Dep. 23:4-24, 24:6-8.) Obaisi became the medical director on an unspecified date in July 2012. (See Obaisi Jun. 1, 2015 Dep. 52:11-21.) Nurse Maikaitis does not remember the incident with Brown (id. at 34:13-16), and said nothing in her deposition about whether she attempted to arrange a telephone order for Brown, or whether that policy was in place at the time.

         The parties dispute whether Brown had a permit for the lift at the time of this incident. Brown points to a medical note and “referral” on March 23, 2012 which, Brown claims, reflects that medical staff (the signature is illegible) renewed the permit for six months from that date. (IDOC, Offender Outpatient Progress Notes (March 23, 2012), Ex. 26 to Pl.'s Resp. to IDOC SOF [168-27].) The parties do not dispute that the permit for the lift was renewed a few days after he was prevented from leaving, on August 20, 2012. (IDOC Resp. to Pl.'s SOF ¶ 71.) There is also no genuine dispute that as a result of Nurse Maikaitis's discovery of his shoe lift, Brown was not seen at UIC until February 25, 2013-eight months after his surgery. (Pl.'s SOF to IDOC ¶ 72.)[7] Defendants do note that he was seen by Dr. Obaisi, a day or two after being released from the hospital. (IDOC SOF ¶ 7; Wexford SOF ¶ 25.)

         Brown asserts that Dr. Slavin's recommendation after the surgery included additional showers, referred to by the parties as “medical showers.” There is no difference between a medical shower and a regular shower; medical showers are simply additional showers provided to inmates for some medical purpose. (See Pl.'s Dep. 214:6-215:9.) (The parties do not explain how many showers inmates are entitled to under normal circumstances.) In Brown's case, Dr. Slavin testified that he prescribed the showers to assist in keeping the “cervical muscles more relaxed.” (Slavin Dep. 37:11-14.)[8] Brown confirms that the hot water helped with his sore back. (Pl.'s Dep. 213:20-214:5.) Brown claims that Defendants denied this treatment, as well. According to Brown, Dr. Slavin recommended daily showers immediately after surgery. (Pl.'s SOF to IDOC ¶ 68.) Defendants dispute this, however. (IDOC Resp. to Pl.'s SOF ¶ 68; Wexford Answer to Pl.'s Statement of Add'l Facts [hereinafter Wexford Resp. to Pl.'s SOF] [185], at ¶ 46), and there is no indication in the discharge summary that Dr. Slavin ordered daily showers. (UIC Medical Center Discharge Summ. (Jul. 11, 2012), Ex. 4 to Pl.'s Resp. to IDOC SOF [168-25], at 4 (noting only “OK to shower”).) There is no dispute that, back at the prison on July 13, 2012, Dr. Obaisi ordered only three additional showers per week as part of the post-operative treatment plan. (Pl.'s SOF to IDOC ¶ 69.) Dr. Obaisi testified that the three additional showers were his own recommendation. (Obaisi Jul. 15, 2015 Dep. 92:15-22.) On February 25, 2013, when Brown finally got his follow-up appointment, Dr. Slavin recommended that he have daily showers. (Neurosurgery Note, Ex. 28 to Pl.'s Resp. to IDOC SOF [168-29], at 2.) Brown does not suggest that Slavin's recommendation was followed after that date. (Pl.'s SOF to IDOC ¶ 69.)

         Brown claims that on one occasion, a corrections officer abused his authority by terminating Brown's shower early in February 2013 (Pl.'s Resp. to IDOC SOF ¶ 39), and the health care unit administrator, Royce Brown-Reed, did nothing about it. (Pl.'s Resp. to IDOC SOF ¶ 38(a)-(d).) Brown filed a grievance detailing this incident, which the grievance office forwarded to the health care unit. (Offender's Grievance #M191 (February 13, 2013), Ex. 12 to Pl.'s Resp. to IDOC SOF [168-13].) The health care unit responded with a memorandum that purports to be from Brown-Reed (Mem., Brown-Reed to Grievance Office (Apr. 22, 2013), Ex. 14 to Pl.'s Resp. to IDOC SOF [hereinafter HCU Grievance Mem.] [168-15]), but Brown-Reed testified at her deposition that the document was produced by her assistant, Valerie Christensen. (IDOC SOF ¶ 41; Dep. of Royce Brown-Reed, Ex. D to IDOC SOF [hereinafter “Brown-Reed Dep.”] [155-4], at 33:18-12.) She further testified that she does not review all memoranda authored by her assistant prior to issuing them (IDOC SOF ¶ 43), and it is unclear from her deposition whether she reviewed this one. (Brown-Reed Dep. 32:17-18 (“Q: Okay. Do you recognize this? A: I recognize the format, yes.”).) The memo states that the “grievance is a security issue, ” and finds that it has “no merit.” (HCU Grievance Mem.) Brown-Reed testified that if a grievance is determined to be a security issue, the grievance office sends the grievance to “security” to be addressed and she does not investigate further. (Brown-Reed Dep. 33:19- 34:9.) The record contains no more information about what happened with the grievance, why it was characterized as a security issue, or to whom “security” refers.

         II. Issues Related to Brown's Eye Condition

         Brown also claims that prison staff have been indifferent to his needs related to his eyes. Brown has glaucoma. (Wexford SOF ¶ 16.) For this condition, he takes four different kinds of eye drops. (Id. at ¶ 17.) Brown claims that there have been serious problems with the distribution of this medication that have resulted in his not receiving it on several occasions.

         Brown's concerns about his eye drops began with a shakedown of Brown's cell, early in his stay at Stateville, where a security officer confiscated them. (Pl.'s Resp. to Wexford SOF ¶ 19(c).) Brown does not recall exactly when this occurred, [9] but he testified that as a result, he requested some method of administering his eye drops that did not require him to keep them in the cell. (Pl.'s Dep. 135:24-136:7.) First, the drops were ordered to be administered on a “watch take” basis, which means that the drops were given to him for self-administration, supervised by a nurse, and then returned to the nurse. (Pl.'s Resp. to Wexford SOF ¶ 20(a).) The date that this practice began is not in the record; Brown does not recall the date in his deposition. (See Pl.'s Dep. 136:14-18.)

         Things did not go smoothly even during the “watch take” period. On one occasion, around August 2012, Brown contends that Nurse Tiffany Utke insisted that Brown keep the eye drops in his cell, and when he refused, she refused to give him the drops at all. ...


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