United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
before the Court are the following three motions filed by
Plaintiff Robert Akers: a Motion for Sanctions against
Defendants Wexford Health Sources, Inc., Dr. Robert Shearing,
Dr. Samuel Nwaobasi, and Michael Moldenhauer (Doc. 141), a
Motion for Sanctions under Federal Rule of Civil Procedure 37
against Defendants Wexford Health Sources, Inc., Dr. Robert
Shearing, Dr. Samuel Nwaobasi, and Michael Moldenhauer (Doc.
183), and a Motion for Reimbursement from the Wexford
Defendants for Counsel's Time and Expense to Conduct the
Deposition of Dr. Stacy Stratmann (Doc. 185). Akers also
recently filed a Motion to File Supplemental Exhibit B to His
Reply to the Wexford Defendants' Response to
Plaintiff's Motion for Sanctions under Rule 37 (Doc.
Robert Akers (“Akers”), an inmate in the custody
of the Illinois Department of Corrections
(“IDOC”), filed this action, pro se, on
September 15, 2014, alleging that his constitutional rights
were violated while he was incarcerated at Menard
Correctional Center (“Menard”). More
specifically, Akers alleges that various medical personnel,
namely Dr. Robert Shearing, Dr. Samuel Nwaobasi, Nurse
Michael Moldenhauer, and Wexford Health Sources, Inc.
(“the Wexford Defendants”) failed to provide
necessary medical treatment for his painful, inguinal hernia,
in violation of the Eighth Amendment.
conjunction with his complaint, Akers filed a motion for
preliminary injunction asking that the Court order Defendants
to arrange for an examination by a qualified specialist so
that he may receive surgery to repair his hernia (Doc. 2). A
hearing was held on this motion and, on March 30, 2015,
Magistrate Judge Donald G. Wilkerson issued a Report and
Recommendation, recommending that the motion be granted in
part, finding Akers had demonstrated a reasonable likelihood
of success on the merits, no adequate remedy at law, and
irreparable harm absent an injunction (see Doc. 66).
On July 29, 2015, United States District Judge J. Phil
Gilbert adopted Magistrate Judge Wilkerson's Report and
Recommendation in its entirety, over the Wexford
Defendants' objections, and entered the following order
(in relevant part):
Defendants are ORDERED to facilitate a
referral to a physician whose specialty is appropriate to
evaluate Plaintiff's left inguinal hernia within
30 days of the date of this Order.
Defendants are further ORDERED to provide a
Notice to the Court that advises the Court of the results of
the examination and whether the specialist recommends a new
course of treatment and/or recommends surgery or whether the
specialist does not recommend any different treatment other
than that being currently provided to the Plaintiff.
short, the Wexford Defendants were ordered to arrange an
examination by an outside specialist to evaluate the hernia
and inform the Court whether the specialist recommended
surgery or the conservative course of treatment Akers was
being provided at Menard (see Doc. 74).
ordered, the Wexford Defendants referred Akers to a surgeon
for evaluation of his hernia on July 29, 2015, and provided a
Notice to the Court informing it of the referral (Doc. 77).
Along with the Notice, counsel for the Wexford Defendants
submitted to the Court, via electronic mail, a copy of the
report prepared by the evaluating surgeon from Lincoln
Surgical Associates, Ltd., Dr. Luong (see Exhibit A,
August 14, 2015 Email to Court). In the Notice to the Court,
Defendant Wexford indicated that “[i]t is clear from
the surgeon's documentation the hernia is reducible, not
incarcerated, not strangulated and not causing any medical
complications, ” however, and most significantly,
Defendant Wexford remarked that “[f]rom the
surgeon's documentation, it is unclear if the surgeon
recommended surgical repair as the medically preferred course
of treatment or simply listed surgical repair as an elective
option” (Doc. 77, ¶¶ 5-6).
Akers filed a motion to acquire the surgeon's report
indicating that he needed the report for his records (Doc.
88), to which the Wexford Defendants responded, indicating
they inadvertently failed to provide Akers with a copy of the
report, but, concurrent with the filing of their response,
mailed Akers a copy (Doc. 94). Based on Defendants'
representation that Akers was mailed a copy of the
surgeon's report, Magistrate Judge Wilkerson found the
motion moot (see Doc. 99). Akers also filed a motion
to enforce the surgeon's recommendation stating, in no
uncertain terms, that Dr. Luong, the outside specialist, had
recommended surgery after his evaluation (Doc. 104). Soon
thereafter, Magistrate Judge Wilkerson appointed attorney
Gary L. Payne to represent Akers (Doc. 107). Per the
Court's order assigning counsel, the motion to enforce
the surgeon's recommendation filed pro se by
Akers was denied without prejudice (Id.).
7, 2016, this case was transferred from Judge Gilbert's
docket to the undersigned. On June 9, 2016, Akers, through
counsel, filed a motion for immediate medical attention
asking the Court to order Defendants to transport Akers to a
specialist for surgical repair of his hernia, as recommended
by Dr. Luong on August 11, 2015 (Doc. 116). Magistrate Judge
Wilkerson held a hearing on this motion on July 20, 2016
(see Doc. 149) and found that the Wexford Defendants
failed to comply with District Judge Gilbert's Order
insofar as Defendants failed to advise the Court whether the
outside specialist recommended a new course of treatment
and/or surgery or whether the specialist recommended that
Akers continue to receive the treatment being provided by his
institution (Doc. 138). Defendants were ordered to facilitate
a referral to Dr. Luong to once again evaluate Akers's
hernia and provide a notice to the Court of the results of
the examination, which was to specifically indicate whether
Dr. Luong recommended that Akers receive a course of
treatment different from that which he was currently
receiving, including whether or not Dr. Luong recommended
surgical repair (Id.).
Judge Wilkerson amended his Order after receiving notice from
Defendants that Dr. Luong was no longer seeing patients and
was strictly performing surgery (see Docs. 139 and
147). The Amended Order directed Defendants to facilitate a
referral for Akers to see Dr. Stacy Stratmann at Lincoln
Surgical Associates to evaluate the hernia (Doc. 147). Akers
was examined by Dr. Stratmann on August 17, 2016; she
recommended Akers undergo surgery to repair his left inguinal
hernia and recurrent right inguinal hernia (see Doc.
153-1). The Wexford Defendants represented that the surgery
was approved and was in the process of being scheduled (Doc.
153). Akers indeed underwent hernia repair surgery on October
11, 2016 (Doc. 189-1, p. 6).
Motion for Sanctions against Defendants Wexford Health
Sources, Inc., Dr. Robert Shearing, Dr. Samuel Nwaobasi, and
Michael Moldenhauer (Doc. 141)
through counsel, filed a motion for sanctions pursuant to 28
U.S.C. § 1927 asserting that the Wexford Defendants'
failure to comply with District Judge Gilbert's Order
caused counsel for Akers to spend a considerable amount of
time securing surgery for his client that should have been
performed in August 2015. Akers asserts that the failure was
in bad faith and has multiplied the proceedings ...