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Akers v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

March 30, 2017

ROBERT AKERS, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., DR. ROBERT SHEARING, MICHAEL MOLDENHAUER, DR. SAMUEL NWAOBASI, MAJOR JAY ZIEGLER, LT. KEVIN CARTWRIGHT, SGT. ROBERT SHURTZ, and KIMBERLY BUTLER, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         Pending 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. 197).

         Background

         Plaintiff 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.[1]

         In 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.

         In 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).

         As 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).

         Subsequently, 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.).

         On June 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.).

         Magistrate 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).

         Analysis

         I. Motion for Sanctions against Defendants Wexford Health Sources, Inc., Dr. Robert Shearing, Dr. Samuel Nwaobasi, and Michael Moldenhauer (Doc. 141)

         Akers, 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 ...


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