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Barrow v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

April 7, 2017

RONALD BARROW, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., DR. ROBERT SHEARING, and DR. J. TROST, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on several motions filed by Plaintiff Ronald Barrow relating to the Court's entry of summary judgment, in part, in favor of Defendants Wexford Health Sources, Inc. (“Wexford”) and Dr. J. Trost (Doc. 240). Barrow has filed a motion to alter or amend the order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure (Doc. 243), a motion to certify the order for appeal pursuant to Rule 54(b) (Doc. 247), and a motion for leave to proceed in forma pauperis on appeal (Doc. 256). For the reasons set forth below, Barrow's motions are denied.

         Background

         Barrow, an inmate of the Illinois Department of Corrections (“IDOC”) housed at Menard Correctional Center, initiated this action pursuant to 42 U.S.C. § 1983 alleging that Defendants were deliberately indifferent to his chronic medical conditions in violation of the Eighth Amendment. After threshold review of his Complaint pursuant to 28 U.S.C. § 1915A, Barrow was permitted to proceed on six counts of deliberate indifference. Defendant Wexford was named in all six counts, while Defendants Dr. John Trost and Dr. Robert Shearing were only named in Counts 2 through 5.

         On July 15, 2016, Defendants timely filed a motion for summary judgment arguing they were entitled to judgment as a matter of law on various grounds (Doc. 176). On March 1, 2017, the Court granted Defendants' motion in part (Doc. 240), entering summary judgment as to Wexford on Count 1 (Barrow's claim that Wexford had a policy or practice of elevating cost over the care and wellbeing of its patients) and dismissing Counts 2 through 6 as they pertained to Wexford. The Court also granted summary judgment to Defendant Dr. Trost on Counts 3, 5, and 6 (denial of treatment for his chronic back, knee, and shoulder problems). Summary judgment was denied as to Defendant Dr. Trost on Count 2 (denial of access to prescription medications) and Count 4 (denial of treatment for chronic rectal bleeding), as well as on Counts 2 through 6 as to Defendant Dr. Shearing.

         On March 8, 2017, Barrow filed a “Motion Pursuant to Fed.R.Civ.P. 59(e) to Alter or Amend [Doc. 240] Memorandum and Order Filed March 1, 2017” (Doc. 243). A few days later, before the Court ruled on his motion to alter or amend, Barrow filed a motion to certify the summary judgment order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure (Doc. 247). On March 17, 2017-before the Court ruled on either his motion to alter or amend or his motion to motion to certify the summary judgment order as a final, appealable order-Barrow filed a “Petition for Permission to Appeal” pursuant to 28 U.S.C. § 1292(b) (Doc. 250), which was captioned in the Seventh Circuit Court of Appeals and docketed by the Clerk of Court as a Notice of Appeal. Barrow also filed a motion to proceed in forma pauperis on appeal on March 22, 2017 (Doc. 256).

         Discussion

         A. Motion to Alter or Amend Pursuant to Rule 59(e)

         The Court begins its analysis with Barrow's Motion to Alter or Amend pursuant to Rule 59(e) (Doc. 243), because a ruling in Barrow's favor on this motion would render the remaining motions moot.

         Rule 59(e) permits the Court to amend a judgment only where the movant clearly establishes: “(1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (quoting Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012)). A manifest error “is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation marks omitted). Relief under this rule is an extraordinary remedy “reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). “The decision whether to grant or deny a Rule 59(e) motion is entrusted to the sound judgment of the district court.” Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).

         In his motion, Barrow takes issues with several of the Court's findings. First, he claims the Court abused its discretion when it refused to consider the substantial amount of irrelevant documents presented by Barrow or to address each and every factual dispute (Barrow disputed nearly all of Defendants' facts) and only address genuine issues of material facts. Barrow claims the Court's failure to address his disputed facts and documents in support, and to construe this evidence in the light most favorable to him, was manifestly erroneous and prejudiced him.

         Barrow's argument ignores the summary judgment standard. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c) (emphasis added). Under this standard, only disputes about material facts-that is, disputes about facts that are of consequence in determining the outcome of the case-are relevant. Therefore, the Court properly disregarded any disputed facts that were not material to the outcome of the case.

         Furthermore, the facts Barrow alleges the Court disregarded were actually noted as being disputed. For example, Barrow complains that the Court erroneously stated “Barrow did not complain about pain” during his visit to Dr. Trost on February 28, 2014. In actuality, the Court stated that Barrow disputed Dr. Trost's version of the events, claiming that the visit was rushed and he only had a few minutes to talk about his issues (Doc. 240, p. 8). The Court's assessment of the evidence is supported both by evidence of Barrow's medical records (see Doc. 177-2, p. 6) and evidence of a letter Barrow sent Dr. Trost where he says he informed Dr. Trost of his medical issues in a previous letter but was only allowed a few minutes to address them at the visit on February 28, 2014 (Doc. 200-1, p.65). Thus, the Court's statement of fact was accurate. Moreover, contrary to Barrow's argument, the Court construed the facts in the light most favorable to Barrow. Indeed, in its discussion the Court noted that “Barrow saw Dr. Trost for the first time on February 28, 2014, and briefly discussed his back pain with the doctor” (Doc. 240, p. 19).

         Barrow goes on to dispute the Court's consideration of various other facts, as well as references to his “letter writing campaign.” He fails, however, to demonstrate how any of his complaints rise to the level of manifest error, i.e., the wholesale disregard, misapplication, or failure to recognize controlling precedent. He further argues that the Court failed to “assume the truth of Plaintiff's evidence” and draw all inferences in his favor. But the Court cannot simply assume the truth of Barrow's statements, for “[s]elf-serving assertions without factual support in the record will not defeat a motion for summary judgment.” Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir. 1994); see also First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir. 1985) (“Conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact.”).

         Barrow also protests the Court's decision to strike his affidavit purporting to analyze the contract between Wexford and IDOC, while also accepting an affidavit authored by Joe Ebbitt, Director of Risk Management, HIPAA Compliance, and Legal Affairs for Wexford. Barrow argues that Mr. Ebbitt was not disclosed in Defendants' initial or supplemental disclosures. As discussed by the Court and by Defendants in response to Barrow's current motion, however, discovery in this case was governed by the Court's Scheduling and Discovery Order (Docs. 54, 155), which did not require the disclosure of Mr. Ebbitt. Furthermore, Barrow has not identified any discovery requests he made seeking the disclosure of Mr. Ebbitt. And, while Mr. Ebbitt's affidavit was made upon personal knowledge of Wexford's policies (he attested that he is familiar with Wexford's written Policies and Procedures as a result of his position at Wexford), Barrow's affidavit lacked any personal knowledge. It merely purported to analyze the contract between Wexford and IDOC and included arguments rather than statements of fact. Affidavits opposing summary judgment ...


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