United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE, District Court Judge.
Anthony Boyce, an Illinois prisoner, brought this action
pro se pursuant to 42 U.S.C. § 1983, alleging
that Wexford Health Sources, Inc., the entity tasked with
providing medical care at Illinois prisons is responsible for
purportedly deficient medical care he received for his acid
reflux. Before the Court is Defendant's motion for
summary judgment. For the reasons set forth below, the motion
is granted in its entirety.
Summary Judgment Briefing and Threshold Motions
operative second amended complaint (Dkt. 26), Plaintiff named
as Defendants an Illinois Department of Corrections official,
Terri Anderson, and Wexford Health Sources, Inc.
(“Wexford”). (Dkt. 26.) The Court dismissed
Defendant Anderson pursuant to settlement. (Dkt. 70.)
Wexford, also referred to as “Defendant, ” has
now moved for summary judgment on all claims against it (Dkt.
90), and filed a corresponding memorandum in support (Dkt.
91), Local Rule 56.1 Statement of Undisputed Material Facts,
with exhibits (Dkt. 92), and a Rule 56.2 Notice to Pro Se
Litigant Opposing Motion for Summary Judgment (Dkt. 89).
response, Boyce submitted a “notice of
intent.” (Dkt. 105.) The notice of intent consists
of multiple sub-parts: (1) a table of contents (Dkt. 105,
pgs. 1-2); (2) a motion for sanctions against defense counsel
and Wexford (id. at 3-5); (3) “pliffs reply to
Def Wex undisputed facts” (id. at 6-11); (4)
“pliff set of additional material genuine fact”
(id. at 11); (5) “plaintiffs Anthony Boyce
R-52162 Declaration in case 15 C 7580” (id. at
12-18); (6) “pliff reply to Defendant Wexford summary
judgment motion” (id. at 19-25); (7)
“pliff reply to Defendant Wexford memorandum for
summary judgment motion” (id. at 26-40); and
(8) exhibits (id. at 41-197).
submitted a reply in support of its summary judgment motion
on March 10, 2017. (Dkt. 99.) Boyce separately moved
“to clarify matters with the courts ingard [sic] to his
summary judgment motion and sanctions motion, ” (Dkt.
97), and “to object and strike Def Reply.” (Dkt.
101.) He also, without leave of Court, submitted “pliff
response to Def Wex reply to summary judgment and
objections.” (Dkt. 103.) The Court will, to the extent
consistent with the federal and local rules, consider
Boyce's unsolicited “response to Def Wex
reply.” Boyce's so-called motion to clarify (Dkt.
97) is administratively terminated, as it does not seek any
specific relief; the Court will, however, consider the
contents of that motion in construing Boyce's arguments
in opposition to Defendant's motion for summary judgment.
Boyce's motion to strike (Dkt. 101), in which he argues
that Defendants “forfeited any reply” by failing
to file it within two weeks of the docketing of Boyce's
response, is denied. The Court did not, as Boyce argues,
order Defendant to submit a reply within two weeks of
Plaintiff's response. Instead, the Court ordered Defendant to
reply by March 10, 2017. (Dkt. 94.) Defendant's reply
(Dkt. 99), filed on that date, was, therefore, timely. The
Court will address all other pending motions below.
Northern District of Illinois Local Rule 56.1
Rule 56.1 sets out a procedure for presenting facts pertinent
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).
district court is entitled to decide [a summary judgment]
motion based on the factual record outlined in the [Local
Rule 56.1] statements.” Koszola v. Bd. of Educ. of
Chi., 385 F.3d 1104, 1109 (7th Cir. 2004) (third
alteration in original) (internal quotation marks omitted);
see also Olivet Baptist Church v. Church Mut. Ins.
Co., ___ Fed.Appx. ___, 2017 WL 129943, at *1 (7th Cir.
Jan. 13, 2017) (“The district court treated most of the
[defendant's] factual submissions as unopposed, because
the [plaintiff] failed to contest them in the form required
by Local Rule 56.1(b). We have held that the district court
is entitled to enforce that rule in precisely the way it
enforced the rule in this litigation.”) (citations
omitted); Stevo v. Frasor, 662 F.3d 880, 886-87 (7th
Cir. 2011) (“Because of the high volume of summary
judgment motions and the benefits of clear presentation of
relevant evidence and law, we have repeatedly held that
district judges are entitled to insist on strict compliance
with local rules designed to promote the clarity of summary
judgment filings.”). Boyce's status as a pro
se litigant does not excuse him from complying with
Local Rule 56.1. See McNeil v. United States, 508
U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.”); Coleman v. Goodwill Indus. of
Se. Wis., Inc., 423 Fed.Appx. 642, 643 (7th Cir. 2011)
(“Though courts are solicitous of pro se litigants,
they may nonetheless require strict compliance with local
rules.”); Cady v. Sheahan, 467 F.3d 1057, 1061
(7th Cir. 2006) (“[E]ven pro se litigants must
follow rules of civil procedure.”).
Boyce is proceeding pro se, Defendant served him
with a “Notice to Pro Se Litigant Opposing Motion for
Summary Judgment” as required by Local Rule 56.2. (Dkt.
89.) The notice explained how to respond to Defendant's
summary judgment motion and Rule 56.1 Statement and cautioned
Boyce that the Court would deem Defendant's factual
contentions admitted if he failed to follow the procedures
delineated in Local Rule 56.1. (Id. at 1-3.) The
Court notes, however, that Boyce is an experienced litigant,
having brought at least nine other lawsuits here, see
Boyce v. Godinez, No. 12 C 3840; Boyce v.
Carter, No. 12 C 5372; Boyce v. Gray, No. 13 C
2967; Boyce v. Obaisi, No. 13 C 5746; Boyce v.
Martella, 13 C 6526; Boyce v. Johnson, No. 13 C
6832; Boyce v. Lemke, No. 14 C 0108; Boyce v.
Obaisi, No. 14 C 0418; and Boyce v. Madigan,
No. 15 C 9268, some of which progressed to (or beyond)
summary judgment. Boyce also filed two § 1983 actions in
the Central District of Illinois, Boyce v. Hale, No.
1:14-cv-01199-JES; Boyce v. Illinois Department of
Corrections, No. 1:16-cv-01028-SLD.
response to Defendant's Local Rule 56.1 Statement of
Undisputed Material Facts, Plaintiff admits the facts
contained within paragraphs 1-5, 6 (“admit[ting] those
are some of the side effects of acid reflux”), 10,
37-38, 44, 46, 47 (part), and 48-58 (part). These facts are
therefore accepted as true.
purports to deny, at least in part, the remainder of
Defendants' uncontested facts. The Court will disregard
conclusory denials, such as Plaintiff's unresponsive
statements of “Dispute whether pliff had serious
medical condition with his antiacid condition” and
“pliff disputes and denies he was given in adequate
care.” (See Dkt. 105, pg. 8.) Such responses
do not create material issue of disputed fact. See Judson
Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec,
529 F.3d 371, 382 n.2 (7th Cir. 2008); see also Almy v.
Kickert Sch. Bus Line, Inc., No. 08-cv-2902, 2013 WL
80367, at *2 (N.D. Ill. Jan. 7, 2013) (“[C]ourts are
not required to ‘wade through improper denials and
legal arguments in search of a genuinely disputed
fact.'”) (quoting Bordelon v. Chi. Sch. Reform
Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)).
the facts Boyce seeks to add to the record to defeat
Defendant's motions, see Rule 56.1(b)(3)(C), he
has not followed the Rule in several ways. First, he
improperly inserted additional facts into his responses to
Defendant's local Rule 56.1(a)(3) statement. (See,
e.g., Dkt. 105, pgs. 9-11, ¶¶ 11, 47, 48-58.)
Second, Boyce submits additional facts through his legal
briefs. But “facts submitted in a brief but not
presented in a Local Rule 56.1 statement are disregarded in
resolving a summary judgment motion.” Beard v. Don
McCue Chevrolet, Inc., No. 09 C 4218, 2012 WL 2930121,
at *5 (N.D. Ill. July 18, 2012). Third, Boyce's
statements of additional facts do not in fact list additional
undisputed facts, because they consist not of factual
assertions but of a series of open-ended legal questions
beginning with “whether, ” e.g.,
“whether Def Wexford had a unconstitutional
policy.” (Dkt. 105, pg. 11.)
Boyce's Objections to Defendant's Exhibits
remaining denials consist chiefly of two objections to the
Court relying upon Defendant's exhibits. First, as to
Defendant's Local Rule 56.1 Statement of Undisputed
Material Facts ¶¶ 11-36, 39, 45, 48-58, he objects
that Defendant did not submit an authenticating declaration
in support of the attached exhibits. (See, e.g., Dkt.
105, pg. 9 (“Pliff objects and asks that it not be
admitted due to the fact its no declaration in
support.”). While a party may “object that the
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence,
” Fed.R.Civ.P. 56(c)(2), Boyce does not suggest that
the cited exhibits (most of which are the transcript from his
deposition and medical records) “cannot be presented in
a form that would be admissible in evidence.” See
id. Boyce, in fact, cites to his own deposition. (Dkt.
105, pg. 9 ¶ 11.) In any case, “federal courts
routinely consider unauthenticated documents on motions for
summary judgment, for example, when it is apparent  that
such documents are capable of reduction to admissible,
authenticated form.” Talley v. Triton Health Sys.,
LLC, No. 2:14-CV-02325-RDP, 2016 WL 4615627, at *8 (N.D.
Ala. Sept. 6, 2016); see also Olson v. Morgan, 750
F.3d 708, 714 (7th Cir. 2014) (explaining that summary
judgment materials may “be inadmissible at trial so
long as facts therein could later be presented in an
admissible form.”) (citing Fed.R.Civ.P. 56(c)(2)-(4)).
Medical records are “readily authenticated”; they
are, moreover, “exceptions to the hearsay rule”
and generally “admissible at trial.” Adams v.
Harrington, No. 3:14-CV-366-NJR-DGW, 2017 WL 347440, at
*1 (S.D. Ill. Jan. 24, 2017) (citing Fed.R.Evid. 803);
Jones v. W. Tidwater Reg'l Jail, No. 2:15CV316,
2016 WL 3647591, at *3 (E.D. Va. June 30, 2016) noting that
rules no longer require records to be submitted in admissible
form and that “medical records could be
admissible” if accompanied by custodian's
affidavit). Accordingly, Boyce's objection to
Defendant's exhibits on the basis that Defendant did not
submit a supporting declaration is overruled.
as to portions of Defendant's Local Rule 56.1 Statement
of Undisputed Material Facts ¶¶ 6-9, Boyce objects
to Defendant's reliance upon the Declaration of Dr. Saleh
Obaisi, M.D., which appears at Docket No. 92-2, in which Dr.
Obaisi describes the occurrence of acid reflux, its risk
factors, and general treatment options. In particular,
although Boyce does not seem to disagree with the factual
content of the declaration, Boyce objects that Dr. Obaisi
“doesn't refer in it whom he is talking about,
” “doesn't reference where he diagnosed
pliff, ” and “told pliff he was underqualified to
give pliff the type of treatment . . . due to the fact it was
outside his field of expertise.” (Dkt. 105, pgs. 7-8.)
Defendant counters that Dr. Obaisi's “general
information and opinions regarding common and benign
conditions” are within his qualifications, given that
he has practiced medicine for over forty years. (Dkt. 99, pg.
4.) It is unclear in what capacity Dr. Obaisi's testimony
is being offered, but without ruling on the merits of
Boyce's objection, the Court finds that it need not rely
on Dr. Obaisi's declaration.
through his motion for sanctions, raises one final challenge
to the exhibits upon which Defendant relies: that his medical
records were incomplete and “falsified.” (Dkt.
105, pg. 3-4; see also Dkt. 105, pg. 15 ¶ 8.) He seeks
not only to discredit the exhibits themselves but to level
sanctions against defense counsel for attaching them despite
Boyce's forewarning that he objects to the falsity of all
medical records. (Dkt. 105, pg. 3-4) (Counsel “was
warned by pliff on multiple times that medical records was
false”; “it can be inferred that they tried to
separate themselves from the medical records when they
didn't file a sworn declaration to certain medical
Boyce states that certain medical records, such as healthcare
request slips, “medical copayments money voucher
forms” are “missing” from the documents
provided in Defendant's summary judgment materials. (Dkt.
105, pg. 15; Dkt. 101, pg. 1.) Boyce has not identified any
missing healthcare request slips or the contents of any
purportedly missing slips that are relevant here. As for the
payment slips (“p 96” or “pliff ex 58, 60,
61, which the Court understands to refer to Dkt. 105, pgs.
183, 185, 186), they appear to be not “medical
records” as Boyce labels them, but the “Illinois
Department of Corrections Offender Authorization for Payment,
” i.e., an IDOC record used to demonstrate an
inmate's consent to remove funds for a medical co-pay.
Defendant's failure to include those documents (which, as
noted above, appear to be generated by another entity) with
its summary judgment submissions does not demonstrate any
misconduct by Defendant or its counsel, and Boyce has not
identified any “missing” documentation (that he
does not already possess) that is related to the treatment he
received for the condition he identifies in this case.
Boyce argues that “staff falsified his medical
records” because they “intentionally lefted [sic]
out some of his objective complaints.” (Dkt. 97, pg. 1;
see also Dkt. 105, pg. 15 ¶ 8.) He provides a
single specific example to support this weighty charge: in
one voucher authorizing IDOC officials to deduct a copay for
treatment from his account, he listed multiple symptoms,
which included “mice bites.” (Id. at 1
(citing “p. 96” which appears to refer to Dkt.
105, at either pg. 185 or 186.)) According to Boyce, the
medical notes from the related appointment, which he does not
identify, do not mention “mice bites.” (Dkt. 97,
pg. 1.) The Court cannot, from this example, infer
“falsification” of any record. Merely listing a
symptom on an IDOC form authorizing payment for treatment
does not establish that Boyce mentioned that symptom in the
actual appointment; and, even if it could be inferred that he
argues that he did, the omission of that symptom from the
appointment notes does not suggest
“falsification” of the existing appointment
notes. The example he provided is irrelevant to the medical
conditions he raises in this lawsuit, and he provides no
other examples of omitted “objective
complaints.” The Court, therefore, denies
Plaintiff's motion for sanctions.
Defendant's Objections to Boyce's Exhibits
last hurdle to establishing the record for summary judgment
purposes is resolving Defendant's objections to
Boyce's exhibits. First, Defendant asks the Court to
disregard Plaintiff's declaration as speculative,
conclusory, self-serving, lacking in credibility, and relying
upon hearsay. (Dkt. 99, pg. 4-6.) The Court declines to
disregard Boyce's declaration in its entirety but will
disregard portions that are not within his personal
knowledge, are unsupported by evidence in the record, or
about which he could not permissibly testify.
Defendant objects to the consideration of portions of an
expert report (originally submitted in another case,
Lippert v. Ghosh, Case No. 10 C 4603, at Dkt. 339
(which includes appendices not provide here)) (see
Dkt. 105, pgs. 67-112) (“Lippert
Report”), and a “Wexford rap sheet, ” whose
origin is not well explained by Boyce,  but appears to be
a collection of anecdotes from prisons around the country,
compiled by a private organization called Private Corrections
Working Group. (Dkt. 99, pg. 6-8.); see Private
Corrections Working Group, Wexford Health Services Rap Sheet,
https://www.privateci.org/rapwexford.html (visited Apr. 11,
2017). Courts have routinely concluded that such items are
inadmissible, at least when used to show the truth of the
statements contained within them because they are classic
hearsay. See Mathis v. Carter, No. 13 C 8024, 2017
WL 56631, at *4-5 (N.D. Ill. Jan. 5, 2017) (holding that
Lippert report did not meet hearsay exception for
public records); Diaz v. Chandler, No. 14 C 50047,
2016 WL 1073103, at *12 (N.D. Ill. Mar. 18, 2016) (declining
to take judicial notice of Lippert report); see
also Daniel v. Cook County, 833 F.3d 728, 743 (7th Cir.
2016) (holding that monitor report prepared by Dr. Shansky
regarding Cook County Jail medical care was not admissible
for truth of statements it contained; as report “was a
communication crafted with care for the court and parties
based on scheduled visits to the jail, ” “no
evidence” suggested “that it was made at the time
of Shansky's observations”); see also Abascal
v. Fleckenstein, 820 F.3d 561, 563, 566-67 (2d Cir.
2016) (holding that prison monitoring report by
“independent non-profit organization that advocates for
a more humane and effective criminal justice system”
did not fall within hearsay exception and that district
court's admission of report was not harmless error). This
Court agrees and finds that the report and rap sheet are
inadmissible hearsay and thus will not admit them for the
truth of the matters within them.
finally object to Boyce's reliance on a jury verdict
against Defendant in another case. (Dkt. 99, pgs. 8-9.) Boyce
states that “in fox civil suit they jury awarded money
holding verdict wexford had unconstitutional policy.”
(Dkt. 105, pg. 39; Dkt. 105, pg. 16 (“in fox motion in
my complaint, a family won in front of a jury in wexford
having a unconstitutional policy.”)) The Court
understands Boyce to refer to a jury verdict rendered in
Fox v. Barnes, No. 09 C 5453 (N.D. Ill.) (Holderman,
J.) (Dkt. 446), to argue that Wexford was aware of a relevant
unconstitutional policy as of that time. But Boyce's
understanding of the verdict itself is flawed. Although the
plaintiff in Fox argued prior to trial that Wexford
lacked a policy governing the distribution of medications to
inmates, which led to the inmate's injuries, id.
at dkt. 220, pg. 14, Wexford (and all of its employees) were
dismissed prior to trial. Id. at dkt. 220, pg. 14;
Dkt. 400. The jury returned a verdict only against an
individual Illinois Department of Corrections employee.
Id. at dkt. 446. This verdict was against an
individual who is neither a defendant here nor employed by
this Defendant, so his individual conduct as to another
inmate, has no conceivable relevance to this case. Therefore,
the Court excludes this evidence.
Composition of Factual Record
Court will therefore draw the relevant facts from
Defendants' Statement of Facts, where Boyce agreed with
them or neither pointed to opposing factual evidence nor
raised a meritorious evidentiary objection. Where Boyce has
properly pointed to opposing facts in the record that suggest
a factual dispute, the Court will include those facts. The
Court also will, in general, incorporate Boyce's factual
assertions to the extent they are relevant, are supported by
record evidence, or are such that Boyce properly could
testify as to them at trial. The Court further will rely upon
Boyce's references to exhibits where they are relevant to
the Court's analysis and may be admissible at trial. The
Court will not, however, dig through the record to identify
disputed issues of fact. See Hemsworth v. Quotesmith.com,
Inc., 476 F.3d 487, 490 (7th Cir. 2007) (“In
considering a motion for summary judgment, the district court
is not required to scour the record in search of evidence to
defeat the motion; the nonmoving party must identify with
reasonable particularity the evidence upon which the party
relies.”). With the evidentiary disputes resolved and
these guidelines established, the Court turns to the facts of
Anthony Boyce is an Illinois prisoner serving a life
sentence. (Dkt. 92, DSOF ¶ 1.) He was housed at
Stateville Correctional Center, until he was transferred to
Pontiac Correctional Center on or about February 26, 2014.
(DSOF ¶¶ 3, 35.) Boyce's medical training is
limited to knowledge “not beyond a lay person's
grasp, ” and “personal knowledge and experience
with [him]self, ” “like, if your head hurt, you
know your head hurt.” (Dkt. 92-1, pg. 7, at
33:15-34:11.)Defendant Wexford Health Sources, Inc., is
a private corporation that has contracted with the Illinois
Department of Corrections to provide medical services at
correctional facilities, including Stateville and Pontiac
Correctional Centers. (DSOF ¶ 2.)
parties agree that Boyce, who has brought lawsuits related to
treatment for other alleged medical conditions, here
challenges the treatment he has received for acid reflux,
also known as gastroesophageal reflux disease (GERD). (DSOF
¶ 5.) “[GERD] is a condition in which  backflow
of acid [into the esophagus] is a frequent or ongoing
problem, ” and may cause “persistent, agonizing
pain and discomfort, ” as well as potentially serious
complications, such as “esophagitis, ” narrowing
or stricture of the esophagus from chronic scarring, or
“Barrett's esophagus.” Rowe v.
Gibson, 798 F.3d 622, 623 (7th Cir. 2015) (alteration in
original) (citations and quotation marks omitted).
“‘The foods you eat affect the amount of acid
your stomach produces' and ‘many people with GERD
find that certain food trigger their symptoms.'”
Id. (citation omitted).
Medical Treatment at ...