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Boyce v. Wexford Health Sources, Inc.

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

April 24, 2017

Anthony Boyce (R-52162), Plaintiff,
v.
Wexford Health Sources, Inc., Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, District Court Judge.

         Plaintiff 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 RECORD

         I. Summary Judgment Briefing and Threshold Motions

         In the 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).

         In response, Boyce submitted a “notice of intent.”[1] (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).

         Defendant 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.[2] 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.

         II. Northern District of Illinois Local Rule 56.1

         Local 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).

         “[A] 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.”).

         Because 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.

         In his 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.

         Boyce 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)).

         As to 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.)

         III. Boyce's Objections to Defendant's Exhibits

         Boyce's 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.[3] (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.

         Second, 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.

         Boyce, 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 records.”).

         First, 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.

         Second, 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.”[4] The Court, therefore, denies Plaintiff's motion for sanctions.

         IV. Defendant's Objections to Boyce's Exhibits

         The 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.

         Second, 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, [5] 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, available at 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.

         Defendants 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.

         V. Composition of Factual Record

         The 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 this case.

         FACTS

         Plaintiff 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.)[6]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.)

         The 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).

         I. Medical Treatment at ...


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