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Munson v. Shearing

United States District Court, S.D. Illinois

May 9, 2017

JAMES MUNSON, Inmate No. N95249 Plaintiff,
v.
ROBERT SHEARING, MICHAEL NELSON, JOHN TROST, RICHARD HARRINGTON, WEXFORD HEALTH SOURCES, INC., and STEPHEN RITZ, Defendants.

          MEMORANDUM AND ORDER

          Michael J. Reagan United States District Judge.

         I. Introduction

         Pursuant to 42 U.S.C. § 1983, pro se Plaintiff, now represented by counsel, filed his complaint alleging claims of retaliation and deliberate indifference to medical needs. Specifically, Plaintiff's complaint alleges that Defendant Shearing retaliated against Plaintiff for filing a 2011 lawsuit by denying his requests for medical care in 2013-14 (Count 1), that all Defendants deprived Plaintiff of a nutritionally adequate diet (Count 2), that all of the Defendants were deliberately indifferent to Plaintiff's serious medical needs by refusing to diagnose or treat Plaintiff for a soy allergy (Count 3), and that Defendant Trost was deliberately indifferent in failing to address Plaintiff's concerns regarding possible food poisoning for nearly fifty days (Count 4).[1]

         This matter is currently before the Court on two motions for summary judgment. Defendants Shearing, Ritz, Trost, and Wexford Health Sources, Inc. (hereinafter “Wexford”) first filed a motion for summary judgment (Docs. 92 and 93). Plaintiff has filed a response to that motion (Doc. 107) and Defendants have filed a reply (Doc. 112). Defendants Harrington and Nelson have also filed a motion for summary judgment (Doc. 100) which Plaintiff has filed a response to (Doc. 110). The two Defendants have also filed a reply to that motion (Doc. 116). Based on the following, the Court GRANTS IN PART AND DENIES IN PART the medical Defendants' motion for summary judgment (Docs. 92 and 93) and GRANTS the motion for summary judgment (Doc. 100) filed by Harrington and Nelson.

         II. Factual Background

         Plaintiff filed his pro se complaint on May 9, 2014 alleging claims of retaliation and deliberate indifference related to his concerns regarding soy in his diet (Doc. 1). Specifically, Plaintiff believes that he is allergic to soy and the medical Defendants have refused to diagnose or treat his condition in part due to Wexford's policies of keeping costs low (Doc. 6, p. 2). Plaintiff also alleges that Defendant Harrington, warden at Menard Correctional Center, knew about Plaintiff's complaints regarding his inadequate healthcare but did nothing to rectify the situation (Id. at p. 4-5). Plaintiff further alleges that Medical Technician Nelson overheard Defendant Shearing tell Plaintiff he was not going to provide him with a soy-free diet because Plaintiff filed a lawsuit, but Nelson did nothing to rectify the situation (Id. at p. 3).

         Plaintiff claims that he suffers from a possible soy allergy. He has been complaining about abdominal issues since at least May 8, 2007 when he received an ultrasound for abdominal issues and was diagnosed with gall stones and possible peptic ulcer disease (Doc. 93-2, p. 1). Subsequently, Plaintiff had his gallbladder removed (Doc. 93-3, p. 4). Plaintiff also had a sigmoidoscopy in 2010 due to gastrointestinal issues (Doc. 93-2, p. 2).

         Plaintiff previously asked for a change in diet in 2011 and Dr. Fahim informed Plaintiff that IDOC did not offer an alternative diet for soy (Doc. 93-2, p. 3). Menard, however, does have a soy/T.V.P. free diet option for inmates and approval for said diet has to come from an inmate's treating physician (Doc. 107-16, p. 3; 107-17, p. 6). Since at least August 2006 IDOC does not recognize a no-soy diet, but if there is a documented allergy, a memo with the offending foods is to be provided to dietary (Doc. 107-18, p. 4). Such meals are only provided to an inmate when deemed medically necessary by a treating physician (Doc. 107-19).

         Plaintiff saw Dr. Shearing on May 31, 2013 for abdominal complaints (Doc. 93-2, p. 26). Michael Nelson was present in the room on that date (Doc. 100-2, p. 38-39). Nelson took his temperature and blood pressure (Id. at p. 39). Plaintiff informed Shearing of stomach pains and told him he was on Konsyl, a fiber supplement (Id.). Plaintiff told him he had constant diarrhea and was going to the restroom 3-4 times a day (Id. at p. 39-40). Plaintiff requested both a soy-free diet and an allergy test, which Shearing denied (Id. at p. 40). Plaintiff testified that Shearing told Plaintiff he would not give him anything because Plaintiff filed his complaint and should get the Court to make that order (Id. at p. 40-41). Nelson was present in the room during the conversation but did not participate in the conversation; he only wrote down notes (Id. at p. 41). Plaintiff testified that even though Nelson was present and knew the seriousness of Plaintiff's needs, Nelson did nothing nor does he believe that Nelson reported Shearing's comments to a higher authority (Id. at p. 42). Nelson testified that he did not observe any activity that would require reporting on that date (Doc. 100-10, p. 2). Shearing continued Plaintiff's prescription for Fibercon as Plaintiff indicated that it was helping (Doc. 93-2, p. 26).

         On June 6, 2013 Plaintiff met with telemedicine doctor Dr. Jeremy Young for Plaintiff's [redacted] (Doc. 107-1, p. 1; 107-2). Plaintiff complained about chronic diarrhea and abdominal pain which he believed was caused by soy in his diet (Doc. 107-1, p. 1). Plaintiff had no side-effects to his [redacted] medication but complained that the soy in his diet caused him diarrhea 3-4 times a day but that when he ate food solely from the commissary the symptoms went away (Doc. 107-2). Young deferred any change in his diet to IDOC staff but noted that if Plaintiff's complaints were true that his stomach issues appeared to be related to his diet (Id.). He offered Imodium which Plaintiff declined because it had not helped him in the past (Id.).

         On June 24, 2013 Plaintiff met with Nurse Moldenhauer indicting that he was experiencing cramping and diarrhea and requested a soy allergy test (Doc. 93-2, p. 31). Moldenhauer told him she could only refer him to Dr. Shearing, but an x-ray was ordered for the next day (Id.). The x-ray showed a moderate amount of stool in the colon associated with constipation (Doc. 93-2, p. 32). Plaintiff also had a blood test on July 15, 2013 for H.pylori which came back negative (Doc. 107-4).

         Plaintiff again saw Young on September 12, 2013 and complained about constant abdominal pain and diarrhea 3-8 times per day (Doc. 107-6). Plaintiff noted that he was suffering from weight loss and sought a dietary supplement (Id.). Young noted that if Plaintiff's statements were true that his condition seemed to be related to his diet (Id.). He prescribed Ensure three times per day but noted that he would not normally manage an inmate's diet and that medical staff could contact him if the request was unreasonable (Id.). Young noted that a trial of Ensure seemed reasonable given Plaintiff's complaints of diarrhea and the fact that Plaintiff lost seven pounds (Id.). Plaintiff testified that he was never given a dietary supplement (Doc. 107-1, p. 2).

         Plaintiff was seen by another telemedicine doctor, Dr. Mahesh Patel, for his [redacted] on December 9, 2013 (Doc. 107-7; 107-8). Plaintiff noted his abdominal issues and diarrhea (Doc. 107-7). He also indicated that he had weight loss (Id.). Patel noted that his diarrhea and weight loss were concerning and noted the weight loss was most likely due to Plaintiff avoiding all foods with soy (Id.). Patel indicated that a soy allergy test should be considered but ultimately deferred to medical staff at the prison as Plaintiff's stomach issues were not related to his [redacted] (Id.).

         Plaintiff saw Dr. Trost on April 1, 2014 for a cough and diarrhea (Doc. 93-2, p. 15). Trost ordered blood work and a stool sample (Id.). Those tests came back negative for C. diff infection (Id. at p. 16). Plaintiff was seen again by Trost on September 5, 2014 for stomach cramps and diarrhea (Doc. 93-2, p. 17). Trost prescribed Bentyl and Fibercon (Id.).

         Plaintiff was seen again by Dr. Patel on September 26, 2014 (Doc. 107-11). Patel noted that Plaintiff had lost fifteen pounds since July (Id.). Patel requested twice monthly weight checks and deferred a request for a soy allergy test to Plaintiff's medical providers at the prison (Id.).

         Dr. Ritz denied a request for soy allergy test after a collegial review between him and Dr. Trost because Plaintiff's commissary list included items that contained soy (Doc. 107-12). Ritz ordered that observation be continued and noted that Trost may test for celiac disease if symptoms continued (Id.). Plaintiff received a blood test for celiac disease which came back negative (Doc. 107-13). Another test for H. pylori on November 3, 2014 also came back negative (Doc. 107-14).

         The medical defendants also admitted facts in their answer to the complaint (Doc. 30). Specifically, the medical defendants admitted the following allegations:

• Wexford strict policies and practice resulted in violating Plaintiff's constitutional rights and allowed Plaintiff to be neglected and out right denied medical treatment (Doc. 1-2, ...

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