United States District Court, C.D. Illinois
MARCUS I. JOHNSON, Plaintiff,
TERRY DURR, et al., Defendants.
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
proceeds pro se from his incarceration in the Taylorville
Correctional Center on claims of deliberate indifference to
his serious medical needs in the Sangamon County Jail. In
particular, he claims that Defendants failed to adequately
treat Plaintiffs chronic and painful ear condition during his
three and one-half years of detention at the Jail.
move for summary judgment. At this stage, the evidence is
viewed in the light most favorable to the nonmovant, with
material factual disputes resolved in the nonmovant's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A genuine dispute of material fact exists
when a reasonable juror could find for the nonmovant. IcL
That means that, to survive summary judgment, Plaintiff must
have enough admissible evidence for a reasonable juror to
conclude that Defendants were deliberately indifferent to
Plaintiffs serious medical needs. Thomas v. Cook County
Sheriffs Dept., 604 F.3d 293, 301 n.2 (7th Cir. 2010);
Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir.
evidence shows that Plaintiff did suffer from chronic and
recurring problems with his ears. These problems included at
various times yellow and green discharge, other ear drainage,
redness and swelling, inner and outer-ear bacterial
infections, impacted wax, sinus infections, swollen glands,
sore throat, and pain. An inference of a serious medical need
arises from this evidence.
question is whether a reasonable juror could find that
Defendants were deliberately indifferent. Deliberate
indifference, is not negligence (malpractice) or even gross
negligence. Chapman, 241 F.3d at 845 (citation
omitted). Deliberate indifference is the conscious disregard
of a known risk of substantial harm. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011). Deliberate
indifference in the medical context arises "'if the
decision by the professional is such a substantial departure
from accepted professional judgment, practice, or standards,
as to demonstrate that the person responsible actually did
not base the decision on such a judgment.'" Roe
v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(quoting
Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009).
"A medical professional is entitled to deference in
treatment decisions unless no minimally competent
professional would have so responded under those
circumstances." Sain, 512 F.3d at 894-95.
evidence shows that the medical staff were attentive to
Plaintiff's problems, examining Plaintiff, prescribing
oral and topical antibiotics, pain medicine, nasal spray,
steroids, and Benadryl. Medical staff saw Plaintiff ten times
in 2013, fifteen times in 2014, and four times in 2015 until
Plaintiff's transfer to the Illinois Department of
Corrections in July 2015. Each time Plaintiff received
examinations and prescriptions. Plaintiff's problems
waxed and waned over this time period, never completely
remitting, or at least not for long. Plaintiff was referred
to an ear-nose-and-throat specialist on February 20, 2014,
who reported that Plaintiffs ears were clear, with no
infection. However, despite the specialist's conclusions,
Plaintiff continued to experience problems and continued
receive treatment at the Jail for his ear problems. (Defs.
Abraham, 's Undisp. Facts 26-59.)
contends that Defendants wrongfully failed to identify dozens
of medical staff at the Jail who played a part in Plaintiffs
treatment. Plaintiff does not explain, though, why this
matters. He does not contest that Defendants have set forth
all of the medical care Plaintiff received regarding his ear
problems, regardless of who rendered that care. Plaintiff
does not offer admissible evidence that any of that medical
care was so far afield from accepted professional standards
to amount to deliberate indifference. Even if Plaintiff had
named as a defendant everyone on the medical roster, he has
no evidence of deliberate indifference.
also asserts that he does not believe he received all of his
prescribed medicine. He made no allegation about that in his
Complaint, and his allegation is vague. He offers no evidence
of which medicine he did not receive, what days he missed the
medicine, or who was responsible for those missed doses. He
also offers no evidence that the alleged missed doses were
the result of deliberate indifference rather than mistakes.
next contends that the outside specialist was nervous and did
not examine Plaintiff, but the medical staff at the Jail is
not liable for the specialist's alleged failure to
properly examine Plaintiff. There is no evidence that the
medical staff at the Jail had any reason to question the
specialist's conclusions. In any event, the medical staff
at the Jail continued to treat Plaintiff for his ear problems
even after the visit with the specialist.
admits that the medical staff "made a diligent attempt
to treat as well as cure my 'then' diagnosed
'chronic ear condition, ' by prescribing various
medications ... as well as ear drops for my ears." (PL
Aff ¶ 3, d/e 52.) Plaintiff's primary argument is
that he was misdiagnosed. Plaintiff asserts that the cause of
all of his ear problems was a molar tooth. He maintains that,
in September 2015, a dentist in the Taylorville Correctional
Center made this diagnosis and removed Plaintiffs molar
tooth. Plaintiff avers that, since the extraction of the
tooth, he has had no more problems with his ears. (Johnson
Aff. ¶ 4, d/e 52, p. 1.)
has no admissible evidence that his ear problems were caused
by his molar tooth. The Court disregards Plaintiffs affidavit
because the affidavit directly contradicts Plaintiffs
deposition testimony. Plaintiff testified under oath in his
deposition that his ear problems continued at Taylorville
Correctional Center. (Pl.'s Dep. pp. 56-60.) Plaintiffs
deposition was taken in September 2016, one year after the
prison dentist purportedly fixed all of Plaintiffs ear
problems, yet Plaintiff maintained in his deposition that
those problems continued. Pourghaishi v. Flying J,
Inc., 449 F.3d 751, 759 (7th Cir.
2011)("A plaintiff cannot, however, create an issue of
material fact by submitting an affidavit that contradicts an
the molar teeth were causing all of the ear problems, a
missed diagnosis is not deliberate indifference. Cesal v.
Moats, 851 F.3d 714, 724 (7th Cir.
2017)(there is an "important difference between
ordinary, or even aggravated, medical malpractice, and an
Eighth Amendment violation."); Burton v.
Downey, 805 F.3d 776, 786 (7th Cir.
2015)("evidence that another doctor would have followed
a different course of treatment is insufficient to sustain a
deliberate indifference claim."). Plaintiff has no
evidence that the medical staffs treatment approach was
outside the acceptable standard of care, much less
Defendants' motions for summary judgment are granted,
(d/e's 45, 47.) The clerk of the court is directed to
enter judgment in favor of Defendants and against Plaintiff.
This case is terminated. All ...