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Merritt v. Ojelade

United States District Court, C.D. Illinois

September 5, 2017

KELVIN MERRITT, Plaintiff,
v.
DR. OJELADE, et al., Defendants.

          OPINION

          JAMES E. SHADID UNITED STATES DISTRICT JUDGE

         Plaintiff proceeds pro se from his incarceration in Menard Correctional Center on an Eighth Amendment claim for deliberate indifference to the treatment of a hand fracture he suffered in the Pontiac Correctional center in April 2013. Summary judgment motions are before the Court, which are granted in part and denied in part for the reasons below.

         Summary Judgment Standard

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the nonmovant “cannot produce admissible evidence to support the [material] fact.” Fed.R.Civ.P. 56(c)(B). If the movant clears this hurdle, the nonmovant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists. Id.; Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). “In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).

         At the summary judgment 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. Id. However, only admissible evidence may be considered. Baines v. Walgreen Co., 863 F.3d 656 (7th Cir. 2017)(“Evidence offered at summary judgment must be admissible to the same extent as at trial, . . .”). The portions of Plaintiff's declarations that rely on inadmissible hearsay have not been considered.

         Facts

         On April 13, 2017, Plaintiff injured his right hand while exercising in his cell at Pontiac Correctional Center. He was doing triceps dips on a table and he slipped off the table, hitting his hand hard on the floor. (Pl.'s Dep. 6.) Plaintiff was already scheduled to see Physician Assistant Ojelade that day for complaints of body aches. Plaintiff asserts that he told P.A. Ojelade that day of his hand injury and need for x-rays. According to Plaintiff, P.A. Ojelade said that the hand was just swollen without adequately examining the hand, which was handcuffed behind Plaintiff's back. A practice drill code then sounded and the visit was abruptly terminated. (Pl.'s Dep. 12-13.) According to Plaintiff, P.A. Ojelade told Plaintiff he would be rescheduled but he was not. (Pl.'s Dep.) Dr. Ojelade does not address whether Plaintiff mentioned his hand at this visit, and the medical records do not reflect a complaint about Plaintiff's hand.

         Over the next three weeks, Plaintiff asserts repeatedly tried to obtain medical attention for his hand by writing notes to Certified Medical Technician (CMT) Chicke and speaking with the Health Care Unit Administrator Teresa Arroyo. According to Plaintiff, Defendant Arroyo told Plaintiff that she would put him in to see Dr. Tilden and that Plaintiff did not need to put in a sick call request. (Pl.'s Dep. 44-45.) Plaintiff's understanding, which appears undisputed, is that the sick call procedure, which can take days, may be bypassed if an inmate needs urgent care.

         On or about April 15, 2013, Plaintiff submitted a sick call request to be seen for chronic body aches. According to the medical records, P.A. Ojelade saw Plaintiff on April 17, 2017, for this complaint. No complaint about Plaintiff's hand is documented in the medical record on this date. Plaintiff asserts that this is false. Plaintiff seems to assert that he did tell P.A. Ojelade about his hand, but Plaintiff appears to be referring to the April 13 visit, not the April 17 visit. (Pl.'s Resp. ¶ 15.) P.A. Ojelade's affidavit does not mention the April 17 visit. Defendants also assert that Plaintiff made no complaints about his hand when a transfer summary was completed on April 25, 2013, but Plaintiff counters, without dispute, that he was not present for the filling out of that form.

         By May 8, 2013, Plaintiff realized he was not going to be called back to the doctor for his hand. That day he told CMT Eshleman that his hand was broken. Eshleman told Plaintiff to put in a money voucher for sick call, which Plaintiff did. (Pl.'s Dep. 41.) Plaintiff describes his hand at this point as “something out of the cartoons, you know. It's big and discolorated.” (Pl.'s Dep. 43.)

         Five days, later, on May 13, 2013, P.A. Ojelade saw Plaintiff and ordered an x-ray. The x-ray, taken the next day (May 14), showed a “comminuted, intra-articular fracture at the base of the 5th metacarpal . . . [and] displacement of the radial fracture fragment.” (5/20/13 x-ray report, d/e 92-3, p. 62.) Dr. Tilden obtained approval from his employer, Wexford Health Sources, Inc., to send Plaintiff for an orthopedic consult. Dr. Lowe from OSF Pontiac Orthopedics decided to treat Plaintiff “conservatively in a ulnar gutter type cast.” Dr. Lowe also recommended that Plaintiff take Tylenol for pain, not ibuprofren or anti-inflammatories. (5/15/13 progress note, d/e 92-3, p. 14, 21.)

         Pursuant to Dr. Lowe's recommendation, Dr. Tilden arranged for Plaintiff to be taken back to the orthopedic clinic for a follow-up on or about May 30, 2013, and also changed Plaintiff's pain medicine from Motrin to Tylenol. Certified Physician Assistant Chang saw Plaintiff at the clinic and wrote that he believed Plaintiff was healing appropriately. CPA Chang recommended a follow-up in two weeks to transition Plaintiff out of immobilization and begin range of motion exercises. Chang reiterated that Plaintiff should receive Tylenol because ibuprofen could potentially deter bone healing. (6/7/13 progress note, d/e 92-3, pp. 22-24.) Dr. Tilden followed this recommendation, continuing Plaintiff's Tylenol prescription for 14 days and arranging the follow-up visit.

         Plaintiff was taken for his next follow-up appointment on June 13, 2013. Plaintiff's cast was removed and replaced with a splint that Plaintiff could remove while performing range of motion exercises. Defendants maintain that no further referrals were recommended by the orthopedic group. However, Defendants do not mention that CPA Chang recommended “splint until seen by OT. May remove splint for range of motion exercises as needed. OT for strengthening, range of motion, & thermoplastic splint.” (d/e 92-3, p. 26.) There is no indication that Plaintiff ever saw an occupational therapist or received a thermoplastic splint. Additionally, as Plaintiff points out, there arguably should be a more detailed progress note in the record from this visit as was provided with the other orthopedic visits.

         Around June 18, 2013, Plaintiff was transferred to Menard Correctional Center. Before the transfer, Dr. Tilden approved a two-day Motrin prescription for Plaintiff but he scheduled no follow up with the orthopedist. In Dr. Tilden's opinion, based on Dr. Tilden's evaluation of Plaintiff's hand, the purported lack of recommendation for further orthopedic follow-up, and Dr. Tilden's instructions to Plaintiff regarding range of motion exercises, Plaintiff could be managed in the prison and did not ...


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