United States District Court, C.D. Illinois
E. SHADID UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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.
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.
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.)
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.)
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.
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.
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