United States District Court, S.D. Illinois
BERNON L. HOWERY, Plaintiff,
DR. ROBERT SHEARING and KIMBERLY BUTLER, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, United States District Judge
Motion for Summary Judgment filed by Defendant Robert
Shearing (Doc. 76) and a Motion for Summary Judgment filed by
Warden Kimberly Butler (Doc. 79) are pending before the
Court. Howery filed a timely response to both motions. (Docs.
82, 83). For the reasons set forth below, Dr. Shearing's
Motion is granted, and Warden Butler's Motion is denied
Bernon Howery, is an inmate incarcerated at the Menard
Correctional Center. He filed suit pursuant to 42 U.S.C.
§ 1983 alleging he was not given adequate medical care,
in violation of the Eighth Amendment, after he injured his
back while incarcerated at Menard. (Doc. 1). In his amended
complaint filed on December 3, 2014, Howery specifically
claimed that Dr. Shearing misdiagnosed him with kidney
stones, an intravenous drip was not properly attended to, Dr.
Shearing failed to provide proper pain medication, and that a
“slow-walk” permit was not issued. (Doc. 9, p.
5). After a merits review of the amended complaint pursuant
to 28 U.S.C. § 1915A, the Court dismissed Howery's
claims relating to the alleged misdiagnosis of his condition
and the improper supervision of the intravenous drip. (Doc.
9, p. 6). Howery is proceeding on one count of deliberate
indifference against Dr. Shearing related to his alleged
failure to provide pain medication and a slow walk permit.
(Doc. 9, p. 6). Defendant Kimberly Butler (Warden of
Menard) was added to this suit by the Court in order to
perfect any injunctive relief that may be ordered. (Doc.
9, p. 6).
morning of September 10, 2013, Howery presented at the
healthcare unit with severe pain in his back (left flank and
hip) from lifting a property box. (Doc. 77-1, pp. 1-2). From
the time of his injury, Howery described his pain as a
“12” on a 10-point scale. (Doc. 77-3, pp. 20-21).
The medical records indicate he was prescribed 200 mg of
Motrin, and an x-ray was ordered. (Doc. 77-1, p. 2). Howery
was admitted to the healthcare unit where an intravenous drip
was initiated and his fluid intake and output were monitored
to rule out kidney stones. (Doc. 77-1, pp. 2-8). Howery was
still experiencing pain in the afternoon and sought
additional pain medication. (Doc. 77-1, p. 5). The nurse
increased his Motrin to 400 mg. (Doc. 77-1, p. 5).
testified in his deposition that Dr. Shearing saw him on
September 10, 2013, and failed to listen to his complaints of
pain. (Doc. 77-3, pp. 15-17). The medical records do not
contain any notes from Dr. Shearing on that date
(see Doc. 77-1, pp. 1-7), however, in his memorandum
in support of summary judgment, Dr. Shearing appears to admit
that he did see Howery on September 10, 2013 (Doc. 77, p. 6).
following day, Howery was seen and discharged by Dr. Fuentes
who prescribed Naprosyn, a pain reliever. (Doc. 77-1, p. 9;
77-2, p. 14). Despite an indication in the record that Howery
told the nurse his back still hurt, it was determined he was
ambulatory, and he was discharged back to his cell. (Doc.
77-1, pp. 9-10, Doc. 77-2, p. 2). Howery's testimony is
inconsistent about whether he received and took the Naprosyn
prescribed by Dr. Fuentes,  but he clearly testified that
none of the prescribed medication provided him with any
relief. (Doc. 7, pp. 9-10; Doc. 7, p. 10; Doc. 77-3, p. 35).
he was discharged, Howery states he had to hobble back to his
cell, a trip that took thirty minutes instead of the standard
one minute. (Doc. 77-3, pp. 23-24). After that, Howery says
he was bedridden for ten days, not even leaving his cell to
At that point, yeah, I was eating commissary at that point,
if I was eating anything at all. Sometime I wasn't even
eating for days. I didn't eat anything because I
didn't want to be fighting with myself to get off the
bunk to get into the box.
(Doc. 77-3, p. 30).
being in significant pain, Howery admits he did not put in a
request to see someone from the medical until approximately a
week later; rather, he expected they would follow up with
him. (Doc. 77-3, pp. 27-28). Once he put in a request, Howery
testified Nurse South saw him the following day. (Doc. 77-3,
p. 32). She prescribed 400 mg of Ibuprofen and ordered a
three day medical lay-in permit. (Doc. 77-1, p. 10). Howery
testified the medication did not help with the pain. (Doc.
77-3, p. 35).
days later, Howery was seen by Dr. Shearing who ordered a
second x-rayand performed a physical exam. (Doc. 77-1,
p. 11; Doc. 77-2, p. 2). Dr. Shearing's notes indicate
Howery was able to squat and walk “without any visible
evidence of pain.” (Doc. 77-2, p. 2). Howery disagrees,
describing his pain at this visit again as a “12”
on a 10-point scale (Doc. 77-3, p. 46), and indicating Dr.
Shearing was belligerent during the entire visit and refused
to listen to any description of his pain. (Doc. 77-3, pp.
36-37, 39). Howery further testified that based on that exam,
Dr. Shearing cancelled his Ibuprofen prescription and eat-in
cell permit. (Doc. 77-3, p. 39). While the medical records
are silent about whether any medication was discontinued, it
appears clear no additional pain medication was prescribed.
(Doc. 77-1, p. 11).
was not seen by Dr. Shearing again, and the medical records
do not indicate he was ever treated for back pain again.
(Doc. 77-1; Doc. 77-2, p. 20). Howery testified, however,
that he made three or four requests for healthcare related to
his back in the following six months and attempted to discuss
his issues during chronic care clinics, all to no avail.
(Doc. 77-3, pp. 43-44). Howery also filed two grievances, in
October and November 2013, both complaining that Dr. Shearing
either gave Howery no pain medication or that any medication
ordered was ineffective. (Doc. 7, pp. 9-10).
testified that, upon the advice of his sister, he began
massaging and exercising his back regularly. (Doc. 77-3, p.
29). These exercises included stretching and “leg
lifts” (where he would bring his knee to his chest
while lying on his side) ...