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Howery v. Shearing

United States District Court, S.D. Illinois

September 20, 2017

BERNON L. HOWERY, Plaintiff,


          NANCY J. ROSENSTENGEL, United States District Judge

         A 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 as moot.


         Plaintiff, 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).


         On the 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.[1] (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).

         Howery 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).

         The 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, [2] 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).

         After 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 eat:

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).

         Despite 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).

         Six days later, Howery was seen by Dr. Shearing who ordered a second x-ray[3]and 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).

         Howery 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).

         Howery 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) ...

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