United States District Court, N.D. Illinois, Eastern Division
Charles P. Kocoras United States District Judge.
the Court is Defendants Arthur I. Davida
(“Davida”), Mary Diane Schwarz
(“Schwarz”), Evaristo Aguinaldo
(“Aguinaldo”), Arthur Funk (“Funk”),
Kristina Kashirsky (“Kashirsky”), and Wexford
Health Sources, Inc.'s (“Wexford”)
(collectively, “Defendants”) Motion for Summary
Judgment (“Motion”) against Plaintiff Billy Early
Ewing (“Ewing”) pursuant to Federal Rule of Civil
Procedure 56. For the following reasons, the Court grants
HISTORY AND LEGAL STANDARD
Motion was originally characterized by Defendants as a motion
to dismiss Ewing's Third Amended Complaint
(“TAC”) for failure to state a claim. In their
initial filing, Defendants supplied the Court with five
exhibits not directly addressed in Ewing's TAC. The Court
converted Defendants' 12(b)(6) motion into a motion for
summary judgment - a move anticipated by Defendants in their
brief. After the Court extended to Ewing a period of time in
which to conduct discovery before responding, Ewing filed a
response to summary judgment replete with evidentiary
exhibits, and Defendants submitted limited additional
evidence to the Court following Ewing's response.
judgment is appropriate where “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
genuine issue of material fact arises where a reasonable jury
could find, based on the evidence of record, in favor of the
non-movant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In ruling on a motion for summary
judgment, the Court construes all facts and draws all
reasonable inferences in favor of the non-movant.
Anderson, 477 U.S. at 255. However, “if the
non-movant does not come forward with evidence that would
reasonably permit the finder of fact to find in [his] favor
on a material question, then the court must enter
summary judgment against [him].” Waldrigdge v.
American Hoecsht Corp., 24 F.3d 918, 920 (7th Cir.
August 8, 2014, Ewing underwent surgery to repair a triple
jaw fracture at Cook County Hospital. On August 9, he was
released into Stateville Correctional Center's
(“Stateville”) custody in Joliet, Illinois, where
he was an inmate for all times relevant to this lawsuit.
Shortly upon returning to Stateville, Ewing states that his
gums were bleeding, he had difficulty chewing the food he was
being served, and he complained of intense jaw pain. Despite
receiving written instructions to return to Cook County
Hospital on August 19, 2014 for a follow-up appointment,
Ewing did not again return to the hospital until October 7,
August 9 and October 1, Ewing was instead examined at various
times by four of the defendants at Stateville: Dr. Davida, a
then-licensed physician at Stateville; Dr. Aguinaldo, a
licensed physician at Stateville; Schwarz, P.A., a
physician's assistant employed by Wexford at Stateville;
and Kashirsky, R.N., a registered nurse employed by Wexford
at Stateville. During this period, Ewing claims that Davida,
Aguinaldo, Schwarz, and Kashirsky were all made aware of
Ewing's jaw pain, recent surgery, and need for a
follow-up exam at Cook County Hospital. Ewing claims that
they each indicated that a soft diet was medically necessary,
but none ordered the soft diet or ensured that Ewing received
such a diet. This despite each of the above-named
employees' authority to order such medical
also claims that Dr. Funk, Wexford's then-Regional
Medical Director for the Northern Illinois region, which
included Stateville, learned of Ewing's difficulties and
decided unilaterally that Ewing did not need to be taken to
Cook County Hospital for his scheduled follow-up. Funk made
this decision without ever personally examining Ewing.
his October 7 appointment, Ewing attended four more
follow-ups at Cook County Hospital: on November 4, 2014; on
February 26, 2015; on July 28, 2015; and on August 24, 2015.
Each appointment, including that of October 7, was attended
by a different outside physician who generated a report
following the screening. The reports suggest that at no time
was Ewing's jaw susceptible to infection, suffering from
pain unrelated to the surgery itself, or healing improperly.
The July 28 appointment called “for further evaluation
of the healing of the fracture” via a CT scan. The
subsequent August 24 appointment confirmed that the CT scan
showed “no significant findings” and that
Ewing's fracture was “well reduced.” The
final appointment also revealed that “no treatment is
needed at that time.”
alleges three 42 U.S.C. § 1983 counts of deliberate
indifference to a serious medical condition in violation of
his Eighth and Fourteenth Amendment rights. Ewing grounds his
causes of action in the contention that his “jaw did
not properly heal and he experienced and continues to
experience pain, stress, and emotional distress and
anxiety.” In order to sustain a § 1983 action for
deliberate indifference to a serious medical condition, Ewing
must show that: (i) he had an objectively serious medical
condition; (ii) the Defendants knew of the condition and were
deliberately indifferent to treating Ewing; and (iii) this
indifference caused Ewing some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Defendants
confine their Motion to the narrow issue of the third prong,
whether Ewing in fact sustained an injury caused by
Court recognizes two possible injuries suggested by
Ewing's TAC and supporting evidence that could buoy his
§ 1983 claim: (i) an improperly healed jaw that
continues to cause Ewing pain and suffering; and (ii) pain
and suffering Ewing experienced during the August 9 to
October 7 interval.
record provides no factual basis upon which to conclude that
Ewing's jaw healed improperly. It is similarly devoid of
evidence of Ewing's continued pain and suffering.
Ewing's contention that his jaw healed improperly appears
to have been an empty allegation of his TAC unsupported by
the facts. Likely recognizing this, Ewing confines his
response to discussion of the second source of potential
injury - pain endured between August 9 and October 1 - to
which we turn our attention.
delay in the provision of medical treatment for painful
conditions-even non-life-threatening conditions-can support a
deliberate-indifference claim, so long as the medical
condition is ‘sufficiently serious or
painful.'” Grieveson v. Anderson, 38 F.3d
763, 779 (7th Cir. 2008) (internal citations omitted).
“However, the action will not lie unless the plaintiff
introduces verifying medical ...