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Ewing v. Davida

United States District Court, N.D. Illinois, Eastern Division

November 1, 2017

BILLY EARL EWING, Plaintiff,
v.
ARTHUR I. DAVIDA, MARY DIANE SCHWARZ, EVARISTO AGUINALDO, ARTHUR FUNK, KRISTINA KASHIRSKY, and WEXFORD HEALTH SOURCES, INC., Defendants.

          ORDER

          Charles P. Kocoras United States District Judge.

         Before 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 Defendants' Motion.

         PROCEDURAL HISTORY AND LEGAL STANDARD

         This 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.

         Summary 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. 1994).

         STATEMENT

         On 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, 2014.

         Between 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 accommodations.

         Ewing 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.

         Following 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.”

         Ewing 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 Defendants' indifference.

         The 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.

         The 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.

         “A 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 ...


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