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Bakerr v. Hertz

United States District Court, S.D. Illinois

November 21, 2017

JEFFREY BAKER, Plaintiff,
v.
ROBERT HERTZ, JOHN LAKIN, GARY BOST, DONALD BUNT, ROBERT HOLLENBACH, RANDY YOUNG, LT. HILL, MIRAN THOMPSON, SGT. DOVER, JODIE COLLMAN, PAUL SARHAGE, STEVE RIDINGS, DONALD McNAUGHTON, KENT GRIFFITH, TIM WALKER, CRAIG RICHERT, MIKE TASSONE, MIKE HARE, OFCR. MARK SPURGEON, BLAKE SELLERS, MARK RYAN, MATT MILLER, ROBERT BLANKENSHIP, MARTHA MAJOR, ALICIA RUSHING, and VALERIE BASSETS, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT, DISTRICT JUDGE.

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 124) of Magistrate Judge Donald G. Wilkerson recommending that the Court grant in part and deny in part the defendants' motion for summary judgment (Doc. 104). Specifically, Magistrate Judge Wilkerson recommends that Court grant the motion as to Counts 1, 2, 4, 5 (as against Richert and Hill), 6 (as against Blankenship), 10 (as against Hare, Collman/Coleman, Spurgeon and Hollenbach) and 13, and deny the motion as to Counts 3, 5 (as against Sarhage and Miller), 6 (as against Rushing, Major and Bassets), 10 (as against Bost, Bunt, Ryan, Sellers, McNaughton, Dover, Tassone, Griffith, Richert, Ridings, Sarhage and Hill) and 16.

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         All parties have objected to the Report in some way or another (Docs. 125 & 126). The Court reviews de novo the portions of the Report to which objections have been made and reviews the other portions for clear error.

         I. Background

         This case arose when plaintiff Jeffrey Baker was a pretrial detainee in the Madison Country Jail (“Jail”). He makes a variety of claims, including retaliation; deliberate indifference to his medical needs stemming from his being given incorrect medication and not being provided appropriate follow-up medical treatment for that and other medical complaints; conditions of confinement based on the contamination of the Jail with raw sewage, lack of clean water, too much time between meals, cold temperatures in the cells, housing with dangerous criminals, deprivation of personal property, dirty razors, and lack of first aid items; denial of access to the courts because of an inadequate law library and time in the law library, and lack of stamps and notary service; lack of a functional grievance procedure; and verbal harassment. The Court has already dismissed a number of these claims, and the defendants' motion for summary judgment seeks judgment on the remaining ones.

         II. Objections to the Report

         Objections have only been filed to the recommended disposition of Counts 3, 6 and 10. The Court has reviewed the Report's recommended disposition of the other remaining counts for clear error and finds none. Accordingly, it will adopt those portions of the Report. As for Counts 3, 6 and 10, the Court reviews the Report's recommended disposition of those counts de novo.

         A. Count 3: Deliberate Indifference to Serious Medical Need on June 2-3, 2014, by Non-Medical Personnel

         In this count, Baker claims defendants Spurgeon, Ridings, Thompson, Young, Miller, Sarhage, McNaughton, Walker, and Ryan refused to obtain any medical care or examination for him within the day after he ingested Efferdent on June 2, 2014, despite his persistent vomiting and complaints of severe pain. He had been given Efferdent, a denture cleaner not intended for human consumption, by a Jail officer after he complained about heartburn.

         Magistrate Judge Wilkerson found in the Report that there is sufficient evidence that Baker suffered an objectively serious medical condition because he ingested Efferdent, including uncontrollable vomiting with blood, intense cramps, chest and abdomen pain, dizziness, hot flashes, and feeling deathly ill. Magistrate Judge Wilkerson further found that there is evidence from which a reasonable jury could conclude the Count 3 defendants ignored him after seeing he was uncontrollably vomiting and in intense pain or provided blatantly inappropriate treatment (milk and observation) rather than calling for immediate medical help. He therefore recommends denying summary judgment on Count 3.

         The defendants object to Magistrate Judge Wilkerson's recommendation on Count 3, but their objection does not specifically address Count 3. Instead, it focuses on Count 6, Baker's claim that medical personnel were deliberately indifferent to his medical needs. Nevertheless, the Court has reviewed Magistrate Judge Wilkerson's recommendation regarding Count 3 de novo and, for the reasons stated in the Report, find it is correct. Accordingly, it will adopt the Report as to Count 3 in its entirety and will deny summary judgment to the Count 3 defendants.

         B. Count 6: Deliberate Indifference to Serious Medical Need by Medical Personnel

         In this count, Baker claims defendants Rushing (nurse), Blankenship (doctor), Major (nurse), and Bassets (nurse) were deliberately indifferent to Baker's serious medical needs, including the severe vomiting and pain after taking Efferdent; elbow injuries; his ongoing headaches, chest and other pain; his earache; and his exposure to raw sewage. 1. Dr. Blankenship Magistrate Judge Wilkerson noted that Baker saw Dr. Blankenship on June 3, 2014, the day after eating Efferdent, and that Dr. Blankenship examined him, ordered an x-ray and urine and blood tests. He also substituted one pain medication for another. He assessed that the test results were normal and the x-ray showed no significant problem. Magistrate Judge Wilkerson noted that Baker has pointed to no other contact with Dr. Blankenship before he filed this lawsuit in June 2015, and that his September 2015 care from Dr. Blankenship cannot be at issue in this case. Magistrate Judge Wilkerson found no reasonable jury could find Dr. Blankenship was deliberately indifferent to Baker's medical needs based on his June 2014 treatment and that he was therefore entitled to summary judgment.[1]

         Baker objects, noting that the blood tests Dr. Blankenship ordered on June 3, 2014, were not normal and, in fact, showed four results out of the “reference interval” (Doc. 110-2, p. 99-100) and that the x-ray report indicated a “Nonspecific abdominal gas pattern without significant gaseous distention” and a “Moderate amount of stool throughout the colon” (Doc. 110-2, p. 98). He argues this shows Dr. Blankenship was deliberately indifferent for not treating these conditions.[2] Dr. Blankenship states, though, that he viewed those test results as normal and not warranting further investigation or treatment beyond what was already being done. No evidence suggests that the particular out-of-range test results indicated a possible cause for Baker's medical complaints, required action by a doctor, or posed any serious threat to Baker's health. Indeed, the two tests that were repeated in subsequent rounds of tests eventually returned to within the “reference interval” even without any follow-up by Dr. Blankenship (Doc. 110-2, pp. 103 & 110). There is no evidence from which a reasonable jury could find Dr. Blankenship subjectively knew of a serious risk to Baker's health because of these test results or that the test results were so abnormal that he responded unreasonably by not taking action to investigate the test results further.

         Magistrate Judge Wilkerson was also correct that Dr. Blankenship's failure to conduct a more thorough examination to Baker's liking on June 3, ...


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