United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE EDMOND E. CHANG, UNITED STATES.
James Gaston, a prisoner at Stateville Correctional Center,
brings this civil-rights lawsuit, 42 U.S.C. § 1983, for
violation of his Eighth Amendment rights. Defendants are
Wexford Health Sources, Inc., a private corporation that
provides medical services at Stateville; three current and
former Stateville medical directors; and one former
Stateville staff physician. For the reasons explained below,
the Court grants summary judgment in favor of each defendant
and against Gaston.
case arises out of the treatment of James Gaston's
various medical problems-a course of treatment
“spanning eight years, three serious medical
conditions, and four surgeries.” R. 178, Pl. Resp. at
For the sake of clarity, the Court will address each medical
condition separately, though they overlap chronologically.
The facts narrated here are undisputed unless otherwise
noted. The Court views the evidence in the light most
favorable to Gaston, the non-moving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
early May 2009, Gaston injured his left knee while playing
basketball at the prison. R. 159, DSOF ¶ 9; DSOF Exh. B
at 27:21-23. On May 11, 2009, Gaston complained of knee
pain to physician's assistant La Tanya Williams (who is
not a defendant). DSOF ¶ 9. X-rays were ordered, which
showed degenerative changes in the left knee. R. 180, PSOF
¶ 3. To deal with the knee pain, Williams ordered a knee
brace for Gaston, and also ordered him to take Motrin and to
apply ice. Id. Later that summer, then-medical
director Dr. Parthasarathi Ghosh saw Gaston at a Hepatitis C
clinic. PSOF ¶ 4. It is not clear whether Gaston
complained to Ghosh about knee pain at that appointment. In
the medical records, Ghosh listed “[left] knee
brace” under “Plans, ” but did not make any
other notes about Gaston's knees. R. 197, Pl. Supp. Exh.
at 16. Gaston, however, testified that his knee continued to
be painful, and that it would swell up and give out on him.
DSOF Exh. B at 31:16-32:11.
September 2009, Gaston made an appointment to see a physician
during sick call. PSOF ¶ 6. But due to staff shortages
and a Stateville lockdown, he did not see a doctor until
November 2009, when he presented for an appointment with Dr.
Liping Zhang. PSOF ¶¶ 7-10; Pl. Supp. Exh. at
21-22. Zhang examined Gaston, noting that there was no
bruising of the left knee and that Gaston had full range of
motion, but that he favored the knee while walking. DSOF
¶ 10; DSOF Exh D. at 3. Zhang prescribed Ibuprofen
(which is a non-steroidal anti-inflammatory drug) to treat
the pain and inflammation, as well as an analgesic balm.
Id. Zhang did not refer Gaston to a specialist
at this appointment, and instead told him to return to the
clinic in two months (though Zhang did not schedule the
follow-up). PSOF ¶ 10.Gaston next complained to Zhang of
knee pain in April 2010, when he presented at the health care
unit for the Hypertension and Asthma Chronic Clinics. DSOF
¶ 11. At this appointment, Gaston again complained about
his left knee. Id. Gaston states that Zhang refused
to examine his knee or to discuss it with him when he asked
her to. Id. Defendants deny that Zhang refused to
examine Gaston's knee, and note that Zhang prescribed
Tramadol,  which is an opioid pain reliever, and an
analgesic balm. R. 186, Def. Resp. PSOF ¶
Again, Zhang did not refer Gaston to a specialist, but rather
told him to follow up at the clinic. PSOF ¶ 13. Gaston
reports that he asked about a specialist referral, but Zhang
told him “I don't want to talk to you about that.
That ain't what you're here for.” DSOF Exh. B
at 35:24-36:5. Gaston further asserts that at one of these
two appointments (it is unclear which one), Zhang told him
“I'm not treating you, and I'm not letting you
see no specialist.” DSOF Exh. B at 56:19-21.
followed up at the clinic about two weeks later, when he saw
Williams and reported that his left knee was getting worse.
DSOF ¶ 12. Williams referred Gaston to Ghosh for further
evaluation. Id. On May 19, 2010-now more than a year
after Gaston's initial injury-Ghosh examined Gaston. DSOF
¶ 13. Ghosh noted Gaston's history of pain,
instability and swelling since May 2009, and planned to refer
him for an orthopedic consult at the University of Illinois
at Chicago (UIC). DSOF ¶ 13; PSOF ¶ 16. It took
Ghosh until July 15, 2010-about two months-to actually sign
the order approving the orthopedic consult. PSOF ¶ 17.
Then there was another delay of several months until the
consult took place, during which Gaston grieved the treatment
of his knee and continued to complain of knee pain to
Stateville medical personnel. PSOF ¶¶ 19-23.
end, the orthopedic consult did not take place until
September 27, 2010, when Gaston saw Dr. Samuel Chmell, an
attending orthopedic surgeon at UIC. PSOF ¶ 25. At this
appointment, Chmell noted a possible left meniscal injury and
ordered x-rays and an MRI to further evaluate the potential
injury. DSOF Exh. D at 11. But Gaston was not referred to UIC
for an MRI until late November 2010, and the MRI did not take
place until February 4, 2011. PSOF ¶¶ 29, 32.
Gaston met with Ghosh on March 25, 2011 to discuss the
results of the MRI. DSOF ¶ 18. Ghosh planned another
orthopedic referral. PSOF ¶ 35. Ghosh retired shortly
after this appointment. DSOF ¶ 18.
6, 2011, Gaston returned to UIC for another appointment with
Chmell. DSOF ¶ 19. After reviewing the MRI, Chmell
recommended a left knee arthroscopy, which is an elective
outpatient procedure, to repair or remove damaged tissue in
the knee. Id. Gaston agreed to undergo this surgery.
Id. Wexford approved Gaston for the left knee
arthroscopy in July 2011, and Chmell performed the surgery on
August 2, 2011. PSOF ¶ 43; DSOF ¶ 21.
follow-up appointment on August 8, 2011, Chmell noted that
Gaston was doing well, ordered physical therapy, and gave him
instructions on exercises to do in his cell. DSOF Exh. D at
21-22. Gaston was never given physical therapy
for his left knee. PSOF ¶ 47. Even so, it appears that
the left knee arthroscopy was a success: Gaston did not
complain about left knee pain again until four years later,
in October 2015. DSOF ¶ 51.
began complaining of right knee pain sometime in 2010, but
there is no evidence that Ghosh or the other defendants were
aware of the right knee issue until much later. Gaston filed
a grievance mentioning his right knee pain in August 2010,
but there is no indication that Ghosh knew about the
grievance. See DSOF Exh. G at 3-9. Gaston points to
a letter that he wrote to Ghosh on December 1, 2010, stating
that he had been waiting 18 months for left knee treatment,
and that “my other knee is getting bad from the
pressure and extra weight.” Pl. Supp. Exh. at 1-2. But
the foundation for this letter (either its authorship by
Gaston or its receipt by Ghosh) is not in the record.
Gaston's Local Rule 56.1 Statement paragraph on this
letter cites only a purported copy of the letter, and fails
to cite any factual support, whether it be deposition
testimony (or even an affidavit) of Gaston, or an admission
by Ghosh that he received the letter. PSOF ¶ 30. As
Defendants point out, there is no reason to think that this
letter was ever received by Ghosh. Def. Resp. PSOF ¶ 30.
Gaston did complain of right knee pain to Williams on
December 17, 2010, DSOF ¶ 16, but there is no evidence
that Ghosh or any of the other defendants knew about this
complaint. There is also no evidence that Gaston complained
to Ghosh or other medical personnel about his right knee
between December 2010 and August 2011. Indeed, it is not
clear that Ghosh ever knew about the right knee
complaint (Ghosh retired in March 2011, DSOF ¶ 2).
August 8, 2011, at an appointment with Chmell after the left
knee arthroscopy, Gaston complained of right knee pain.
Chmell noted that he would likely order an MRI of
Gaston's right knee at their next appointment, and that
he would see Gaston again in two weeks. DSOF Exh. D. at 23.
This follow-up appointment was never scheduled. Instead, in
an August 25, 2011 appointment, Stateville's new medical
director, Dr. Imhotep Carter, noted that there was “no
current indication for a right knee evaluation.” DSOF
Exh. D at 24. In November 2011, Carter presented Gaston's
case at a Wexford collegial review. DSOF ¶ 24. Collegial
review is a discussion between the Stateville medical
director and a Wexford utilization management physician to
determine a patient's treatment plan. Id. The
collegial review decided to postpone an MRI of the right knee
for six months “to allow surgically repaired left knee
to recover.” DSOF Exh. D at 25.
next presented for an evaluation with Carter in February
2012. Carter noted that Gaston was walking with a crutch and
“Basically NWB [non-weightbearing] on his right LE
[lower extremity].” DSOF Exh. D at 26. Carter reminded
Gaston of the plan to delay the MRI of his right knee for six
months, and renewed his medical permits and prescriptions.
DSOF ¶ 25. Carter left Stateville shortly after this
2012, the interim medical director (not a defendant in this
case) referred Ghosh for an MRI of his right knee, which took
place in July 2012. DSOF ¶ 27-28. The MRI showed
degenerative tears of the medial and lateral meniscus, a
joint effusion, and some osteochondral fragments within the
joint. DSOF Exh. D at 31. Based on the MRI results and an
examination, Chmell recommended a right knee arthroscopy.
DSOF ¶ 28. Dr. Saleh Obaisi became medical director of
Stateville on August 2, 2012, and approved the right knee
arthoscopy on August 8, 2012. DSOF ¶ 29, DSOF Exh. D at
33. The surgery was performed on October 2, 2012. DSOF ¶
30. Gaston underwent several months of physical therapy after
the surgery. DSOF ¶¶ 32, 34.
December 2012, Obaisi approved a follow-up orthopedic
consultation at UIC. PSOF ¶ 69. This consultation was
approved in a Wexford collegial review on January 7, 2013,
but the consultation did not take place until June 17, 2013.
DSOF ¶¶ 36-37. Neither party explains why it took
six months to schedule this appointment. During the
appointment, Gaston complained of pain despite receiving
medication and physical therapy. DSOF ¶ 37. Chmell gave
Gaston a steroid injection, recommended further physical
therapy, and noted that if non-operative measures were
unsuccessful, Chmell would consider recommending a full knee
replacement. Id. When Gaston returned to UIC in
October 2013, he was still experiencing knee pain, so Chmell
recommended a right knee arthroplasty (in other words, a full
knee replacement). DSOF ¶ 39. Obaisi and the Wexford
collegial review approved the arthroplasty within a month.
PSOF ¶ 79; Pl. Supp. Exh. at 324.
the arthroplasty was long delayed. At least some of the
holdup was due to the need for Gaston to get pre-surgery
clearance from the pulmonary and cardiology departments at
UIC to ensure that he was fit for surgery. DSOF ¶¶
41-42. It is unclear when the pre-surgical clearance process
ended. Gaston was cleared by cardiology in May 2014, PSOF
¶ 86, but the parties have pointed to no evidence of the
date of pulmonary clearance. In any event, during the time
that Gaston waited for the surgery, he was seen regularly by
medical staff and provided with pain medication, muscle
relaxants, crutches, medical permits for
low-bunk/low-gallery, and supportive knee braces. DSOF ¶
more than a year of waiting, Gaston returned to Chmell's
office for a pre-surgery consult in December 2014. DSOF
¶ 43. The right knee replacement was performed on
February 3, 2015, and was apparently successful. DSOF ¶
44. Gaston had frequent follow-up appointments with Obaisi in
the year after the surgery, and received multiple courses of
physical therapy. DSOF ¶¶ 48-50. An August 2016
follow-up appointment with Chmell revealed that Gaston was
healing well from the arthroplasty, despite continued pain.
DSOF ¶ 53.
first reported lower back issues on February 3, 2014, when he
complained to Obaisi of numbness in his left thigh. DSOF
¶ 55. Obaisi ordered x-rays of the lumbar spine and left
hip. Id. Williams reviewed the x-rays with Gaston
and diagnosed him with mild degenerative joint disorder of
the lumbar spine. DSOF ¶ 56. She prescribed Mobic and
Robaxin, and referred Gaston to Obaisi. DSOF ¶ 56; PSOF
¶ 83; DSOF Exh. D at 156. Obaisi saw Gaston in late
March and scheduled him for a steroid injection, which took
place in early April 2014. DSOF ¶ 57.
August 2014, Gaston heard a “pop” while bench
pressing weights. DSOF ¶ 58. Gaston saw a nurse at the
health care unit about the injury. Id. The nurse
renewed Gaston's Tramadol prescription and advised him to
raise the issue with Obaisi at an upcoming appointment.
Id. Gaston did not mention the injury at his
appointment with Obaisi. Id.
next complained of hip pain to Obaisi on January 27, 2015.
DSOF ¶ 59. Obaisi told Gaston that they would wait to
address the issue until after his right knee surgery, which
was scheduled for the following week. Id. In the
year after the surgery, Gaston saw Obaisi frequently, but
seemingly did not complain of back pain during those visits.
See DSOF ¶ 48.
August 2016, Gaston reported low back pain and lower
extremity numbness during an appointment with Chmell. Chmell
examined Gaston's lower back and ordered an x-ray of the
lumbar spine, which revealed arthritis. DSOF ¶ 60.
During a follow-up visit in September 2016, Chmell
recommended physical therapy and core strengthening. DSOF
¶ 61. Chmell has never recommended surgery for
Gaston's lower back condition, and opined in a deposition
that the standard of care for treating lumbar spine arthritis
is non-operative measures such as medication. DSOF
last pertinent medical condition is a reducible right-sided
inguinal hernia. DSOF ¶ 62. Gaston began to complain
about the hernia in October 2013, but there is no evidence
that Obaisi (or any other defendant) knew about it until
September 28, 2014, when a nurse notified Obaisi that
Gaston's hernia was painful and swollen. PSOF
¶¶ 77-78, 90; Pl. Supp. Exh. at 263. On October 7,
2014, Obaisi presented Gaston's case at a Wexford
collegial review. PSOF ¶ 92. During the review, Obaisi
and the consulting physician decided to delay surgical
evaluation of the hernia until after Gaston's knee
surgery. Pl. Supp. Exh. at 346. Instead, Gaston was given a
hernia truss. DSOF ¶ 65.
March 2, 2015, Gaston again reported discomfort from his
hernia to Obaisi. DSOF ¶ 66. Obaisi elected to
re-present Gaston's case at collegial review, and Gaston
was approved for a general surgery consult at UIC on March
10, 2015. Id; DSOF Exh. D at 172. The consult took
place on July 20, 2015 (more than five months after it was
approved). DSOF ¶ 67. The consulting physician
recommended hernia repair surgery, which was performed on
August 25, 2015. DSOF ¶¶ 67-68.
Summary Judgment Standard
judgment must be granted “if the movant shows that
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 exists
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
evaluating summary judgment motions, courts must view the
facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). The Court may not weigh conflicting
evidence or make credibility determinations, Omnicare,
Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th
Cir. 2011), and must consider only evidence that can
“be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). However, affidavits,
depositions, and other written forms of testimony can
substitute for live testimony. Malin v. Hospira,
Inc., 762 F.3d 552, 554-55 (7th Cir.2014). The party
seeking summary judgment has the initial burden of showing
that there is no genuine dispute and that they are entitled
to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir.
2008). If this burden is met, the adverse party must then
“set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.