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Montano v. Wexford Health Sources, Inc.

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

February 7, 2018



          John J. Tharp, Jr. United States District Judge.

         For the reasons set forth in the Statement below, the defendants' motions for summary judgment [112], [121], [126] are granted. The Clerk is directed to enter final judgment for all defendants, without costs. Any scheduled hearings are stricken and any pending motions are denied as moot. Absent a basis for extension, if Montano wishes to appeal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(1). If Montano seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to do so in this Court as well. Fed. R. App. P. 24(a)(1). Civil case terminated.


         Aurelio Montano, an inmate at Stateville Correctional Center (“Stateville”), has been experiencing pain in his eyes and spells of temporary blindness for the past several years. He has sued two doctors, Dr. Jason Dunn, an optometrist, and Dr. Salah Obaisi, Stateville's former medical director, as well as Wexford Health Sources, Inc. (“Wexford”) and several former Illinois Department of Corrections (“IDOC”) officials, for deliberate indifference to his vision problems in violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983. The defendants move for summary judgment on Montano's claim for deliberate indifference, which is the only count in his second amended complaint. Because no reasonable jury could find-after Montano has been examined by Dr. Dunn on five occasions, by Dr. Obaisi on at least 12 different occasions, by two other optometrists at Stateville, by two different neurologists from the University of Illinois at Chicago Medical Center (“UIC”), by three different ophthalmologists at outside eye clinics, by a neuro-ophthalmologist on two different occasions, by a psychiatrist, and having undergone multiple MRI scans, an ultrasound of his carotid artery, myriad vision tests, and other diagnostic exams-that Dr. Dunn or Dr. Obaisi were indifferent to Montano's condition, or that there is any basis to extend liability to Wexford or the State of Illinois, the Court grants summary judgment for all defendants.


         A. Northern District of Illinois Local Rule 56.1

         Courts in this district determine whether to grant or deny summary judgment based on the facts set forth in the parties' Local Rule 56.1 statements. Under the rules set forth by the Northern District of Illinois, “a party filing a motion for summary judgment . . . must serve and file ‘a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law.'” Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (quoting N.D.Ill. R. 56.1(a)(3)). The opposing party then is “required to file ‘a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.'” Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (quoting N.D.Ill. R. 56.1(b)(3)(B)). The response also may include a separate statement of additional facts that the opposing party believes “require[s] the denial of summary judgment, ” to which the moving party must respond. N.D.Ill. R. 56(b)(3)(C); see Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). However, if the opposing party's response “fails to dispute the facts set forth in the moving party's statement in the manner dictated by [Local Rule 56.1], those facts are deemed admitted for purposes of the motion” for summary judgment. Cracco, 559 F.3d at 632; accord N.D. Ill. R. 56(b)(3)(C).

         The defendants all filed Rule 56.1 statements of material fact with their motions for summary judgment. (ECF Nos. 114, 122, 128.) For the most part, the facts asserted in those statements are supported by materials in the record. Moreover, consistent with Local Rule 56.2, the defendants provided Montano with notices that explain what is required of him to oppose summary judgment. (ECF Nos. 111, 124, 129.) Montano responded to those submissions by filing only a collection of affidavits from other Stateville inmates, (ECF No. 132); he did not otherwise file a response to any of the defendants' Rule 56.1 statements or provide an additional statement of facts. Montano's response therefore does not comply with Local Rule 56.1(b)(3) and the Court accepts as true the facts set forth in the Defendants' Rule 56.1 statements. See, e.g., Olivet Baptist Church v. Church Mut. Ins. Co., 672 F. App'x 607, 607 (7th Cir. 2017) (“The district court treated most of the [defendant's] factual submissions as unopposed, because the [plaintiff] failed to contest them in the form required by Local Rule 56.1(b). We have held that the district court is entitled to enforce that rule in precisely the way it enforced the rule in this litigation.”) (citations omitted); Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015) (stating that the Seventh Circuit “has consistently upheld district judges' discretion to require strict compliance with Local Rule 56.1” in affirming district court's decision to deem 42 of 47 paragraphs in defendants' Rule 56.1 statement admitted) (citations omitted).

         Montano's status as a pro se litigant at the time of summary judgment does not excuse him from complying with Local Rule 56.1. See Milton v. Slota, 697 F. App'x 462, 464 (7th Cir. 2017) (“[T]he court was entitled to strictly enforce the local rule, even against a pro se litigant, by deeming uncontroverted statements of material fact admitted for purposes of deciding summary judgment.”); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (stating that “the Supreme Court has made clear that even pro se litigants must follow rules of civil procedure” in finding that district court did not abuse discretion in adopting defendants' statement of facts where pro se plaintiff failed to comply with Local Rule 56.1) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). And to be clear, although he is now proceeding pro se, Montano had been represented earlier in this litigation. The Court twice recruited counsel to represent Montano. (Orders, ECF Nos. 4, 79.) Both attorneys, however, were permitted to withdraw after reporting to the Court that they could not proceed due to their assessment of the viability of Montano's claim. (Orders, ECF Nos. 75, 94.) After the second attorney withdrew, the Court declined to recruit additional counsel for Montano. (Orders, ECF Nos. 105, 136.) Nevertheless, because Montano is pro se at this juncture, the Court has considered a number of other materials in an effort to determine whether there could be a material issue of disputed fact for trial, including: any statements in the second amended complaint to which Montano could attest, the exhibits attached to the second amended complaint, the affidavits Montano filed as part of summary judgment, and Montano's deposition testimony. See Boykin v. Dart, No. 12 C 4447, 2014 WL 5611466, at *6 (N.D. Ill. Nov. 4, 2014) (discussing how district courts often afford pro se plaintiffs “significant leeway in responding to summary judgment filings”). But to the extent that Montano has failed to contradict facts set forth in the defendants' Rule 56.1 statements, those facts are deemed to be admitted.

         B. Facts

         Montano is an IDOC inmate who has been incarcerated at Stateville since 1998. (SOF ¶ 1.)[1] On October 15, 2012, he was examined by Dr. Dunn, an optometrist at Stateville. (Id. ¶ 8.) Dr. Dunn identified Montano as being near- and farsighted, noted that Montano had “ocular allegories, ” and ordered Montano new eyeglass lenses and eye drops. (Id. ¶¶ 8, 55, Ex. C at 1.) Montano did not complain of any vision problems during this visit. (Id. ¶ 56.)

         In late December 2012, however, Montano claims that he began to experience issues with his eyes after having been placed in segregation in a cell that, he says, was “condemned.” (Montano Dep. 19:15-21:14, 66:16-67:17, ECF No. 114-1.) In a grievance dated February 2, 2013, Montano complained that after being placed in that cell, his “eyes began to swell badly and run - leak constantly, ” and became so painful and irritated that he could not see “a foot in front of [him].” (Second Am. Compl. ¶ 18, Ex. A.) Montano asked to be compensated for his time in the cell (a total of 21 days) and “to be adequately treated for his eye condition.” (Id., Ex. A at 1.) His grievance was denied by a counselor ten days later on the basis that Montano's cell had not been condemned and that his claims otherwise were “[n]ot substantiated.” (Id.) There is no evidence that any of the defendants were aware of this grievance.

         In April 2013, Montano filed three more grievances (including letters addressed to then-Warden Michael Lemke) stating that he had been attempting to see the prison eye doctor, and that he feared he would go permanently blind if he was not treated. (Id., Exs. B-G.) In his grievance dated April 17, 2013, Montano noted that his requests were an emergency as he understood that the Stateville eye doctor was available only eight hours per week and that there was a six to eight month wait for an appointment. (Id., Ex. D at 1-2.) On May 10, 2013, Montano wrote another emergency grievance requesting to see an eye doctor. (Id., Ex. H at 1.) He noted here that in addition to submitting several other grievances and letters to the warden, he had alerted the Stateville health care unit and wrote to the eye doctor about his condition. (Id. at 2.) Warden Lemke reviewed this grievance on May 23, 2013 and determined that it was not an emergency. (Id. at 1.)

         Nevertheless, Montano was seen again by Dr. Dunn about two months later, on June 27, 2013. (SOF ¶¶ 9, 57.) Montano reported during this examination that “for several hours at a time, ” his “vision goes out completely;” that is, he was unable to see out of either eye. (Id., Ex. C at 3.) Dr. Dunn found “no objective evidence to substantiate” Montano's symptoms. (Id. ¶¶ 9, 58.) However, he wrote that Montano may need a neurological consultation. (Id. ¶ 59, Ex. C at 3.) He also provided Montano with eye drops and artificial tears. (Second Am. Compl. ¶ 25.) The following week, on July 3, 2013, Dr. Obaisi, the then-Medical Director of Stateville, ordered an MRI of Montano's brain. (Id., Ex. K; SOF ¶ 2.) That request was approved by Wexford two weeks later on July 16, 2013. (Second Am. Compl., Ex. L.) Dr. Obaisi then examined Montano on July 29, 2013 in connection with his complaints of vision loss. (SOF ¶ 10.) During this examination, Montano did not complain of any pain in his eyes; nonetheless, Dr. Obaisi provided him with a one-year medical permit for a low bunk and low gallery. (Id.)

         On August 7, 2013, Wexford Health's Utilization Management sent a fax to the Stateville Medical Director stating that it recently had received a referral from “optometry” (which optometrist is unclear) on Montano's behalf for a neurological consultation. (Second Am. Compl., Ex. M.) The purpose of the referral, which had been approved, was to address “blind spells” and rule out the possibility of a pituitary tumor. (Id.) Later that month, Montano visited the Stateville health care unit with continued complaints of head and eye pain. (Id. ¶ 30.) The nurses who treated Montano provided him with eye drops and artificial tears. (Id.)

         Montano was seen again by Dr. Dunn on September 14, 2013. (SOF ¶ 11.) During this examination, Montano reported issues with headaches, irritation, and “sudden loss of vision, ” and asked about a “possible referral.” (Id., Ex. C at 7.) Dr. Dunn again found “no objective evidence to support [Montano's] ongoing complaints of sudden loss of vision.” (Id. ¶ 62.) He informed Montano that his “ocular findings were normal” and that his headaches “do not appear to be associated with his eyes.” (Id. ¶ 11, 63.) He also told Montano that there “could be a carotid issue, ” but that it was up to Dr. Obaisi to approve further testing or examination outside the prison. (Id. ¶ 64, Ex C. at 7.)

         Shortly after that examination, on September 22, 2013, Montano filed a grievance stating that he has been “refused proper medical treatment” for his eyes and that his vision was getting worse as he could “barely see out [of his] eyes.” (Second Am. Compl., Ex. P at 1.) Montano further grieved that he had been given only eye drops to treat his pain, which were not working, and that he requested to be seen by an “outside doctor.” (Id.) Montano filed two more grievances to the same effect in November 2013. (Id., Exs. Q-R.)

         On December 10, 2013, Montano was sent to Presence St. Joseph Medical Center (“Presence”) to undergo the brain MRI that Dr. Obaisi had ordered. (SOF ¶ 12.) The reviewing radiologist noted that the MRI results were “normal.” (Id.) Over the next few months, Montano visited the Stateville health care unit multiple times complaining of eye pain and asking to receive the results of his MRI. Montano again was provided with eye drops and artificial tears and was told that Dr. Obaisi would discuss his MRI results with him. (Second Am. Compl. ¶¶ 38-41, Ex. T.) On March 4, 2014, Dr. Obaisi met with Montano and informed him that his MRI results had not revealed any issues. (SOF ¶ 13.) Moreover, although there still were no clinical findings to support Montano's complaints, Dr. Obaisi referred him for outside neurology and ophthalmology evaluations. (Id.)

         Three weeks later, on March 27, 2014, Dr. Dunn examined Montano again. (Id. ¶ 14.) Montano continued to report sudden losses in vision and asked to be referred to a neuro-ophthalmologist. (Id. ¶¶ 65-66.) Dr. Dunn again found Montano to be near- and farsighted and did not identify any objective evidence to support Montano's complaints of vision loss. (Id. ΒΆΒΆ 14, 67.) Dr. Dunn informed Montano that he had ...

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