United States District Court, C.D. Illinois
STEVEN A. TALIANI, Plaintiff,
WEXFORD HEALTH SOURCES, INC., DIANE POUK, JAMES CARUSO, RILIWAN OJELADE, SHAWNA JONESON, ANDREW TILDEN, JOHN DOE, Defendants.
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
proceeding pro se from his incarceration in the Hill
Correctional Center, pursues claims for deliberate
indifference to his asthma during various times in 2015 and
2016 at the Pontiac Correctional Center.
sides move for summary judgment. In considering these
motions, the Court has viewed the evidence in the light most
favorable to the nonmovant, resolving material factual
disputes in the nonmovant's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). That
standard warrants denying both motions, either because
disputed issues of material fact exist or because the record
is not developed enough to make the determination.
has had asthma since he was a child and so is familiar with
the symptoms and warning signs when his asthma is not well
controlled. Unlike some child asthmatics, Plaintiff never
outgrew his asthma and, drawing inferences in Plaintiff's
favor, Plaintiff still needs two kinds of inhalers to keep
his asthma under control: a corticoid steroid inhaler taken
every day and a “short-acting beta-2 agonist”
used every 4-6 hours on an as needed basis for acute
flare-ups. Plaintiff's asthma has been relatively well
controlled on a corticoid steroid inhaler called Alvesco-two
daily inhalations (160 mg)-and a short-acting inhaler,
Xopenex, used on an as needed basis.
disputes that Plaintiff's asthma is a serious medical
need. The question is whether any of Defendants were
deliberately indifferent. Deliberate indifference is the
conscious disregard of a substantial risk of serious harm. An
inference of deliberate indifference can arise if medical
professionals take actions (or inactions) which are
“such a substantial departure from accepted
professional judgment, practice, or standards as to
demonstrate that the person responsible did not base the
decision on such a [professional] judgment.”
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016)
(quoting Cole v. Fromm, 94 F.3d 254, 261-62 (7th
claims center around delays in obtaining refills of his
inhalers and the cessation of Plaintiff's corticoid
steroid inhaler. Plaintiff also challenges Wexford's
written policy regarding refills of short-acting beta-2
agonists and Wexford's alleged policy of permitting only
one medical complaint per visit. The Court's analysis is
organized by Defendant since the claims against each
Defendant do not necessarily overlap.
had trouble obtaining timely refills of his inhalers in June
and July of 2015. In particular, the refill of
Plaintiff's Alvesco inhaler was 12 days late in June 2015
and six days late in July 2015. Plaintiff's refill of
Xopenex was eight days late in June 2015. According to
Plaintiff, Plaintiff sent many requests to Defendant Pouk
during this time period, with no response. (Medical Requests
attached to Complaint, d/e 1-1, pp. 9-18.)(e.g.,
“Out! Out! Out! Please refill RX Alvesco 160 inhaler Rx
Xopenex inhaler having shortness of breath and pain on left
side of chest”). Defendant Pouk was the Director of
Nursing at Pontiac Correctional Center at the time.
Pouk avers that she cannot recall receiving any of
Plaintiff's requests for refills and that, in any event,
sending the request to her would not have been the proper
procedure. However, Defendant Pouk does not explain what the
proper procedure was or where Plaintiff's requests,
addressed directly to Defendant Pouk, would have been sent.
Additionally, though Defendant Pouk did not have the
authority to write prescriptions, she did have the authority
to review the status of Plaintiff's prescription. (Pouk
Aff. ¶ 10.) The medical records show that Plaintiff
already had current orders for refills through August 2015.
(6/22/15 Progress Note, d/e 50-6, p. 16; Medication
Administration Records, d/e 50-7, p. 31, showing
prescriptions for Alvesco and Xopenex through August 2015.)
Defendant Caruso, a Physician Assistant, avers that he
prescribed these inhalers on January 29, 2015, for seven
months, which would have taken Plaintiff to near the end of
August 2015. (Caruso Aff. ¶ 4.) Defendant Pouk, then,
would not have had to write any prescriptions for Plaintiff.
Defendant Pouk does not address who is responsible for
ensuring prescribed refills are filled timely or why
Plaintiff's refills were late. In short, the record is
not developed enough to rule out a reasonable inference that
Defendant Pouk knew that Plaintiff needed refills to
adequately control Plaintiff's asthma and that Defendant
Pouk had the authority to make that happen. Whether Plaintiff
suffered constitutionally-actionable harm from these
temporary delays is questionable, but that question is not
addressed by Defendants.
Caruso worked as a Physician Assistant at Pontiac
Correctional Center from September 15, 2014, through January
5, 2016. Defendant Caruso saw Plaintiff on various dates for
various ailments during this time period, including the
assessment of Plaintiff's asthma at the asthma chronic
Caruso first saw Plaintiff on January 29, 2015 and continued
Plaintiff's prescriptions for Alvesco and Xopenex for
seven months. (Caruso Aff. ¶ 4.) Defendant Caruso
realized on July 27, 2015, that Plaintiff had been receiving
only 80 mg of Alvesco, even though Defendant Caruso had
prescribed 160 mg. Defendant Caruso then increased the dosage
to 160 mg to correct the dosage. (Caruso Aff. ¶ 9.)
focuses on one visit with Defendant Caruso at the asthma
clinic on July 21, 2015. Plaintiff contends that Defendant
Caruso did not “provide an education plan, ”
failed to conduct a meaningful physical exam, and failed to
conduct a peak flow test. Plaintiff also contends that
Plaintiff told Defendant Caruso that Plaintiff's inhalers
were out and that Defendant Caruso ...