United States District Court, C.D. Illinois
SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE.
proceeding pro se from his incarceration in Hill Correctional
Center, pursues an Eighth Amendment claim for deliberate
indifference to his folliculitis/pseudofolliculitis.
Defendants move for summary judgment, which is denied.
Drawing inferences in Plaintiff's favor, a rational juror
could find that Dr. Sood did not pursue an effective
treatment because his employer, Wexford Health Sources, Inc.,
would not allow that treatment. A rational juror could find
in Defendants favor, too, but that only demonstrates the
existence of a disputed material fact.
court shall grant summary judgment 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 movant may demonstrate the absence of a
material dispute through specific cites to admissible
evidence, or by showing that the nonmovant “cannot
produce admissible evidence to support the [material]
fact.” Fed.R.Civ.P. 56(c)(B). If the movant clears this
hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to
admissible evidence in the record to show that a genuine
dispute exists. Id.; Harvey v. Town of
Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). At the
summary judgment stage, the evidence is viewed in the light
most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine dispute of material fact exists when a reasonable
juror could find for the nonmovant. Id.
around September 14, 2014, Plaintiff noticed “three
little . . . hair bumps” around the nape of his neck,
which felt sore. (Pl.'s Dep. 15-16.) Plaintiff showed Dr.
Sood (the Medical Director) the bumps that day during
Plaintiff's routine check-up at the chronic
hypertension/cardiac clinic. According to Plaintiff, Dr. Sood
told Plaintiff not to worry about the bumps. (Pl.'s Dep.
17.) The medical record from that day indicates that A & D
ointment was prescribed but Plaintiff maintains in his
deposition that nothing was done for him that day. (Pl.'s
Dep. 17.) However, in his response to the summary judgment
motion, Plaintiff states that he did receive A & D ointment
on September 16, 2014, two days after seeing Dr. Sood.
(Pl.'s Resp. ¶ 6, d/e 42, and attached Exhibits B1,
bumps got worse, spreading, enlarging, and filling with pus.
(Pl.'s Dep. 16.) On September 28, 2014, Plaintiff saw a
nurse at sick call, who noted in the records, “from
base of neck fanning up to back of head multiple fluid filled
bumps, in many clusters.” (9/28/14 progress note, d/e
40-4, p. 16.) The nurse noted that there was no drainage,
redness or bruising. Id. The nurse referred
Plaintiff to the doctor.
Sood saw Plaintiff the next day, on September 29, 2014. Dr.
Sood diagnosed Plaintiff with folliculitis. The parties agree
that folliculitis is an “inflammation of the hair
follicles that can be caused by bacteria, yeast, or other
types of fungus.” (Defs.' Undisputed Fact 5.) The
condition can range in severity from mild to severe.
(Defs.' Undisputed Fact 6.)
Sood avers that he prescribed A & D ointment and a 10-day
prescription for clindamycin. (De. Sood Aff. 6.) The parties
agree that clindamycin is an antibiotic that can be used to
treat skin infections. The parties also agree that
clindamycin was a safe alternative to penicillin, to which
Plaintiff is allergic. (Defs.' Undisputed Facts 11, 12.)
The medical record from September 29, 2014, reflects that Dr.
Sood actually prescribed Bacitracin ointment, not A & D
ointment, but A & D ointment is what Plaintiff received.
(9/29/14 progress note, d/e 40-4, p. 18.)
the clindamycin nor the A & D ointment helped, according to
Plaintiff. On November 11, 2014, a nurse examined Plaintiff,
noting multiple “fluid filled blister like
vesicles” at the nape of Plaintiff's neck, with
some dried vesicles. (11/11/14 progress note, d/e 40-4, p.
20.) The nurse referred Plaintiff to the doctor. Dr. Sood saw
Plaintiff seven days later, on November 18, 2014. Dr. Sood
observed that Plaintiff had “minor razor bumps, also
known as pseudofolliculitis.” (Dr. Sood Aff., ¶
7.) The difference between folliculitis and
pseudofolliculitis is not clear-Dr. Sood seems to use the
terms interchangeably. In any event, Dr. Sood prescribed
another round of clindamycin for 10 days. (11/18/14 progress
note, d/e 40-4, p. 21.)
attaches an unauthenticated document describing a condition
called pseudofolliculitis barbae as “occur[ring]
primarily in black males when the hair of the beard grows
into an adjacent hair follicle and forms a small, curled-up
mass within the follicle. Chronic infection is
present.” (d/e 42-1, p. 3.)
Sood does not address whether Plaintiff had this kind of
pseudofolliculitis, but Dr. Sood does aver that
pseudofolliculitis “commonly resolves itself with a
change in grooming” and can be treated with topical
antibiotic and anti-inflammatory creams. (Dr. Sood Aff ¶
5.) The parties do not address whether or what kind of
“change in grooming” might have helped
Plaintiff's condition. One medical note indicates that
Plaintiff kept his hair cut short, (7/23/16 progress note,
d/e 40-5, p. 22), but Plaintiff stated in his deposition that
he was “always bald-headed.” (Pl.'s Dep. 16.)
A “Wikipedia” article attached to Plaintiff's
response recommends that hair be allowed to grow out to
remedy and prevent pseudofolliculitis. (d/e 42-1, p. 1.)
Whether this approach was viable for Plaintiff is not
addressed. If Plaintiff is bald, then Plaintiff obviously
could not let his hair grow, but the Court does not
understand how, if Plaintiff is bald, Plaintiff's
“hair” could become trapped in adjacent
follicles. In any event, the parties do not maintain that
Plaintiff's condition could have been remedied by
Plaintiff letting his hair grow, so the Court assumes this as
disputes that he presented with “minor razor
bumps” at the November 18 visit. Plaintiff contends
that he had multiple, pus-filled clusters, “some
bleeding seeping with puss and leaving areas of discharged
puss on plaintiff's bedding, and shirt collars.”
(Pl.'s Resp., p. 3, d/e 42.) Plaintiff's cellmate
from August 2014 through February 2015 avers that
Plaintiff's bumps started as 3-4 bumps in August 2014 and
progressed in the next month or so to bumps “nearly
covering the entire back part of his head, and now there is a
large scar which looks horrible.” (Long Aff., ¶
11, d/e 42-1.) The cellmate also observed some blood and puss
on Plaintiff's mattress. (Long Aff., ¶¶4,
10-11.) At this stage, Plaintiff's description of the
appearance of his condition governs.
second round of clindamycin and bacitracin did not improve
Plaintiff's condition, according to Plaintiff. On
December 1, 2014, Plaintiff saw a nurse, who scheduled
Plaintiff for a follow-up appointment with the doctor. On
December 9, 2014, Dr. Sood saw Plaintiff. Dr. Sood avers that
Plaintiff's pseudofolliculitis was resolving, and in
order to ensure complete resolution, Dr. Sood prescribed a
third round of clindamycin and some therapeutic shampoo.
(Sood Aff. ¶ 8.) Plaintiff disputes Dr. ...