United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS United States Magistrate Judge
to 42 U.S.C. § 1983, pro se Plaintiff Rigoberto
Toscano filed his complaint alleging deliberate indifference
against Dr. Osmundson, Dr. Shah, and Wexford Health Sources,
Inc. for the treatment of his bilateral inguinal hernias.
This matter is before the Court on Defendants' motion for
summary judgment (Docs. 88 and 89). Plaintiff has filed a
response (Doc. 96) in opposition to the motion. The matter
has been referred to United States Magistrate Judge Stephen
C. Williams by United States District Judge J. Phil Gilbert
pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c),
Federal Rule of Civil Procedure 72(b), and Local Rule
72.1(a). Based on the following, it is
RECOMMENDED that the Court
GRANT Defendants' motion for summary
filed his complaint against Defendants on February 29, 2016
(Doc. 1). As narrowed by the Court's threshold order
(Doc. 10), Plaintiff's complaint alleges that he suffers
from a hernia and that neither of the defendant doctors
provided treatment for Plaintiff (Doc. 10, p. 2). As to
Defendant Wexford Health Sources, Inc. (hereinafter
“Wexford”), Plaintiff's complaint alleges
that the company will not authorize the procedure due to cost
time the events that make up the claim in his lawsuit took
place, Plaintiff was housed at Robinson Correctional Center.
Plaintiff has two inguinal hernias located in his groin (Doc.
89-1, p. 2). Plaintiff was lifting weights in March 2015 and
the next day, while playing soccer, he felt pain in his groin
(Id.). As a result of the pain he felt, he put in a
sick call request (Id.). Plaintiff was seen by a
nurse on March 24, 2015 (Id. at p. 3; Doc. 89-2, p.
2). Plaintiff also believes that he saw Dr. Shah on that day
as well as the nurse, but is not positive (Doc. 89-1, p. 2).
The medical records indicate that he saw Dr. Shah on March
26, 2015 (Doc. 89-2, p. 3). Shah diagnosed his pain as a
muscle strain and prescribed ibuprofen (Doc. 89-1, p. 3;
89-2, p. 3).
was seen again in the healthcare unit on June 3, 2015 for
pain in his groin area (Doc. 89-2, p. 4). It was noted at
that time that he had no anatomical abnormalities or signs of
a hernia (Id.). He again was instructed to avoid
heavy lifting and to follow-up in three to five days
(Id.). Plaintiff was seen by the nurse again on June
9, 2015 for pain in his right groin (Doc. 89-2, p. 5). He was
referred to the doctor (Id.).
saw Dr. Osmundson on June 16, 2015 for pain in his right side
(Doc. 89-1, p. 3; 89-2, p. 6). Plaintiff testified that
Osmundson noted a bulge on his right side and told him that
it was a hernia (Doc. 89-1, p. 3). Osmundson told him that
the hernias were very little and that they would go away on
their own (Id.). Plaintiff recalled asking about
surgical options and Osmundson informed him that they were
too small for surgery (Id.). Osmundson found no
tenderness and prescribed Fibercon, increased fluid,
exercise, and Tylenol as needed (Doc. 89-2, p. 6).
saw the nurse again on November 6, 2015 (Doc. 89-2, p. 7;
89-1, p. 7). Plaintiff informed the nurse that he had a
hernia in his right groin and he was working in the dietary
which caused it to flare up (Doc. 89-2, p. 7). Plaintiff
testified that because the doctor was not in the office that
day, he was given a “lay in” so that he did not
have to work until he saw the doctor (Doc. 89-1, p. 7; 89-2,
p. 7-8). Plaintiff indicated that he lifted crates of milk in
the dietary and that it would sometimes cause him pain with
his hernia (Id. at p. 6). He testified that the
hernia only hurt when it popped out and that if he pushed the
bulge back in, it would stop hurting (Id. at p. 7).
The nurse noted that his hernia was not bulging at the time
of the examination (Doc. 89-2, p. 8).
was seen by a doctor on November 10, 2015 (Doc. 89-2, p. 9).
At that time, the doctor noted an inguinal hernia and
scheduled an ultrasound (Id.; 89-1, p. 7). The
ultrasound was approved by Wexford on November 18, 2015 (Doc.
89-2, p. 10, 17). Plaintiff received an ultrasound on
December 4, 2015 (Id. at p. 16). The ultrasound
confirmed that Plaintiff had small bilateral inguinal hernias
(Id.). Plaintiff testified that Shah informed him at
a January 11, 2016 visit that there were two hernias but that
they were small and no further treatment was needed unless
they became incarcerated or strangulated (Doc. 89-1, p. 7,
9). Shah told him that they were not going to do surgery
because they were not strangulated or life-threatening
(Id. at p. 9; 89-2, p. 12). The January 11, 2016
visit was his last visit with doctors while at Robinson
Correctional Center (Id. at p. 9). Plaintiff
transferred from Robinson in August 2017 (Id. at p.
testified that he later put in for another sick call but that
the nurse did not let him see the doctor (Doc. 89-1, p. 7-8).
The nurse told him that they were not going to prescribe pain
medication or do anything further for his hernias unless they
were incarcerated (Id. at p. 8). While he did not
get any more Tylenol or ibuprofen from the healthcare unit,
he was able to buy the pain medication in the commissary
(Id.). He took the pain medication when he was in
pain (Id.). While the pain medication helped the
pain, Plaintiff testified that he still had to push the
hernia back in to stop the pain completely (Id.).
alleges that Dr. Shah was deliberately indifferent for not
identifying the hernias at the March 2015 visit (Doc. 89-1,
p. 9). He also alleges that both Shah and Osmundson were
deliberately indifferent for not referring Plaintiff for
surgery for his hernias (Id. at p. 9-10). Plaintiff
testified that he wants surgery to fix the hernias but
acknowledged that no doctor has told him that he actually
needs surgery (Id. at p. 10). Plaintiff indicated
that the doctors told him surgery was not necessary unless
the hernias were incarcerated (Id.). At the time of
his deposition, Plaintiff testified that he recently did not
have any pain from his hernias (Doc. 89-1, p. 4, 10).
Sometimes the hernias push out and cause him pain
(Id. at p. 5). He sometimes has pain the next day
after running although he did not start running until after
he was transferred from Robinson Correctional Center
(Id. at p. 4-5). Plaintiff testified at his
deposition that while the hernias are still present, he had
not really felt them like he used to feel them (Id.
at p. 10).