United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE
pending before the Court are the Motions for Summary Judgment
filed by Defendants (Doc. 141, 148, and 154). For the reasons
set forth below, the Motion for Summary Judgment filed by
Defendant Kayira is denied in part and mooted in part (Doc.
141),  the Motion for Summary Judgment filed by
Defendant Butalid is granted (Doc. 148), and the Motion for
Summary Judgment filed by Defendants Brandmeyer and Thole is
denied in part, granted in part, and mooted in part (Doc.
Curtis Pendegraft, an inmate who is currently incarcerated at
the Vandalia Correctional Center, is proceeding on a
Complaint filed on July 28, 2015 (Doc. 1), and screened
pursuant to 28 U.S.C. § 1915A on August 17, 2015 (Doc.
11). He alleges that while he was incarcerated at the Clinton
County Jail, from April 8 to August 3, 2014, a hip bone
infection was not treated appropriately by various personnel.
He further alleges that he was placed in segregation at the
Jail after he complained about the lack of treatment.
According to Pendegraft, the lack of appropriate treatment
continued after he was taken into Illinois Department of
Corrections (IDOC) custody in January 2015 and housed at the
Graham Correctional Center. As it currently stands,
Pendegraft is proceeding on the following counts against the
COUNT 1: Kyle Thole, Dr. Alberto Butalid,
Luke Brandmeyer, and Dr. Francis Kayira were deliberately
indifferent to Plaintiff's needs, in violation of the
COUNT 2: Kyle Thole retaliated against
Plaintiff for complaining about his need for care by placing
him in segregation, in violation of the First Amendment.
filed their respective motions for summary judgment in March
2017 (Docs. 141, 148, 154). Due to difficulties with his
recruited counsel, Pendegraft was not able to file
substantive responses to the motions until December 2017
(Docs. 203, 204, and 205) Dr. Kayira filed a reply brief on
January 4, 2018 (Doc. 208). Defendants Thole, Butalid, and
Brandmeyer did not file reply briefs.
testified at his deposition that several years prior to his
detainment at the Clinton County Jail, which began on April
8, 2014, he suffered from Osteomyelitis, an infection of his
hip that required him to be hospitalized and receive
intravenous antibiotics (Doc. 203-1, pp. 29-34). Pendegraft
further testified that sometime during the month of April
2014, the old wound on his hip opened up and started to drain
(Id. at p. 43). Pendegraft filled out sick call
slips on May 8 and 12, 2014 (Id. at p. 128; Doc.
204-2, pp. 148, 149). On the May 8th slip, Pendegraft wrote,
“I have a infection and need to see doctor. This is the
infection that I have had in the past and has caused me to
have 3 prior surgeries. Can I please see the doctor.”
(Doc. 204-2, p. 148). On the May 12th slip, Pendegraft wrote,
“I have a bad infection and I have been hospitalized
because of this. My chest is hurting bad, my left arm and
hand [are] numb. I lay down and can hardly breath. This is
the 2nd slip I filled out.” (Doc. 204-2, p. 149).
seen by Nurse Michelle Nordike on May 14, 2014 (Doc. 203-1,
p. 129; Doc. 204-2, p. 170). Nordike wrote that Pendegraft
complained of “chest pain [and] [left] arm numbness
[and] tingling in fingers” (Doc. 204-2, p. 170). One
week later, Pendegraft was taken to see Dr. Alberto Butalid
at his office at Clinton County Rural Health in Carlyle,
Illinois (Doc. 203-1, pp. 55, 56; Doc. 149-2; Doc. 152-1).
Clinton County Rural Health is a private practice that is
owned by and affiliated with HSHS St. Joseph's Hospital
in Breese, Illinois (Doc. 149-2). Dr. Butalid does not have a
written contract with the county or state to render medical
services to inmates (Id.). Defendant Luke Brandmeyer
was the officer who took Pendegraft to his appointment with
Dr. Butalid (Doc. 203-1, p. 56). Since becoming a sergeant,
Brandmeyer “took care of medical” at the Jail but
has no medical training (Doc. 204-4, p. 25). He went to as
many appointments with Pendegraft as he could because he was
the one “dealing with him mostly” (Id.
at p. 39).
undisputed that Pendegraft complained to Dr. Butalid about an
infection and also told the doctor about his history of
infections (Doc. 203-1, p. 56; Doc. 152-1). Pendegraft claims
he also told Dr. Butalid that he had a wound on his right hip
that was open and draining, but Dr. Butalid did not look at
his hip (Doc. 203-1, pp. 56-57). Dr. Butalid said, however,
that Pendegraft did not tell him about an open wound, and the
medical records do not reflect such a complaint (Doc. 204-2,
pp. 43-44; see Doc. 152-1, p. 1). The records
indicate that Pendegraft complained of aches and pains in his
right shoulder, right hip, neck, and back, and of numbness
and a tingly sensation in his left arm for the past two weeks
(Doc. 152-1, p. 3). The records also indicate that Pendegraft
has scars on his right hip, right shoulder, and back, and
that the general appearance of his skin was normal
(Id.). Dr. Butalid diagnosed Pendegraft with
arthritis, gave him Ibuprofen, and also directed a follow-up
appointment in two weeks (Doc. 203-1, pp. 56- 61; Doc.
152-1). Dr. Butalid also ordered lab work, specifically a
complete blood count (CBC), complete metabolic panel (CMP),
and erythrocyte sedimentation rate (ESR) (Doc.
152-1). Dr. Butalid indicated he ordered this lab
work in order to determine if Pendegraft had an active
infection (Doc. 204-2, p. 39).
follow-up appointment on June 4, 2014, Dr. Butalid's
notes indicate a one centimeter lesion with drainage on
Pendegraft's lower right abdomen (Doc. 152-2, p.
2).The notes also indicate that
Pendegraft's bloodwork was unremarkable except for
elevated “ESR of 48” (Id.). Pendegraft
testified that Dr. Butalid told him that his white blood cell
count was high and he had an infection (Doc. 203-1, p. 65).
Dr. Butalid ordered a wound culture and sensitivity testing
of the wound in order to identify the bacteria causing the
infection and the medication that would best treat it (Doc.
152-2; Doc. 204-2, pp. 71). Dr. Butalid also prescribed a
ten-day course of antibiotics, directed a follow-up in one
week, and ordered Pendegraft to keep the wound covered (Doc.
152-2; Doc. 204-2, p. 156). These instructions were conveyed
to the Jail using their form (Doc. 204-2, p. 156).
follow-up appointment on June 11, 2014, the results of the
wound culture were back and showed that Pendegraft had Staph
aureus (Doc. 204-2, p. 64; see also Doc. 152, p. 6).
Dr. Butalid noted that the wound was “still
draining” and referred Pendegraft to Dr. Timothy Ruff,
a general surgeon, for an evaluation to see if the wound
could be closed (Doc. 152-3; see Doc. 204-2, pp. 98,
175-189). It is undisputed that Pendegraft saw Dr. Ruff on
July 1, 2014 (see Doc. 204-2, pp. 175-189). Dr. Ruff
noted that the wound was open about 3 x 3 millimeters with
“very slight purulent exudate” (Id.).
Dr. Ruff ran additional lab work and another wound culture
(see id.). He also ordered a CT scan of
Pendegraft's abdomen and pelvis, which was performed on
July 2nd (see id.). The CT scan revealed an
“irregularity” on Pendegraft's right hip bone
possibly caused by chronic Osteomyelitis (Id.; Doc.
152-5, p. 1). Pendegraft had a follow-up appointment with Dr.
Ruff on July 14, 2014 (see Doc. 204-2, pp. 175-189).
Dr. Ruff indicated that the wound culture indicated
Pendegraft had MSSA, or methicillin susceptible
Staphylococcus aureus (Id.). Dr. Ruff's
diagnosis was “probable chronic osteo[myelitis],
” and he noted that Pendegraft needed to be referred to
an infectious disease specialist for further evaluation and
treatment but that Dr. Butalid would take care of the
referral (Id.). Although it isn't entirely
clear, it appears that Dr. Butalid referred Pendegraft to Dr.
Nida Subhani sometime within the week following the second
visit with Dr. Ruff (see Doc. 152-6, Doc.
saw Dr. Butalid again on July 22, 2014, at which time
Pendegraft complained about a “new spot” on his
right hip and stated “he would like to be admitted to
the hospital because he is doing worse” (Doc. 152-5, p.
1). Dr. Butalid noted a second open wound on Pendegraft's
hip and noted that the lesions were now three centimeters,
red, swollen under the skin, and “sore with a point in
the middle draining scanty yellow discharge”
(Id. at p. 2; Doc. 204-2, p. 66). Dr.
Butalid diagnosed Pendegraft with an abscess and cellulitis
on his right hip and an enlarged lymph node in his right
groin (Doc. 152-5, p. 3; Doc. 204-2, p. 72). He ordered a
ten-day course of a different antibiotic-doxycycline hyclate,
continued the prescription for Ibuprofen for Pendegraft's
pain, and directed Pendegraft to follow-up with him in ten
days (Doc. 152-5, p. 3). In the paperwork he provided to the
Jail, Dr. Butalid included instructions to change the
dressing on Pendegraft's wound daily and to “send
to ER for possible admission per [Pendegraft's]
request” (Doc. 204-2, p. 163). At his deposition, Dr.
Butalid confirmed that it was his intent that Pendegraft be
taken to the emergency room and that he told the guards to
take him to the emergency room (Doc. 204-2, p. 69-70). It is
undisputed that Pendegraft was not taken to the emergency
did not go with Pendegraft to the July 22nd appointment with
Dr. Butalid (Doc. 204-4, p. 53). Instead, Transport Officer
Lupker took Pendegraft to that appointment (Id. at
p. 63). Although Brandmeyer reviewed Dr. Butalid's
recommended course of treatment, he did not recall seeing the
instruction about the emergency room and did not know why
Pendegraft was not taken to the emergency room (Id.
at pp. 53, 64-66).
saw Dr. Subhani two days later on July 24, 2014 (Doc. 152-7).
She noted that Pendegraft had two lesions, one on the right
lower abdomen and another on the right lateral hip
(Id. at p. 3). She diagnosed Pendegraft with chronic
Osteomyelitis and MSSA infection and stated:
Unless a surgical intervention is done he will need
antibiotics for a very long time. Given that the infection is
flared and appears to be worsening I will prefer we treat
patient with at least 3-4 weeks of IV antibiotics such as
rocephine given MSSA infection and then resume doxycycline.
Patient does have appointment with an orthopedic
surgeon. I will see what he will recommend.
Meanwhile I have asked the sargent [sic] accompanying the
patient to find out how we can arrange the IV antibiotics. I
will follow. However unless a treatment is started no
appointment is being made.
(Id. at pp. 3-4).
Butalid received Dr. Subhani's report on July 29, 2014
(Doc. 204-2, p. 80). When asked if he passed along Dr.
Subhani's recommended course of treatment to the Jail, he
testified, “I think at one point my staff called and
checked, you know, there was something done that, you know,
but I didn't have any record of that” (Id.
at p. 82). He went on to testify more affirmatively that one
of his staff (but he could not remember who) called the Jail
to make sure that he was getting the intravenous antibiotics
recommended by Dr. Subhani (Id. at pp. 82-83).
Defendant Brandmeyer was the contact person at the Jail for
such requests (Id. at pp. 83-84).
testified that he went with Pendegraft to his appointment
with Dr. Subhani (Doc. 204-4, pp. 68-69). He recalls
discussing with Dr. Subhani the logistics of administering
the antibiotics, e.g., that Pendegraft needed to get
a PICC line and whether the antibiotics needed to be
administered at the hospital or could be administered at the
Jail (Id. at p. 69; see also Doc. 204-3,
pp. 40-41). He also recalls calling Dr. Subhani and
discussing whether Pendegraft needed the intravenous
antibiotics immediately and if there were any other treatment
options (Doc. 204-4, p. 70; see also Doc. 204-3, pp.
40-41). Brandmeyer recalls discussing the matter with the
Sheriff (Doc. 204-4, p. 70). According to Brandmeyer,
“there wasn't a final decision not to follow
through with that treatment. [Pendegraft] ended up being
released from custody, and he was able to get that treatment
on his own” (Id. at p. 71). Pendegraft
testified, however, that he spoke to Officer Kyle Thole about
the intravenous antibiotic treatment recommended by Dr.
Subhani, and Thole told him he would not be getting the
treatment (Doc. 204-1, pp. 102, 167). Pendegraft then asked
Thole for a grievance form, and Thole “got mad”
and sent Pendegraft to segregation (Id.). For his
part, Officer Thole testified that Pendegraft was placed in
segregation for being disrespectful towards him (Doc. 204-5,
pp. 12-14). Thole recounts that Pendegraft was “loud,
disruptive, screaming, you know, just rude” and that he
was “wanting to go to the ER room” (Id.
at p. 13).
claims he was put in segregation sometime after his
appointment with Dr. Subhani on July 24, 2014-“like
three days after I seen Dr. Subhani” (Doc. 203-1, p.
168). And he stayed in segregation until he pleaded guilty
and was released on bond on August 3, 2014 (Doc. 203-1, p.
169). Thus, according to Pendegraft, he was in segregation
for approximately one week to a week and a half. Thole
claims, however, that Pendegraft would have only been in
“lock down” for 72 hours (Doc. 20-, p. 15).
couple days later, on August 3, 2014, Pendegraft accepted a
plea deal because Clinton County agreed to release him on
bond so that he could go to the hospital and get the
intravenous antibiotic treatment (Doc. 203-1, p. 100-103).
Pendegraft went back to see Dr. Subhani on August 12th; he
was admitted to the hospital, had a PICC line installed, and
began a six-week course of intravenous antibiotics (Doc.
203-3, pp. 46-51, 107-113). When Pendegraft finished the
course of intravenous antibiotics, Dr. Subhani directed him
to take doxycycline indefinitely, “until . . . we know
the source of the infection is removed” (Doc. 203-3, p.
60). She provided him with an ongoing prescription for the
doxycycline and instructed him to begin taking it “the
day you stop the IV antibiotic” (Id. at p. 60,
during the course of intravenous antibiotics, Pendegraft
started seeing Dr. Mark McCleary for primary care
(see Doc. 203-3, p. 56). Dr. McCleary ordered an MRI
of Pendegraft's right hip and lumbar spine, which were
performed on October 20, 2014 (Doc. 142-2). Approximately one
week later, Dr. Jeffrey Whiting, an orthopedic surgeon at St.
Louis University Hospital, noted that it appeared the
osteomyelitis in Pendegraft's right hip “cleared up
. . . as his new magnetic resonance imaging does not show any
osteomyelitis or joint effusion in the right hip” (Doc.
142-1). Dr. Whiting determined that Pendegraft was not a
candidate for total hip replacement, and he recommended that
Pendegraft see a general surgeon or a spinal surgeon for
further evaluation “given his history of a draining
wound from an intra-abdominal drain and questionable history
of infected hardware from his lumbar spine”
(Id.). Pendegraft saw another surgeon in January
2015, who indicated there was no evidence of infection in
Pendegraft's lumbar spine fusion area, and he did not
recommend any further surgery (Doc. 203-1, pp. 117- 118).
saw his primary physician Dr. McCleary one last time on
January 20, 2015 (Doc. 142-3). At that appointment,
Pendegraft complained of pain in his right shoulder when he
moved it (Id.) Dr. McCleary noted that Pendegraft
was “taking percocet regularly, but it is not
helping” (Id.). After examining Pendegraft,
Dr. McCleary indicated that Pendegraft was showing signs of
bursitis in his shoulder, which the doctor decided to treat
with a 10-day course of the steroid prednisone
notes state: “Will treat with prednisone taper. No.
additional pain medication at this time. Follow up as needed.
Continue current medication. Continue current therapy.”
(Id.). Pendegraft's current medications listed
were Ambien (insomnia medication),
Lisinopril-hydrochlorothiazide (blood pressure medication),
and Percocet (pain medication) (Id.).
reported to the Clinton County Jail on January 27, 2015, and
he was transferred to Graham Correctional Center to serve out
his sentence. A nurse at Graham wrote that Pendegraft arrived
“[with] meds verified through Clinton Co[unty]
Jail” (Doc. 142-8, p. 1). The nurse further indicated
that Dr. Francis Kayira, the physician at Graham, was
notified and that the doctor's orders had been received
(Id.). Specifically, Dr. Kayira ordered that
Pendegraft's blood pressure medications be continued but
ordered that his insomnia medication and the doxycycline-the
antibiotic that Dr. Subhani recommended he take
indefinitely-be discontinued (Id.). Dr. Kayira also
discontinued the pain medication and instead prescribed a
two-week supply of Tylenol (Id.). He also ordered
another culture of Pendegraft's hip wound and ordered
that the wound be kept covered (Id.).
was transferred to Vienna Correctional Center on February 13,
2015 (Doc. 203-1, p. 209). The physician at Vienna called Dr.
Subhani's office on the 25th and asked if Pendegraft was
supposed to continue the doxycycline (Doc. 203-3, pp. 60-62,
100). A nurse from Dr. Subhani's office made a note
indicating she spoke to the prison physician, and he was
going to continue the doxycycline for “chronic
suppression” of the infection (Id.). It
appears from a medication administration record that within
two weeks of Pendegraft's arrival at Vienna, he started
receiving his antibiotics again and Tylenol #3 for his pain
(Doc. 142-6). Pendegraft testified that, in July 2015, he
developed another infection, this time in his right shoulder
(Doc. 203-1, pp. 121-122). He acknowledged, however, that no
doctor has told him that the shoulder infection was in any
way related to his prior hip infection (Id.).