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Pendegraftt v. Butalid

United States District Court, S.D. Illinois

March 30, 2018




         Now 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), [1] 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. 154).[2]


         Plaintiff 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.[3] As it currently stands, Pendegraft is proceeding on the following counts against the following individuals:

COUNT 1: Kyle Thole, Dr. Alberto Butalid, Luke Brandmeyer, and Dr. Francis Kayira were deliberately indifferent to Plaintiff's needs, in violation of the Eighth Amendment.
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.

         Defendants 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)[4] Dr. Kayira filed a reply brief on January 4, 2018 (Doc. 208). Defendants Thole, Butalid, and Brandmeyer did not file reply briefs.


         Pendegraft 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).

         He was 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).

         It is 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).[5] Dr. Butalid indicated he ordered this lab work in order to determine if Pendegraft had an active infection (Doc. 204-2, p. 39).

         At the 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).[6]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).[7] 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).

         By the 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. 152-7).[8]

         Pendegraft 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 room.

         Brandmeyer 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).

         Pendegraft 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.[9] 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).

         Dr. 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).

         Brandmeyer 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).

         Pendegraft 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).

         A 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, 104).

         Sometime 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).

         Pendegraft 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 (Id.). Dr.

         McCleary's 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.).[10]

         Pendegraft 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.).

         Pendegraft 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.).

         Legal ...

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