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Gabb v. Wexford Wealth Source, Inc.

United States District Court, S.D. Illinois

May 22, 2018

TYRONE GABB, Plaintiff,



         In this Eighth Amendment deliberate indifference case, Magistrate Judge Wilkerson recommends that the Court deny the defendants' motion for summary judgment. (Docs. 55, 58.) The Court has received the defendants' objection to the Magistrate Judge Wilkerson's Report and the plaintiff's response to that objection. (Docs. 64, 66.) For the following reasons, the Court REJECTS the Report and GRANTS summary judgment in favor of the defendants.

         I. BACKGROUND

         Tyrone Gabb is an inmate at Lawrence Correctional Center (“Lawrence”). He claims to suffer from chronic back pain. (Compl. 5, ECF No. 1.) Specifically, Gabb says that he experiences pain (1) when standing for more than 15-20 minutes, and (2) when laying down. (Gabb Dep. 10:10-20, ECF No. 56-1.) To help alleviate the pain, he does body-weight exercises at the gym about once per week to stretch his back out. (Id. at 11:1-12:8.) Gabb also plays basketball in the prison gym on a regular basis, including the time periods at issue in this case. (Id. at 20:5-12; 25:22-26:9; 51:11-52:13.) Playing ball does not cause Gabb pain, apparently- only standing too long or laying down. (Id. at 61:12-62:15.)

         Gabb first presented his lower back pain to defendant Dr. John Coe-a physician at Lawrenc-in January 2014, during a follow-up appointment for an unrelated issue. Dr. Coe ordered an x-ray of Gabb's back. (Coe Dep. at 61:10-62:19, ECF No. 56-2; Def.'s Mot. Summ. J., Ex. D, at 1, ECF No. 56-4.) At another follow-up appointment in February 2014, Gabb once again presented to Dr. Coe for a “multiplicity of complaints, ” including dizziness, scrotum pain, and mild back pain. (Coe Dep. at 62:20-64:20, ECF No. 56-2; Defs.' Mot. Summ. J., Ex. D, at 2, ECF No. 56-4.) Dr. Coe examined Gabb and reassured him that he had no significant issues. (Coe Dep. at 64:19-20, ECF No. 56-2.)

         Gabb returned to Dr. Coe in September 2014 and complained about his back pain. (Id. at 65:1-66:23; Defs.' Mot. Summ. J., Ex. D, at 5, ECF No. 56-4.) Gabb explained that his back pain had been intermittent for years and stemmed from a childhood injury. Dr. Coe thoroughly examined Gabb's back once again, including a leg measurement evaluation, a straight leg-raising test, and a neurological examination of his legs. Dr. Coe then ordered another lumbar spine x-ray and prescribed two medications for Gabb: (1) Motrin, and (2) the muscle relaxer Robaxin. (Id.) When the x-ray results returned a few weeks later, Dr. Coe explained that it showed degenerative and arthritic changes in Gabb's back-so Dr. Coe formally diagnosed Gabb with chronic back pain, discontinued the Motrin, prescribed Naproxen (an ant-inflammatory drug used to reduce swelling and treat pain), and gave Gabb a back brace. (Coe Dep. at 67:13-68:17, ECF No. 56-2; Defs.' Mot. Summ. J., Ex. D, at 6, ECF No. 56-4.)

         Later on, Gabb claimed that the meds and the back brace were not working, and Dr. Coe said that Gabb should put in for a nurse sick call and then go through the proper procedure to be seen by a practitioner. (Pl.'s Resp. Mot. Summ. J., Ex. C, at 5, ECF No. 57-3.) So in February 2015, Gabb presented to a physician's assistant for a follow-up appointment regarding his back pain. (Defs.' Mot. Summ. J., Ex. D, at 7, ECF No. 56-4.) The assistant told Gabb to discontinue the Naproxen, take 650 mg of Tylenol four times per day for four months, and use an analgesic balm twice per day for three months.[1] (Id.)

         A month later, Gabb went back to the infirmary because he had “severe” abdominal pain, which he believed was a result of taking too much Tylenol. (Gabb Dep. 13:13-21, ECF No. 56-1; Defs.' Mot. Summ. J., Ex. D, at 8-9, ECF No. 56-4.) Defendant Nurse Kimmel examined Gabb and told him to (1) lower the dose of Tylenol; (2) drink plenty of fluids and eat properly; (3) plan on attending his follow-up appointment with the physician's assistant in June; and (4) come back to the infirmary if his symptoms worsened. (Id.; Kimmel Dep. 49:14-21, ECF No. 56-3.) Nurse Kimmel admits that she did not refer Gabb to a doctor because (1) his symptoms did not constitute an emergency, and (2) Gabb already had another appointment scheduled with the physician's assistant. (Kimmel Dep. 42:6-8, 49:14-18, ECF No. 56-3.) She also admits that she may have told Gabb that if he did not like the medication he was taking, he could buy something else from the commissary. (Id. at 47:21-49:7.)

         Gabb returned to the infirmary about two weeks later-albeit this time for issues with swallowing after another inmate elbowed him in the throat during a basketball match. (Defs.' Mot. Summ. J., Ex. D, at 10, ECF No. 56-4.) There is no mention of back pain on the medical record for that date. But a week after the basketball injury, Gabb returned to Nurse Kimmel at the infirmary and presented more abdominal pain, allegedly stemming from the Tylenol. (Id. at 12-13.) A conflict ensued. Nurse Kimmel tells one story: she says that Gabb refused to describe his pain other than it was due to Tylenol; he insisted on wanting a different medication; and he became argumentative and belligerent when he did not get what he wanted. (Id.; Kimmel Dep. 57-67, ECF No. 56-3.) Nurse Kimmel advised Gabb that once again, there was no medical need to refer Gabb to a doctor because his case did not constitute an emergency, especially considering he was already scheduled for a follow-up appointment with the physician's assistant. All of these facts are supported by the medical records. Gabb, however, tells a different story: as soon as he walked into the room, Nurse Kimmel said she was not going to refer Gabb to the doctor because he was not actually in pain; she told Gabb he did not go to school for nursing; she cursed at Gabb and told him he was “bitching and whining”; and she told Gabb that he is wasting the taxpayers' money. (Coe Dep. at 15:15-16:20, ECF No. 56-2.) Gabb claims that he just sat there and took the abuse. (Id. at 16:18-20.)

         A few weeks later at the end of April 2015, Gabb presented to the infirmary for abdominal pain once again, although to a different nurse. (Defs.' Mot. Summ. J., Ex. D, at 15, ECF No. 56-4.) The nurse noted that Gabb “appears pain free, ” but nevertheless “refused Motrin” in place of Tylenol. (Id.) Pursuant to protocol, however, the nurse was forced to refer Gabb to a doctor because he presented to the infirmary complaining of the same issue more than two times in one month. Gabb accordingly saw Dr. Coe again a week later, and Dr. Coe tightened Gabb's back support, refilled his prescription for Naproxen, and prescribed him Calcium 500 with Vitamin D supplements. (Pl.'s Resp. Mot. Summ. J., Ex. C, at 12, ECF No. 57-3.) Dr. Coe explained at his deposition that:

I had previously noticed that particularly among black inmates who can't digest milk very well compared to whites and therefore don't drink it, and that's really the only source of Vitamin D. And I had previously done Vitamin D levels on people and found out that it was all -- just the amount of low Vitamin D problems. And if your Vitamin D is low, you're more likely to have muscle spasms and tightness…so I just gave him calcium with Vitamin D to supplement, as a supplement because he -- he's not a milk drinker.

(Coe Dep. at 67:13-68:17, ECF No. 56-2.)

         In July 2015, Gabb returned to Dr. Coe once again. (Defs.' Mot. Summ. J., Ex. D, at 16, ECF No. 56-4.) Dr. Coe tightened the back support another time and described certain physical therapy exercises that Gabb could do in order to help stretch out his back. (Id.) In August 2015, Gabb presented to the physician's assistant yet again with complaints of abdominal pain-this time allegedly stemming from the Naproxen-and the physician's assistant ordered tests to rule out the chance that an abdominal infection had been causing the repeated symptoms. (Id. at 17.) The physician's assistant also prescribed Mobic, an anti-inflammatory that is known to be easier on the stomach than Naproxen.

         A month later, Gabb saw Dr. Coe for his back pain again, and this time he said it was creeping up into his middle back as well. (Id. at 18.) Dr. Coe ordered an x-ray of the thoracic spine, discontinued the Mobic because it was allegedly not working, and prescribed the muscle relaxant Robaxin. When the x-ray results returned a few weeks later, they indicated that Gabb had mild degenerative disc disease, so Dr. Coe gave Gabb more of the muscle relaxant-yet only at night-to help him sleep. (Id. at 19.) The stories here diverge again: Gabb says that Dr. Coe told him that Wexford does not run a pain clinic, and even though there were outside treatments that could help, he would not refer him for those treatments because they were too expensive. (Gabb Dep. 32:8-15, ECF No. 56-1.) Dr. Coe tells a different story: he testified that he would not say something like that, but rather he did not refer Gabb to a specialist outside of Lawrence because “in [his] medical opinion, it was not necessary.” (Coe. Dep. 88:13-20, ECF No. 56-2.) Meanwhile, Gabb continued to play basketball. On that note, Dr. Coe testified: “If [Gabb is] capable of running up and down a basketball court with whatever, you know, back troubles that he's having, you know, more power to him.” (Id. at 88:7-10.)

         In late 2015, Gabb brought this lawsuit against Dr. Coe and Nurse Kimmel, alleging that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment. Gabb also named their employer-Wexford Health Sources, Inc.-as a defendant for promulgating and promoting policies that led to the alleged constitutional violation. After Magistrate Judge Wilkerson appointed Gabb counsel, the defendants moved for summary judgment. (Doc. 55.) Magistrate Judge Wilkerson later ...

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