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Shepherd v. Shah

United States District Court, S.D. Illinois

June 6, 2018

ANTHONY SHEPHERD, Plaintiff,
v.
DR. SHAH and NURSE JANE DOE, Defendants.

          REPORT AND RECOMMENDATION

          DONALD G. WILKERSON, UNITED STATES MAGISTRATE JUDGE.

         This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Summary Judgment filed by Defendant Shah (Doc. 41). For the reasons set forth below, it is RECOMMENDED the motion be GRANTED, and the Court adopt the following findings of fact and conclusions of law.

         Preliminary Matters

         While the burden is on the moving party to show entitlement to summary judgment, Federal Rule of Civil Procedure 56(c)-(e), requires the non-moving party to properly address another party's assertion of fact. If a party fails to address any such assertion, the Court may consider the facts undisputed and can grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show the movant is so entitled. Fed.R.Civ.P. 56(e)(2)-(3).

         Here, a copy of the Motion for Summary Judgment was sent to Shepherd at the address on file with the Court (Doc. 41, p. 5). Included with the motion was a Federal Rule of Civil Procedure 56 Notice of Motion (Doc. 43, p. 3), which contains a warning that failure to respond to the motion or address facts asserted in the motion could result in the Court considering those facts undisputed, and may form the basis for granting summary judgment. Plaintiff did not file a response to the pending motions. Thus, the Court finds the facts asserted in the Motion for Summary Judgment undisputed.

         Findings of Fact

         Plaintiff Anthony Shepherd filed a complaint pursuant to 42 U.S.C. §§ 1983, 1985, and1986 in the United States District Court for the Northern District of Illinois on March 18, 2016. See Shepherd v. Shah, et al. No. 16-cv-3424 (N.D. Ill. 2016). In his complaint, Plaintiff claims that he was denied adequate medical care for injuries he sustained at Southwestern Illinois Correctional Center (“SWICC”) on August 2-4, 2014. Id. SWICC is located in the federal judicial district for the Southern District of Illinois, and after reviewing the complaint, the Northern District determined that venue for the action lies in the Southern District. The case was therefore transferred to this district for all further action. Id.

         According to the complaint, Plaintiff was denied adequate medical care for injuries that he sustained to his foot, head, shoulder, and back at SWICC on August 2-4, 2016 (Doc. 1, p. 1). On August 2, 2014, Plaintiff allegedly injured his foot while playing soccer at the prison (Doc. 1, p. 2). The same day, he was seen in the healthcare unit (“HCU”) by an unknown nurse (“Nurse Jane Doe”) (Doc. 1, p. 2). He complained of swelling and intense foot pain (Doc. 1, p. 2). Although Nurse Doe initially instructed Plaintiff to “come back on Monday” for further evaluation and treatment, he insisted on being treated immediately (Doc. 1, p. 2). Nurse Doe wrapped his foot with a bandage and gave him Tylenol for pain (Doc. 1, p. 2). When Plaintiff pointed out that he was assigned to a top bunk on the second floor, Nurse Doe stated, “Well you're only 23; you'll be alright” (Doc. 1, p. 2).

         While climbing down from his top bunk later that day, Shepherd fell and injured his shoulder (Doc. 1, p. 2). The following day on August 4, 2014, Shepherd fell down approximately twelve stairs on his way to the prison's dietary unit (Doc. 1, p. 3). At the time, he was using crutches (Doc. 1, p. 3). Two officers called a “code 3, ” and several additional officers and a nurse arrived at the scene (Doc. 1, p. 3). Two officers carried Shepherd to the HCU on a stretcher (Doc. 1, p. 3).

         For the next three hours, Shepherd says he was left strapped to the stretcher unattended (Doc. 1, p. 3). Dr. Shah's Declaration and the medical records show the nurse in the HCU contacted Dr. Shah regarding Shepherd's condition, and Shah instructed her to admit Shepherd to the infirmary (Doc. 42-1, p. 5). Shah then conducted an examination of Shepherd about a couple of hours later, at around 9:30 a.m. (Doc. 42-3, ¶ 6; Doc. 42-1, p. 10). As a result of his examination, Dr. Shah ordered Shepherd's left ankle bandaged, a cervical-collar was used to immobilize his neck, Tylenol with codeine was prescribed for immediate pain control, and Flexeril (a muscle relaxant) was prescribed for immediate use (Doc. 42-3, ¶7). Because he was concerned about a possible spine fracture, Dr. Shah contacted an emergency room physician at Touchette Hospital, and made a referral for a spine x-ray (Doc. 42-3, ¶ 7). During his deposition, Shepherd admitted he had no idea Dr. Shah was the person who arranged for him to be seen at the hospital (Doc. 42-2, 53:7-21).

         Shepherd was taken by ambulance to a Touchette Hospital (Doc. 1, p. 3). There, a doctor examined Plaintiff in the emergency room and ordered x-rays (Doc. 1, p. 3). After the doctor discussed with Shepherd that the x-rays revealed no fracture (Doc. 42-2, 57:5-9), he was transported back to the prison where he met with Doctor Shah (Doc. 1, p. 4). Doctor Shah again examined Plaintiff, and issued several orders, including: low bunk and low gallery permits for one week, a medical lay-in for three days, Ibuprofen for pain, Flexeril as a muscle relaxant, and a follow up visit in two weeks (Doc. 42-3, ¶ 8). Dr. Shah determined crutches were not medically necessary, given the lay-in order and his examination of Shepherd's ankle (Doc. 42-3, ¶ 8).

         For the next ten months, Shepherd claims that he was denied medical care for his back and shoulder injuries (Doc. 1, p. 4). However, the uncontested evidence shows that Shah saw Shepherd on seven separate occasions: August 18, 2014; September 12, 2014; September 18, 2014; October 10, 2014; December 30, 2014; January 9, 2014 and January 9, 2015 (Doc. 42-3, ¶¶ 11, 13, 14, 16, 17, 20, 21 and 23). The medical records show Shah performed a physical examination of Shepherd at each of these visits with no significant findings (Doc. 42-3, ¶¶ 11, 13, 14, 16, 17, 20, 21 and 23). Regardless, Shah treated Shepherd's pain symptoms initially with Ibuprofen and later with Naprosyn (Doc. 42-3, ¶¶ 11, 13, 14, 16, 17, 20, 21 and 23). He also ordered and then refilled the Flexeril prescription (Doc. 42-3, ¶¶ 11, 13, 14, 16, 17, 20, 21 and 23).

         Legal Standards

         Summary judgment is proper only if the moving party can demonstrate there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any doubt as to the existence of a genuine issue of fact must be resolved against the moving party. Adicke ...


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