United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
G. WILKERSON, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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).
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).
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.
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).
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).
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 ...