United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
matter is before the Court on a Report and Recommendation of
United States Magistrate Judge Donald G. Wilkerson (Doc. 49),
which recommends that the Motion for Summary Judgment filed
by Defendant Vipin Shah and Tracy Peek (Docs. 42 and 43)
be granted. The Report and Recommendation was entered on June
1, 2018. Defendants Shah and Peek filed a timely objection to
the Report and Recommendation on June 15, 2018 (Doc. 50).
recommended by Magistrate Judge Wilkerson, the Court
construes the document filed by Plaintiff Leshurn Hunt on
December 19, 2017 (at Doc. 44) to be a Response to
Defendant's Motion for Summary Judgment, rather than a
Cross Motion for Summary Judgment.
Shah and Peek filed a Motion for Summary Judgment as to
Plaintiff Leshurn Hunt's (“Hunt”) claims
against them, which are alleged within Count 2 of his
Complaint. In Count 2, Hunt alleges an Eighth Amendment claim
for deliberate indifference to a serious medical need by
certain Unknown Orange Crush Officers and nurses, as well as
by Shah and Peek (Doc. 6, p. 5).
a search conducted on March 10, 2014 or March 13, 2014,
Hunt's housing unit at Pinckneyville was searched by the
Orange Crush Tactical Team (Doc. 43-1, p. 5). During that
search, an unknown Orange Crush officer forcefully grabbed
Hunt's left arm and pushed him to the ground, causing
injury (Doc. 43-1, p. 11, 17). Specifically, Hunt experienced
a sharp pain in his left arm and lower back (Doc. 43-1, p.
22). This pain continued so Hunt submitted various sick call
request slips following the incident (Id.). On March
18, 2014, a nurse came to Hunt's cell and examined him
during lockdown (Doc. 43-1, p. 22, Doc. 43-4, p. 12). The
note indicates that Hunt complained of arm discomfort and his
hand was warm, but his hand was normal in color and moved
easily (Doc. 43-4, p. 12). The nurse discussed Hunt's
complaints with Shah, who did not examine Hunt at this time,
but prescribed Tylenol for the pain (Id.). Shah also
recommended Hunt follow up with nurse sick call if the pain
continued to put in sick call requests for his pain (Doc.
43-1, p. 24). On March 26, 2014, Hunt was seen during nurse
sick call for complaints of painful hemorrhoid complications
and referred to the doctor (Doc. 43-4, p. 14). The next day,
on March 27, 2014, Hunt was seen by Shah for hemorrhoid
treatment (Doc. 43-4, p. 16). Hunt explained in his
deposition that he was supposed to be seen at this time for
his arm and back pain as well, as he specified this on his
request slips (Doc. 43-1, p. 24; Doc. 44, p. 50, 52). During
his meeting with Shah on March 27, 2014, Hunt told Shah that
his arm and back still hurt, but Shah responded that Hunt was
not there for that and told him to leave (Doc. 43-1, p.
next time Hunt was seen by a nurse for his back and arm pain
was on April 5, 2014; he was given Motrin (Doc. 43-4, p. 18).
On April 19, 2014, Hunt was again seen by a nurse for back
and arm pain (Doc. 43-4, p. 21). This time, he was referred
to Shah (Id.). At an appointment on April 22, 2014,
Shah examined Hart's arm and back and determined that he
was not displaying any acute injuries or swelling (Doc. 43-4,
p. 22; Doc. 43-1, p. 26; Doc. 43-2, p. 3). Shah prescribed
Ibuprofen and ordered an x-ray of Hart's spine (Doc.
43-4, p. 22; Doc. 43-2, p. 3). An x-ray was performed on
April 23, 2014. It showed degenerative changes to Hunt's
spine, but did not show any acute injuries or fractures (Doc.
43-2, p. 3). Based on Shah's examination of the x-ray
results, he did not think that additional treatments were
medically necessary (Id.).
submitted another sick call request on April 24, 2014,
relating to his back and arm pain (Doc. 44, p. 51). An
appointment was then scheduled for June 5, 2014, but Hunt did
not show up (Doc. 43-4, p. 23). On June 11, 2014, Hunt was
seen by Peek for pain in his lower spine (Doc. 43-1, p. 28).
Peek's note shows that Hunt had no gait disturbance and
was able to lean forward and straighten up without any
distress or acute discomfort (Id.). She indicates
that Hunt demanded to be seen by a doctor and refused
medication (Id.). Hunt indicates, however, that she
falsified her report, refused to examine him, and did not
offer him any medication (Doc. 43-1, p. 28).
Report and Recommendation
Judge Wilkerson recommends denying Defendants' motion for
summary judgment in its entirety. As to Shah, Magistrate
Judge Wilkerson found that Hunt raised claims against Shah in
both his role as Hunt's treating physician and his role
as the medical director at Pinckneyville. Magistrate Judge
Wilkerson specifically concluded that, as to Hunt's claim
against Shah as his treating physician, a jury could find
that Shah knowingly refused treatment and persisted in a
course of treatment known to be ineffective. As to the claim
against Shah as the medical director at Pinckneyville,
Magistrate Judge Wilkerson found that material issues of fact
exist as to Shah's responsibilities and knowledge
regarding the disregarded medical request slips. As to Peek,
Magistrate Judge Wilkerson concluded that a reasonable jury
could find that Peek refused to provide Hunt with pain
medication and refused to conduct an exam and such treatment
could constitute deliberate indifference to a serious medical
timely objections are filed, the Court must undertake a
de novo review of the Report and Recommendation. 28
U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b); SDIL-LR
73.1(b); Harper v. City of Chicago Heights, 824
F.Supp. 786, 788 (N.D. Ill. 1993); seealso
Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992).
The Court “may accept, reject or modify the magistrate
judge's recommended decision.” Harper, 824
F.Supp. at 788. In making this determination, the Court must
look at all of the evidence contained in the record and give
fresh consideration to those issues to which ...