United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 1983, pro se Plaintiff Patrick
Justi brings claims against Defendant Vipin Shah for
deliberate indifference in the treatment of his left elbow
and right shoulder pain. This matter is currently before the
Court on Defendant's motion for summary judgment (Docs.
58 and 59). Plaintiff has filed a response (Doc. 65) in
opposition to the motion.
matter has been referred to United States Magistrate Judge
Stephen C. Williams by United States District Judge J. Phil
Gilbert pursuant to 28 U.S.C. §§ 636(b)(1)(B) and
(c), Federal Rule of Civil Procedure 72(b), and Local Rule
72.1(a). Based on the following, it is RECOMMENDED that the
Court GRANT Defendant's motion for summary judgment.
filed his complaint on April 11, 2016 alleging deliberate
indifference by Defendant Vipin Shah in the treatment of
Plaintiff's elbow and shoulder pain (Doc. 1). At that
time of Plaintiff's treatment, Plaintiff was incarcerated
at Robinson Correctional Center (Doc. 59-1, p. 3). Plaintiff
testified that prior to his incarceration, in 2012, he
suffered an injury to his left bicep from lifting weights,
and suffered a torn distal tendon (Id. at p. 4). His
tendon, where it attaches to the elbow, snapped while lifting
(Id.). He also had a previous shoulder injury which
was documented by an MRI in 2008 (Id.). He was
diagnosed at that time with a right shoulder impingement,
subacromial bursitis, and rotator cuff tendinitis and was
prescribed physical therapy (Doc. 1, p. 43). He previously
received physical therapy in the form of light weights for
his distal tendon in February 2014, prior to his
incarceration, with Dr. Tracy DeLucia and had been released
to start exercising again (Doc. 59-1, p. 5). Plaintiff later
testified that he had not sought treatment for his right
shoulder since 2008 because his shoulder felt better (Doc.
59-1, p. 8).
initially saw Dr. Shah for pain in his left elbow on December
27, 2014 (Doc. 59-1, p. 5). Plaintiff had been performing
body weight exercises, specifically dips, when his elbow
started hurting (Id. at p. 7). Plaintiff described
himself as having been a body builder/weightlifter for many
years (Doc. 1, p. 41; Doc. 59-1, p. 4). Plaintiff initially
saw the nurse on December 23, 2014 and was referred to Dr.
Shah (Doc. 65, p. 31). The nurse noted that Plaintiff had
previously torn his left distal tendon but that his elbow was
now hurting (Id.). The nurse prescribed Plaintiff
Acetaminophen (Id.; Doc. 59-1, p. 6).
testified that Dr. Shah did not prescribe Plaintiff any
treatment for his elbow. Dr. Shah noted that Plaintiff had a
BMI of 30.5 and instructed Plaintiff that he was obese and
needed to lose weight (Doc. 65, p. 32; 59-1, p. 6). Plaintiff
testified that he weighs 195 pounds and while his weight may
fluctuate ten pounds in either direction, he consistently
maintains a weight of 195 pounds (Doc. 59-1, p. 6).
Plaintiff's medical records from his 2008 orthopedic
consult indicates that he is 5 foot 9 inches (Doc. 1, p. 41).
The medical records note that Plaintiff requested physical
therapy and Shah instructed Plaintiff to do the exercises on
his own (Doc. 65, p. 32). Dr. Shah also prescribed ibuprofen
for Plaintiff's pain (Id.).
next presented for sick call on February 13, 2015 (Doc. 65,
p. 33). In addition to his elbow pain, Plaintiff complained
of pain in his right shoulder (Doc. 59-1, p. 7). The nurse
prescribed Plaintiff ibuprofen, cold compress, and instructed
him to avoid lifting and strenuous activities (Doc. 65, p.
33). Plaintiff saw Dr. Shah on February 14, 2015 (Doc. 65, p.
34). Plaintiff noted that he previously had an MRI of his
right shoulder (Id.). At that time, Dr. Shah
requested Plaintiff's medical records from his previous
orthopedist (Id.; Doc. 59-1, p. 7). He did not
prescribe physical therapy or medications at that time
(Id.). By that time, Plaintiff had stopped doing
body weight exercises due to the pain in his left elbow (Doc.
59-1, p. 7). Dr. Shah rescheduled Plaintiff for a visit in
three weeks (Doc. 65, p. 34).
Shah received Plaintiff's records in April 2015 and noted
on April 4, 2015 that Plaintiff's MRI from 2008 showed a
previous injury to his right shoulder (Doc. 65, p. 35).
Plaintiff was instructed to exercise, lose weight, and to
return to the healthcare unit as needed (Id.).
Plaintiff testified that Dr. Shah's only plan was to
attack Plaintiff's obesity (Doc. 59-1, p. 8). He
indicated that Dr. Shah did not show Plaintiff any range of
motion exercises for his arm or shoulder, nor did he provide
him with any examples of stretching exercises he could do to
alleviate his pain (Id.).
continued to receive treatment while at Robinson Correctional
Center, although not from Dr. Shah (Doc. 65, p. 36-49). On
June 11, 2015, Plaintiff was seen by the nurse for continued
pain in his elbow and shoulder (Doc. 65, p. 43). He was
prescribed medication and educated on weight lifting
(Id.). He was also referred to the doctor which he
saw on June 18, 2015 (Id. at p. 44). That doctor
prescribed naproxen, warm soaks, no weight lifting, and
ordered an x-ray (Id.). The x-ray completed on June
23, 2015 showed features consistent with rotator cuff
impingement syndrome (Id. at p. 45). With the x-ray
findings, Plaintiff was ordered pain medication and exercises
as well as warm soaks (Id. at p. 48). The medical
records indicate that Plaintiff chose not to take the
medications or follow the exercise regime prescribed to him
(Id.). Plaintiff transferred to Jacksonville
Correctional center in July 2015 (Doc. 59-1, p. 11). He was
seen by a physician there in October 2015 where he received
an outside consult for physical therapy to learn an exercise
program for his right shoulder (Doc. 65, p. 52).
Summary Judgment Standard
Rule of Civil Procedure 56 governs summary judgment motions.
Summary judgment is appropriate only if the admissible
evidence considered as a whole shows there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law. Archdiocese of Milwaukee v.
Doe, 743 F.3d 1101, 1105 (7th Cir. 2014) (citing
Fed.R.Civ.P. 56(a)). The party seeking summary judgment bears
the initial burden of demonstrating - based on the pleadings,
affidavits and/or information obtained via discovery - the
lack of any genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). After a properly
supported motion for summary judgment is filed, the ...