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Malone v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

July 23, 2018




         This matter is before the Court on the Report and Recommendation of Magistrate Judge Donald G. Wilkerson (Doc. 54), which recommends granting in part the Motion for Preliminary Injunction filed by Plaintiff William Malone (Doc. 2), denying the Motion to Dismiss filed by Defendant Wexford Health Sources, Inc.[1] (Doc. 33), and denying as moot the Motion to Dismiss filed by Malone (Doc. 40).

         The Report and Recommendation was entered on June 25, 2018. Wexford filed an objection[2] on July 10, 2018 (Doc. 56), to which Malone responded on July 20, 2018 (Doc. 58). For the following reasons, the Court adopts the Report and Recommendation.


         Malone, an inmate of the Illinois Department of Corrections currently housed at Menard Correctional Center, filed this lawsuit on September 6, 2017, for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 (Doc. 1). Along with his complaint, Malone filed a motion for preliminary injunction (Doc. 2). Malone has accumulated at least ten “strikes” in the past for filing frivolous lawsuits.[3] Normally, under 28 U.S.C. § 1915(g), this would mean Malone is barred from bringing another lawsuit. The statute provides an exception, however, for circumstances where the prisoner “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). After threshold review of the complaint and the accompanying motion for preliminary injunction, the Court determined that the imminent danger exception applied as to one of Malone's claims: that officials at Pinckneyville were deliberately indifferent to his serious medical needs. Malone alleges his total hip replacement, which was implanted in 2005 prior to his incarceration, is defective and causing him severe pain. Malone claims officials at Pinckneyville confiscated his narcotic pain medication when he was transferred there in June 2010 and replaced it with non-narcotic pain medication that does not effectively treat his pain. He also asserts that in 2017 his condition began to deteriorate such that he is experiencing a multitude of other physical symptoms and lives in excruciating pain every day.

         On December 18, 2017, Defendant Wexford filed a motion to dismiss Malone's complaint, challenging Malone's assertion that he is in imminent danger (Doc. 33).[4]Defendants argue that Malone's most recent x-rays in July 2017 were normal and indicated no fracture, dislocation, or breaking or shearing of the implant (Id., Doc. 34-1). Furthermore, the x-ray was similar to Malone's 2015 x-ray, indicating his condition has not worsened since then (Doc. 34-1). Defendants provided an affidavit from Dr. Butalid, the Pinckneyville Medical Director, who attested that he saw Malone several times in 2017 and treated him with pain medication and anti-inflammatory medication for possible arthritis (Id.). Dr. Butalid further attested that there is no indication any part of Malone's hip implant has sheared or broken off, nor is there any indication that he is suffering from an immediate medical need for surgery (Id.). Rather, Dr. Butalid believes that physical therapy and exercise will help Malone's complaints (Id.). Based on these facts, Defendants argue the exception in 28 U.S.C. § 1915(g) does not apply and the complaint should be dismissed. Malone responded to Defendants' motion, which he styled as a “motion to dismiss” Defendants' motion to dismiss, but did not substantively address Defendants' arguments (Doc. 40).

         On June 4, 2018, Magistrate Judge Donald G. Wilkerson held an evidentiary hearing on both Defendants' motion to dismiss and Malone's motion for injunctive relief. At the hearing, Magistrate Judge Wilkerson explained that he needed to know whether Malone was in imminent danger when he filed his lawsuit, as well as whether he is still in imminent danger (Doc. 55, p. 3).

         Malone testified that prior to filing this lawsuit his health began deteriorating. His motor functions began declining, blood appeared in his stool and urine, his sight was nearly completely gone in his right eye, and his hearing was gone in his left ear (Id., p. 4-5). His pain was so bad that it caused him to pass out at times. He also felt nauseated, he began losing weight, and his joints and muscles were weak (Id., p. 5). Malone stated that the prison was going to give him an egg crate cushion for his mattress, but he had yet to receive it (Id., p. 6). He has suffered from bacterial infections, an ear infection, and two urinary tract infections, which he gets over and over again (Id.). Malone also testified that his asthma has worsened and his blood pressure has risen (Id., p. 7). Malone claimed all of these things were happening when he filed his complaint (Id.). He further surmised that these physical ailments were symptoms of metallosis, a condition caused by his steel hip implants grinding and finely scraping metal off into his body (Id.).

         On cross-examination by counsel for Wexford, Malone testified that the doctor who performed his hip implant surgeries in 2005 told him the implants made him three and a half inches taller than he used to be, which was a problem, and that there was something going on with the implants that was causing Malone to have pain (Id., p. 9). After his surgeries, doctors had Malone try physical therapy, aquatic therapy, and use of a TENS machine (Id., p. 10). In 2007 or 2008, Malone was told he would need a revision “because of this steel.” (Id.).

         Malone further testified that he had two or three x-rays done on July 27, 2017, and that he remembered having an x-ray done in January 2018 as well (Id., pp. 12-13). He asserted, however, that Dr. Siddiqui, the medical director at Menard, has made it clear there is no one at Menard who specializes in orthopedic medicine (Id., p. 13).

         Defense counsel then elicited testimony about the various treatments Malone has received while in prison. Malone testified he was taking Ultram/Tramadol and two other medications from the time he filed his complaint until he was transferred from Pinckneyville to Menard in January 2018 (Id., p. 14). He admitted he had been offered physical therapy at both institutions (Id., p. 15). In March 2018, Malone spoke to Dr. Siddiqui about his asthma, and Dr. Siddiqui provided him with an inhaler (Id., p. 16).

         At this point in the cross-examination, Magistrate Judge Wilkerson inquired as to the relevance of counsel's questions, as the issue was whether Malone was in imminent danger at the time he filed his complaint (Id.). Counsel responded that Malone's credibility was at issue, and Magistrate Judge Wilkerson allowed the questioning to continue (Id., p. 17). Malone testified that he is currently suffering from pain in his hips and that he is in imminent danger because he has metallosis (Id., p. 18). He admitted he was prescribed Tramadol in May 2018, but claimed he was not given a dosage that is adequate to deal with his pain (Id., pp. 18-19). His pain is so intense that he is in diapers and has a catheter because he cannot feel when he passes bowels or urinates, though he admitted he has had the catheter since 2012 (Id., p. 19). He claimed he weighed 290 when he was transferred to Menard in January 2018 but now weighs 220 (Id., p. 19). Malone concluded by testifying that he just wants the pain to stop, but doctors have told him he cannot have his implants removed because there will be nothing left to support him (Id., p. 21). So, he just has to accept whatever is going on in his body (Id.).

         After indicating she had no further questions for Malone, defense counsel said she had Dr. Siddiqui available to testify as to Malone's July 2017 x-ray, as well as a follow-up x-ray taken in January 2018. Magistrate Judge Wilkerson stated that he was not interested in what happened in January 2018, but rather what was happening at the time Malone filed the lawsuit (Id.). However, Magistrate Judge Wilkerson invited counsel to file anything else she thought necessary (Id.). Counsel did not file anything further with the Court.

         The Report ...

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