United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
REONA J. DALY UNITED STATES MAGISTRATE JUDGE
Michael Reck, an inmate in the Illinois Department of
Corrections (“IDOC”), brings this action for
deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. Plaintiff alleges several medical
providers at Menard Correctional Center
(“Menard”) were deliberately indifferent to his
serious medical needs. Plaintiff is proceeding on the
Count 1: Eighth Amendment deliberate
indifference claim against Wexford, Walls, and Trost for
implementing, monitoring, and overseeing an ineffective sick
Count 2: Eighth Amendment deliberate
indifference claim against Wexford, Walls, and Trost for
understaffing and failing to fulfill necessary positions
within the prison medical system;
Count 4: Eighth Amendment deliberate
indifference claim against Wexford, Trost, and Smith for
failure to place Plaintiff in the chronic care clinic and on
an individualized treatment plan;
Count 5: Eighth Amendment deliberate
indifference claim against Dr. Trost for delaying his
referral of Plaintiff to a GI specialist despite having
diagnosed the need for such referral.
Trost and Wexford filed a motion for summary judgment (Doc.
150) arguing Dr. Trost was not deliberately indifferent to
Plaintiff's medical needs and Plaintiff has no evidence
Wexford had an unconstitutional policy, practice, or
procedure that caused a constitutional violation. Defendants
Walls and Smith filed a motion for summary judgment (Doc.
152) arguing Walls had no personal involvement in
Plaintiff's care and Smith was a nurse with no authority
to direct Plaintiff's assignment to the general medicine
chronic care clinic. Plaintiff filed a joint response under
seal (Doc. 158).
initial matter, Defendants Trost and Wexford filed a Motion
to Strike (Doc. 160) Plaintiff's Exhibit 1 (disciplinary
records of Dr. Trost) and Plaintiff's Exhibit 5 (excerpts
of deposition testimony of Dr. Trost from Thomas v.
Wexford, 15-cv-108-RJD). Plaintiff filed a Response
(Doc. 165) and Defendants filed a Reply (Doc. 168).
Defendants assert Trost's disciplinary records constitute
inadmissible hearsay and are improper character evidence.
Plaintiff argues the statements within the disciplinary
records are not hearsay because they are statements of an
opposing party - Wexford, and, assuming arguendo, any
statements found in the disciplinary letters are hearsay,
they constitute exceptions to hearsay. Plaintiff further
argues Defendants offer no explanation as to how or why this
contemporaneous documentary evidence of Dr. Trost's
behavior is prejudicial or improper. The Court agrees and
denies Defendants' motion to strike Exhibit 1.
assert Exhibit 5 should be stricken because Plaintiff failed
to disclose the deposition testimony during discovery.
Plaintiff argues he had no discovery obligation to alert
Defendants to the existence of Dr. Trost's deposition
testimony in a prior case of which Defendants and
Defendants' counsel were already aware. Again, the Court
agrees. Plaintiff was under no obligation to disclose the
existence of deposition testimony given by Defendant Trost
himself. Trost and Wexford were already aware of the
deposition testimony. Further, Trost was represented in
Thomas v. Wexford by Cassiday Schade, LLP, the same
firm that currently represents Defendants Wexford and Trost.
Federal Rule of Civil Procedure 32 expressly allows the use
of deposition testimony in the manner in which Plaintiff has
used it. Defendants' motion to strike Exhibit 5 is
March 6, 2014, Plaintiff was transferred to Menard (Doc.
151-11 at 2). Dr. Trost was employed as Medical Director at
Menard from November 25, 2013 to March 17, 2017 (Doc. 151-3).
Since May 16, 2011, Wexford Health Sources, Inc.
(“Wexford”) has contracted with the State of
Illinois to provide certain medical services to inmates
within IDOC, and specifically at Menard (Doc. 151-D).
Plaintiff's Personal Records Plaintiff testified
at his deposition that when he would submit a sick call
request, he would make an identical copy of the request and
keep it for his own records (Plaintiff's Deposition, Doc.
151-2 at 28, 31). Plaintiff's records include sick call
requests dated July 10, July 14, July 19, August 10, August
18, September 14, and September 20, 2015, seeking medical
assistance for rectal pain, inflammation, and a possible
infection (Doc. 158-6). Plaintiff also testified he kept a
journal documenting certain events, including filing sick
call slips and medical visits (Doc. 151-10). Plaintiff's
journal includes entries documenting that he filed sick call
requests on July 10, July 19, August 10, August 18, September
14, and September 20, 2015 (Id. at 4). Plaintiff
testified as follows regarding submission of the sick call
requests: “I write them on a half sheet of paper, place
them in the bars, which they pick up at 11:00 p.m. or so, in
the mail pass, when they come to collect the inmate
mail” (Doc. 151-2 at 9). When asked who picks up the
sick call requests, Plaintiff testified, “Usually an
officer on the third shift, ” not medical staff
(Id.). Plaintiff testified that locked boxes were
available at the end of the gallery but that he placed his
sick call requests in the bars to be picked up by
correctional staff (Id. at 26). Plaintiff testified
he also informally notified various Menard staff members of
his medical condition and requested medical assistance on
multiple occasions (Doc. 151-2 at 26).
26, 2015, medical staff was in receipt of an undated request
from Plaintiff stating, “I have been having scrotal
pain, redness, and some mild swelling. The skin is extremely
sensitive to touch and feels like being rubbed with
sand-paper. Please help, this has been going on for about two
weeks with no let up in symptoms” (Doc. 151-15 at 6).
There is a notation, “Refer to MDCL”
(Id.). According to Menard Sick Call Logs, Plaintiff
was seen the next day by an RN on July 27, 2015, during nurse
sick call for testicular pain (Doc. 151-14 at 1). The noted
plan was to refer Plaintiff to DR/PA/NP (Id.).
Plaintiff's medical records do not show that he was
scheduled for an appointment to see a physician or NP until
September 1, 2015 (Doc. 151-2 at 11, Doc. 151-1 at 1-6). In
response to a grievance filed by Plaintiff later in
September, Defendant Walls noted that “there was one
kite in your medical file and Medical Records said you were
scheduled but there was a computer glitch” (Doc.
September 1, 2015, Plaintiff saw Dr. Trost who noted that
Plaintiff had a history of Crohn's disease and was last
prescribed Humira (biologic medication used to treat
Ulcerative Colitis) in 2011 (Doc. 151-1 at 6). Trost noted
Plaintiff has had a fistula (abnormal connection between two
hollow spaces) for one month and has a history of a
fistulotomy (surgical procedure to treat fistulas)
(Id.). Trost documented a fistula on Plaintiff's
left buttock (Id.). Trost prescribed Levaquin 750mg
(antibiotic) for 14 days and Pentasa 750mg (anti-inflammatory
medication that treats Ulcerative Colitis) for six months and
ordered a one-month follow-up appointment (Id.). The
following day, Plaintiff saw RN Smith complaining that
“it's leaking now” (Id.). Smith
noted the area was assessed the day prior by Trost and the
left buttock was now draining (Id.). She noted
alteration in skin integrity and instructed Plaintiff to keep
the area clean and dry and gave him gauze (Id.).
Defendant Smith testified she did not do an additional
assessment on 9/2/15, but noted that Dr. Trost assessed
Plaintiff the day before on 9/1/15 (Doc. 151-5 at 26).
September 12, 2015, Plaintiff saw a non-party RN complaining
that “it busted again” and self-reported that his
fistula opened up (Doc. 151-1 at 7). The RN examined
Plaintiff and did not observe any active draining, but noted
an open area approximately 1 cm by 1 cm that was “beefy
red” (Id.). Additionally, the RN noted
Plaintiff was taking Levaquin and that he was scheduled to
see Trost in three weeks (Id.). Plaintiff was
instructed to keep the area clean and dry and provided gauze
and band-aids (Id.).
September 17, 2015, Plaintiff saw RN Smith and complained
that he needed to have surgery “on this” (Doc.
151-1 at 9). Smith noted Plaintiff complained of constant
rectal bleeding related to a fistula and reported that he had
a history of fistula with surgical repair (Id.).
Smith documented Plaintiff's skin was warm and dry, his
color was natural, and his respirations were even and
unlabored (Id.). Plaintiff complained of frequent
dressing changes related to rectal bleeding and RN Smith
provided gauze and referred him to a physician
(Id.). Smith testified she did not perform an
examination of Plaintiff's buttocks on that date (Doc.
151-5 at 27).
September 24, 2015, Plaintiff saw a non-party RN for
“boils” on his left buttock (Doc. 151-1 at 10).
He reported that the boil drained with “white
stuff” (Id.). The RN took his vitals and noted
the boil on his left buttock was the size of a nickel
(Id.). The RN examined Plaintiff and noted there was
no drainage seen and that the area looked like a healed boil
(Id.). The RN instructed Plaintiff to cleanse gently
with antiseptic soap (Id.). A notation was made to
“check to see if in for follow up”
(Id.). The RN further instructed Plaintiff on
hygiene and symptoms of cellulitis and told him to return to
sick call if those symptoms occurred or if the pain worsened,
new boils appeared, or he developed a temperature
(Id. at 11).
September 27, 2015, a non-party Correctional Medical
Technician (“CMT”) documented Plaintiff was
scheduled on the physician call line from Nurse Sick Call,
but the physician did not show and Plaintiff was not seen, so
the CMT made a notation to recall Plaintiff (Doc. 151-1 at
12). In Plaintiff's September 27, 2015 journal entry, he
noted “Med Pass for Dr. Butalid - Never called (MD No
Show)” (Doc. 151-10 at 5).
October 2, 2015, Plaintiff saw Dr. Trost (Doc. 151-1 at 12).
Plaintiff's vitals were taken and Trost noted
Plaintiff's fistula persisted, his last colonoscopy was
in 2012, and he was prescribed Humira in 2011 (Id.).
Trost noted there was no improvement and prescribed Levaquin
750mg for 14 days and referred Plaintiff to Collegial Review
for a G.I. consultation (Id.). Plaintiff was also
prescribed ibuprofen 800mg to be taken three times per day as
needed for one month (Id. at 55-56). There is a
dispute between Plaintiff and Defendant Trost as to whether
Trost “examined” Plaintiff on October 2, 2015. On
that date, Trost completed two Medical Special Services
Referral and Reports (Id. at 27-28). The first was
for Plaintiff to be sent to a gastroenterologist
(“G.I.”) for a colonoscopy. In the rationale he
noted Plaintiff had uncontrolled Crohn's disease and his
last colonoscopy was in 2012 and he was prescribed Humira in
2011 with good result (Id. at 27). The second was
for a consultation with a gastroenterologist for an anal
fistula and his rationale noted Plaintiff had Crohn's
disease and a non-healing fistula (Id. at 28).
October 9, 2015, Trost's referral for a diagnostic
colonoscopy was approved (Doc. 151- 1 at 29). On October 19,
2015, Plaintiff saw RN Smith requesting supplies for his
draining fistula (Id. at 13). She noted Plaintiff
had drainage with his fistula and she provided triple
antibiotic ointment and gauze (Id.). Smith
instructed Plaintiff to drink plenty of fluids and to use
stool softeners and she also noted Plaintiff was awaiting
Collegial approval (Id.). On October 29, 2015, Trost
presented Plaintiff to Collegial Review for a G.I.
consultation and noted in the medical record the request was
approved (Id. at 14).
November 2, 2015, Plaintiff saw Smith and asked when he would
“get this taken care of” (Doc. 151-1 at 15).
Plaintiff complained of rectal bleeding with fistula and
hemorrhoid signs and symptoms (Id.). Smith issued
him gauze, noted he had hemorrhoids, and instructed him to
keep the area clean and dry (Id.). Smith testified
she did not examine Plaintiff's buttocks (Doc. 151-5 at
31). On November 4, 2015, Plaintiff saw a non-party RN who
noted Plaintiff self-reported he was out of ibuprofen and
antibiotics and had a history of bleeding fistula (Doc. 151-1
at 15.). Plaintiff requested ibuprofen and antibiotics
(Id.). The RN called Trost who gave telephonic
orders prescribing ibuprofen 800mg to take three times a day
for 2 months and Levaquin 750mg for 14 days (Id.).
Also, on November 4, 2015, the gastroenterologist
consultation was documented approved by Wexford Utilization
Management (Id. at 30).
November 5, 2015, Plaintiff saw a non-party RN who provided
instructions for preparation for his colonoscopy the
following day (Doc. 151-1 at 16). On November 6, 2015,
Plaintiff left Menard on medical furlough for his colonoscopy
(Id. at 17). Dr. Leyland Thomas performed
Plaintiff's colonoscopy at Touchette Regional Hospital in
Centreville, Illinois (Id. at 31-41). Thomas took
three biopsies of the large intestine, two of which came back
normal and one came back with focal active colitis with no
dysplasia or malignancy. Thomas documented these results were
consistent with focal mildly active Crohn's disease
(Id. at 40). Thomas noted Plaintiff had a couple of
dimpled areas on the perianal skin suggestive of fistula
openings (Id. at 39). Plaintiff returned from
medical furlough on the same date with no complaints of pain
or bleeding (Id. at 18).
November 9, 2015, the Medical Furlough Clerk noted that
Plaintiff was scheduled for his G.I. consultation for
Crohn's disease and his non-healing fistula (Doc. 151-1
at 19). The clerk noted that Dr. McCain's first available
appointment was December 24, 2015 (Id.).
November 16, 2015, RN Smith did not see Plaintiff but noted a
request was sent in for a follow-up for his colonoscopy
(Id. at 20). Plaintiff self-reported that his
bleeding continued with his fistula/abscesses and that he had
a pain of 8 out of 10 (Id.). Smith referred
Plaintiff for a follow-up with a physician for the
colonoscopy results and issued supplies (Id.). Also,
on November 16, 2015, Plaintiff saw non-party physician Dr.
Siddiqui, for his two-year physical exam (Id. at
59-61). Siddiqui noted Plaintiff had Crohn's disease and
Plaintiff refused a rectal exam (Id. at 61).
Plaintiff disputes that he refused an exam. A non-party nurse
also saw Plaintiff on November 16, 2015 and noted Plaintiff
complained of a fistula or infected boil and complained of
intermittent pain of 6 out of 10 and discharge (Id.
at 62). The nurse noted Plaintiff was to be reviewed for
collegial and referred him to a physician (Id.).
November 17, 2015, it was noted Plaintiff was scheduled on
the Nurse Practitioner call line for his medical furlough
return, but there was no need to see Plaintiff because the
medical furlough return appointment was already done on
November 6, 2015 after his colonoscopy (Id. at 21).
It was documented he would be recalled and could access sick
call as-needed (Id.). On November 24, 2015,
Plaintiff saw a non-party NP for a follow-up post-colonoscopy
(Id. at 22). The NP noted a visual exam on
Plaintiff's rectum and redness on buttocks
(Id.). On November 28, 2015, a non-party RN noted
Plaintiff was sent to the Emergency Room via ambulance for a
seizure (Id. at 23, 42-28). Plaintiff returned to
Menard later that day and it was noted that the seizure was
possibly psychogenic or fake and that Plaintiff was
malingering (Id. at 25).
December 24, 2015, Plaintiff saw gastroenterologist Dr. Mack
McCain (Id. at 51-52). His assessment was that
Plaintiff had Crohn's disease and a rectal fistula
(Id. at 51). His impression was to restart Plaintiff
on Humira and refer him to a surgeon to evaluate his
perirectal fistula and infection, continue Cipro, and order
tuberculosis skin test and blood work (Id.). On
return to Menard, the NP ordered blood work and a
tuberculosis skin test (Id. at 26).
December 28, 2015, Trost submitted a Medical Special Services
Referral and Report for Plaintiff for a general surgery
consultation and the rationale for his referral was for
evaluation/treatment of Plaintiff's anal fistula
(Id. at 49). On December 31, 2015, Plaintiff
requested renewal of his ibuprofen and Hytrin prescriptions
(Id. at 64). The medical records state Plaintiff
signed a refusal for nurse sick call (Id.).