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Stewart v. Wexford Health Sources, Inc.

United States District Court, N.D. Illinois, Western Division

September 10, 2019

LaVertis Stewart, Plaintiff,
v.
Wexford Health Sources, Inc., et al., Defendants.

          ORDER

          Philip G. Reinhard, Judge.

         Defendant's motion for summary judgment [412] is granted. Judgment is entered in favor of defendant, Wayne Steele, and against plaintiff. Any status hearings previously set before Magistrate Judge Jensen are stricken. This case is terminated.

         STATEMENT-OPINION

         Plaintiff, LaVertis Stewart, brings this action against defendants, Wayne Steele (in both his individual capacity and his official capacity), Kenneth Blickenstaff, in his capacity as personal representative of the Estate of Antreas Mesrobian, M.D., deceased, Arthur Funk, M.D., and Wexford Health Sources, Inc. (“Wexford”) pursuant to 42 U.S.C. § 1983 claiming defendants violated his constitutional right not to be subjected to cruel and unusual punishment. Steele moves for summary judgment [412]. Blickenstaff, Dr. Funk, and Wexford separately move for summary judgment [406].[1]

         Plaintiff is an inmate in the custody of the Illinois Department of Corrections (“IDOC”) and has been incarcerated at IDOC's Dixon Correctional Center (“Dixon”) since 2003. Wexford is contracted to provide medical services at Dixon. Steele was the Assistant Warden of Operations at Dixon from May 2016 until April 2017');">7. Pursuant to IDOC policy, black box restraints are used on all inmates who leave Dixon unless an inmate has a medical exemption. A black box restraint is a set of normal handcuffs with a black box over the link between the cuffs. IDOC does not have any policies regarding which inmates should receive a black box exemption. Wexford medical providers determine whether an inmate should receive a black box exemption and IDOC employees follow the orders of those providers. Only the prison warden has the authority to override a medical provider's decision to grant a black box exemption.[2] Plaintiff has several medical conditions that require ongoing care, including hepatitis C, cirrhosis of the liver, carpal tunnel, tennis elbow, arthritis, shoulder bursitis, shoulder impingement, shoulder capsulitis/arthritis, arthritis bone spurs, and tendinitis. According to plaintiff, wearing the black box causes him pain both while wearing the black box and in the days after. Plaintiff has repeatedly asked for black box exemptions and repeatedly notified Wexford and IDOC staff about the issues he experiences with the black box. Plaintiff sometimes was denied a black box exemption by Wexford providers and sometimes was granted an exemption by them. While Dr. Mesrobian was Dixon's medical director, he never granted plaintiff a black box exemption. Dr. Carter granted him a black box exemption in April 2010 and renewed the exemption for another six months on October 11, 2010. Plaintiff received another black box exemption on April 25, 2011 for another six months. This black box exemption expired and plaintiff was placed in the black box restraints when out on a medical writ on May 29, 2012. Plaintiff was again given a black box exemption on February 12, 2013. This exemption was for a year. He received another year-long black box exemption on January 9, 2014 and a four month black box exemption on December 24, 2014. After May 29, 2012, plaintiff does not recall wearing the black box restraint until November 4, 2016. He recalls being placed in the black box on four occasions after November 4, 2016, including on December 6, 2016 and December 23, 2016. Plaintiff received a black box exemption again in March 2017');">7 this time from Dr. Chamberlain.

         Plaintiff claims Steele, in both his individual capacity and in his official capacity, was deliberately indifferent to plaintiff's serious medical needs. Looking to his individual capacity clam, plaintiff claims Steele failed to take action to get plaintiff a black box exemption despite Steele's knowledge that wearing the black box restraints created a substantial risk of serious harm to plaintiff. He claims Steele even directed Wexford medical providers not to give inmates black box exemptions unless they had a broken wrist or arm.

         “As the ‘put up or shut up' moment in a lawsuit, summary judgment requires a non-moving party to respond to the moving party's properly-supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial. Such a dispute exists when there is sufficient evidence favoring the non-moving party to permit a trier of fact to make a finding in the non-moving party's favor as to any issue for which it bears the burden of proof.” Grant v. Trustees of Indiana Univ., 7');">70 F.3d 562');">87');">70 F.3d 562, 568 (7');">7th Cir. 2017');">7) (citations and quotation marks omitted).

         Plaintiff does not present any admissible evidence that Steele directed Wexford medical providers to grant black box exemptions only to inmates with broken arms or wrists. The only evidence plaintiff argues on this point is his own testimony that Dr. Chamberlain told him Steele had issued this directive.[3] This statement of Dr. Chamberlain's is inadmissible hearsay.

         As relevant here, Fed.R.Evid. 801(a) defines “statement” to mean “a person's oral assertion.” Rule 801(b) defines “declarant” to mean “the person who makes the statement.” Dr. Chamberlain is the declarant and his statement is that Steele had instituted a policy that prevented inmates from receiving exemptions unless they had a broken wrist or a broken arm. Plaintiff is offering this statement in evidence to prove the truth of the matter asserted in the statement - i.e. that Steele had instituted a policy that Wexford medical providers should grant black box exemptions only to inmates with broken arms or wrists. This falls within the definition of hearsay. Fed.R.Evid. 801(c).

         Plaintiff argues, however, that this statement is not inadmissible hearsay because, pursuant to Fed.R.Evid. 801(d)(2)(D), it is instead, a non-hearsay admission by Wexford. Rule 801(d)(2)(D) provides that a statement made by an opposing “party's agent or employee on a matter within the scope of that relationship and while it existed” is not hearsay when it is offered against the opposing party. Since Dr. Chamberlain was an employee of Wexford when he made the statement and the statement was made within the scope of his employment relationship with Wexford, plaintiff contends the statement is admissible non-hearsay under Rule 801(d)(2)(D).

         The problem with this argument is that the statement is being offered against Steele not against Wexford. Dr. Chamberlain was not Steele's employee and Rule 801(d)(2)(D) applies only where the statement is made by an employee of the party against whom the statement is being offered. Dr. Chamberlain's statement to plaintiff that Steele instituted a policy that inmates could not receive black box exemptions unless they had broken wrists or arms is not an admissible statement by an employee of the party against whom it is offered. It is hearsay and inadmissible. Fed.R.Civ.P. 802.

         Plaintiff also argues the statement is not hearsay pursuant Rule 801(d)(2)(A) because “Steele's statement to Dr. Chamberlain falls squarely into the definition of a non-hearsay admission because Steele himself is a defendant.” Fed.R.Evid. 805 provides: “Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.” As just discussed, Dr. Chamberlain's statement to plaintiff is hearsay. Thus, even if Steele's purported statement to Dr. Chamberlain is not hearsay, Dr. Chamberlain's statement to plaintiff about it is hearsay. Since one part of the combined statements (Dr. Chamberlain's) is hearsay, neither part of the combined statements is admissible. See Jordan v. Binns, 7');">712 F.3d 1123');">7');">712 F.3d 1123, 1131 (7');">7th Cir. 2013) (holding inadmissible the statement of a state trooper about what the defendant told the trooper the plaintiff had said to the defendant (that the accident was plaintiff's fault not defendant's) because while the plaintiff's statement was a non-hearsay admission by the party against whom it was being offered, the defendant's statement to the trooper was hearsay).

         Plaintiff also contends Steele was deliberately indifferent to plaintiff's serious medical needs because Steele was actually aware Wexford refused to give plaintiff a black box exemption and of the pain plaintiff was experiencing as a result. Plaintiff argues Steele acknowledges having at least two conversations with plaintiff about these issues. Plaintiff also states he sent Steele four letters explaining that Wexford's refusal to give him a black box exemption was causing him “enormous pain, injury, and suffering” and that Steele admits he was aware of a grievance plaintiff filed regarding this issue. Plaintiff argues Steele cites “no evidence that he did anything to investigate or correct Dixon's staff's repeated refusal to provided [plaintiff] a Black Box exemption. Even after promising [plaintiff] he would look into the issue, Steele has no evidence he took any action at all.”

         Plaintiff was not placed in the black box restraints for the approximately four and one half year period beginning May 29, 2012 and ending November 4, 2016. At some point prior to November 4, 2016, when plaintiff learned his black box exemption had expired he went to see Dr. Chamberlain to get it renewed. Dr. Chamberlain did not renew it at that time. Thereafter, plaintiff was placed in the black box restraints ...


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