United States District Court, N.D. Illinois, Western Division
G. Reinhard, Judge.
motion for summary judgment  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
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 . Blickenstaff, Dr.
Funk, and Wexford separately move for summary judgment
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. 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.
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.
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).
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. This statement of Dr. Chamberlain's is
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.
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).
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.
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).
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.”
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