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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.

         Defendants' motion for summary judgment [406] is granted. Judgment is entered in favor of defendants Kenneth Blickenstaff, in his capacity as personal representative of the Estate of Antreas Mesrobian, M.D., deceased, Arthur Funk, M.D., Wexford Health Sources, Inc. and against plaintiff.

         STATEMENT-OPINION

         Plaintiff, LaVertis Stewart, brings this action against defendants, Kenneth Blickenstaff, in his capacity as personal representative of the Estate of Antreas Mesrobian, M.D., deceased, Arthur Funk, M.D., Wexford Health Sources, Inc. (“Wexford”), and Wayne Steele, pursuant to 42 U.S.C. § 1983 claiming defendants violated his constitutional right not to be subjected to cruel and unusual punishment. Plaintiff contends defendants were deliberately indifferent to his serious medical needs when they refused to grant him exemptions from wearing the “black box” restraint device on numerous occasions when he was taken outside the institution on medical or court writs. Blickenstaff, Dr. Funk, and Wexford jointly move for summary judgment [406]. Steele separately moves for summary judgment [412].[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 by IDOC to provide medical treatment to inmates at Dixon. 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. Prisoners normally wear the black box with one palm facing up and the other palm facing down - the “twisted wrist position”. The decision to give a black box exemption is a clinical decision made by a medical provider at the prison based on the individual patient, the patient's circumstances, and medical necessity. However, the warden and security staff can override a medical provider's decision to give a black box exemption to an inmate.[2]

         Plaintiff has several medical conditions that require ongoing care, including hepatitis C, cirrhosis of the liver, carpal tunnel, lateral epicondylitis (tennis elbow), arthritis, shoulder bursitis, shoulder impingement, shoulder capsulitis/arthritis, arthritis bone spurs, and tendinitis. He receives treatment for these conditions in the medical unit at Dixon and has received treatment from outside specialists as well. According to plaintiff, wearing the black box in the twisted wrist position causes pain in his shoulders and wrists both while wearing the black box and in the days after. According to the deposition testimony of Dr. Funk, a claim by an inmate that wearing the black box restraint worsened the inmate's shoulder pain would be a reason for a medical evaluation of the inmate to determine whether a black box exemption was warranted for that inmate.[3]

         Prior to his death in January 2010, Dr. Mesrobian served as the medical director at Dixon from December 2008 to October 2009. Plaintiff recalled asking Dr. Mesrobian at various times to take him off the black box because of the pain in his wrists and shoulder. Plaintiff wore the black box on April 22, 2009 while out on a medical writ. On April 24, 2009, Dr. Mesrobian saw plaintiff and wrote in the medical records that plaintiff “does not want to use black box. Claims aggravates shoulder. There is no medical reason for no black box.”

         On May 5, 2009, plaintiff wore the black box while out on a medical writ. On May 8, 2009, plaintiff saw Dr. Mesrobian for a medical writ follow-up. Dr. Mesrobian prescribed him Motrin (400mg three times daily) at that time to treat the pain in his wrists and shoulders, including swelling.[4] Plaintiff recalls discussing the black box restraints with Dr. Mesrobian on several other unspecified occasions. Every time he saw Dr. Mesrobian he asked for a black box exemption due to his shoulder and wrist issues. Dr. Mesrobian told him he did not think plaintiff's injuries or condition warranted an exemption. During Dr. Mesrobian's tenure as Dixon's medical director he denied all of plaintiff's requests for a black box exemption. On June 4, 2009, plaintiff filed a grievance seeking a black box exemption.

         Dr. Funk is employed by Wexford and, since 2005, has been its regional medical director for the region that includes Dixon. As regional medical director he is responsible for supervising the medical director at Dixon and, at times, he has provided physician services to inmates there. Dr. Funk saw plaintiff at Dixon several times between September 22, 2011 and August 6, 2012.[5" name="FN5" id="FN5">5]Dr. Funk has no recollection of discussing the black box restraints with plaintiff on these occasions or at any other time. Plaintiff says in his supplemental statement of facts that he discussed the black box with Dr. Funk at these visits. Plaintiff cites to his deposition testimony to support this statement. In the cited portion, plaintiff testified in his deposition as follows concerning his conversations about the black box with Dr. Funk:

Q. Do you recall any visits with Dr. Funk where you discussed the Black Box?
A. Yes.
Q. And do you remember when that conversation occurred?
A. No, I don't remember the dates.
Q. Okay. Was it before or after the May 29th, 2012 issue or incident?
A. I can't really say. I don't know.
Q. What do you remember about your conversation with Dr. Funk as it pertains to the Black Box restraints?
A. I wanted to see an orthopedic and him telling me that he was wanting me to go back to therapy and see how it works. And that he would make a determination after therapy.
Q. Make a determination whether -
A. Whether to send me to an ortho.
Q. Do you remember asking him for a Black Box exemption at that time or any time?
A. It's possible if I didn't have a Black Box permit at the time.
Q. Okay, but you can't recall any specific time that you said, ‘Dr. Funk, I want my Black Box exemption renewed or entered,' or anything to that effect?
A. No. It could have been any one of those days.

Dkt # 407-1, p. 29, Dep. pp. 115-16.

         Plaintiff also asserts Dr. Funk was aware of plaintiff's pain and repeated requests for a black box exemption because Dr. Funk reviewed grievances at Dixon in 2017 when Dixon had a significant backlog of grievances and, therefore, in his review would have seen plaintiff's grievances that explained his need for a black box exemption. However, the portions of the record cited by plaintiff to support this assertion (Dkt # 407, Ex. J at 65:23-66:7 & Dkt # 407, Ex. A at 115:4-6, 115:13-19) do not support it. The cited portions of the record contain nothing concerning Dr. Funk's review of grievances at Dixon.

         Plaintiff also asserts in his supplemental statement of facts that “[t]here is evidence that Funk directed medical staff to only provide black box exemptions for inmates with broken wrists.” However, his citation to the record (his deposition Dkt # 407, Ex. A. at 133:13-33[6]) does not contain any reference to broken wrists. Page 134 of plaintiff's deposition does show him testifying concerning a conversation with Dr. Chamberlain:

Q. But he said he didn't give you the exemption until March 2017 why?
A. Because of his orders from Warden Steel, Dr. Funk and ...

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