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Green v. Trost

United States District Court, S.D. Illinois

September 23, 2019

DONNELL GREEN, Plaintiff,
v.
JOHN TROST, FE FUENTES, KIMBERLY BUTLER, SUSAN KIRK, ANTHONY WILLIAMS, ANGELA WALTER, MISTY THOMPSON, SHARON MCGLORN, TRAVIS JAMES, MICHAEL MOLDENHAUER, and JOHN BALDWIN, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE

         Plaintiff Donnell Green, an inmate in the Illinois Department of Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging Defendants were deliberately indifferent to his serious medical needs by failing to properly diagnose and treat an ACL tear, medial meniscus tear, and lateral meniscus tear in his right knee while he was housed at Menard Correctional Center (Doc. 105). Following the Court’s preliminary review of Green’s Second Amended Complaint, Green is proceeding on one claim of deliberate indifference under the Eighth Amendment against all Defendants and one claim asserting IDOC Director John Baldwin violated the Americans with Disabilities Act and the Rehabilitation Act.

         This case is before the Court on the Motion for Summary Judgment filed by Defendants Sharon McGlorn, Michael Moldenhauer, John Trost, M.D., Fe Fuentes, M.D., Travis James, and Susan Kirk (“the Wexford Defendants”) (Doc. 152), the Motion for Summary Judgment filed by Defendants Kimberly Butler, Anthony Williams, Angela Walter, Misty Thompson, and John Baldwin (“the IDOC Defendants”) (Doc. 159), and the Motion to Strike filed by the Wexford Defendants (Doc. 162).

         On July 19, 2019, Magistrate Judge Mark A. Beatty issued a Report and Recommendation that recommends the undersigned grant the IDOC Defendants’ motion for summary judgment, grant in part and deny in part the Wexford Defendants’ motion for summary judgment, and deny the Wexford Defendants’ motion to strike (Doc. 173). The Wexford Defendants and Plaintiff Donnell Green filed timely objections to the Report and Recommendation (Docs. 174, 175). The Wexford Defendants and the IDOC Defendants both filed responses to Green’s objection (Docs. 176, 177). For the reasons set forth below, the Court adopts in part and rejects in part the Report and Recommendation. The IDOC Defendants’ motion is granted, and the Wexford Defendants’ motion is granted in part and denied in part.

         Background

         The following facts are undisputed for purposes of summary judgment. Green alleges that on January 19, 2015, he tore his meniscus while playing basketball (Doc. 153-2 at p. 8). Green saw Defendant Susan Kirk, a registered nurse at Menard, who gave him an ice pack and ibuprofen and referred him to a physician (Id.). Green testified he sued Kirk because he believed she did not treat him properly in that she did not order an MRI for him (Id. at p. 9). Although he was taken to the healthcare unit in a wheelchair, Green testified that after his visit he had to limp back to his cell house (Id. at p. 10).

         Later that day, Green was seen by Defendant Dr. Fuentes, who noted that Green had injured his right knee while playing basketball and had no pain but slight numbness (Doc. 153-1 at p. 2). She further observed that he had a steady gait, and no swelling, redness, or tenderness (Id.). The record also stated: “Assessment: Rule out right knee vs ligament injury (tear).” (Id.; Doc. 153-6 at p. 5). Dr. Fuentes ordered Green a 48-hour lay-in and an x-ray of his right knee and instructed him not to play sports for two weeks (Id.). The x-ray of Green’s knee was taken the following day, January 20, 2015 (Id. at p. 11). The x-ray showed no fracture or significant arthritic change (Id. at p. 40).

         On February 15, 2015, Green saw Defendant Thompson, a Certified Medical Technician, at the sick call line in the North II cell house (Id. at p. 32). Green reported pain and swelling in his knee and said that he could not bend it (Id. at p. 33). Thompson told Green that those types of things take a while to heal and that he would be in pain for a year (Id.). Green asked Thompson for an MRI, but she told him he would never get an MRI (Id.). After this visit, Green testified that he rested and would walk around but did not play sports or run (Id. at p. 34).

         Green did not return to the healthcare unit with regard to his knee until June 19, 2015, when he again saw Defendant Kirk for complaints of knee pain (Id. at p. 3). At that visit, Kirk noted that Green injured himself playing basketball, had a popping pain on the inside of his right knee, had pain at a level 4 out of 10, and had been in pain for six months (Id.). Kirk further noted that Green showed signs of obvious discomfort when making quick movements and that lateral movements and lunges caused his knee to pop and swell (Id.). As a result, Kirk referred Green to a physician (Id.).

         Green saw Defendant Dr. Trost on June 26, 2015 (Id. at p. 4). Dr. Trost prescribed naproxen for three months, ordered a right knee sleeve and another x-ray of Green’s right knee, and instructed Green to return to the clinic in two weeks (Id.; Doc. 153-2 at p. 14). Green received his knee sleeve four days later (Doc. 153-1 at p. 46). On July 2, 2015, the second x-ray of Green’s right knee showed that the joint space was preserved, articular margins were intact, and there was no bony injury (Id. at p. 41).

         Green was not seen in two weeks as directed by Dr. Trost. Instead, on August 1, 2015, Green saw Defendant Travis James, a licensed physician’s assistant, for his routine five-year physical exam. James noted that Green’s right knee buckles when he stops and pivots and he had pain upon palpation of the MCL (Id. at p. 5; Doc. 153-7). James placed Green on the doctor line to review his right knee pain (Doc. 152-1 at pp. 6, 35-37).

         Green next saw Dr. Butalid, a non-party doctor, on August 27, 2017 (Doc. 153-1 at p. 6). Dr. Butalid noted that Green had a sprained right knee and prescribed him Motrin for two months (Id. at pp. 6, 35-37).

         On September 13, 2015, Green saw a non-party Certified Medical Technician for a right knee injury he said he suffered two days prior while exercising (Id. at p. 7). Green reported his pain was at level 7 out of 10, but he had no range of motion restrictions and his anatomical alignment was within normal limits with no swelling or discoloration (Id. at p. 7). The CMT referred Green to a doctor (Id.).

         On October 6, 2015, Green saw another non-party physician for a follow-up on his knee. This doctor noted that Green complained of his knee twisting, making it “buckle and tear.” (Id. at p. 8). Green reported his knee felt better four and a half months after his injury, but he played basketball again “a few weeks ago, ” made another twisting motion, and then it hurt again (Id.). The doctor prescribed ibuprofen 600mg and educated Green on the need to stop playing basketball and jogging to avoid re-injuring his knee (Id.).

         On February 9, 2016, Green saw a non-party nurse complaining of injuring his right knee the day prior while running “suicides” at the rec (Id. at p. 9). Green stated he had pain at a level 7 to 8 out of 10 (Id.). The nurse noted swelling above his right knee cap, that his leg was in alignment, there was no discoloration, and Green was able to bear weight on his right leg. She noted, however, that he hears a click when he walks on it (Id.). The nurse gave him ibuprofen and a cold pack, and referred him to Nurse Practitioner Sharon McGlorn (Id.).

         Defendant McGlorn saw Green on February 9, 2016 (Id. at p. 10). McGlorn noted his knee was swollen but had no cracking, popping, or warmth (Id.). He also had full range of motion and could bear weight (Id.). Green indicated his pain was at a level 10 (Id.). McGlorn reviewed his previous x-rays and noted he had fluid or soft tissue swelling (Id.) She ordered a third x-ray of Green’s knee, educated him on lifestyle modifications, and told him to avoid striking exercises and exacerbating activities (Id.).

         This third x-ray, taken on February 16, 2016, showed no fracture, dislocation, bony abnormality, or joint effusion (Id. at p. 42). Two days later, Dr. Trost referred Green to receive an MRI of his right knee (Id. at pp. 19-20). The referral was approved on February 26, 2016, and an MRI of the knee was taken on March 18, 2016-fourteen months after the January 2015 incident (Id. at pp. 38-39). The MRI showed an ACL and meniscus tears consistent with his January 2015 injury while playing basketball (Id.; Doc. 158 at p. 28).

         On March 23, 2016, Dr. Trost referred Green for an orthopedic consultation, which was approved on April 6, 2016 (Id. at pp. 20-21). The orthopedic surgeon recommended Green undergo partial medial and lateral meniscectomies and ACL reconstruction surgeries (Id. at pp. 22-25). Dr. Trost referred Green for these surgeries, and on June 13, 2016, Green underwent arthroscopy, partial lateral meniscectomy, and open bone-tendon-bone anterior cruciate ligament reconstruction on his right knee (Id. at pp. 73-75).

         Green returned to Menard that same day and was admitted to the infirmary (Id. at pp. 12-13). On June 21, 2016, Green saw the orthopedist for a post-operative follow up where Green reported doing well (Id. at pp. 67-69). The orthopedist recommended Green begin physical therapy as soon as possible, “even if following a home exercise program, ” as well as that Green wear a knee immobilizer, use crutches, and avoid plant-pivoting motions of his right knee and sports (Id.). The orthopedist testified that the home exercise program at Menard was “not ideal, ” but that Green should still do the home exercise program rather than wait to be transferred to another correctional center (Doc. 166 at pp. 39-40). He acknowledged, however, that incarceration “absolutely” plays a factor in post-op treatment (Id. at p. 40).

         On June 21, 2016, Green was referred for a physical therapy evaluation, which was approved on July 1, 2016 (Id. at pp. 28, 31). On July 22, 2016, Green had his physical therapy evaluation and was given a home exercise program (Id. at pp. 53-54). He began physical therapy on July 26, 2016 (Id. at p. 16).

         In mid-July 2016, Green wrote a letter to Defendant Warden Butler and to the Healthcare Unit Administrator stating he wanted a transfer to another prison so that he could attend a legitimate physical therapy program-something that was not available at Menard (Id. at p. 24). As part of his home exercise program, Green was directed to do exercises twice a day, five days a week in a six-by-eight-foot room in the Healthcare Unit, under the supervision of correctional officers (Id.). The office did not have any equipment, and there was no certified physical therapist present (Id.). Green admitted, however, that the orthopedist had no problem with the home exercise program or the fact that there would be no physical therapist present (Id.).

         On August 11, 2016, Green saw the orthopedist for his six-week follow-up appointment (Id. at pp. 70-72). The orthopedist recommended training and exercising to strengthen the knee, but also said Green could return to general population to use the gym (Id. at pp. 33, 70-72). That same day, Dr. Trost discharged Green from the infirmary and allowed him to return to his cell house (Id. at p. 17). Green also was granted low bunk, low gallery, slow walk, and no stairs permits for three months (Id. at pp. 47, 64).

         Green complained about the physical therapy situation at Menard to Defendant Williams, the Assistant Warden of Programs, both in letters and in person on September 5, 2016 (Id. at pp. 42-43). Green also complained that he was housed on 2 Gallery in the East cell house and could not go upstairs to take a shower because he had a restriction not to walk up stairs (Id. at p. 43). Green testified that Williams said he would look into the issue; however, Williams testified he does not recall any communications with Green in person or in writing (Doc. 160-3 at p. 5). Green also never put in for nurse sick call to explain to the medical staff he was having trouble getting up the stairs to the shower (Doc. 153-1 at p. 43). Green moved out of the East cell house on September 29, 2016, at which point he no longer had a problem taking showers (Id.).

         On September 6, 2016, Dr. Trost referred Green for a three-month follow-up appointment regarding his ACL reconstruction (Id. at p. 55). Green’s medical records indicate that this follow-up appointment was denied because he had missed physical therapy appointments and “showed poor effort in performing exercises.” (Id. at p. 56). Green disputes this reasoning, however, and asserts that his physical therapy was impaired by pain and by having no access to a physical therapist (Doc. 153-2).

         On September 8, 2016, Green was doing his home physical therapy program in the Healthcare Unit and requested ice from Defendant Walter, a nurse who was in the bullpen area watching inmates perform their exercises (Id. at p. 38). She did not give it to him, stating, “your knee is supposed to hurt because you had surgery.” (Id.). The following day, Green was performing his exercises when he tweaked something in his leg (Doc. 153-1 at p. 35). He told Walter that he had pain, but she just said, “oh well.” (Id. at p. 35). There is evidence, however, that Walter documented Green’s pain in his medical records and referred him to the doctor’s call line (Id. at p. 36). Green testified that he sued Walter because she did not give him ice, could not assist him with his physical therapy exercises (as she was not a physical therapist), and did not express sufficient sympathy for his pain. He also claims her notes regarding his poor performance at physical therapy led to his third post-op, follow-up appointment with the surgeon to be canceled.

         On December 5, 2016, Green saw Defendant Michael Moldenhauer, a nurse practitioner, to request renewal of his permits (Id. at p. 49). Moldenhauer noted a mild click in Green’s left knee, good range of motion, and a steady gait (Id. at p. 49). He extended Green’s low bunk, low gallery, knee sleeve, no stairs, and slow walk permits for two months and referred him to Dr. Trost (Id. at pp. 49, 65).

         Dr. Trost saw Green on December 29, 2016 (Id. at p. 50). He referred Green for a follow-up appointment with the orthopedist regarding his ACL reconstruction, but the referral was not approved pending further discussion (Id. at pp. 59-60). Dr. Trost again referred Green for a follow-up on January 23, 2017, but the follow-up appointment again was not approved (Id. at pp. 61-63). On January 30, 2017, Dr. Trost granted Green low bunk and knee sleeve/brace permits for one year (Id. at p. 66). That same day, he filed this lawsuit (Doc. 1).

         On February 1, 2019, the Wexford Defendants filed a motion for summary judgment arguing that Green could not, as a matter of law, make a submissible case that they were deliberately indifferent to his serious medical needs (Doc. 152).

         On March 11, 2019, the IDOC Defendants filed a motion for summary judgment arguing: Defendants Butler and Williams did not have sufficient personal involvement in Green’s medical care to be held liable for a violation of his constitutional rights; Defendants Butler, Williams, Thompson, and Walter were not deliberately indifferent to Green’s medical needs; there was no violation of the ADA or RA when Green was not disabled for the purposes of those ...


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