United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
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.
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.
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.
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).
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).
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
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.).
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).
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).
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).
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
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.).
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
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
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).
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).
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).
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).
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
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).
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.).
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).
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
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).
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).
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).
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 ...