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Tuduj v. Caldwell

United States District Court, S.D. Illinois

September 30, 2019

TOM TUDUJ, Plaintiff,



         Pending before the Court is a motion for summary judgment filed by Defendants Samuel Nwaobasi, John Trost, Reynal Caldwell, Stephen Ritz, and Wexford Health Sources, Inc. (Docs. 116, 117, 120 & 148). Tuduj opposes the motion (Docs. 143 & 149). For the reasons set forth below, the Court grants the motion for summary judgment.

         Factual and Procedural Background

         Plaintiff Tom Tuduj (“Tuduj”), an inmate of the Illinois Department of Corrections (“IDOC”) incarcerated in Menard Correctional Center (“Menard”), filed a pro se lawsuit pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights (Doc. 1). Tuduj alleges he was provided inadequate medical care for a systemic virus or infection that has damaged his eyes causing excruciating pain, migraine headaches, and sensitivity to light. Tuduj also contends that he was not prescribed medications for his condition because it is not on the pharmacy formulary. Following a screening of the complaint pursuant to 28 U.S.C. § 1915A on March 8, 2017, the undersigned allowed Tuduj to proceed on an Eighth Amendment deliberate indifference to a serious medical need claim against Eric Johnson, Christine Lochhead, Samuel Nwaobasi, John Trost, and Stephen Ritz (Doc. 4).[2] The Court also directed that Jacqueline Lashbrook, then warden at Menard, be joined for injunctive relief purposes (Doc. 4).

         On April 18, 2018, Magistrate Judge Donald G. Wilkerson granted Tuduj leave to add Dr. Els, Dr. Caldwell, and Wexford Health Source, Inc. (“Wexford”) as defendants to Tuduj's claim of deliberate indifference to a serious medical need, but denied Tuduj leave to add Boswell Pharmacy as a defendant (Doc. 69). Thereafter, the undersigned affirmed Judge Wilkerson's order on August 3, 2018 (Doc. 97).

         Defendants now move for summary judgment, arguing that the medical evidence reveals that Tuduj does not have shingles and that Defendants were not deliberately indifferent to Tuduj's medical needs. Tuduj counters that the evidence shows he has an objectively serious condition Varicella-Zoster virus, or shingles, and that defendants were deliberately indifferent to his medical needs. Further, Tuduj contends that Wexford was deliberately indifferent to his medical needs in that it instituted a longstanding policy or practice in Menard of no sunglasses based on subjective complaints.

         The following facts are taken from the record and presented in the light most favorable to Tuduj, the non-moving party, and all reasonable inferences are drawn in his favor. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

         Tuduj has a long history of medical issues. Since June 2009, he has been incarcerated at Menard. Defendant Samuel Nwaobasi was a licensed physician in the State of Illinois and was employed by Wexford as a physician at Menard from May 2009 to September 2014. Defendant John Trost is a licensed physician in the State of Illinois and was employed by Wexford as the Medical Director at Menard from November 25, 2013 to March 17, 2017. Defendant Reynal Caldwell is a licensed physician in the State of Illinois and has been employed by Wexford as a Traveling Medical Director on an as needed basis since May 18, 2015. Defendant Stephen Ritz is a Doctor of Osteopathic Medicine and has been employed by Wexford as the Corporate Utilization Management Director since September 2014. Defendant Wexford contracts with a division of the State of Illinois to provide certain medical services to certain inmates with the Illinois Department of Corrections.

         Tuduj alleges that, since May 17, 2006, the date of the crime for which he is currently incarcerated, he has suffered from a “systemic infection” of the Varicella-Zoster or shingles virus (Doc. 117-5, p. 5). Tuduj testified he was first infected with this shingles virus from a childhood vaccine (Id. at p. 7). Tuduj alleges the virus remained dormant in his system, except for occasional cold sores, until May 17, 2006, when the virus was activated (Id. at p. 24). Tuduj testified “once all the stress and everything of being incarcerated and finding out what happened in my criminal case, learning about what happened, and the unbelievable stress that I was under because of what happened with my family and what happened to the victim in this case, I was devasted and in complete shock. And my understanding is that those are -actually I saw it in a commercial, when those zoster virus or those vaccines that they're putting out there - I saw a commercial- it was a commercial or Doctor Oz, or one of those TV shows, saw it on TV, that a traumatic event can aggravate or activate this virus.” (Id.).

         Tuduj alleges that the shingles virus causes him to experience rashes on his face and body as well as photophobia (Doc. 71). Tuduj claims that how and when he experiences photophobia “depends on the light, how intense the light is, so it could occur from two minutes to an hour.” (Doc. 117-5, p. 27). Tuduj admitted that no medical professional has diagnosed him with shingles or the Varicella-Zoster virus (Id. at p. 5, 8). As to the diagnosis, Tuduj testified to the following:

Q. Has any doctor ever diagnosed you with a varicella virus?
A. Well, I kind of reversed engineered the medical diagnosis because unfortunately we aren't getting the top of the line care here. So the way I came to that conclusion is once Dr. Fuentes prescribed doxycycline, I looked it up and saw what it was prescribed for. And once I learned what it was prescribed for, she didn't even really tell me what it was, I saw that it was a zoster virus. And zoster virus was one of the things it was prescribed for, the treatment for it. So then I started looking that up in Black's Medical Dictionary and saw all of the symptoms that were listed were consistent with what I'm experiencing. And so, once I connected those two, that's how I came to the conclusion that that's what it was.
Q. Okay. I'm gonna - I understand. I'm gonna ask you the question again. But no doctor's ever told you that you have a varicella virus?
A. No, sir.

(Id. at. p. 5). Tuduj further testified that he has no formal medical training and that any medical knowledge he has, he obtained from review of medical journals, literature and Black's Medical Dictionary (Id. at. p. 5, 6).

         Tuduj began to experience photophobia immediately following the crime for which he is incarcerated, which occurred on May 17, 2006 (Id. at p. 23). Following the May 17, 2006 event, Tuduj was detained at the Cook County Jail awaiting trial. While at Cook County Jail, Tuduj requested and received a permit, which specifies per inmate request, for sunglasses and his family provided him with a pair of sunglasses (Id. at p. 25; Doc. 117-1, p. 1).

         Following Tuduj's 2009 conviction, he was initially transferred into Stateville Correctional Center (“Stateville”) (Doc. 117-5, p. 9). Upon his arrival at Stateville, Tuduj's sunglasses were taken from him, and he was told “nobody in IDOC can have sunglasses.” (Id. at p. 9).

         On June 25, 2009, Tuduj was transferred to Menard. Thereafter on July 1, 2009, Tuduj visited nurse sick call for complaints of headaches which Tuduj related to a prior chemical brain injury (Doc. 117-1, p. 3). Tuduj was prescribed Motrin and was referred to a medical doctor for further evaluation (Id.).

         Three days later, on July 4, 2009, Tuduj saw Dr. Nwaobasi. At that time, Tuduj complained of “off and on headaches for the past three years” due to a previous drug reaction (Id. at p. 3). The medical record states that Dr. Nwaobasi assessed Tuduj for chronic chemical substance abuse per Tuduj's complaints and prescribed Motrin. As to this visit on July 4, 2009, Tuduj admitted during his deposition that he did not report any complaints related to his shingles infection or any complaints of photophobia to Dr. Nwaobasi (Doc. 117-5, p. 10).

         On September 15, 2009, a nurse practitioner examined Tuduj for complaints of headaches for the past week that would come and go and last from seconds to days (Doc. 117-1 at p. 5). Also, Tuduj reported a prior chemical brain injury that resulted in light sensitivity (Id.). The nurse practitioner noted that Tuduj was alert and oriented to time, space and location, in apparent distress, and that an evaluation of his pupils was unremarkable (Id.). The nurse practitioner assessed Tuduj with intermittent headaches and prescribed him Motrin (Id.).

         A year later, Tuduj visited nurse sick call with complaints of bilateral eye pain and was referred for evaluation with a medical doctor on September 25, 2010 (Id. at p. 6). Tuduj was seen by Dr. Fe Fuentes for complaints of bilateral eye pain on September 29, 2010 (Id. at p. 7). During this examination, Tuduj complained of pain in both eyes due to exposure to light and requested a permit for sunglasses (Id.). Dr. Fuentes noted that Tuduj was well nourished, in no apparent distress, and his pupils were unremarkable (Id.). Dr. Fuentes told Tuduj that sunglasses were not allowed at Menard and referred him to the Optometry Clinic for further evaluation (Id.).

         On November 9, 2010, Tuduj was evaluated by Optometrist Dennis Els (Id. at p. 8). At this visit, Tuduj complained of a prior brain injury which caused him to experience photophobia (Id.). Dr. Els performed an examination of Tuduj's eyes and noted his eyes were unremarkable without any evidence of infection (Id.).

         Next, Tuduj visited nurse sick call on February 6, 2011 for complaints of severe cold sores on his lower lip and was referred for an evaluation with a medical doctor (Id. at p. 9). On February 10, 2011, Dr. Magid Fahim evaluated Tuduj for complaints of a cold sore for the past two weeks with no past medical history of cold sores (Id. at p. 10). Dr. Fahim noted that Tuduj's upper and lower lips were red and swollen (Id.). Dr. Fahim diagnosed Tuduj with a cold sore with secondary infection in the form of cellulitis of the lips (Id.). Dr. Fahim prescribed Tuduj Doxycycline, Acyclovir, a triple antibiotic ointment, and scheduled a follow-up in two weeks (Id.).

         Tuduj followed up with Dr. Fahim on February 28, 2011 reporting that the cold sore was improving but that he did not take the medications (Doxycycline and Acyclovir) as prescribed to him during the previous visit (Id. at p. 11). Dr. Fahim noted that the cold sore was improving and recommended that Tuduj continue to use the triple antibiotic ointment and return to healthcare as necessary (Id.). As to this visit, Tuduj testified:

Q. … And then it says, patient not using meds as prescribed. The last line in the that center column. A. Yes.
Q. So you were not taking your medications?
A. Well, what occurred is obviously I have … which is the fear of physician drug induced disease through side effects.
… And I did eventually start taking them after I got the patient medication information on what the ...

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