United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
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.
and Procedural Background
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). The Court also
directed that Jacqueline Lashbrook, then warden at Menard, be
joined for injunctive relief purposes (Doc. 4).
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.
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.
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).
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.
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.).
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,
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).
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).
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
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).
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.).
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.).
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.).
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.).
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
… And I did eventually start taking them after I got
the patient medication information on what the ...