United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Sorrentino, an inmate in the custody of the Illinois
Department of Corrections at Stateville Correctional Center,
alleges that the treatment he received for a kidney stone
violated the Eighth Amendment. Defendants Wexford Health
Sources, the Estate of Dr. Saleh Obaisi, and Dr. Arthur Funk
have moved for summary judgment, but defendant Warden Randy
Pfister has not. Sorrentino does not oppose summary judgment
for Dr. Funk, so Dr. Funk's motion is granted for that
reason. The motion is also otherwise granted as to the Estate
of Dr. Obaisi, Wexford, and the Warden for the following
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The Court
considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that
evidence in the light most favorable to the nonmovant.
Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir.
2018). To defeat summary judgment, a nonmovant must produce
more than a “mere scintilla of evidence” and come
forward with “specific facts showing that there is a
genuine issue for trial.” Johnson v. Advocate
Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if
a reasonable jury could not return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
undisputed that Sorrentino suffered from kidney stones. It is
also undisputed that Defendants provided Sorrentino with a
course of treatment for the kidney stones, eventually
culminating in surgery. Sorrentino claims, however, that
delays in his treatment constituted deliberate indifference.
survive summary judgment on a claim that delay in treatment
constituted deliberate indifference, the plaintiff must
produce “verifying medical evidence” that the
delay in treatment “exacerbated the injury or
unnecessarily prolonged pain.” Wilson v.
Adams, 901 F.3d 816, 822 (7th Cir. 2018).
“Unnecessarily prolonged pain” means that the
delay in treatment caused the plaintiff to suffer
“serious but avoidable pain.” Gabb v. Wexford
Health Sources, Inc., 2019 WL 2498640, at *4 (7th Cir.
June 17, 2019). “While expert testimony could be used
as ‘verifying medical evidence,' medical records
alone could suffice.” Miranda v. County of
Lake, 900 F.3d 335, 347 (7th Cir. 2018).
Seventh Circuit has reversed summary judgment for jail staff
and medical providers when a plaintiff presents evidence that
he experienced serious pain and the staff neglected to
provide treatment in a timely fashion that would have avoided
that pain. See Berry v. Peterman, 604 F.3d 435, 442
(7th Cir. 2010) (“The delay in this case, however, was
neither minimal nor justified by [the plaintiff's] status
as a prisoner. [The Plaintiff] was forced to endure nearly
two months of serious [tooth] pain despite the availability
of an obvious treatment-a simple dentist visit [and root
canal.]”); Williams v. Liefer, 491 F.3d 710,
716 (7th Cir. 2007) (“The medical records indicate that
the nitroglycerin almost immediately relieved his pain and
lowered his blood pressure, so a jury could find that the
defendants' delay caused Williams six extra hours of pain
and dangerously elevated blood pressure for no good
reason.”). Sorrentino has presented evidence that he
sometimes waited months for follow-up on medical treatment
orders. And the Court assumes that it cannot be disputed that
kidney stones cause pain. But unlike Berry v.
Peterman and Williams v. Liefer, the evidence
in this case indicates that Sorrentino was never suffering
serious pain. Rather, Sorrentino's testimony, the
testimony of the doctors who treated him, and the medical
records indicate that that Sorrentino suffered moderate,
occasional pain. See R. 110 at 9 (¶ 48)
(Sorrentino admits that he had “occasional pain in
right flank”); R. 105-1 at 10 (37:10-11) (Sorrentino
testified that there were “intervals of time”
with no pain); R. 105-1 at 11 (38:14-15) (Sorrentino
testified that there were “periods of time where the
pain . . . wasn't remarkable”); R. 105-1 at 16
(61:11-12) (Sorrentino testified that “sometimes [the
pain] would be gone for a few days, and I would feel
might think that like the rotting tooth and chest pain at
issue in Berry and Williams, a kidney stone
should be treated in a similarly immediate fashion. But
Sorrentino has not presented medical records, such as a
doctor's orders, (or any other evidence) showing that
time was of the essence in treating his condition. To the
contrary, the urologist to whom Defendants referred
Sorrentino for treatment-Dr. Sawhney (who is not a Wexford
employee and not a defendant in this case)-testified that he
waited to prescribe surgery until it became clear to him that
Sorrentino's kidney stone would not pass on its own,
which would be preferable to surgery. See R. 105-5
at 7 (24:22-26:11), 21 (78:21-79:12), 22 (82:20-83:5).
Sorrentino has not presented any evidence questioning Dr.
Sawhney's medical judgment that the best course of
treatment for Sorrentino was to wait and see if the kidney
stones passed without the risks inherent in surgery. Since
Dr. Sawhney's testimony about the reasons for his
treatment stands unchallenged with contrary evidence, the
delay in treatment alone is not evidence of deliberate
for a reasonable jury to be able to find that a defendant
unnecessarily prolonged a plaintiff's pain, the plaintiff
must produce evidence that a course of treatment existed that
would have provided relief; in other words, that the pain was
“avoidable.” Gabb, 2019 WL 2498640, at
*4. The Seventh Circuit has affirmed summary judgment when
plaintiffs fail to meet this burden. See Id.
(“[The plaintiff] has no evidence that any
course of treatment, be it as simple as referral to a
chiropractor or as involved as surgery at the finest hospital
in Illinois, would have provided him any relief from his
chronic back pain.”) (emphasis in original);
Petties v. Carter, 836 F.3d 722, 733 (7th Cir.
2016), as amended (Aug. 25, 2016) (holding that the
plaintiff could not pursue his claim against the prison
doctor for failing “to explore surgery as an
option” in part because the plaintiff “did not
produce medical evidence confirming that he would have
benefited from surgery”).
has not presented evidence that any treatment would have
addressed his pain. Sorrentino contends, and Dr. Sawhney's
testimony corroborates, that Sorrentino suffered from pain in
his right flank (the area between the bottom rib and hip) and
traces of blood in his urine. Sorrentino and his doctors
believed that these symptoms were due to Sorrentino's
kidney stone. And, as noted, the Court assumes that kidney
stones cause pain. But Sorrentino testified at his deposition
that he continues to suffer from the same pain in his side
and blood in his urine after the surgery to remove the kidney
stone. See R. 105-1 at 22 (82:10-83:12), 23
(87:11-20). Maybe Defendants' delay in providing surgery
reduced its effectiveness. But there is no evidence of this.
The only evidence before the Court is that Sorrentino
experienced moderate pain and trace amounts of blood in his
urine, which Dr. Sawhney eventually determined required
surgery. But the surgery did not alleviate Sorrentino's
symptoms. If the surgery had alleviated Sorrentino's
symptoms, that might have been sufficient evidence for a jury
to find that the delay in providing this relief constituted
deliberate indifference (assuming that the delay was
avoidable, an issue the Court need not reach). But that did
not happen, and Sorrentino has not provided any other
evidence that the delays he has identified in his treatment
exacerbated his condition or prolonged his pain. Without such
evidence, a reasonable jury could not find in his favor, and
summary judgment must be granted to Defendants.
the motion for summary judgment made by the Estate of Dr.
Obaisi, Dr. Funk, and Wexford  is granted. Additionally,
because the Court finds that Sorrentino has not produced
evidence sufficient for a reasonable jury to find that the
delays in his treatment constituted deliberate indifference,
the same must also be true for Sorrentino's claim against
the Warden. For that reason, the Court grants summary
judgment to the Warden, despite the Warden's failure to
file a motion. If Sorrentino objects to the grant of summary
judgment in the Warden's favor (or any other aspect of
this opinion and order), he should file a motion to
reconsider within the 28 days provided by Federal Rule of
Civil Procedure 59(e).
Court grants this motion without considering the opinions of
Dr. Obaisi or Dr. Sawhney as to the reasonableness of their
conduct, which they offered during their deposition
testimony. Defendants relied on this testimony in their
brief. Sorrentino argues that this reliance was inappropriate
considering the parties' agreement to defer expert
discovery until after this motion was decided. But even
absent that agreement, Dr. Obaisi and Dr. Sawhney are fact
witnesses in this ...