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Bilik v. Shearing

United States District Court, S.D. Illinois

January 7, 2020




         Pending before the Court is the Report and Recommendation of Magistrate Judge Gilbert C. Sison (Doc. 190), in which he recommends the undersigned grant the motions for summary judgment filed by Defendants (Docs. 106, 109, 129). Plaintiff Richard Bilik filed a timely objection to the Report and Recommendation (Doc. 198). For the reasons set forth below, the Court adopts the recommendation of Judge Sison and grants Defendants' motions.


         Plaintiff Richard Bilik is an inmate in the Illinois Department of Corrections. Prior to his incarceration, Bilik experienced headaches and debilitating migraines a few times a week, which he attributes to head trauma from practicing Taekwondo when he was younger and two car accidents where he went through the windshield (Doc. 110-1 at pp. 23-24). Bilik would take eight or ten Motrin to help with the pain (Id. at p. 24).

         Bilik was incarcerated for a period of time prior to 2009, during which a doctor prescribed Tramadol for his migraines (Id.). Bilik testified that Tramadol, a narcotic opioid pain reliever, was effective in alleviating his migraine pain (Id.). In 2012, Bilik claims he was assaulted in the Cook County Jail, which caused a traumatic brain injury and nerve damage (Id. at p. 25). Bilik was prescribed ibuprofen, Tramadol, and Neurontin (gabapentin) for his pain (Id.). Neurontin is an anticonvulsant drug also used off-label for various conditions including the treatment of neuropathic pain (Doc. 107-2 at p. 2).

         Bilik again entered the IDOC on October 5, 2012, and was placed in Lawrence Correctional Center on October 19, 2012. On June 12, 2013, Bilik had a physical therapy evaluation for his lower back pain.

         Bilik was transferred to Menard Correctional Center on June 14, 2013 (Doc. 130-1 at p. 15). Upon arriving at Menard, Bilik completed an intake medical screening, including an evaluation with a registered nurse (Doc. 107-1 at p. 1). The nurse noted Bilik's chronic conditions included panic/anxiety disorder, neuropathic pain, migraines, high cholesterol, and allergies (Id.). She also noted he was on a number of medications for those conditions, including Claritin, Neurontin, Naproxen, Effexor, Depakote, Celexa, and Lipid Omega-3 Fatty Acid (Id.). During this evaluation, Bilik reported complaints of left leg pain, but did not appear to be in any distress (Id.). The nurse scheduled Bilik for a routine follow up with sick call (Id.).

         Defendant Dr. Robert Shearing, the medical director at Menard from October 15, 2012, through November 16, 2013, performed Bilik's intake medical screening via telephone and renewed Bilik's prescriptions for Omega-3 Fatty Acid, Effexor, Depakote, and Celexa. He also referred Bilik to a mental health practitioner for further evaluation and to address his psychiatric prescription needs. Dr. Shearing discontinued the Claritin, Neurontin, and Naproxen pending further evaluation by a physician or nurse practitioner and ordered Bilik scheduled on the MD sick call line (Id. at p. 2; Doc. 107-2).

         Dr. Shearing explained via affidavit that, when an inmate arrives at a new correctional facility, medications prescribed at prior correctional centers are not automatically renewed or continued (Doc. 107-2). This is because certain medications are known for abuse in the correctional context; thus, they are only re-prescribed after the medical director, physician, or nurse practitioner has evaluated the transferring inmate (Id.). This would include Neurontin, which has a highly adverse side effect profile, including sedative and hypnotic qualities (Id.). This procedure also ensures the medication and dosage remain appropriate for the patient and that it is not being abused or misused (Id.). Inmates also are instructed that the sick call process is available to them if they feel they need medications other than those prescribed for them and that over-the-counter pain medications are available at commissary (Id.).

         On June 21, 2013, Bilik went to Nurse Sick Call, where he was evaluated for complaints of right arm and shoulder pain (Doc. 107-1 at p. 3). Bilik received a prescription for acetaminophen and was referred for further evaluation with a medical doctor (Id.).

         On June 27, 2013, Bilik was evaluated by Mental Health and received prescriptions for Effexor, Celexa, and Buspar, which is an anti-anxiety medication (Doc. 107-1 at p. 4). Bilik reported receiving Depakote for complaints of migraine headaches and was instructed this prescription would be issued by Medical Department at Menard, if necessary (Id.; Doc. 107-2).

         Bilik was scheduled to see a doctor on June 28, 2013, but he was not examined due to lack of time (Doc. 107-2). He was rescheduled for July 3, 2013, but security did not bring him to the Health Care Unit for his appointment (Id.). Bilik finally was examined by Dr. Shearing on July 15, 2013 (Doc. 107-2). Bilik complained about back, neck, arm, and leg pain, which he attributed to the assault by police in 2012 (Id.). He also complained of migraine headaches every day with nausea, light sensitivity, and sound sensitivity, and demanded various medications to address his complaints (Id.). Dr. Shearing attested that he performed various physical tests that could have indicated causes for Bilik's reported pain, but all tests were negative or came back within normal limits (Id.). Dr. Shearing's assessment was that Bilik was magnifying his symptoms and exhibiting drug-seeking behavior (Id.). He informed Bilik that if he truly had daily headaches, long-term overuse of analgesics was making the problem worse rather than better (Id.). Dr. Shearing attested that the use of pain medication over long periods of time can trigger rebound headaches in increasing severity over time; however, the headaches can be eliminated when a patient stops taking the regularly used medication (Id.).

         Based on Dr. Shearing's evaluation, he reduced Bilik's analgesic regimen to a total of 500 mg Naproxen to address all of his self-reported ailments (Id.). He also discontinued Bilik's prescriptions for Neurontin and Depakote, as he found them unnecessary to treat Bilik's subjective complaints and believed they were causing Bilik to suffer more frequent rebound headaches (Id.). He did renew Bilik's Claritin prescription (Id.).

         On August 27, 2013, Bilik saw Defendant Dr. Fe Fuentes for allergy-related complaints (Id.). She prescribed him a nasal decongestant spray (Id.). Fe Fuentes was a physician at Menard Correctional Center between June 2, 2008 and July 17, 2015.

         On September 25, 2013, Bilik was evaluated by a medical technician and requested a renewal of his nasal decongestant spray and Claritin prescriptions (Id.). He also requested a renewal of his Naproxen prescription for back pain (Id.). The technician referred Bilik for an evaluation with a medical doctor (Id.).

         Dr. Shearing saw Bilik on September 30, 2013, at which point Bilik complained of chronic nasal congestion, back pain, and neck pain (Id.). Dr. Shearing noted that Bilik's physical exam and x-rays were normal (Id.). Dr. Shearing discontinued Bilik's prescription for the nasal spray and issued new prescriptions for Mobic, a non-steroidal anti-inflammatory drug used to treat swelling and pain, as well as Claritin (Id.). He also directed Bilik to return in three weeks for another evaluation (Id.).

         Less than two weeks later, Bilik presented at Nurse Sick Call where he was evaluated by a medical technician for back pain (Id.). The medical technician referred Bilik for an evaluation with a medical doctor or nurse practitioner (Id.).

         On October 18, 2013, Bilik was examined by Defendant Michael Moldenhauer, a registered nurse practitioner who has worked at Menard since January 15, 2013. Bilik complained of pain in his upper, mid, and lower back, as well as right arm pain (Id.). Moldenhauer referred Bilik to Dr. Shearing for further evaluation (Id.).

         On November 4, 2013, Bilik saw Dr. Shearing, reported back pain, and demanded a prescription for Tramadol (Id.). Dr. Shearing again noted that Bilik's exams and tests were normal and that Bilik exhibited clear drug-seeking behavior (Id.). Dr. Shearing did not prescribe Tramadol, but rather recommended that Bilik continue his current treatment plan and follow up as necessary (Id.). That was the last time Dr. Shearing evaluated Bilik (Id.).

         On December 23, 2013, Bilik saw a medical technician in the Health Care Unit and complained that his back always hurt and the Mobic was not working (Doc. 12-2 at p. 82). He also complained about his headaches and told the nurse that he previously took Neurontin, Depakote, and Tramadol, which were effective at treating the pain (Id. at pp. 82-83). The medical technician referred Bilik to the doctor, prescribed ibuprofen 200 mg, and told Bilik to begin gentle strengthening exercises (Id.)

         Defendant Dr. John Trost, who became the Medical Director of Menard on November 25, 2013, saw Bilik on January 10, 2014, for renewal of lipid medication and complaints of back pain (Doc. 110-2). Dr. Trost prescribed Naproxen and Elavil, a tricyclic antidepressant which can also effectively relieve nerve pain (Id.). He ordered a lipid panel, thyroid test, Naproxen 500 milligrams twice a day for three months, and Elavil 10 milligrams daily (Id.). He also evaluated Bilik for his request of low bunk and low gallery permits, but determined they were not necessary at that time (Id.).

         On April 8, 2014, Dr. Trost again saw Bilik for complaints of low back pain (Id.). Dr. Trost observed Bilik had a steady gait and diagnosed chronic low back pain (Id.). He prescribed Naproxen 500 milligrams twice a day for three months (Id.).

         On August 14, 2014, Bilik saw a nurse in the Health Care Unit and requested a “renewal” of his prescriptions for Naproxen, Depakote, Elavil, Tramadol, and Neurontin (Id.; Doc. 12-2 at p. 92). The nurse referred Bilik to see a physician (Id.). On August 20, 2014, Dr. Trost ordered Naproxen and Nortriptyline 25 milligrams, a tricyclic antidepressant that can also effectively relieve nerve pain (Id.; Doc. 12-2 at p. 93). Dr. Trost attested that his plan at that time was to defer the renewal of Depakote to the mental health provider (Id.).

         On September 5, 2014, Bilik received a letter from Mrs. McElvain in the Mental Health Unit enclosing chronic pain control techniques and visualization strategies (Doc. 12-2 at pp. 72-75). The letter encouraged Bilik to pick one of the strategies and practice a minimum of 30 minutes a day, three times a week (Id.).

         On October 25, 2014, Bilik saw a nurse in the Health Care Unit and complained of severe constant pain in his entire back (Doc. 110-3 at p. 49). He reported having taken Naproxen, Neurontin, and Tramadol in the past, which were effective for the pain (Id.). He also reported numbness in his right arm (Id.). Bilik was referred to the physician for the prescription ...

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