Opinion
Case No. 3: 16-CV-1263-NJR-MAB
09-12-2019
CHARLES DENT, Plaintiff, v. THOMAS BURRELL, ALFONSO DAVID, KAREN SMOOT, JEFFERY DENNISON, HARRY ALLARD, DEDA MILLIS, STEPHEN ENGLER, and SHERRY BENTON, Defendants.
REPORT AND RECOMMENDATIONS BEATTY, Magistrate Judge :
The matter has been referred to United States Magistrate Judge Mark A. Beatty by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on Defendants Dennison, Millis, Allard, Smoot, Engler, and Benton's motion for summary judgment (Doc. 180), Defendants Burrell and David's motion for summary judgment (Doc. 182), and Plaintiff's motion for leave to file a motion for summary judgment out of time (Doc. 198). It is recommended the District Court adopt the following findings of fact and conclusions of law, and the motion for summary judgment (Doc. 180) be GRANTED, the motion for summary judgment (Doc. 182) be GRANTED in part, DENIED in part, and the motion for leave (Doc. 198) be DENIED as moot.
I. FINDINGS OF FACT
Plaintiff Charles Dent, an inmate with the Illinois Department of Corrections ("IDOC") brings this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights that occurred at Shawnee Correctional Center ("Shawnee"). In his complaint, Plaintiff alleges Thomas Burrell, Alfonso David, Karen Smoot, Jeffery Dennison, Harry Allard, Deda Millis, Stephen Engler, and Sherry Benton ("Defendants") violated his Eighth Amendment rights by exhibiting deliberate indifference to a serious medical need. Specifically, he alleges Defendants failed to intervene in Plaintiff's medical care for his dental issues with tooth number 31.
Following the Court's threshold review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed on the following counts:
COUNT 1: Burrell failed to promptly and properly treat Dent's abscess and abscess related complications, in violation of the Eighth Amendment.(Doc. 6, p. 8). Dennison remained in the case in his official capacity for responding to injunctive orders (Id.).
COUNT 2: Burrell made improper treatment decisions and wrote a false disciplinary report against Dent because Dent filed grievances against him concerning his treatment, in violation of the First Amendment.
COUNT 3: David, Smoot, Dennison, Allard, Millis, Engler, and Benton violated the Eighth Amendment by not intervening in Dent's dental care.
COUNT 4: David failed to properly treat Dent's migraine-related problems from May 2016 to August 2016, in violation of the Eighth Amendment.
Defendants Allard, Benton, Dennison, Engler, Millis, and Smoot ("IDOC Defendants") filed a motion for summary judgment (Doc. 180); Plaintiff filed a response in opposition to the motion (Doc. 184). After the Court granted counsel for Plaintiff leave to withdraw because Plaintiff wished to proceed pro se, Plaintiff filed an additional response in opposition to the motion (Doc. 194). IDOC Defendants then filed a reply to Plaintiff's second response (Doc. 195). Plaintiff then filed a response the reply (Doc. 197).
Defendants Burrell, a dentist at Shawnee, and David, a doctor at Shawnee ("Wexford Defendants") filed a motion for summary judgment (Doc. 182); Plaintiff filed a response in opposition to the motion (Doc. 186). Wexford Defendants then filed a reply to Plaintiff's response (Doc. 189). Again, after the Court granted counsel for Plaintiff leave to withdraw because Plaintiff wished to proceed pro se, Plaintiff filed an additional response in opposition to the motion (Doc. 193). Wexford Defendants then filed a reply to Plaintiff's second response (Doc. 196).
Construed in the light most favorable to the nonmoving party, the evidence and the reasonable inferences that can be drawn from it establish the following relevant facts for purposes of the instant motions for summary judgment.
A. Relevant Facts Related to IDOC Defendants' Motion for Summary Judgment
On August 23, 2016, Plaintiff filed an emergency grievance with Defendant Dennison seeking dental care based on "Dr. Burrell's botched extraction on 8-15-16." (Doc. 194, p. 7); Defendant Dennison denied Plaintiff's grievance (Id.). On August 15, Plaintiff also filed another standard grievance seeking proper diagnosis and treatment, but Defendant Allard denied the grievance based on Defendant Dennison's response to Plaintiff's emergency grievance (Id.).
Additionally, on August 23, Plaintiff wrote Defendant Smoot concerning his denial of proper dental treatment because "Dr. Burrell refuse [sic] to see Plaintiff and several C/O's witness [sic] the swelling, bleeding and pain . . .." (Id.). Defendant Smoot received Plaintiff's letter as indicated by a date stamp (Id.). Plaintiff further contends Defendant Smoot was aware of numerous complaints against Defendant Burrell (Id.). On September 12, after Defendant Dennison denied Plaintiff's third emergency grievance, Defendant Millis denied as duplicative Plaintiff's other related grievances (Doc. 194, p. 10). On October 10 and 27, Plaintiff wrote Defendant Benton concerning his denial or proper dental treatment (Doc. 194, p. 8). Plaintiff also contends Defendant Engler was aware of Plaintiff's need for help because of Plaintiff's grievances from August to October 2016.
B. Relevant Facts Related to Wexford Defendants' Motion for Summary Judgment
At all times relevant, Defendant David was the Shawnee Medical Director and licensed to practice medicine in the State of Illinois (Doc. 183-2). As the Medical Director, Defendant David is "responsible for resolving problems related to patient issues and complaints, but he is typically not involved in responding to or reviewing offender grievances unless the Health Care Unit or other staff bring it to his attention." (Doc. 183, p. 3; Doc. 183-2).
When the IDOC transferred Plaintiff to Shawnee his "Offender Health Status Transfer Summary" included history of migraines under "Significant Medical History." (Doc. 27-3, p. 1). While the intake nurse at Shawnee did not make any medical referrals for Plaintiff's migraine issues, she did note Defendant David's name in conjunction with a separate medical issue (Doc. 183-2). The medical records also do not show Plaintiff made any complaints about headaches until July 18, 2016 (Id.).
On August 9, Defendant David reviewed Plaintiff's medical chart and then recommended Plaintiff continue to use over the counter medications and continue treatment protocols (Id.). On August 19, Dr. Coe, a non-party physician, noted Plaintiff had a history of chronic migraines and prescribed Excedrin Migraine Medication; Dr. Coe also referred Plaintiff to see Defendant David for follow-up (Id.).
Defendant David attests that on September 16, based on "Plaintiff's subjective reports and [his] own evaluation," he confirmed Plaintiff experienced chronic migraines (Id.). Defendant David prescribed Plaintiff 20 tabs of Excedrin Migraine while Plaintiff contends he had been receiving 30 tabs every 30 days for over 10 years (Doc. 183-2; Doc. 193, p. 9). Defendant David refilled Plaintiff's Excedrin Migraine prescription of 20 tabs upon request at least two times since September 2016 (Doc. 183-2).
Defendant Burrell evaluated Plaintiff on July 15, 2016 for tooth pain in the area of tooth 31 then Plaintiff informed Defendant Burrell that he has severe periodontal disease that has led to the extraction of 10-15 teeth (Doc. 183-1). Defendant Burrell determined there was mobility in tooth 31 and the gums around the tooth appeared to be infected (Doc. 183-4). He then advised Plaintiff tooth 31 would need to be extracted, prescribed antibiotics, and prescribed Ibuprofen 400mg (Doc 183-4; Doc 183-5).
On August 5, Defendant Burrell contends there were no signs of an infection present around tooth 31 (Doc. 183-1). That same day, Plaintiff returned to his housing unit after Defendant Burrell allegedly refused to extract Plaintiff's abscess tooth (Doc. 193, p. 14). On August 15, Defendant Burrell extracted Plaintiff's tooth 31 under anesthesia (Doc. 183-1; Doc. 183-3). Defendant Burrell reported there was no sign of infection after he completed the extraction (Doc. 183-1). Defendant Burrell then saw Plaintiff for follow up on August 19 for his complaints about pain he had not experienced with prior extractions (Doc. 183-1). Defendant Burrell noted Plaintiff had some signs of infections and prescribed Plaintiff Amoxicillin and increased Plaintiff's pain medication (Doc. 183-1). After the extraction Plaintiff contends two correctional officers, two lieutenants, and several inmates witnessed Plaintiff in severe pain with bleeding and swelling (Doc. 193, p. 18).
On August 27, Defendant Burrell concluded the extraction site of tooth 31 appeared normal and that Plaintiff did not appear to be in pain, however, Plaintiff contends he was still in pain with bleeding and swelling (Doc. 183-4). On September 9, Defendant Burrell examined Plaintiff and determined he had a possible infection at the extraction site. He then prescribed Plaintiff a round of antibiotics and Ibuprofen 400mg (Doc. 183-1).
On October 4, Plaintiff refused a teeth cleaning recommended by Defendant Burrell because Plaintiff had experienced several infections after the extraction of tooth 31 (Doc. 183-1). On November 1, Defendant Burrell examined Plaintiff for a biennial examination and contends Plaintiff did not voice any complaints at that time (Id.). On March 5, 2017, Defendant Burrell examined Plaintiff's teeth, determined Plaintiff had signs of an infection, and then prescribed a round of antibiotics and pain medication (Doc. 183-1).
C. Relevant Facts Related to Plaintiff's Motion for Leave
On April 7, 2017, the Court entered a scheduling order that set a dispositive motion deadline of March 30, 2018 (Doc. 39). On February 28, 2018, the Court reset the dispositive motion deadline to August 23, 2018 (Doc. 107). On July 27, 2018, the Court appointed an attorney to represent Plaintiff (Doc. 157). On October 18, 2018, the Court entered an amended scheduling order that set February 15, 2019 as a deadline for parties to file dispositive motions (Doc. 170). On February 6, 2019, the Court granted Defendants' motion for extension of time to file dispositive motions, set a new deadline of March 8, 2019, and then warned both parties that "any additional requests for an extension of time to file dispositive motions are unlikely to be granted." (Doc. 179).
On February 13, 2019, IDOC Defendants filed their motion for summary judgment (Doc. 180); on March 8, 2019, Wexford Defendants filed their motion for summary judgment (Doc. 182). Plaintiff, through his appointed attorney, responded to both motions (Docs. 184 and 186). On April 12, 2019, Plaintiff filed a pro se motion to strike his appointed counsel's response to Defendants' motions for summary judgment and requested new counsel or, alternatively, to proceed pro se (Doc. 187). On April 30, 2019, the Court held a telephonic motion hearing regarding Plaintiff's motion to withdraw his appointed counsel (Doc. 191). After hearing arguments from both sides, the Court allowed Plaintiff to proceed pro se and granted him up to and including June 10, 2019 (forty days) within which to respond to the pending motions for summary judgment and to file his own motion for summary judgment (Id.). On June 6, 2019, Plaintiff, now pro se, filed responses to the pending motions for summary judgment (Docs. 193 and 194). On July 29, 2019, forty-nine days after Plaintiff's deadline to file his own motion for summary judgment, Plaintiff filed a motion for leave to file a motion for summary judgment (Doc. 198). In his motion, Plaintiff correctly notes on June 6, 2019, before the deadline expired to file his motion for summary judgment, he filed as an exhibit "Plaintiff's Memorandum of Law in Support of His Summary Judgment on the Merits" to his response but did not include a separate motion for summary judgment (Doc. 193-1).
II. CONCLUSIONS OF LAW
A. Summary Judgment Standard
The standard applied to summary judgment motions under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A "material fact" is one identified by the substantive law as affecting the outcome of the suit. A "genuine issue" exists with respect to any such material fact . . . when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." On the other hand, where the factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is nothing for a jury to do. In determining whether a genuine issue of material fact exists, we view the record in the light most favorable to the nonmoving party.Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted). The Court will first address Defendant Burrell's motion for summary judgment as it relates to count 1.
B. Deliberate Indifference Standard
The Supreme Court has recognized that deliberate indifference to the serious medical needs of prisoners may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a claim for deliberate indifference to a serious medical need, there are "two high hurdles, which every inmate-plaintiff must clear." Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must demonstrate he suffered from an objectively serious medical condition. Id. at 591-92.
Next, plaintiff must show that prison officials acted with deliberate indifference, a plaintiff must put forth evidence that prison officials not only knew that the prisoner's medical condition posed a serious health risk, but they consciously disregarded that risk. Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). "This subjective standard requires more than negligence and it approaches intentional wrongdoing." Id.; accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) ("Deliberate indifference is intentional or reckless conduct, not mere negligence."); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) ("[N]egligence, even gross negligence does not violate the Constitution.").
i. Deliberate Indifference Claims
The Court will first address Defendant Burrell's motion for summary judgment as it relates to Plaintiff's deliberate indifference claims (counts 1, 3, and 4) starting with count 1.
a. Count 1 - Defendant Burrell
There are material questions of fact regarding Plaintiff's deliberate indifference claim against Defendant Burrell. As previously noted, Plaintiff has been incarcerated since 1983 and has had longstanding serious dental issues dating back to the mid-1990s. During his incarceration, medical personnel have extracted 10-15 of Plaintiff's teeth due to periodontal disease. On July 15, Defendant Burrell examined Plaintiff, placed him on antibiotics for an infection regarding tooth number 31, but did not order an x-ray. Rather, he performed a percussion test, which Plaintiff disputes. Plaintiff also testified in the past other dentists had conducted x-rays when addressing issues with Plaintiff's periodontal disease and this was the only time x-rays were not used.
Under count 1, Plaintiff alleges Defendant Burrell failed to promptly and properly treat Dent's abscess and abscess related complications, in violation of the Eighth Amendment. While the question to order an x-ray or additional diagnostic techniques are an example of medical judgment, prison doctors cannot simply ignore serious medical conditions or an inmate's severe pain by ordering a diagnostic technique that is inadequate, given the facts and circumstances, to address the issue. Gaston v. Ghosh, 498 F. App'x 629, 632 (7th Cir. 2012); See Gonzalez, 663 F.3d at 314-15 (no treatment provided for hernia); Gayton, 593 F.3d at 623-24 (nurse refused to see or treat inmate even after concerned guards brought her a bag of the inmate's vomit); Burks v. Raemisch, 555 F.3d 592, 593-94 (7th Cir.2009) (no treatment for eye condition resulting in permanent impairment of inmate's vision). Similar to the above-referenced cases, while some treatment was provided, Defendant Burrell chose not to order an x-ray and there is a dispute as to whether he provided Plaintiff with a percussion test.
It then took another month for Plaintiff's tooth to be extracted. Although delay will not always establish a doctor's deliberate indifference to the medical needs of a prisoner, see Gutierrez, 111 F.3d at 1374 (concluding that six-day wait to see doctor was not unreasonably long for infected cyst deemed not that severe); See, e.g., Smith, 666 F.3d at 1040 (five days of bleeding, vomiting, dizziness, and severe pain); Rodriguez, 577 F.3d at 832 (four days of severe pain from IV insertion); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir.2007) (two days of pain from dislocated finger). Accordingly, when viewing the facts in the light most favorable to Plaintiff, Defendant Burrell is not entitled to summary judgment as it relates to Plaintiff's claim he acted with deliberate indifference in addressing Plaintiff's abscess tooth. Whether a one-month delay in extraction of Plaintiff's tooth - after Plaintiff initially complained of severe pain to Defendant Burrell - constitutes deliberate indifference should be question for the trier of fact to decide.
Plaintiff also contends Defendant Burrell failed to promptly and properly address Plaintiff's dental complications related to his tooth extraction. "This subjective standard requires more than negligence and it approaches intentional wrongdoing." Id.; accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) ("Deliberate indifference is intentional or reckless conduct, not mere negligence."); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) ("[N]egligence, even gross negligence does not violate the Constitution.").
On September 9, after the extraction, Defendant Burrell examined Plaintiff, placed him on antibiotics, and showed Plaintiff an x-ray of the extraction site indicating it was "clean." The above conduct does not rise to the level of deliberate indifference because Defendant Burrell treated Plaintiff on September 9 and provided him with antibiotics. Therefore, Defendant Burrell's is entitled, in part, to summary judgment as it relates to count 1. Specifically, Defendant Burrell is not entitled to summary judgment as it relates to Plaintiff's claim that Defendant Burrell failed to promptly and properly treat his abscess; and, Defendant Burrell is entitled to summary judgment as it relates to Plaintiff's claim that he failed to promptly and properly treat Plaintiff's abscess related complications.
b. Count 3 - IDOC Defendants
There are no material questions of fact regarding Plaintiff's deliberate indifference claim against the IDOC Defendants. Plaintiff submitted several grievances and letters to the IDOC Defendants, who are all non-medical, prison officials.
Non-medical defendants are entitled to reasonably rely on the expertise of a medical professional. See, e.g., Figgs v. Dawson, 829 F.3d 895, 903-04 (7th Cir. 2016) (no deliberate indifference where prison administrative staff reasonably relied on expertise of specialized staff). "Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prison was under a physician's care would strain this division of labor." Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011); see, e.g., Bond v. Aguinaldo, 228 F.Supp.2d 918, 920 (N.D. Ill. 2002) ("Except in the unusual case where it would be evident to a layperson that a prisoner is receiving inadequate or inappropriate treatment, prison officials may reasonably rely on the judgment of medical professionals.").
Here, beginning with the emergency grievance Plaintiff filed on August 23, Defendant Burrell responded to the grievance by indicating he extracted Plaintiff's tooth in its entirety on August 15, Defendant Burrell examined Plaintiff's mouth on August 23 and August 26, and concluded "[i]t can't be tooth that remains. When the socket begins to heal bone splicing occur." Based on Defendant Burrell's response, Defendant Dennison denied the grievance. Like the defendants in Bond, Defendant Dennison reasonably relied on Defendant Burrell's medical judgment and Plaintiff's grievance does not permit the inference that Defendant Dennison knew Defendant Burrell provided Plaintiff with medically inappropriate treatment. Therefore, the IDOC Defendants are entitled to summary judgment as it relates to Plaintiff's claim against Defendant Dennison.
Plaintiff also filed on August 15 a standard grievance seeking proper diagnosis and treatment, but Defendant Allard denied the grievance based on Defendant Burrell's response ("An X-ray is not needed when inmate has abscess and mobility on tooth. Inmate at that time, was given an antibiotic and pain medication. Tooth #31 was taken out on 8/15/16.") (Doc. 181-3, p. 1). Again, Defendant Allard reasonably relied on Defendant Burrell's medical judgment and Plaintiff's grievance does not permit the inference that Defendant Allard knew Defendant Burrell provided Plaintiff with medically inappropriate treatment. Therefore, IDOC Defendants are entitled to summary judgment as it relates to Plaintiff's claim against Defendant Allard.
With regard to Plaintiff's claims against the remaining IDOC Defendants, the record indicates medical personnel examined Plaintiff's mouth on July 15, August 5, August 15, August 19, August 23, August 27, September 9, and September 10. In Dr. Burrell's responses to Plaintiff's grievances, he indicates he placed Plaintiff on multiple rounds of antibiotics, extracted his tooth, and the extraction site was noted as clean. Also, notes indicate personnel informed Plaintiff that it takes months for the extraction to fully heal. The non-medical prison officials had the right to rely on Defendant Burrell's professional medical opinion and there was nothing to give them notice they needed to intervene. See Giles v. Godinez, No. 15-3077, 2019 WL 349423, at *6 (7th Cir. Jan. 29, 2019).
There are no material questions of fact regarding Plaintiff's deliberate indifference claim against Defendant David. Even assuming Defendant David had personal involvement in Defendants' alleged constitutional violation, there is no evidence he condoned or acquiesced in his subordinate's alleged unconstitutional treatment of Plaintiff. In order for a medical director to be liable for medical staff actions, individual liability under § 1983 requires "personal involvement in the alleged constitutional deprivation." Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010) (citing Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). In Minix, the Seventh Circuit found a medical director not liable for a nurse's alleged deliberate indifference because there was no evidence suggesting the director condoned such practices. Id. at 834. Here, there is no evidence Defendant David was aware Defendant Burrell allegedly provided Plaintiff incompetent care or disregarded Shawnee medical policies to warrant intervention. Rather, the record indicates Dr. Burrell provided Plaintiff treatment by evaluating Plaintiff multiple times, treating his infections with prescription medications, and ordering follow up appointments. Therefore, IDOC Defendants are entitled to summary judgment on all of Plaintiff's claims. The next issue is whether Defendant David failed to properly treat Plaintiff's migraine-related problems from May 2016 to August 2016.
c. Count 4 - Defendant David
There are no material questions of fact regarding Plaintiff's deliberate indifference claim against Defendant David as it relates to Plaintiff's migraine-related problems. Deliberate indifference from a medical provider requires a showing the medical provider knows he or she is creating a substantial risk of harm for an inmate. Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995). Here, the record shows Defendant David completed a review of Plaintiff's chart on August 5, 2016 and then recommended Plaintiff continue using over-the-counter medications and to follow treatment protocols as needed. Importantly, evidence also shows that once he was made aware of Plaintiff's migraine problems, Defendant David promptly responded to them. Specifically, on September 12, 2016, Defendant David evaluated Plaintiff, confirmed the chronic migraine diagnosis, provided Plaintiff with a six-month prescription of Excedrin Migraine medication, and ordered regular refills upon Plaintiff's request. No reasonable jury could find Defendant David failed to properly treat Plaintiff's migraine-related problems from May 2016 to August 2016. The final issue is whether Defendant Burrell wrote a false disciplinary report against Plaintiff because Plaintiff filed a grievance against him concerning his treatment.
C. Retaliation Standard
It is well-settled a prison official who acts in retaliation for a prisoner's exercise of a constitutional right violates the Constitution. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). At the summary judgment stage, a prisoner has the initial burden to make out a prima facie case of retaliation by showing that: "(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation likely to deter such activity; and (3) the First Amendment activity was at least a motivating factor in the decision to impose the deprivation." Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014) (citing Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012)). A plaintiff indisputably has a First Amendment right to file grievances. DeWalt, 224 F.3d at 618; Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010).
i. Retaliation Claim
There are no material questions of fact regarding Plaintiff's retaliation claim against Defendant Burrell. While Plaintiff no doubt engaged in protected activity by filing a grievance against Defendant Burrell, Plaintiff did not suffer a deprivation likely to deter such activity. The Seventh Circuit has held "a single retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action." Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009). Here, like Bridges, a- single-later-dismissed disciplinary ticket serves as the basis for Plaintiff's retaliation claim against Defendant Burrell. Specifically, after Defendant Burrell filed a disciplinary ticket against Plaintiff for arriving late to an appointment, Shawnee personnel later expunged the ticket after a correctional officer indicated Plaintiff was late for his appointment because personnel inadvertently left him off that day's call pass summary. Therefore, based on Seventh Circuit precedent regarding a single-later-expunged disciplinary ticket, there is no genuine issue of material fact and no reasonable jury could find Defendant Burrell retaliated against Plaintiff for Plaintiff filing a grievance against Burrell.
D. Plaintiff's Motion for Summary Judgment
As a preliminary matter, the Court construes Plaintiff's response in opposition to Wexford Defendants' motion for summary (Docs. 193 and 193-1) as a combined response and cross motion for summary judgment. As to the merits of Plaintiff's motion for summary judgment, Plaintiff is not entitled to summary judgment as it relates to his claims against Defendants Burrell and David for the reasons previously set forth.
RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED the District Court adopt the following findings of fact and conclusions of law, and the IDOC Defendants' motion for summary judgment (Doc. 180) be GRANTED, Plaintiff's motion for leave (Doc. 198) be DENIED as moot, Plaintiff's motion for summary judgment (Doc. 193-1) be DENIED, and the Wexford Defendants' motion for summary judgment (Doc. 182) be GRANTED in part, DENIED in part, Specifically, Defendant Burrell is not entitled to summary judgment as it relates to Plaintiff's claim that Defendant Burrell failed to promptly and properly treat Plaintiff's abscess; and, Defendant Burrell is entitled to summary judgment as it relates to Plaintiff's claim that he failed to promptly and properly treat Plaintiff's abscess related complications.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law are due fourteen (14) days after service (see attached Notice).
DATED: September 12, 2019
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge