Opinion
Case No. 98 C 806
June 26, 2000
MEMORANDUM OPINION AND ORDER
Background
Because Feliciano failed to respond to CMS's Rule 56.1(a) statement of facts, he is deemed to have conceded the validity of all properly supported facts set forth in CMS's 56.1(a) statement. See Curran it Kwon, 153 F.3d 481, 486 (7th Cir. 1998).
Plaintiff Carlos Feliciano is a former inmate of the Kane County Adult Correctional Center (the "Jail"). Defendant Correctional Medical Services ("CMS") is a private corporation that provides health care services to the Jail's inmates. On February 10, 1997, while he was being held as a pretrial detainee, Feliciano was attacked and beaten by several other inmates being housed in his cell. The following morning, Feliciano was taken to the medical services unit where he was examined by a CMS nurse. Immediately following the examination, the nurse called for an ambulance to transfer Feliciano to a hospital due to a probable fractured jaw. Feliciano was admitted to the hospital where he underwent surgery to repair his jaw.
On February 13, Feliciano was discharged from the hospital and transferred back to the Jail. On the same day, the Jail's health services administrator, nurse Lisa Zegar, spoke with hospital personnel to verify Feliciano's discharge instructions, then called the Jail's medical director, Dr. Laurain Hendricks, to update her on Feliciano's condition and the medications prescribed for him. Hendricks ordered the Jail's nurses to follow the hospital's discharge instructions, except that she did not approve the prescription for morphine because she felt that it was not medically necessary.
Feliciano was housed in the Jail's infirmary from February 13 until April 18, 1997. Inmates in the infirmary have access to nursing care and an on-call doctor twenty-four hours a day, seven days a week. All inmates in the infirmary are within sight or sound of a health care staff member at all times. The Jail's nurses make rounds in the infirmary at least twice a day, and a doctor makes regular rounds depending on the inmates' medical conditions.
While Feliciano was housed in the Jail's infirmary, he was assessed by a nurse on nineteen occasions and was examined by a doctor or dentist on six occasions. He was also taken to an outside dental clinic on five occasions to be examined by his oral surgeon. During the two weeks following his discharge from the hospital, Feliciano was given medications on sixty-three occasions by the Jail's medical staff During the twenty-five occasions that Feliciano was examined by physicians or nurses in the infirmary, he complained of pain on two occasions. In response to his first complaint on February 14, Hendricks increased the frequency of administrations of Tylenol 3 with codeine. In response to the second complaint on April 10 — following the removal of wires from Feliciano's jaw — Tylenol 3 was again administered.
Feliciano brought suit against CMS, Kane County, the Kane County Sheriff, the Sheriff's Department, nurse Zegar, and unknown individual defendants. He alleged violations of his rights under the Fifth, Eighth, and Fourteenth Amendments. All of the defendants besides CMS have been previously dismissed by the court.
Feliciano alleges that CMS violated his rights in two ways. First, he alleges that the hospital released him prematurely because CMS encouraged it to do so. Second, he alleges that he "was not treated for at least one week post his release and during said period Plaintiff suffered excruciating pain and anguish, for which Defendant's deliberate indifference was the direct proximate cause." (Am. Compl. ¶ 27) Feliciano argues that CMS showed "deliberate indifference" to his medical needs, thereby violating his Eighth Amendment right to be free from cruel and unusual punishment. ( Id. ¶ 28) He brings the action against CMS pursuant to 42 U.S.C. § 1983.
Analysis
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986).
Because Feliciano was a pretrial detainee, he was "not protected by the Eighth Amendment; however, `the due process rights of a pre-trial detainee are at least as great as the Eighth Amendment protection available to a convicted prisoner.'" Higgins v. Correctional Med. Serv's., 178 F.3d 508, 511 (7th Cit. 1999) (quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 (7th Cir. 1996)). Under the Fourteenth Amendment's due process clause, "a claim for denial of medical services is analyzed under the Eighth Amendment standards." Id.
In order for Feliciano to prevail under 42 U.S.C. § 1983 on a claim of medical mistreatment by prison officials, he must show "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To be deliberately indifferent a prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Higgins, 178 F.3d at 511 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Knowing the risk, the official must then "consciously disregard it." Id.
The only evidence offered by Feliciano that he was released prematurely from the hospital is his own deposition testimony. He recounted a conversation he had with his dental surgeon at the hospital:
Q: Okay. And what did the dental surgeon say?
A: He said I was to stay [at the hospital] still, you know, one more day and find out tomorrow. The next day he was going to see how I was doing, you know, determine if I was ready to go back. But then he came in. He got a call. He got a call from the director of the medical.
Q: From someone from CMS, or do you know?
A: Because the doctor came and said, you know, she's pretty upset. She wants him back. She wants him released now.
Q: Do you know who that person is, who that doctor you're referring to?
A: I don't recall her name.
Q: And then what happened?
A: I was taken back.
Q: To the Kane County Jail?
A: Yes.
Q: Did the doctors say why that person — it was a female?
A: Yes.
Q: Did the doctor say why this female was upset?
A: She said something about the insurance, you know. Something about the insurance and money, you know. Wanted me back over there.
(Feliciano Dep. at 98)
Feliciano's testimony regarding the unidentified female's request to send him back to the Jail amounts to double hearsay. Accordingly, it is inadmissible on summary judgment without a showing that it could be replaced at trial with admissible evidence. See Minor v. Ivy Tech State College, 174 F.3d 855, 856-57 (7th Cir. 1999). Such a showing was not attempted here. Further, even assuming the testimony's validity, it establishes only that Feliciano was released one day earlier than his dental surgeon would have liked because someone at the Jail requested it. The request does not amount to deliberate indifference by CMS to Feliciano's medical needs. Feliciano has not shown that the early release posed a substantial risk of serious harm — he was simply moved to the Jail's infirmary, where he had access to nurses and doctors in-house, as well as regular visits with his outside oral surgeon.
The court also notes that the purported financial motivation for the discharge request, as recounted by Feliciano, is contradicted by the evidence. CMS was only responsible for a $100 copayment for Feliciano's hospital stay regardless of the stay's length. The balance of the charge — more than $11,000 — was paid by Feliciano's own insurer. CMS thus had no financial incentive to seek an early discharge for him.
As for Feliciano's claim that he was deprived of medical care for the first week following his release from the hospital, the evidence does not support it. Twenty-one separate entries in Feliciano's medical chart at the infirmary were made in that first week alone. He also made two visits to his oral surgeon during that week. Feliciano has submitted nothing to contradict this evidence, nor to suggest that he was deprived of medical care at any point.
The court cannot find that CMS displayed deliberate indifference to Feliciano's medical needs, or that its treatment of Feliciano was deficient in any way. Accordingly, his Eighth Amendment claim against CMS — which, as noted above, is more properly considered a due process claim under the Fourteenth Amendment — fails. Because Feliciano has failed to establish a constitutional violation, the court need not determine whether he can meet § 1983's requirement that the violation stem from an express CMS policy, widespread CMS practice, or the decision of someone with final policymaking authority. See Baskin v. City of Des Plaines, 138 F.3d 701, 704-05 (7th Cir. 1998).
Conclusion
For the above reasons, CMS's motion for summary judgment is granted. This action is dismissed.