Opinion
08-1067.
March 31, 2010
MEMORANDUM OPINION AND ORDER
Before the court are the defendants, Sandra Hill, Dr. Sylvia Mahone, Dr. Liping Zhang, and Dr. Olukunle Obadina's summary judgment motion [87], the plaintiff's response [99] and the defendants' reply [97], the defendants, Jon Deal, Kerri Mehenkens, Teresa Kisro, Tracy Maue, Brian Fairchild, Terri Anderson, Roger E Walker, Jr, Eddie Jones, John Birkel, Christine Beasley, Steve Smith, Patrick Hastings' summary judgment motion [89], the plaintiff's response [93] and the defendants' reply [95].
BACKGROUND
Plaintiff has filed his complaint in regards to medical care he has received while in the Illinois Department of Corrections. Specifically, plaintiff alleges the defendants have been deliberately indifferent to a serious medical need in regards to an inguinal hernia. Plaintiff has been incarcerated in the Illinois Department of Corrections continuously since 1996. In late January of 2006, plaintiff felt a sharp pain in his groin while moving boxes in his cell at the Lawrence Correctional Center. The plaintiff makes allegations against Wexford Health Sources, Inc. for its role in the development of medical/clinical policies within the Illinois Department of Corrections. Plaintiff has specified that his complaint with Wexford is the fact that he had to continue to pay a $2.00 co-pay for his follow-up visits in regard to his hernia.
UNDISPUTED MATERIAL FACTS
For facts 1-73, the exhibits can be found attached to defendants' summary judgment motion [87]. For the remaining facts, the exhibits can be found attached to defendants' memorandum of law [90]
Plaintiff disputes this fact by stating the medical records have somehow been falsified. However, he does not dispute that the medical records are accurately quoted in defendants' summary judgment motion. Even assuming that plaintiff is correct that the medical records have someone been falsified, this in no way indicates that any of the defendants have been deliberately indifferent to his serious medical needs. Further, plaintiff offers no proof that any defendant falsified the medical records, nor does he offer any proof that the medical records have in fact been falsified.
As in fact number 9, plaintiff disputes this fact based on his allegations that the medical records have been falsified. Once again, plaintiff offers no proof that any defendant falsified the medical records, nor does he offer any proof that the medical records have in fact been falsified.
Plaintiff disputes this fact based on his submission of grievances and other written correspondence in regards to complaints of his hernia. However, it is undisputed that the plaintiff's medical records do not indicate any complaints being made by the plaintiff regarding his hernia prior to March 25, 2007.
Plaintiff disputes this fact because his lower gallery permit and hernia truss were not provided at Pinckneyville Correctional Center. This assertion however does not dispute the assertion made in this fact.
Plaintiff disputes having had a job at that time, but he does not dispute that defendants are not quoting the medical records correctly. Further, the reason he did not show up for the sick call would not be relevant. He could have preferred to sleep in or go to the law library. Regardless of the reason, he did not show up for the nurse sick call for which he signed up.
The plaintiff disputes this fact by stating he was never given a low bunk permit, only a low gallery permit and that he could not have a low gallery permit while at Pinckneyville and he was not allowed to have a hernia belt at Pinckneyville. However, the plaintiff's assertions do not undermine Dr. Obina's medical opinion that he was treated conservatively or Obina's assessment that the plaintiff was able to work if he so chose.
Plaintiff disputes this fact by stating that he was prescribed Tylenol on one occasion (to take as needed for pain) by Dr. Obadina. Based on the medical records and plaintiff's lack of proof and one recommendation to take Tylenol as needed, the court finds that the plaintiff's attempt to dispute this fact fails.
APPLICABLE LAW
Summary Judgment Standard.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Any discrepancies in the factual record should be evaluated in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248."Summary judgment is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the nonmovant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the nonmovant]." Fed.R.Civ.P. 56(e). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment. . . . Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.
Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed.R.Civ.P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.
Deliberate Indifference Standard.
In order to prove his cause of action, the plaintiff must prove deliberate indifference to a serious medical need. At a minimum, this requires actual knowledge of impending harm which is easily preventable so that a conscious, capable refusal to prevent harm can be inferred from the defendants' failure to prevent it. Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997); Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985). Deliberate indifference is more than mere negligence and approaches intentional wrongdoing. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To establish deliberate indifference, plaintiff must show the defendants ignored a known risk. Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998).
Additionally, in order to establish deliberate indifference, plaintiff must show that the physician or other defendants must both have been aware of the fact from which the inference could be drawn that a substantial risk of serious harm exists, and he must actually draw the inference. Higgins v. Correctional Medical Services, 178 F.3d 508, 511 (7th Cir. 1999); Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995). The exercise by a physician of his professional judgment does not constitute deliberate indifference. Youngberg v. Romeo, 457 U.S. 307, 322-323 (1982).
Medical decisions, such as whether one course of treatment is preferable to another, are beyond the Eighth Amendment's purview. Additionally, the Eighth Amendment is not a vehicle for bringing claims of medical malpractice. Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). It should also be kept in mind that inappropriate medical treatment based on pure negligence, or even a series of purely negligent acts is not the same as indifference to a serious medical need. Sellers v. Henman, 41 F.3d 1100, 1102-03 (7th Cir. 1994). While a prisoner has the right to medical care, he does not have the right to determine the type and scope of the medical care he personally desires. A difference of opinion between a physician and the patient does not give rise to a constitutional right, nor does it state a cause of action under § 1983. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. Col. 1968). See also, Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006).
Inattention to a medical condition amounts to a constitutional violation only where the medical condition is serious. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). As previously indicated, deliberate indifference may only be found when an official knows of and disregards an excessive risk to inmate health or safety. See Duane v. Lane, 959 F.2d 673, 676 (7th Cir. 1992). Deliberate indifference also requires that defendants either intended to harm plaintiff or knew of a risk of harm so significant that an intent to harm could be inferred from a refusal to provide medical care. See Smith-Bey v. Hospital Administrator, 841 F.2d 751, 759 (7th Cir. 1988).
The court notes that plaintiff's claim is one in which he is asserting that the Eighth Amendment has been violated. The Eighth Amendment does not require that prisoners receive "unqualified access to healthcare." Hudson v. McMillian, 503 U.S. 1, 9 (1992); see also, Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003). Rather, inmates are entitled only to "adequate medical care." Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002). Specifically, the Eighth Amendment does not entitle an inmate to demand specific care.
Personal Involvement.
Liability under 42 U.S.C. § 1983 must be based on a defendant's personal involvement in the alleged constitutional deprivation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Thus, an individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional violation. McBride v. Soos, 679 F.2d 1223, 1227 (7th Cir. 1982). Some causal connection or affirmative link between the action complained about and the official sued is necessary in order for a plaintiff to recover under § 1983. Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cit. 1983). "Section 1983 will not support a claim based on a respondeat superior theory of liability." Polk County v. Dodson, 102 S.Ct. 445, 453 (1981). A supervisory official can be liable only for his own misconduct, not that of those under his supervision. Duckworth v. Franzen, 780 F.2d 645 (7th Cir. 1985). Thus, a supervisory official must be personally involved in the alleged conduct to be liable. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Corporate defendants may not be held responsible pursuant to a theory of respondeat superior in 1983 actions.
It is well established that § 1983 does not give rise to causes of action based on the doctrine of respondeat superior. To be held liable for such a claim, a defendant must be personally responsible for the deprivation of a constitutional right. See Sanville v. McCautry, 266 F.3d 724, 740 (7th Cir. 2001).
It appears from plaintiff's complaint that he is attempting to state a cause of action against a private corporation, Wexford Health Sources, Inc., for vicarious liability. This is not proper. See Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982). Corporate liability for deliberate indifference may only be established with evidence of a custom, policy or practice. As established herein, corporate defendants cannot be held responsible for the acts or omissions of its employees as there is no respondeat superior in 1983 actions. In order to state a cause of action against a corporate defendant, municipality, or similar entity, the plaintiff must demonstrate that a constitutional deprivation occurred as a result of an expressed policy or custom. Jackson v. Illinois Medi-Car, Inc., 300 F.2d 760 (7th Cir. 2002). Other situations in which a corporate defendant may violate the constitutional rights of another as a result of its policies would include the following: (1) an express policy that when reinforced causes a constitutional deprivation; (2) a widespread practice, that although not authorized by written law or expressed policy, is so permanent or well-settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person of final policy making authority. Baxter v. Bible County School Corp., 26 F.3d 728 (7th Cir. 1994).
DISCUSSION
There is no evidence that any defendant was deliberately indifferent to any serious medical need of the plaintiff. In this case, the undisputed facts indicate that the plaintiff was regularly seen when he had complaints in regards to his inguinal hernia. When plaintiff made complaints, he was evaluated by a nurse and referred to a physician if necessary. Likewise, the plaintiff has no evidence that Wexford Health Sources, Inc. maintains a policy to blanketly deny surgery to inmates suffering from inguinal hernias. Therefore, summary judgment in this case is proper.
Dr. Zhang
Plaintiff describes Dr. Zhang as an elderly African gentleman. It is clear the plaintiff has mistaken Dr. Zhang for another physician. Dr. Zhang is a female of Asian descent. Furthermore, it is clear from the medical records and from Dr. Zhang's affidavit testimony, that she did not treat the plaintiff at any time while he was incarcerated at the Pontiac Correctional Center. Dr. Zhang lacks requisite personal involvement in the allegations made by the plaintiff; therefore, Dr. Zhang is entitled to summary judgment.
Dr. Sylvia Mahone
It is undisputed that Dr. Mahone initially treated the plaintiff on June 13, 2007, while at the Pontiac Correctional Center. Plaintiff reported to Dr. Mahone that he had been suffering the hernia since May 2006. Additionally, he reported to Dr. Mahone that he had a hernia belt previously and that it was in his property. Dr. Mahone found the plaintiff to be suffering from a left inguinal hernia 2 1/2 × 2 1/2. She also found the hernia to be easily reducible. At the conclusion of this meeting, Dr. Mahone prescribed the plaintiff Tylenol and ordered the plaintiff be given a hernia belt.
Dr. Mahone next saw the plaintiff on June 19, 2007. The plaintiff was again complaining that his hernia caused a lot of pain when he was climbing stairs. As a result, Dr. Mahone granted the plaintiff a low gallery permit for one year to run from June 19, 2007, to June 19, 2008. Plaintiff made no other complaints regarding his hernia following this visit with Dr. Mahone at the Pontiac Correctional Center. Plaintiff was transferred to the Pinckneyville Correctional Center on September 23, 2007.
This court and the Seventh Circuit have addressed this exact issue in Johnson v. Doughty, 433 F.3d Fed.R.Evid. 296 (7th Cir. 2006). In Johnson, the court found that a physician who evaluated an inmate on multiple occasions for a non-strangulated, non-emergent, reducible hernia was not deliberately indifferent in denying the plaintiff surgery. Further, non-surgical remedies designed to alleviate an inmate's pain from a hernia is not in violation of 8th Amendment. Johnson at 1014. Here, as in Johnson, Dr. Mahone evaluated the plaintiff on multiple occasions and found that plaintiff's hernia did not require surgery. Each time Dr. Mahone evaluated the plaintiff, the hernia was reducible and could be treated through non-surgical means. At no time was plaintiff's hernia strangulated while he was at the Pontiac Correctional Center. In Dr. Mahone's professional opinion, surgery was not required to repair plaintiff's hernia. The record shows that Dr. Mahone considered the plaintiff's pain into her treatment decisions and based on her physical examinations of the plaintiff, prescribed non-surgical remedies designed to alleviate the plaintiff's pain. The record in this case indicates that Dr. Mahone's treatment of the plaintiff was grounded in her professional judgment, and that the plaintiff was afforded adequate, reasonable medical treatment. Consequently, here, as in Johnson, summary judgment is appropriate.
Dr. Obadina
Plaintiff was under the care of Dr. Obadina while he was incarcerated at the Pinckneyville Correctional Center. Plaintiff arrived at the Pinckneyville Correctional Center on September 26, 2007. On October 2, 2007, plaintiff made complaints regarding his hernia to a licensed practical nurse in the health care unit. As a result, the plaintiff was referred to the MD call line for October 5, 2007. On that date, Dr. Obadina saw the plaintiff in regards to his complaints of his inguinal hernia. Dr. Obadina noted that the hernia was easily reducible even when the plaintiff was standing up. Additionally, Dr. Obadina noticed that the hernia was non-tender. At this time, Dr. Obadina's assessment was that the plaintiff did not require a hernia truss to treat his hernia. Dr. Obadina prescribed the plaintiff to take Tylenol as needed for any pain he may experience in regards to his hernia. Additionally, the plaintiff was ordered to be seen every three months to evaluate and monitor the condition of his hernia. At that time, in Dr. Obadina's medical opinion, the plaintiff's hernia did not require surgery and was not an emergency situation. Plaintiff was also seen by a Physician's Assistant on December 27, 2007, in regards to his hernia. On that date, the plaintiff complained that two weeks prior to the visit, his hernia popped out and he had to push it back in. The plaintiff was given a full exam by the Physician Assistant. In the Physician Assistant's assessment, the plaintiff had a small, easily reducible inguinal hernia and ordered the plaintiff follow up with Dr. Obadina as previously planned on October 5, 2007. As a result, on January 7, 2008, Dr. Obadina again evaluated the plaintiff in the MD call line. At that time, the hernia was reduced and the plaintiff reported that he continued to be able to reduce the hernia. Dr. Obadina ordered that the plaintiff return for a follow up visit in 90 days and that he be given Tylenol to be taken as needed for pain. That was the final visit with Dr. Obadina prior to the plaintiff filing the instant lawsuit. However, Dr. Obadina continued to evaluate the plaintiff on a regular basis for his complaints regarding his inguinal hernia. Specifically, Dr. Obadina saw the plaintiff on May 7, 2008. On that date, plaintiff's hernia remained easily reducible and was uncomplicated. The plan at that time was to continue to monitor the plaintiff's situation and for him to immediately report to the health care unit if he experiences pain, tenderness, vomiting, or irreducibility. On November 7, 2008, Dr. Obadina again followed up with the plaintiff in regards to his inguinal hernia. Once again, the hernia was easily reducible and the plaintiff was educated as to what conditions he should immediately inform the health care unit of. Plaintiff voiced that he understood and stated that he appreciated the help with his problem.
Plaintiff's hernia has been treated conservatively with pain medication while at the Pinckneyville Correctional Center. In Dr. Obadina's medical opinion, the plaintiff has not required the use of a hernia belt or truss while at the Pinckneyville Correctional Center. Additionally, it is noted in the medical records that the plaintiff has been able to work despite his hernia. During the time that Dr. Obadina treated the plaintiff, in his medical opinion, the plaintiff's hernia did not require surgery. The plaintiff has regularly been monitored and seen by Dr. Obadina while at the Pinckneyville Correctional Center for his inguinal hernia. Each time the plaintiff made complaints regarding his hernia, he was given additional pain medication or other medical treatment to address his immediate needs. In Dr. Obadina's medical opinion, the costs and risks associated with surgery on the plaintiff's hernia outweigh the benefit surgery may provide.
The facts in this case are almost identical to those addressed in the Johnson case. As such, the same conclusion is warranted. Dr. Obadina formed the professional opinion that surgery was not required, and in subsequent visits, Dr. Obadina did not observe any worsening of the condition that would make surgery a medical necessity. Dr. Obadina's testimony shows that he weighed the risks and rewards of surgery in making his treatment decisions and, given his findings, he prescribed non-surgical remedies designed to alleviate the plaintiff's pain. Therefore, Dr. Obadina's treatment of the plaintiff was grounded in professional judgment, and the plaintiff was afforded adequate, reasonable medical treatment. Therefore, summary judgment in favor of Dr. Obadina is appropriate in this case.
Sandra Hill
Plaintiff's allegations against Sandra Hill revolve around her response to the grievance officer's request for the health care unit to weigh in on response to one of plaintiff's grievances. Specifically, plaintiff, in October of 2007 while at the Pinckneyville Correctional Center, filed a grievance requesting a continued supply of pain relievers and a low gallery permit. Plaintiff's counselor requested the health care unit provide a response to the plaintiff's grievance. As such, on November 23, 2007, Sandra Hill, Director of Nursing, authored a memorandum. Ms. Hill's memorandum stated as follows:
"Upon review of chart, there is no indication that the offender requested a low gallery permit. The MD addressed the question of the hernia belt. The offender was seen NSC only one time and the problem of pain was not mentioned at that time. That does not qualify as `chronic pain'. If he wishes to address the low gallery permit or a pain problem, he needs to go through nurse sick call process."
Sandra Hill's response to the plaintiff's grievance is the only involvement she had with the plaintiff's hernia problem. It is undisputed that Sandra Hill did not treat the plaintiff. In fact, the plaintiff has never seen Sandra Hill. Further, Sandra Hill's summation of the plaintiff's chart is accurate. There is no indication in the medical record that the plaintiff requested a low gallery permit prior to November 23, 2007, at the Pinckneyville Correctional Center. Additionally, the medical records reflect that Dr. Obadina addressed the plaintiff's question of a hernia belt and made a medical decision that the plaintiff did not need the hernia belt. Additionally, the medical records do not indicate the plaintiff was complaining of excessive pain.
Ms. Hill's response to the plaintiff's grievance in no way hindered his ability to receive medical treatment while at the Pinckneyville Correctional Center. In fact, Ms. Hill directed the plaintiff in her response to address the low gallery and pain issues through the nurse sick call process. There is absolutely no evidence in this case that Sandra Hill had any involvement in the evaluation or treatment of the plaintiff's inguinal hernia. Additionally, Sandra Hill did not have the authority to issue the plaintiff a low gallery permit or pain medications. It is undisputed that at all times relevant while at the Pinckneyville Correctional Center the plaintiff was under the care of Dr. Obadina and could request to be seen through the proper channels at any time.
The Seventh Circuit has recently addressed facts similar to these in Burks v. Raemisch, 55 F.3d 592 (7th Cir. 2009). In Burks, the Court found that a public official responding to an inmate's grievance in compliance with their job duty is not in violation of the inmate's constitutional rights. Here, Sandra Hill was requested by the counselor to review the plaintiff's medical chart and address the complaints in his grievance. In response, Sandra Hill reviewed the chart, and found no indications that plaintiff's grievance had merit. As such, Sandra Hill authored the short memo summarizing the contents of the plaintiff's medical chart. Therefore, Sandra Hill lacks the requisite personal involvement in the plaintiff's medical care to be found deliberately indifferent.
Further, there is nothing in the record that indicates Wexford maintains a policy to deny surgery to all inmates suffering inguinal hernias. The plaintiff's allegations against Wexford are twofold: (1) plaintiff alleges Wexford has a policy to not provide surgery on inguinal hernias for inmates in the Illinois Department of Corrections; (2) plaintiff alleges Wexford has a policy of not allowing inmates suffering inguinal hernias to be treated as a chronic issue, thereby alleviating the $2.00 co-pay.
Surgery for Inguinal Hernias.
Initially, plaintiff has no evidence of any policy of Wexford to blanketly deny surgery for inguinal hernias. Drs. Mahone and Obadina have both testified that they are unaware of any such policy. Further, both doctors testified that as treating physicians they are allowed to make the decision of whether an inmate with an inguinal hernia is to undergo corrective surgery. Plaintiff also admits that he knows of at least two other inmates that have received surgery on their inguinal hernia at the Pinckneyville Correctional Center. This admission alone indicates that Wexford does not maintain a policy prohibiting surgeries on inguinal hernias. On the contrary, plaintiff's admission indicates that inguinal hernias are evaluated on a case by case basis, and surgery is provided where appropriate.
This issue was addressed in Johnson v. Doughty by the Seventh Circuit. In that case, the Court found that the Illinois Department of Corrections and Wexford Health Sources, Inc. did not have an express policy denying surgical intervention on inguinal hernias. The Court in Johnson found that the policy of the Illinois Department of Corrections and of Wexford Health Sources, Inc. to evaluate hernias on a case by case basis and provide surgery when the hernia became an acute issue was within the parameters of the 8th Amendment. The facts of this case produce no reason to disturb the 7th Circuit's decision in Johnson. As such, Wexford is entitled to summary judgment on this matter.
Wexford does not determine the application of the $2.00 co-pay.
The second allegation plaintiff has against Wexford is that he is being charged a $2.00 co-pay for his medical treatment. Plaintiff believes that his hernia should be treated as a chronic issue thereby relieving him of the obligation of paying a $2.00 co-pay. However, the $2.00 co-pay requirement is not established by Wexford Health Sources, Inc. The $2.00 co-pay is established by the Illinois Department of Corrections and the Illinois Administrative Code. Specifically, 20 Ill.Adm. Code 415.30(g) governs the requirement of the $2.00 co-pay. The $2.00 co-pay was promulgated by the Illinois Department of Corrections with authorization from the Illinois General Assembly. Unified Commercial Code states that the Department shall require a committed person receiving medical or dental services on a non-emergency basis to pay a $2.00 co-payment to the Department for each visit for medical or dental service. The amount of each co-payment shall be deducted from the committed person's individual account. A committed person who has a chronic illness, as defined by Department rules and regulations, shall be exempt from the $2.00 co-payment for treatment of the chronic illness. 730 ILCS 5/3-6-2(f). It is clear from the Illinois Administrative Code and the Unified Code of Corrections that the power to enforce a $2.00 co-payment and to designate a chronic illness lies within the Illinois Department of Corrections. Wexford does not have the authority to waive or enforce the $2.00 co-payment. As such, plaintiff's allegation that Wexford policy has somehow violated his rights in regards to a $2.00 co-payment is unfounded. Further, see Reynolds v. Wagner, 128 F.3d 166, 174 (3d Cir. 1997) (prisoner co-payment plan does not violate the Eighth Amendment). See also Hudgins v. DeBruyn, 922 F.Supp. 144, 150-52 (S.D.Ind. 1996) (same); Martin v. DeBruyn, 880 F.Supp. 610, 615 (N.D.Ind. 1995), aff'd, 116 F.3d 1482 (7 th Cir. 1997) (Eighth Amendment guarantees only that inmates receive necessary medical care; it does not guarantee free medical care). Wexford Health Sources, Inc. is entitled to summary judgment on this issue.
It is undisputed that from the time the plaintiff first alerted health care at the Illinois Department of Corrections of his hernia to the present, it has remained easily reducible. Furthermore, it is undisputed the plaintiff has received numerous physical evaluations and treatment by health professionals and that his condition continues to be monitored. Dr. Zhang lacks requisite personal involvement in the allegations made by the plaintiff. Ms. Hill's response to the plaintiff's grievance in no way hindered his ability to receive medical treatment while at the Pinckneyville Correctional Center. Plaintiff has no evidence of any policy of Wexford to blanketly deny surgery for inguinal hernias. Further, the $2.00 co-pay is mandated by Illinois Administrative Code and Wexford has no control over who is charged the $2.00 co-pay for their visits.
The remaining defendants, Jon Deal, Kerri Mehenkens, Teresa Kisro, Tracy Maue, Brian Fairchild, Terri Anderson, Roger E Walker, Jr, Eddie Jones, John Birkel, Christine Beasley, Steve Smith and Patrick Hastings. These defendants are also entitled to summary judgment.
Walker and Jones were not personally involved in the alleged violation of the plaintiff's constitutional rights. Liability under 42 U.S.C. § 1983 must be based on a defendant's personal involvement in the alleged constitutional deprivation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Thus, an individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional violation. McBride v. Soos, 679 F.2d 1223, 1227 (7th Cir. 1982). Some causal connection or affirmative link between the action complained about and the official sued is necessary in order for a plaintiff to recover under § 1983. Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). "Section 1983 will not support a claim based on a respondeat superior theory of liability." Polk County v. Dodson, 102 S.Ct. 445, 453 (1981). A supervisory official can be liable only for his own misconduct, not that of those under his supervision. Duckworth v. Franzen, 780 F.2d 645 (7th Cir. 1985). Thus, a supervisory official must be personally involved in the alleged conduct to be liable. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Plaintiff has failed to prove Defendant Walker's personal involvement regarding his claims of deliberate indifference to a serious medical needs. Plaintiff claims in his Amended Complaint that Defendant Walker was "legally responsible for the overall operation of the Department and each Institution under its jurisdiction." (Doc. 61-2, ¶ 4). Defendant Walker had no knowledge regarding Plaintiff's complaints regarding his hernia belt or access to medical care and treatment through correspondence or the grievance process. Plaintiff asserted in his complaint that as Warden of Pontiac Correctional Center, Defendant Jones was "legally responsible for the operation of Pontiac Correctional Center, and the welfare of all the inmates at that facility. (Doc. 61-2, p. 2, ¶ 5). Defendant Jones did not have any personal involvement with the facts and occurrences in Plaintiff's complaint. Defendant Jones did not review or respond to Plaintiff's grievances and correspondence, as this task was delegated to a designee. (Exhibit H). Therefore, summary judgment must be entered in favor of Walker and Jones due to their lack of personal involvement in any of the events concerning Plaintiff's claims of deliberate indifference to his serious medical needs.
As non-medical employees, Defendants Hastings, Smith, Kisro, Maue, Fairchild and Anderson, in responding to Plaintiff's grievances, only had a duty to Plaintiff to reasonably respond to his grievances. Defendants Hastings, Smith, Kisro, Maue, Fairchild and Anderson did not have an obligation to do anything beyond their roles in responding to grievances. In Burks v. Raemisch, the Seventh Circuit held that, "A layperson's failure to tell the medical staff how to do its job cannot be called deliberate indifference; it is just a form of failing to supply a gratuitous rescue service." 555 F.3d 592, 595 (7th Cir. 2009). Defendants did not have a "free-floating obligation to put things to rights" Id. at 595, and cannot be held liable solely for doing their job. The evidence in this case is clear that when responding to Plaintiff's grievances, medical staff was contacted to ensure Plaintiff was receiving medical care and treatment. Defendants are not deliberately indifferent for their inability to overrule policies at their correctional centers regarding low gallery permits or hernia belts, as they did not have the authority to prescribe a course of medical treatment, or overrule policies regarding access to property. Defendants lack the requisite knowledge that Plaintiff faced a substantial risk of serious harm and failed to take reasonable measures. The denial of Plaintiff's grievances by Defendants, or following policies allowing hernia belts and low-gallery permits does not constitute deliberate indifference to Plaintiff's medical needs. Defendant Deal did not determine what property is unauthorized, followed the policies at Pontiac Correctional Center when confiscating Plaintiff's hernia belt, and did not have contact with Plaintiff following the confiscation of Plaintiff's hernia belt such that he would have notice of Plaintiff facing a substantial risk of serious harm. Aside from naming Defendant Mehrkens in the "Defendants" portion of his complaint, Plaintiff makes no specific allegations against Defendant Mehrkens, (Doc. 61-2) and has admitted that he did not determine what constituted unauthorized property.
On Plaintiff's own testimony, no doctor has ever told Plaintiff that he needs surgery for his hernia. Defendants Birkel and Beasley, as CMTs, are not physicians or nurses, and are not trained or licensed to diagnose medical conditions or to prescribe medication or a particular course of treatment, nor do they have the authority to override a treating physician's course of treatment. Defendants Birkel and Beasley, as CMTs, assess offenders who request to be seen by a medical technician. When an inmate requires emergency treatment or care for a chronic condition, the inmate is either transported to the Health Care Unit, or monitored by the facility's physicians in regularly scheduled clinics. Plaintiff was seen by a physician at Pontiac Correctional Center on March 27, 2007 who denied Plaintiff's request for a hernia belt. (Doc. 61-2, ¶ 42). Plaintiff was issued a lower gallery permit and hernia belt by a physician at Pontiac Correctional Center on June 13, 2007. (Doc. 61-2, ¶ 46). Since his transfer to Pinckneyville Correctional Center, Plaintiff has been seen by a physician approximately every 90 days. It is not a constitutional violation that Plaintiff did not like the medical care he received and continues to receive. Accordingly, Defendants are entitled to summary judgment on Plaintiff's claims of deliberate indifference to his medical needs. Summary judgment is appropriate in this case because the plaintiff has no evidence to suggest that any of the defendants have been deliberately indifferent to his medical needs.
Based on the foregoing: 56 within 30 days of the entry of judgment. 4 in forma pauperis See 24 28 U.S.C. 1915
1. Pursuant to Fed.R.Civ.Pro. Rule (c), the defendants' motions for summary judgment [87] and [89] are allowed. The clerk of court is directed to terminate the defendants and to close this case its entirety. The clerk of the court is directed to enter judgment in favor of the defendants and against the plaintiff. 2. If the plaintiff wishes to appeal this order, he must file a notice of appeal with this court Fed.R.App.P. (a)(4). A motion for leave to appeal should set forth the issues the plaintiff plans to present on appeal. Fed.R.App.P. (a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $455.00 appellate filing fee irrespective of the outcome of the appeal. Furthermore, if the appeal is found to be non-meritorious, the plaintiff may also accumulate another strike under (g).