Opinion
No. 99 C 7628
March 22, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Ubencio Mazariegos, currently an inmate at Sheridan Correctional Center, brings this pro se complaint pursuant to 42 U.S.C. § 1983 alleging that defendants were deliberately indifferent to his serious medical needs. On July 20, 2000, the court granted defendants' motion to dismiss as to defendants Warden Cooper, Warden Fews, and Rose Mary Sullivan and dismissed them from this action. On October 10, 2000, the court dismissed defendants Dr. Badruddoja and Charles Latham from this action because of plaintiff's failure to serve them. Dr. Edwin J. Carey is the only remaining defendant. Both parties have filed motions for summary judgment and have responded to the cross-motions for summary judgment.
Plaintiff spelled his first name as "Ubeneio" in the caption of his complaint. In subsequent documents, he has spelled it "Ubencio," which is presumably the correct spelling of plaintiff's first name.
I. Standard of Review
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Once the moving party has sustained the initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
II. Facts
On April 3, 1999, at about noon, plaintiff was playing soccer when he "came down wrong" on his right leg. (Carey Affidavit ¶ 2.) Sgt. Ramsey asked plaintiff if he had twisted his ankle. (Plaintiff's Deposition at p. 15.) Plaintiff was taken to the Health Care Unit. ( Id. at 16, Carey Affidavit at ¶ 3.) The duty nurse observed no obvious deformity of the leg, good pedal pulses, and no swelling. She noted spasms in the calf muscle and an abrasion on the right knee. (Carey Affidavit at ¶ 3.) The duty nurse telephoned Dr. Carey, who was on call. ( Id.) He ordered that plaintiff be given Vistaril, a muscle relaxant, and Darvocet, a pain killer. ( Id.) Dr. Carey also ordered that plaintiff be kept in the infirmary overnight for observation and that ice and an ace bandage be applied. ( Id.)
About 7:00 p.m., plaintiff reported feeling better and wanted to go back to his cell. ( Id.)
On April 4, 1999, at 8:05 a.m., Dr. Carey saw plaintiff. (Plaintiff's Deposition at p. 21; Carey Affidavit at ¶ 4.) Dr. Carey examined plaintiffs right leg and did not observe any bruising or edema or any significant swelling which would indicate a fracture. (Carey Affidavit at ¶ 4.) Because there were no outward signs of fracture and because no x-ray technician was available on Sunday, April 4, Dr. Carey did not order any x-rays to be taken. (Carey Affidavit at ¶ 4.)
Dr. Carey's initial diagnosis was that plaintiff had suffered a muscle tear. He ordered plaintiff to "lay in" for 48 hours and continued the pain killers for 10 days. He also ordered that plaintiff be seen by another doctor on the M.D. sick call in 48 hours. ( Id.)
Another doctor saw plaintiff on April 6, 1999, and plaintiff complained of pain in his right leg. ( Id. at ¶ 5.) Dr. Badruddoja saw plaintiff on April 7, 1999, and ordered an x-ray. ( Id.)
An x-ray was taken on April 12, 1999, and a fracture to plaintiffs right fibula was diagnosed. ( Id.) Plaintiff was given a splint and then taken to a local hospital for casting. ( Id.)
The next time Dr. Carey saw plaintiff was on May 17, 1999, and May 31, 1999. ( Id. at ¶ 6.)
III. Analysis
The Seventh Circuit has recently set forth the principles for determining if the Eighth Amendment's prohibition against cruel and unusual punishment has been violated because of deliberate indifference to a serious medical need.
The Eighth Amendment protects prisoners from deliberate indifference to a serious injury or medical need. See Zentmyer v. Kendall County, 220 F.3d 805, 810 (7th Cir. 2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). . . . To prevail the detainee must satisfy' an objective and a subjective element, namely that: (1) an objectively serious injury or medical need was deprived; and (2) the official knew that the risk of injury was substantial but nevertheless failed to take reasonable measures to prevent it. See Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). Under the first prong, an objectively serious injury or medical need is "`one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Zentmyer, 220 F.3d at 810 (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). . . . Under the second prong, it must be shown "that the official was aware of the risk and consciously disregarded it nonetheless." Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir. 1997)( citing Farmer v. Brennan, 511 U.S. 825, 840-42, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Neither negligence nor even gross negligence is a sufficient basis for liability; rather, liability attaches only if the conduct is intentional or criminally reckless. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). Deliberate indifference can arise by a failure to provide prompt treatment for serious medical needs or by intentionally interfering with treatment once prescribed. See Estelle, 429 U.S. at 104-05.Chapman v. Keltner, F.3d __, 2001 WL 167999, *2 (7th Cir. Feb. 21, 2001).
These standards apply both to prison guards and to medical personnel. However, the dissatisfaction or disagreement with the method of treatment or inability to effect a final cure does not suggest that those who treat an inmate exhibited deliberate indifference. Snipes v. DeTella, 95 F.3d 586 (7th Cir. 1996), cert. denied, 519 U.S. 1126 (1997); Estate of Cole v. Fromm, 94 F.3d 254 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.), cert. denied, 484 U.S. 935 (1987). Mere differences of opinion among medical personnel regarding a patient's appropriate treatment do not give rise to deliberate indifference. Estelle, at 107, Cole at 261. A plaintiff can show that medical professionals disregarded a serious medical need "only if the professional's subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances." Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998). Cole at 261-62.
With these principles in mind, the court will examine Dr. Carey's treatment of plaintiffs injured leg.
The parties do not dispute the facts as related above. Plaintiff, however, claims that Dr. Carey's examination was brief and plaintiff informed Dr. Carey that he was in unbearable pain and asked about an x-ray. (Plaintiff's motion for summary judgment at p. 2.) Plaintiff claims that the orders Dr. Carey gave after briefly examining him resulted in his suffering for nine days. The facts, however, belie this contention.
From both the nurse's description and his examination, Dr. Carey concluded that plaintiff had suffered a torn muscle or ligament. As he explained in his affidavit, based on his medical training and 40 years of experience, plaintiff did not present any symptoms that would be consistent with a fracture. (Carey Affidavit at ¶ 4.) As Dr. Carey further explained, plaintiff suffered a fracture to his fibula, which is the small bone in the lower leg. A fracture to the fibula is more commonly associated with fractures to the ankle or, possibly, to the tibia, which is the large bone in the lower leg, commonly referred to as the shin bone. Plaintiff's fibula was fractured much higher up, which is a less common fracture. As a result, his tibia supported most of his weight and there was no obvious deformity of the leg which would have made the fracture more obvious upon initial examination. The type of fracture that plaintiff suffered would have presented the same amount of swelling and pain as a pulled muscle, tendon, or ligament. (Carey's Affidavit at ¶ 7.)
Dr. Carey's initial diagnosis was that plaintiff had a torn muscle or ligament. Although the diagnosis was incorrect, there is no indication the Dr. Carey intended for plaintiff to suffer or that his treatment was so inadequate that it was tantamount to a denial of care. Dr. Carey prescribed pain killers, ordered plaintiff to stay off his feet, and to see another doctor in two days.
To show that Dr. Carey acted with deliberate indifference toward him, plaintiff has attached several articles describing the various types of fractures. No one questions that plaintiff had a serious medical need. In fact, even if the problem had been a torn muscle or ligament, as Dr. Carey first diagnosed, it still would have been a serious need that required medical care-medical care which plaintiff received. Plaintiff has also attached the affidavits of several of his fellow inmates. None of these inmates is qualified to make a medical diagnosis. However, the court notes that all three observed that plaintiffs leg did not become extremely swollen and discolored until three days after the injury. (Igariviadez Affidavit at ¶ 5; Abrego Affidavit at ¶ 5; Perales Affidavit at ¶ 5.) This was two days after Dr. Carey saw plaintiff. In fact, Dr. Carey did not see plaintiff again until May 17, 1999.
Plaintiff has also complained vehemently that before he was finally taken to Valley West Hospital to have a cast applied, he was forced to walk on his broken leg. However, in his own affidavit, plaintiff states that when he left the health care unit, he was given crutches and food was delivered to him in his cell. (Mazariegos Affidavit at p. 2.)
The court does not doubt that plaintiff suffered pain after he injured himself. However, "not every injury or deprivation suffered by a prisoner translates into constitutional liability for prison officials." Henderson, 196 F.3d at 844 (internal citations omitted). "Instead, only a jail official's "deliberate indifference to a prisoner s serious illness or injury states a cause of action' under the Eighth Amendment." Id. (quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976)).
At most, Dr. Carey misdiagnosed plaintiff's condition. However, the medical care he gave plaintiff hardly exhibited deliberate indifference to plaintiff. Nor was Dr. Carey's medical care "so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances." Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998). Cole at 261-62.
This case is a far cry from Chavez v. Cady, 207 F.3d 901 (7th Cir. 2000), in which a nurse provided the same treatment for the plaintiff, who was suffering with a perforated appendix, that she had provided a week earlier despite his suffering for seven more days. Dr. Carey did not see plaintiff after his initial diagnosis and, in fact, ordered plaintiff to be seen by a doctor again in two days. It is unfortunate that plaintiff's leg was not x-rayed sooner, but this was not because of any deliberate indifference on the part of Dr. Carey.
IV. Conclusion
For the foregoing reasons, the court denies plaintiffs motions for summary judgment and grants defendant Dr. Carey's motion for summary judgment. The Clerk is directed to enter judgment in favor of defendant Dr. Carey and against plaintiff Mr. Mazariegos pursuant to Fed.R.Civ.P. 56. This action is dismissed with prejudice in its entirety.
If plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed.R.App.P. Rule 4(a)(4). If he does so, he will be liable for the $105 appellate filing fee. Unless he is granted leave to proceed in forma pauperis, he will have to pay the fee immediately. If he cannot do so, the appeal will be dismissed, but he will remain liable for the fee and it will be deducted from his inmate trust fund account in installments. Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997). If this court finds that the appeal is not taken in good faith, and the Court of Appeals agrees, he will not be permitted to proceed in forma pauperis and pay the fee in installments, but will have to pay the fee immediately or the appeal will be dismissed. 28 U.S.C. § 1915(a)(3); Newlin, 123 F.3d at 433-34. To avoid a finding that the appeal is not taken in good faith, a motion to proceed in forma pauperis on appeal should explain the grounds for the appeal. See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999); Newlin, 123 F.3d at 433; Fed.R.App.P. 24(a)(1)(C).