Opinion
Case No. 17-CV-933-NJR-RJD
05-13-2019
ANDREW WALKER, Plaintiff, v. NURSE PRACTITIONER MCGLORN, AIMEE LANG, and GAIL WALLS, Defendants.
REPORT AND RECOMMENDATION
DALY, Magistrate Judge :
The matter has been referred to United States Magistrate Judge Reona J. Daly 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 the Motions for Summary Judgment filed by Defendants. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' Motions for Summary Judgment (Docs. 51, 54) be GRANTED.
FINDINGS OF FACT
Plaintiff Andrew Walker, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at Menard Correctional Center ("Menard"). Following threshold review, Plaintiff proceeds on the following Counts:
Count 1: McGlorn, Lang, and Walls were deliberately indifferent to Plaintiff's serious medical needs when they persisted in a course of treatment known to be ineffective with regards to Plaintiff's gastrointestinal and estrogen symptoms in violation of the Eighth Amendment.
Defendant McGlorn filed a motion for summary judgment arguing she saw Plaintiff on only one occasion and provided appropriate medical care. Defendants Walls and Lang filed a motion for summary judgment asserting they were not deliberately indifferent to Plaintiff's medical needs. Specifically, Defendant Lang asserts she was present for only one of Plaintiff's medical appointments where he was seen by a nurse practitioner. Defendant Walls, as Health Care Administrator, never treated Plaintiff but asserts she properly responded to his letter and grievance. Plaintiff timely filed a Response (Doc. 61) arguing Defendants refused to test him for a soy allergy and that he was not provided alternative treatments when a non-soy diet was unavailable.
At all relevant times, Plaintiff was an inmate at Menard (Plaintiff's Deposition, Doc. 55-1 at 4). In early 2015, Plaintiff began experiencing gastrointestinal problems, including bloating, cramping, and constipation (Doc. 1 at 4). Plaintiff believed his medical problems were due to the presence of soy in the diet served at Menard (Doc. 55-1 at 5). Plaintiff has never been diagnosed as being allergic to soy (Id. at 9).
On January 12, 2016, Plaintiff saw Defendant McGlorn, a nurse practitioner at Menard (Doc. 55-1 at 6, Doc. 52-3 at 1-2). Defendant Aimee Lang was present when Plaintiff first walked in to see McGlorn on January 12, 2016, but was not present for the entire visit (Doc. 55-1 at 12-13). McGlorn discussed with Plaintiff his gastrointestinal problems and reviewed his medication (Id. at 7-8). Plaintiff requested a soy-free diet (Id. at 8). McGlorn stated that she would submit Plaintiff for a soy-free diet but that he would not get it (Id.). The medical records indicate McGlorn did not conduct a physical examination because of Plaintiff's escalating anger (Doc. 52-3 at 2). McGlorn continued Plaintiff on the medications Colace and FiberCon which he reported helped with his symptoms, but were not resolving the problem (Id. at 8, Doc. 52-3 at 2). McGlorn also recommended Milk of Magnesia as necessary (Doc. 52-3 at 2). McGlorn ordered Plaintiff a therapeutic soy-free diet for one year pursuant to his request and his subjective complaints (Id.). Plaintiff only saw Defendant McGlorn on the one occasion (Doc. 55-1 at 6). Plaintiff did not have any other interactions with Defendant Lang regarding his gastrointestinal symptoms other than the January 12, 2016 visit with McGlorn (Id. at 12). Plaintiff testified he was seen by several other medical staff concerning his soy issues (Doc. 55-1 at 7).
On January 20, 2016, McGlorn was contacted by her Wexford Health Sources Director and told that a dietician with the IDOC reviewed the soy-free diet request, and instructed the soy-free diet be discontinued and that soy-free diets were not available at Menard (McGlorn Affidavit, Doc. 52-2 at 2-3).
Defendant Walls was the Health Care Administrator at Menard during the events alleged in Plaintiff's Complaint (Doc. 55-1 at 13). Walls never treated Plaintiff and Plaintiff never spoke directly to Walls regarding his complaints (Id.). Walls responded to one handwritten letter sent by Plaintiff and responded to his grievance (Id.).
Plaintiff testified that the symptoms he suffered from not being prescribed a soy-free diet were five or six pounds of weight loss, cramping, bloating, and constipation (Doc. 55-1 at 9). Plaintiff did not report swelling of lips, tongue, or throat, nor did he report any wheezing or difficulty breathing (Id. at 10). During the relevant timeframe at Menard, Plaintiff would play basketball and lift weights (Id. at 4). If Plaintiff experienced cramping, he would sit out and not play (Id.). Plaintiff testified he is still experiencing some slight cramping, but otherwise is no longer having symptoms (Id. at 9).
LEGAL STANDARD
Summary judgment is appropriate only if the moving party can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In determining a summary judgment motion, the Court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
The Eighth Amendment protects inmates from cruel and unusual punishment. U.S. Const., amend. VIII; see also Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010). As the Supreme Court has recognized, "deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim, the plaintiff must first show that his condition was "objectively, sufficiently serious" and second, that the "prison officials acted with a sufficiently culpable state of mind." Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (citations and quotation marks omitted).
The following circumstances are indicative of an objectively serious condition: "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Hayes v. Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005) ("A serious 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.").
An inmate must also show that prison officials acted with a sufficiently culpable state of mind, namely deliberate indifference. Put another way, the plaintiff must demonstrate that the officials were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists" and that the officials actually drew that inference. Greeno, 414 F.3d at 653. A plaintiff does not have to prove that his complaints were "literally ignored," but only that "the defendants' responses were so plainly inappropriate as to permit the inference that the defendants intentionally or recklessly disregarded his needs." Hayes, 546 F.3d at 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). Negligence, gross negligence, or even recklessness as that term is used in tort cases, is not enough. Id. at 653; Shockley v. Jones, 823, F.2d 1068, 1072 (7th Cir. 1987). Also, "mere disagreement with the course of the inmate's medical treatment does not constitute an Eighth Amendment claim of deliberate indifference. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996).
CONCLUSIONS OF LAW
Defendants dispute Plaintiff's complaints of minor weight loss, cramping, bloating, and constipation constitute a serious medical need. Plaintiff argues IDOC has refused to test him for a soy allergy, but a self-administered empirical food sensitivity test strongly showed his symptoms were attributed to a soy allergy.
Plaintiff has not provided evidence to satisfy the first component that he suffered from an "objectively serious" medical condition. Plaintiff has never been diagnosed with a soy allergy by a medical professional, his condition did not significantly affect his daily activities, and there is no indication he suffered from chronic and substantial pain. Stomach cramps that are not serious or severe fail to satisfy the objective element. See Perez v. Hardy, No. 13 C 5635, 2015 WL 5081355, at *7 (N.D. Ill. Aug. 27, 2015) (holding that plaintiff's stomach pain which did not cause vomiting and was resolved without formal treatment/diagnosis failed to satisfy the objective element); Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009) (holding that the plaintiff's stomach disorders did not qualify as a "serious medical need"); Tafari v. Weinstock, 2010 WL 3420424, at *7 (W.D.N.Y. Aug. 27, 2010) (holding that the plaintiff's complaints of constipation, vomiting, and stomach pain were not objectively serious); Zerby v. Fla. Dep't of Corr., 2009 WL 3418240, at *6 n.3 (N.D.Fla. Oct. 20, 2009) (holding that there was no objectively serious medical condition where the plaintiff "failed to allege facts suggesting that the stomach pain rose to the level of a serious medical need"); Mortimer Excell v. Fischer, 2009 WL 3111711, at *4 (N.D.N. Y. Sept. 24, 2009) ("[C]onclusory allegations of heart, chest, and stomach pain, without more, do not satisfy the objective prong of the Eighth Amendment test."); Maurice v. N.Y.C. Dep't of Corr., 1997 WL 431078, at *3 (S.D.N.Y. July 30, 1997) (holding that the plaintiff failed to satisfy the objective element where he alleged only stomach cramps and diarrhea). These holdings are entirely consistent with the Seventh Circuit standard set forth above. Based upon the lack of objective severity of Plaintiff's medical conditions, he has no viable Eighth Amendment medical deliberate indifference claim.
Even if the Court were to find Plaintiff's complaints of weight loss, cramping, bloating, and constipation were a serious medical need, there is no evidence Defendants acted with deliberate indifference. Plaintiff was treated by Defendants McGlorn and Lang on only one occasion. Defendant McGlorn evaluated Plaintiff and renewed his medications which he indicated addressed his symptoms. Plaintiff asserts McGlorn and Lang should have done more to treat the underlying condition and ordered a test for a soy-allergy. Mere disagreement with the course of an inmate's medical treatment does not constitute an Eighth Amendment claim of deliberate indifference. Defendants McGlorn and Lang are entitled to summary judgment.
Likewise, there is no evidence Defendant Walls acted with deliberate indifference. If a prisoner is under the care of prison medical professionals, a non-medical prison official "will generally be justified in believing that the prisoner is in capable hands." Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). In contrast, a prison official may be found to be deliberately indifferent to a prisoner's serious medical needs if "they have a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner." Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir. 2008); see also Reed v. McBride, 178 F.3d 849, 854-56 (7th Cir. 1999) (warden was required to act when prison officials repeatedly denied an inmate life-sustaining medication and food). Prison officials who simply processed or reviewed inmate grievances lack personal involvement in the conduct forming the basis of the grievance. Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
The denial of Plaintiff's grievance by Defendant Walls is not sufficient to establish she acted with deliberate indifference. To the extent Plaintiff alleges a claim against Walls for her supervisory role as the Health Care Unit Administrator, it is well settled law that respondeat superior is not a viable claim under deliberate indifference. Defendant Walls was not deliberately indifferent to Plaintiff's medical needs and is entitled to summary judgment.
RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED that Defendants' Motions for Summary Judgment (Docs. 51, 54) be GRANTED, that JUDGMENT BE ENTERED in favor of Defendants and against Plaintiff; and the Court adopt the foregoing findings of fact and conclusions of law.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). DATED: May 13, 2019
/s/ _________
Hon. Reona J. Daly
United States Magistrate Judge