Clemons v. Wexford Health Sources, Inc.

106 F.4th 628

Rodney CLEMONS, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC., et al., Defendants-Appellees.

No. 23-1790

United States Court of Appeals, Seventh Circuit

Argued May 21, 2024

Decided July 2, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-cv-00132 — Andrea R. Wood, Judge.

Fredric A. Cohen, Max DeLeon, Attorneys, Cheng Cohen LLC, for Plaintiff-Appellant.

Julie Ann Teuscher, Patrick Michael Creagh, Attorneys, Cassiday Schade LLP, Chicago, IL, for Defendants-Appellees.

Before Scudder, St. Eve, and Kirsch, Circuit Judges.

St. Eve, Circuit Judge.

Rodney Clemons, an inmate at Stateville Correctional Center, injured his right ankle years before his incarceration. As a result, Clemons suffered pain in his right ankle and foot for several years while incarcerated. He brought this suit under 42 U.S.C. § 1983, alleging Stateville's medical provider Wexford Health Sources, Inc. and two of its physicians were deliberately indifferent to his serious foot condition because they prioritized cost concerns above reasoned medical judgment. The district court granted summary judgment to the defendants, and we now affirm.

I. Background

A. Factual Background

Rodney Clemons has been incarcerated at Illinois's Stateville Correctional Center ("Stateville") since 2005. Wexford Health Sources, Inc. ("Wexford") provides health care at Stateville on a contractual basis.

Years before his incarceration, Clemons injured his right ankle, requiring surgery to install a steel plate and six screws. While incarcerated at Stateville, Clemons reported pain in his right foot and ankle. When medical professionals examined the extremity, they noted a range of problems, including a flat, deformed foot, overlapping toes, bunions, and skin maceration. Over time, these problems worsened—ultimately requiring corrective surgery.

By way of quick summary: Dr. Saleh Obaisi, Wexford's medical director at Stateville from 2012 until his death in 2017, began treating Clemons in 2012. Continuing the course of treatment ordered by prior medical professionals, Dr. Obaisi frequently ordered Clemons special wide-width shoes. He also prescribed Clemons pain medications and issued him permits for a low bunk, medical shoes, and an ankle brace.

Up until 2015, Wexford approved the shoe orders. But in September 2015, Wexford denied one such order. In lieu of the shoes, Wexford instructed Clemons to use gel insoles with commissary shoes, despite those shoes' past failure to alleviate his pain. Clemons complained to Dr. Obaisi that the insoles were ineffective, but Dr. Obaisi did not appeal the denial. Instead, he prescribed Clemons different pain medication and, later, an ankle sleeve. In June 2016, Dr. Obaisi again ordered Clemons wide-width shoes. Wexford (again) denied the order. And Dr. Obaisi (again) did not appeal.

In a sworn affidavit submitted in response to the defendants' motion for summary judgment, Clemons averred that Dr. Obaisi informed him that cost concerns were to blame for Wexford's denial of the shoe orders. He further attested that, during multiple appointments, he requested a podiatrist referral. Dr. Obaisi allegedly "agreed that [Clemons] needed to see a podiatrist for [his] condition, but [Dr. Obaisi] explained to [Clemons] that he could not send [Clemons] to see a specialist at that time because he was at or approaching his limit for referrals to outside specialists." Clemons declared:

Dr. Obaisi told me that there was a limit to the number of prisoners who could be sent out of the prison to see specialists in a certain period of time; and that if he were to send me, it would cost additional money. He told me that if I came back to him in a few months, the referral period would reset, and he would request that I be sent out to see a podiatrist.

Each time Clemons returned, Dr. Obaisi allegedly refused to make a referral, citing the same reason. This pattern repeated well into 2017.

Notably, Dr. Obaisi's 2014-2015 performance review from Wexford indicated that he "did not meet expectations" as to "cost effectiveness," even though he rated himself as having "far exceeded" expectations. It stated Obaisi "fell short with financial obligations in the area of offsite care and pharmacy," in which he was "drastically over budget." His performance review the following year reached a similar conclusion.

Dr. Obaisi finally referred Clemons to a podiatrist in March 2017 after x-rays of Clemons's foot showed its condition deteriorating. Clemons saw the podiatrist in November of that year. The podiatrist recommended an ankle sleeve, a "gym-shoe type orthopedic," and custom accommodative orthopedic shoe inserts to treat Clemons's condition. Following these recommendations, Dr. Obaisi ordered the shoe inserts and a follow-up appointment.

After Dr. Obaisi passed away in December 2017, Clemons continued receiving treatment from other Wexford medical professionals. In the course of this treatment, Clemons yet again faced repeated denials of requests for wide-width shoes and follow-up appointments with the podiatrist.

In November 2018, Dr. Marlene Henze—Dr. Obaisi's successor—began treating Clemons. Dr. Henze also repeatedly ordered wide-width shoes and podiatry follow-ups, and also met Wexford's denials. Dr. Henze appealed one denial in March 2019, and a few months later Wexford approved the podiatry follow-up, custom shoes, and custom inserts.

Clemons ultimately needed corrective surgery, which he received in January 2020.

B. Procedural Background

Clemons brought this action against Dr. Obaisi's estate; Dr. Arthur Funk, Wexford's Regional Medical Director; and Wexford (collectively, the "defendants"), alleging that their deliberate indifference to his serious medical needs violated the Eighth Amendment. After discovery, the defendants moved for summary judgment, and the district court granted the motion as to all defendants.

As to Dr. Obaisi, the district court concluded that, despite his statement that the referral limit prevented him from referring Clemons to a podiatrist, the treatment plan he ultimately adopted was reasonable. It also found that Dr. Obaisi's failure to appeal Wexford's shoe-order denials did not establish deliberate indifference. As to Wexford, the court concluded that without any evidence of a widespread pattern of indifference, a jury could not infer deliberate indifference rising to the level of a constitutional violation.

Clemons appeals.

II. Analysis

Clemons argues the district court erred in granting summary judgment to Dr. Obaisi and Wexford.^* We review the district court's decision de novo, construing all facts and drawing all reasonable inferences in Clemons's favor. Prude v. Meli, 76 F.4th 648, 656 (7th Cir. 2023). We will affirm summary judgment if there is no genuine dispute of material fact and "the movant is entitled to judgment as a matter of law." Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011).

A. Sham Affidavit

Before turning to the merits of Clemons's arguments, we consider the defendants' contention that we should disregard Clemons's affidavit as a "sham affidavit."

The sham-affidavit rule "prohibits a party from submitting an affidavit that contradicts the party's prior deposition or other sworn testimony." Kelley v. Stevanovich, 40 F.4th 779, 787 (7th Cir. 2022) (quoting Perez v. Staples Cont. & Com. LLC, 31 F.4th 560, 569 (7th Cir. 2022)). "The rule 'is designed to avoid sham factual issues and prevent parties from taking back concessions that later prove ill-advised.' " United States v. Funds in the Amount of $271,080, 816 F.3d 903, 907 (7th Cir. 2016) (quoting McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 750-51 (7th Cir. 2010)). In other words, the rule reflects the principle that "a genuine issue of material fact cannot be conjured out of nothing." James v. Hale, 959 F.3d 307, 316 (7th Cir. 2020). We review the district court's evidentiary ruling on the affidavit's admissibility for abuse of discretion. Id. at 314.

As we have warned, the sham-affidavit rule "must be applied with great care . . . because summary judgment is not a tool for deciding questions of credibility." Castro v. DeVry Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015). Accordingly, "an affidavit can be excluded as a sham only where the witness has given 'clear answers to unambiguous questions which negate the existence of any genuine issue of material fact.' " Id. at 572 (quoting Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996)).

Defendants argue Clemons's affidavit—submitted only after they filed their motion for summary judgment—created for the first time a dispute of fact as to the core issue of this case: whether Dr. Obaisi was deliberately indifferent for adjusting his plan of treatment purely for cost reasons and contrary to his reasoned medical opinion.

We see no abuse of discretion in the district court's decision to consider the affidavit. It found Clemons's affidavit did not conjure up an otherwise nonexistent dispute of fact or contradict his deposition testimony; rather, it simply built upon facts already in the record—without contradicting or undoing the effects of those allegations. The sham-affidavit rule is simply inapplicable where the affidavit amplifies, rather than contradicts, evidence already in the record. See Cook v. O'Neill, 803 F.3d 296, 298 (7th Cir. 2015). Although Clemons's affidavit is questionable, the district court did not abuse its discretion in finding that the allegations simply elaborated on his prior factual allegations.

B. Dr. Obaisi

On the merits, we start with Clemons's claims against Dr. Obaisi's estate. "The Eighth Amendment's ban on 'cruel and unusual punishments' obligates prison officials to provide medical care to prisoners in their custody." Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 234 (7th Cir. 2021). Accordingly, a prison official's "[d]eliberate...