Pendegraft v. Butalid

CURTIS PENDEGRAFT, Plaintiff, v. DR. ALBERTO BUTALID,LUKE BRANDMEYER, KYLE THOLE,and DR. FRANCIS KAYIRA, Defendants.

Case No. 3:15-cv-816-NJR-DGW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

March 30, 2018

MEMORANDUM AND ORDER

ROSENSTENGEL, District Judge:

Now pending before the Court are the Motions for Summary Judgment filed by Defendants (Doc. 141, 148, and 154). For the reasons set forth below, the Motion for Summary Judgment filed by Defendant Kayira is denied in part and mooted in part (Doc. 141),¹ the Motion for Summary Judgment filed by Defendant Butalid is granted (Doc. 148), and the Motion for Summary Judgment filed by Defendants Brandmeyer and Thole is denied in part, granted in part, and mooted in part (Doc. 154).²

INTRODUCTION

Plaintiff Curtis Pendegraft, an inmate who is currently incarcerated at the Vandalia Correctional Center, is proceeding on a Complaint filed on July 28, 2015(Doc. 1), and screened pursuant to 28 U.S.C. § 1915A on August 17, 2015 (Doc. 11). He alleges that while he was incarcerated at the Clinton County Jail, from April 8 to August 3, 2014, a hip bone infection was not treated appropriately by various personnel. He further alleges that he was placed in segregation at the Jail after he complained about the lack of treatment. According to Pendegraft, the lack of appropriate treatment continued after he was taken into Illinois Department of Corrections (IDOC) custody in January 2015 and housed at the Graham Correctional Center.³ As it currently stands, Pendegraft is proceeding on the following counts against the following individuals:

COUNT 1: Kyle Thole, Dr. Alberto Butalid, Luke Brandmeyer, and Dr. Francis Kayira were deliberately indifferent to Plaintiff's needs, in violation of the Eighth Amendment.

COUNT 2: Kyle Thole retaliated against Plaintiff for complaining about his need for care by placing him in segregation, in violation of the First Amendment.

Defendants filed their respective motions for summary judgment in March 2017 (Docs. 141, 148, 154). Due to difficulties with his recruited counsel, Pendegraft was not able to file substantive responses to the motions until December 2017 (Docs. 203, 204, and 205)⁴ Dr. Kayira filed a reply brief on January 4, 2018 (Doc. 208). Defendants Thole, Butalid, and Brandmeyer did not file reply briefs.

BACKGROUND

Pendegraft testified at his deposition that several years prior to his detainment at the Clinton County Jail, which began on April 8, 2014, he suffered from Osteomyelitis, an infection of his hip that required him to be hospitalized and receive intravenous antibiotics (Doc. 203-1, pp. 29-34). Pendegraft further testified that sometime during the month of April 2014, the old wound on his hip opened up and started to drain (Id. at p. 43). Pendegraft filled out sick call slips on May 8 and 12, 2014 (Id. at p. 128; Doc. 204-2, pp. 148, 149). On the May 8th slip, Pendegraft wrote, "I have a infection and need to see doctor. This is the infection that I have had in the past and has caused me to have 3 prior surgeries. Can I please see the doctor." (Doc. 204-2, p. 148). On the May 12th slip, Pendegraft wrote, "I have a bad infection and I have been hospitalized because of this. My chest is hurting bad, my left arm and hand [are] numb. I lay down and can hardly breath. This is the 2nd slip I filled out." (Doc. 204-2, p. 149).

He was seen by Nurse Michelle Nordike on May 14, 2014 (Doc. 203-1, p. 129; Doc. 204-2, p. 170). Nordike wrote that Pendegraft complained of "chest pain [and] [left] arm numbness [and] tingling in fingers" (Doc. 204-2, p. 170). One week later, Pendegraft was taken to see Dr. Alberto Butalid at his office at Clinton County Rural Health in Carlyle, Illinois (Doc. 203-1, pp. 55, 56; Doc. 149-2; Doc. 152-1). Clinton County Rural Health is a private practice that is owned by and affiliated with HSHS St. Joseph's Hospital in Breese, Illinois (Doc. 149-2). Dr. Butalid does not have a written contract with the county or state to render medical services to inmates (Id.). Defendant Luke Brandmeyer was the officer who took Pendegraft to his appointment with Dr. Butalid(Doc. 203-1, p. 56). Since becoming a sergeant, Brandmeyer "took care of medical" at the Jail but has no medical training (Doc. 204-4, p. 25). He went to as many appointments with Pendegraft as he could because he was the one "dealing with him mostly" (Id. at p. 39).

It is undisputed that Pendegraft complained to Dr. Butalid about an infection and also told the doctor about his history of infections (Doc. 203-1, p. 56; Doc. 152-1). Pendegraft claims he also told Dr. Butalid that he had a wound on his right hip that was open and draining, but Dr. Butalid did not look at his hip (Doc. 203-1, pp. 56-57). Dr. Butalid said, however, that Pendegraft did not tell him about an open wound, and the medical records do not reflect such a complaint (Doc. 204-2, pp. 43-44; see Doc. 152-1, p. 1). The records indicate that Pendegraft complained of aches and pains in his right shoulder, right hip, neck, and back, and of numbness and a tingly sensation in his left arm for the past two weeks (Doc. 152-1, p. 3). The records also indicate that Pendegraft has scars on his right hip, right shoulder, and back, and that the general appearance of his skin was normal (Id.). Dr. Butalid diagnosed Pendegraft with arthritis, gave him Ibuprofen, and also directed a follow-up appointment in two weeks (Doc. 203-1, pp. 56-61; Doc. 152-1). Dr. Butalid also ordered lab work, specifically a complete blood count (CBC), complete metabolic panel (CMP), and erythrocyte sedimentation rate (ESR) (Doc. 152-1).⁵ Dr. Butalid indicated he ordered this lab work in order to determine if Pendegraft had an active infection (Doc. 204-2, p. 39).

At the follow-up appointment on June 4, 2014, Dr. Butalid's notes indicate a one centimeter lesion with drainage on Pendegraft's lower right abdomen (Doc. 152-2, p. 2).⁶ The notes also indicate that Pendegraft's bloodwork was unremarkable except for elevated "ESR of 48" (Id.). Pendegraft testified that Dr. Butalid told him that his white blood cell count was high and he had an infection (Doc. 203-1, p. 65). Dr. Butalid ordered a wound culture and sensitivity testing of the wound in order to identify the bacteria causing the infection and the medication that would best treat it (Doc. 152-2; Doc. 204-2, pp. 71).⁷ Dr. Butalid also prescribed a ten-day course of antibiotics, directed a follow-up in one week, and ordered Pendegraft to keep the wound covered (Doc. 152-2; Doc. 204-2, p. 156). These instructions were conveyed to the Jail using their form (Doc. 204-2, p. 156).

By the follow-up appointment on June 11, 2014, the results of the wound culture were back and showed that Pendegraft had Staph aureus (Doc. 204-2, p. 64; see also Doc. 152, p. 6). Dr. Butalid noted that the wound was "still draining" and referred Pendegraft to Dr. Timothy Ruff, a general surgeon, for an evaluation to see if the wound could be closed (Doc. 152-3; see Doc. 204-2, pp. 98, 175-189). It is undisputed that Pendegraft saw Dr. Ruff on July 1, 2014 (see Doc. 204-2, pp. 175-189). Dr. Ruff noted that the wound was open about 3 x 3 millimeters with "very slight purulent exudate" (Id.). Dr. Ruff ran additional lab work and another wound culture (see id.). He also ordered aCT scan of Pendegraft's abdomen and pelvis, which was performed on July 2nd (see id.). The CT scan revealed an "irregularity" on Pendegraft's right hip bone possibly caused by chronic Osteomyelitis (Id.; Doc. 152-5, p. 1). Pendegraft had a follow-up appointment with Dr. Ruff on July 14, 2014 (see Doc. 204-2, pp. 175-189). Dr. Ruff indicated that the wound culture indicated Pendegraft had MSSA, or methicillin susceptible Staphylococcus aureus (Id.). Dr. Ruff's diagnosis was "probable chronic osteo[myelitis]," and he noted that Pendegraft needed to be referred to an infectious disease specialist for further evaluation and treatment but that Dr. Butalid would take care of the referral (Id.). Although it isn't entirely clear, it appears that Dr. Butalid referred Pendegraft to Dr. Nida Subhani sometime within the week following the second visit with Dr. Ruff (see Doc. 152-6, Doc. 152-7).⁸

Pendegraft saw Dr. Butalid again on July 22, 2014, at which time Pendegraft complained about a "new spot" on his right hip and stated "he would like to be admitted to the hospital because he is doing worse" (Doc. 152-5, p. 1). Dr. Butalid noted a second open wound on Pendegraft's hip and noted that the lesions were now three centimeters, red, swollen under the skin, and "sore with a point in the middle draining scanty yellow discharge" (Id. at p. 2; Doc. 204-2, p. 66). Dr. Butalid diagnosed Pendegraft with an abscess and cellulitis on his right hip and an enlarged lymph node in his right groin (Doc. 152-5, p. 3; Doc. 204-2, p. 72). He ordered a ten-day course of a different antibiotic—doxycycline hyclate, continued the prescription for Ibuprofen forPendegraft's pain, and directed Pendegraft to follow-up with him in ten days (Doc. 152-5, p. 3). In the paperwork he provided to the Jail, Dr. Butalid included instructions to change the dressing on Pendegraft's wound daily and to "send to ER for possible admission per [Pendegraft's] request" (Doc. 204-2, p. 163). At his deposition, Dr. Butalid confirmed that it was his intent that Pendegraft be taken to the emergency room and that he told the guards to take him to the emergency room (Doc. 204-2, p. 69-70). It is undisputed that Pendegraft was not taken to the emergency room.

Brandmeyer did not go with Pendegraft to the July 22nd appointment with Dr. Butalid (Doc. 204-4, p. 53). Instead, Transport Officer Lupker took Pendegraft to that appointment (Id. at p. 63). Although Brandmeyer reviewed Dr. Butalid's recommended course of treatment, he did not recall seeing the instruction about the emergency room and did not know why Pendegraft was not taken to the emergency room (Id. at pp. 53, 64-66).

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