Rodesky v. Wexford Health Source, Inc.

582 F.Supp.3d 594

Anthony RODESKY, Plaintiff,

v.WEXFORD HEALTH SOURCE, INC., et al., Defendants.

No.: 15-100 2-JEH

United States District Court, C.D. Illinois.

Signed August 19, 2020

Bridget Kate Geraghty, Nicole Rae Schult, Alan Mills, Uptown People's Law Center, Chicago, IL, for Plaintiff.

Brent J. Colbert, Joseph N. Rupcich, Joy C. Syrcle, Cassiday Schade LLP, Springfield, IL, for Defendants Marvin Powers, Andrew Tilden.

Andrew J. O'Donnell, Marrian M. Daniel, Joseph Shaun Moy, Hanan Malik, Office of the Illinois Attorney General, Chicago, IL, Alan Remy Taborga, Bridget L. Schott, Office of the Illinois Attorney General, Urbana, IL, Desiree K. Kumar, Office of the Attorney General, Springfield, IL, for Defendants Randy Pfister, Rob Jeffreys, Steven Bowman.

ORDER

JONATHAN E. HAWLEY, UNITED STATES MAGISTRATE JUDGE

Plaintiff, represented by counsel, has filed a four-count complaint alleging in Count I, that Medical Defendants Dr. Andrew Tilden, Dr. Marvin Powers and Wexford Health Source, Inc.; as well as institutional Defendants Salvador Godinez and Louis Shicker, were deliberately indifferent to his serious medical needs. In Count II, Plaintiff asserted a respondeat superior claim against Wexford. In Count III, he pled a claim under the Americans with Disabilities Act ("ADA"); and in Count IV, a claim under the Rehabilitation Act ("RA") against Defendant Godinez. At the time the complaint was filed, Mr. Godinez was the Director of the Illinois Department of Corrections ("IDOC") and Dr. Schicker was the IDOC Medical Director. These individuals had been succeeded by Rob Jeffreys and Steven Meeks, respectively. The clerk is instructed to amend the caption, pursuant to Fed. R. Civ. P. 25(d), to substitute Mr. Jeffreys in place of Mr. Godinez and Dr. Meeks, in place of Dr. Schicker. Although the institutional Defendants’ motion is styled as asserted on behalf of Defendants Godinez and Shicker, the Court reviews the motion as asserted on behalf of Defendants Jeffreys and Meeks.

Defendants Jeffreys and Meeks have filed a motion for summary judgment [ECF 87] and a redundant motion at [ECF 88]. Defendants’ [ECF 87], is stricken as superseded by the later filing. Plaintiff has responded to Defendants’ motion, Defendants have replied, and with leave of Court, Plaintiff has filed a surreply. The Medical Defendants, too, have filed a motion for summary judgment [ECF 90] to which Plaintiff has responded and Defendants have replied. The remaining Defendant, Warden Pfister, is not a party to these motions. After due consideration, and for the reasons indicated herein, the Court DENIES the motion for summary judgment asserted by Defendants Jeffreys and Meeks [ECF 87]. The Court DENIES in part and GRANTS in part the motion for summary judgment asserted by Defendants Powers, Tilden and Wexford.

MATERIAL FACTS

Plaintiff had a known, pre-existing history of diabetes when transferred from the Tamms Correctional Center ("Tamms") to the Pontiac Correctional Center ("Pontiac") on December 23, 2012. Plaintiff has provided at testimony attesting that, prior to leaving Tamms, he had spent 11 months in the infirmary for treatment of a diabetic foot ulcer. During this time, Plaintiff did not leave his cell other than for medical appointments to which he was transported by wheelchair. In the weeks before leaving Tamms, Plaintiff was allowed to put light weight-bearing pressure on the affected right foot. Plaintiff characterizes the diabetic foot ulcer as "almost healed" when he left Tamms. This is corroborated by the transfer medical records which, too, document the wound as almost healed. This record further substantiates that Plaintiff was on light weight-bearing restrictions at the time of transfer.

When Plaintiff arrived at Pontiac, he was placed in the North Cell House ("NCH") on 6 Gallery. The NCH is set up so that Galleries 1 and 2 are on the first floor. Galleries 3 and 4 are on the second floor, with Galleries 5 and 6 on the third floor, and Galleries 7 and 8 on the fourth floor. As a result of this placement, Plaintiff had to walk up three flights of stairs to get to 6 Gallery and another 50 to 75 yards to get to his cell. Plaintiff had to repeat this excursion twice daily, so that he could get his insulin shots at the Nurses’ station. Plaintiff testified at his deposition that he had to walk unaided, while shackled and accompanied by two officers. Plaintiff also attests that after walking the first time to the Nurses’ station, his incision reopened and there was blood in his sock.

Plaintiff has provided affidavit testimony to establish that this arrangement continued until June 4, 2013, when he was transferred to 2 Gallery on the ground floor. Plaintiff attests that Defendants’ failure to earlier move him and failure to provide him diabetic shoes caused ulcers to open on the top of his foot and caused the heel wound to reopen. Over the next two years, Plaintiff underwent treatment by outside treating podiatrists, Drs. Dickinson and Brown, as well as surgeons Drs. Pontillas, Altman, Dressen and Mejia, and hospitalizations at Herrin Hospital and the University of Illinois Hospitals ("UIC"). The wounds at the top of Plaintiff's foot and at the heel initially resolved, but the heel wound recurred on two subsequent occasions. Plaintiff subsequently developed osteomyelitis, an infection of the bone in his right heel. The osteomyelitis cleared up but later recurred, with Plaintiff developing a systemic sepsis. On July 15, 2015, he underwent an amputation of his right leg, below the knee.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant if entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. , 477 U.S. at 323-24, 106 S.Ct. 2548. Once a properly supported motion for summary judgment is filed, the burden shifts to the non-moving party to demonstrate with specific evidence that a triable issue of fact remains for trial. Gracia v. Volvo Europa Truck, N.V. , 112 F.3d 291, 294 (7th Cir. 1997). The party opposing summary judgment "must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc. , 387 F.3d 921, 924 (7th Cir. 2004). Accordingly, the non-movant cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue; he "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Finally, a scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Motion for Summary Judgment of Defendants Jeffreys and Meeks [ECF 88]

Plaintiff has named Defendants Jeffreys and Meeks in their official capacities in the Count I deliberate indifference claim. Defendants assert, however, that Plaintiff pled no facts to establish that Defendant Jeffreys was deliberately indifferent to him, and that the facts pled against Defendant Meeks did not assert that he personally participated in the deprivation. Plaintiff appears to concede this point as he asserts in his response to summary judgment that he "does not seek to establish personal liability for damages on Count I against (Jeffreys) and (Meeks), so Defendants’ arguments about [their] lack of personal involvement in Mr. Rodesky's care, are all beside the point." Plaintiff explains that he named these Defendants in their official capacities merely to implement any injunctive relief which he might seek at trial. As Plaintiff is admittedly not pursuing an individual capacity claim against Defendants Jeffreys or Meeks, any allegations construed against them in their individual capacities are DISMISSED. Defendants will remain as to Count I for purposes of prospective injunctive relief only.

In Counts III and IV, Plaintiff has asserted ADA and RA claims against Defendant Jeffreys in his official capacity. Claims under the ADA and RA may be asserted against either the relevant state department or agency, or in an official capacity claim against the director of the relevant department or agency. Hogle v. Baldwin , No. 17-01059, 2017 WL 4125258, at *4 (C.D. Ill. Sept. 18, 2017), citing Jaros v. Ill. Dep't of Corr. , 684 F.3d 667, 670 (7th Cir. 2012) (internal citations omitted). See also, McNish v. Kayira , No.16-00430, 2016 WL 2851122, at *3 (S.D. Ill. May 16, 2016) (ADA and RA claims to proceed against IDOC Director). As a result, Defendant Jeffreys is appropriately named as a Defendant although the Court will often refer to IDOC when discussing institutional liability under the ADA and RA.

The ADA was enacted " ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ The Act ‘forbids discrimination against persons with disabilities in ... public services, programs and activities, which are the subjects of Title II ...’ " Phipps v. Sheriff of Cook County , 681 F. Supp. 2d 899, 913 (N.D. Ill. 2009) (internal citations omitted). "It is now well-settled that prisons and correctional facilities are covered by Title II." Id. To allege a violation of Title II, Plaintiff must plead: "[1] that he is a ‘qualified individual with a disability,’ [2] that he was denied ‘the benefits of the services, programs, or activities of a public entity’ or otherwise subjected to...