REPORT AND RECOMMENDATION

STEPHEN C. WILLIAMS, District Judge.

INTRODUCTION

Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Patrick Justi brings claims against Defendant Vipin Shah for deliberate indifference in the treatment of his left elbow and right shoulder pain. This matter is currently before the Court on Defendant's motion for summary judgment (Docs. 58 and 59). Plaintiff has filed a response (Doc. 65) in opposition to the motion.

This matter has been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a). Based on the following, it is RECOMMENDED that the Court GRANT Defendant's motion for summary judgment.

FACTUAL BACKGROUND

Plaintiff filed his complaint on April 11, 2016 alleging deliberate indifference by Defendant Vipin Shah in the treatment of Plaintiff's elbow and shoulder pain (Doc. 1). At that time of Plaintiff's treatment, Plaintiff was incarcerated at Robinson Correctional Center (Doc. 59-1, p. 3). Plaintiff testified that prior to his incarceration, in 2012, he suffered an injury to his left bicep from lifting weights, and suffered a torn distal tendon (Id. at p. 4). His tendon, where it attaches to the elbow, snapped while lifting (Id.). He also had a previous shoulder injury which was documented by an MRI in 2008 (Id.). He was diagnosed at that time with a right shoulder impingement, subacromial bursitis, and rotator cuff tendinitis and was prescribed physical therapy (Doc. 1, p. 43). He previously received physical therapy in the form of light weights for his distal tendon in February 2014, prior to his incarceration, with Dr. Tracy DeLucia and had been released to start exercising again (Doc. 59-1, p. 5). Plaintiff later testified that he had not sought treatment for his right shoulder since 2008 because his shoulder felt better (Doc. 59-1, p. 8).

Plaintiff initially saw Dr. Shah for pain in his left elbow on December 27, 2014 (Doc. 59-1, p. 5). Plaintiff had been performing body weight exercises, specifically dips, when his elbow started hurting (Id. at p. 7). Plaintiff described himself as having been a body builder/weightlifter for many years (Doc. 1, p. 41; Doc. 59-1, p. 4). Plaintiff initially saw the nurse on December 23, 2014 and was referred to Dr. Shah (Doc. 65, p. 31). The nurse noted that Plaintiff had previously torn his left distal tendon but that his elbow was now hurting (Id.). The nurse prescribed Plaintiff Acetaminophen (Id.; Doc. 59-1, p. 6).

Plaintiff testified that Dr. Shah did not prescribe Plaintiff any treatment for his elbow. Dr. Shah noted that Plaintiff had a BMI of 30.5 and instructed Plaintiff that he was obese and needed to lose weight (Doc. 65, p. 32; 59-1, p. 6). Plaintiff testified that he weighs 195 pounds and while his weight may fluctuate ten pounds in either direction, he consistently maintains a weight of 195 pounds (Doc. 59-1, p. 6). Plaintiff's medical records from his 2008 orthopedic consult indicates that he is 5 foot 9 inches (Doc. 1, p. 41). The medical records note that Plaintiff requested physical therapy and Shah instructed Plaintiff to do the exercises on his own (Doc. 65, p. 32). Dr. Shah also prescribed ibuprofen for Plaintiff's pain (Id.).

Plaintiff next presented for sick call on February 13, 2015 (Doc. 65, p. 33). In addition to his elbow pain, Plaintiff complained of pain in his right shoulder (Doc. 59-1, p. 7). The nurse prescribed Plaintiff ibuprofen, cold compress, and instructed him to avoid lifting and strenuous activities (Doc. 65, p. 33). Plaintiff saw Dr. Shah on February 14, 2015 (Doc. 65, p. 34). Plaintiff noted that he previously had an MRI of his right shoulder (Id.). At that time, Dr. Shah requested Plaintiff's medical records from his previous orthopedist (Id.; Doc. 59-1, p. 7). He did not prescribe physical therapy or medications at that time (Id.). By that time, Plaintiff had stopped doing body weight exercises due to the pain in his left elbow (Doc. 59-1, p. 7). Dr. Shah rescheduled Plaintiff for a visit in three weeks (Doc. 65, p. 34).

Dr. Shah received Plaintiff's records in April 2015 and noted on April 4, 2015 that Plaintiff's MRI from 2008 showed a previous injury to his right shoulder (Doc. 65, p. 35). Plaintiff was instructed to exercise, lose weight, and to return to the healthcare unit as needed (Id.). Plaintiff testified that Dr. Shah's only plan was to attack Plaintiff's obesity (Doc. 59-1, p. 8). He indicated that Dr. Shah did not show Plaintiff any range of motion exercises for his arm or shoulder, nor did he provide him with any examples of stretching exercises he could do to alleviate his pain (Id.).

Plaintiff continued to receive treatment while at Robinson Correctional Center, although not from Dr. Shah (Doc. 65, p. 36-49). On June 11, 2015, Plaintiff was seen by the nurse for continued pain in his elbow and shoulder (Doc. 65, p. 43). He was prescribed medication and educated on weight lifting (Id.). He was also referred to the doctor which he saw on June 18, 2015 (Id. at p. 44). That doctor prescribed naproxen, warm soaks, no weight lifting, and ordered an x-ray (Id.). The x-ray completed on June 23, 2015 showed features consistent with rotator cuff impingement syndrome (Id. at p. 45). With the x-ray findings, Plaintiff was ordered pain medication and exercises as well as warm soaks (Id. at p. 48). The medical records indicate that Plaintiff chose not to take the medications or follow the exercise regime prescribed to him (Id.). Plaintiff transferred to Jacksonville Correctional center in July 2015 (Doc. 59-1, p. 11). He was seen by a physician there in October 2015 where he received an outside consult for physical therapy to learn an exercise program for his right shoulder (Doc. 65, p. 52).

LEGAL STANDARDS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 governs summary judgment motions. Summary judgment is appropriate only if the admissible evidence considered as a whole shows there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014) (citing FED. R. CIV. P. 56(a)). The party seeking summary judgment bears the initial burden of demonstrating — based on the pleadings, affidavits and/or information obtained via discovery — the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After a properly supported motion for summary judgment is filed, the adverse party "must set forth facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56).

A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Accord Bunn v. Khoury Enterpr. Inc., 753 F.3d 676 (7th Cir. 2014). The Seventh Circuit recently reiterated:

Grant v. Trustees of Indiana University, 870 F.3d 562, 568 (7th Cir. 2017) (quoting Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008), and Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). Such a dispute exists if there is "sufficient evidence favoring the non-moving party to permit a trier of fact" to reasonably find in favor of the non-movant as to any issue on which the non-movant bears the burden of proof. Grant, 870 F.3d at 562.

In assessing a summary judgment motion, the court construes all facts and reasonable inferences in the light most favorable to the non-moving party. Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014); Ferraro v. Hewlett-Packard Co., 721 F.3d 842, 847 (7th Cir. 2013). The court may not choose between competing inferences or balance the relative weight of conflicting evidence, it should view all the proper evidence in the record in the light most favorable to the non-movant. Reid v. Neighborhood Assistance Corp. of America, 749 F.3d 581, 586 (7th Cir. 2014). However, to survive summary judgment, the non-movant must present more than "bare speculation or a scintilla of evidence." Zuppardi, 770 F.3d at 650, quoting Roger Whitmore's Auto. Services, Inc., v. Lake County, Ill., 424 F.3d 659, 669 (7th Cir. 2005).

Because Plaintiff also moves for summary judgement, an additional word about the burden of proof merits note. The Supreme Court has reminded district courts that "in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson, 477 U.S. at 254. The party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact. Celotex, 477 U.S. at 322. Thus, where, as here, the party moving for summary judgment also bears the burden of persuasion at trial (i.e., the movant is the plaintiff), the movant must establish each and every essential element of his claim or defense. McKinney v. Am. River Transp. Co., 954 F.Supp.2d 799, 803 (S.D. Ill. 2013) (citing Celotex, 477 U.S. at 322; Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) (if summary judgment movant is plaintiff, she must show that the record contains evidence satisfying her burden of persuasion); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (at summary judgment stage, party that bears burden of persuasion at trial must come forward with sufficient evidence of each essential element of its prima facie case); Moore's Federal Practice § 56.13(1) (3d ed.2000)). This is different from the normal summary judgment filed by a defendant (who does not bear the ultimate burden of persuasion at trial), who can prevail just by showing an absence of evidence to support any essential element of the non-movant's case. See Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013). But if the summary judgment movant does bear the burden of proof at trial, he can only prevail by proving each element of his case with evidence sufficiently compelling that no reasonable jury could return a verdict for the non-movant. Celotex, 477 U.S. at 331 ("If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence...that would entitle it to as directed verdict if not controverted at trial"). See also McKinney, 954 F. Supp. 2d at 803 (citing Anderson, 477 >U.S. at 248; Lewis v. Kordus, 2010 WL 3700020 (E.D. Wisc. 2010) (unreported) ("where the moving party bears the burden of proof at trial, he can prevail only by proving every element of his case with evidence so compelling that no reasonable jury could return a verdict for the non-moving party").

B. Deliberate Indifference

Prison officials violate the Eighth Amendment's proscription against "cruel and unusual punishments" if they display deliberate indifference to an inmate's serious medical needs. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted)). Accord Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009) ("Deliberate indifference to serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the Constitution."). A prisoner is entitled to reasonable measures to meet a substantial risk of serious harm — not to demand specific care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).

To prevail, a prisoner who brings an Eighth Amendment challenge of constitutionally-deficient medical care must satisfy a two-part test. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011), citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006). The first prong that must be satisfied is whether the prisoner has shown he has an objectively serious medical need. Arnett, 658 F.3d at 750. Accord Greeno, 414 F.3d at 653. A medical condition need not be life-threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828 (1994) (violating the Eighth Amendment requires "deliberate indifference to a substantial risk of serious harm.") (internal quotation marks omitted) (emphasis added). Only if the objective prong is satisfied is it necessary to analyze the second, subjective prong, which focuses on whether a defendant's state of mind was sufficiently culpable. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005).

Prevailing on the subjective prong requires a prisoner to show that a prison official has subjective knowledge of—and then disregards—an excessive risk to inmate health. Greeno, 414 F.3d at 653. The plaintiff need not show the individual literally ignored his complaint, just that the individual was aware of the serious medical condition and either knowingly or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008).

ANALYSIS

The undersigned RECOMMENDS that the Court GRANT summary judgment as to Dr. Shah. While Defendant Shah argues that Plaintiff's shoulder and elbow pain was not a serious medical condition, the undersigned finds evidence of a serious medical condition. Plaintiff has presented evidence that he suffered from chronic left elbow pain and right shoulder pain. There are medical records to indicate that he was previously diagnosed in 2008 with a right shoulder rotator cuff impingement and was later diagnosed with the same condition on June 23, 2015. While Plaintiff's pain might not be urgent or acute, chronic pain can amount to a serious medical condition. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) ("the existence of chronic and substantial pain" can amount to a serious medical condition). See also Diaz v. Godinez, 693 Fed.Appx. 440, 443 (7th Cir. 2017)(chronic arthritis and other types of chronic pain are serious medical conditions (collecting cases)); Norfleet v. Webster, 439 F.3d 392 (7th Cir. 2006) (chronic arthritis).

However, the undersigned finds no evidence of deliberate indifference on Dr. Shah's part. Dr. Shah saw Plaintiff on three occasions. He first prescribed Plaintiff ibuprofen and instructed Plaintiff to do physical therapy on his own for treatment for his left elbow (Doc. 65, p. 32). When Plaintiff returned on February 14, 2015 and complained of right shoulder pain in addition to his left elbow pain, Dr. Shah ordered Plaintiff's previous medical records and a follow-up. After receiving Plaintiff's previous medical records which showed that Plaintiff previously had a right shoulder impingement and rotator cuff tendinitis, for which Plaintiff had previously been treated with physical therapy, Dr. Shah ordered exercise and weight loss. He also instructed Plaintiff to return to the healthcare unit if he continued to experience pain (Id. at p. 35).

The undersigned finds no evidence of deliberate indifference in this course of treatment. While persisting with an ineffective course of treatment can amount to deliberate indifference, see Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (finding deliberate indifference where medical defendants persisted in a course of conservative treatment for eighteen months despite no improvement); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990) (deliberate indifference when doctor continues with treatment knowing it to be ineffective), the undersigned does not find that this is what Shah did in treating Plaintiff. Instead, Dr. Shah appears to have taken a conservative initial approach to Plaintiff's complaints of pain, by ordering medical records and instructing Plaintiff to exercise his elbow and shoulder on his own. Shah also prescribed ibuprofen for Plaintiff's pain in December. He instructed Plaintiff to return if his pain did not resolve. Plaintiff was an admitted weightlifter and injured his elbow and shoulder while weight lifting, while doing dips which involve both the shoulder and elbow. An initial treatment of waiting to see if his pain resolved with further exercise appears to be a conservative approach. Plaintiff has not provided any evidence to suggest that Dr. Shah's approach was inappropriate.

The records also indicate that Plaintiff did return to the healthcare unit reporting that the pain was not improving (Doc. 65, p. 36-48). However, he no longer saw Dr. Shah but other doctors and medical personnel in the healthcare unit. Plaintiff ultimately received an x-ray which diagnosed Plaintiff with right shoulder impingement and was given a prescription for naproxen (Id. at p. 44-48). He was also instructed not to lift, to exercise the joints that were at issue, and to use warm soaks for the joints (Id.). While Plaintiff was later prescribed additional care, the undersigned finds no deliberate indifference in Dr. Shah's initial treatment of Plaintiff's pain. Shah only saw Plaintiff for a short period of time when Plaintiff initially complained of pain in his elbow and shoulder. He prescribed Plaintiff with medication, instructed Plaintiff to conduct physical therapy on his own, and ultimately instructed Plaintiff to return if the pain persisted for additional care, which Plaintiff did return and did receive additional care.

Plaintiff appears to take issue with the fact that Dr. Shah labeled Plaintiff as obese upon his first visit on December 27, 2014. The medical records indicate that Dr. Shah labeled Plaintiff as obese with a BMI of 30 ½ and instructed Plaintiff to lose weight (Doc. 65, p. 32). Plaintiff argues that he has never been instructed by any other doctor to lose weight for his shoulder or elbow injury nor had his weight ever been an issue. However, the undersigned does not find that Dr. Shah's labeling of Plaintiff as obese to amount to deliberate indifference. While the Court notes that at 5 foot 9 inches with a weight of 195, as Plaintiff was when he appeared before Dr. Shah on December 27, 2018, produces a BMI of 28.8, according to the National Heart, Blood, and Lung Association,1 and not a 30 ½ as Shah wrote down, neither the discrepancy nor the instruction to lose weight amounts to deliberate indifference. While Plaintiff may have disagreed with the diagnosis, the mere disagreement does not amount to deliberate indifference. Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007); Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). By BMI standards, Plaintiff was overweight although not obese as Dr. Shah labeled Plaintiff. Nor was the instruction to lose weight the only treatment that Dr. Shah prescribed for Plaintiff's chronic pain. He provided medication in December and instructed Plaintiff to complete exercises for his elbow and shoulder. The undersigned finds no evidence of deliberate indifference in his course of treatment. As such, it is RECOMMENDED that the Court GRANT Dr. Shah's motion for summary judgment.

CONCLUSION AND RECOMMENDATION

Accordingly, the undersigned RECOMMENDS that the Court GRANT summary judgment in favor of Dr. Shah. Should the Court adopt this Report and Recommendation, no further claims will remain for trial.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this 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). Accordingly, Objections to this Report and Recommendation must be filed on or before July 9, 2018

IT IS SO ORDERED.

NOTICE

Pursuant to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days of service.

Please note: You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.

Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).