JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is a Motion for Judgment on the Pleadings and/or Motion for Summary Judgment filed by Defendants Corizon, Inc. ("Corizon"), Dr. Noe Marandet, Dr. Naveen Rajoli, Miami Correctional Facility Health Services Administrator ("Miami HSA"), and Putnamville Correctional Facility Health Services Administrator ("Putnamville HSA"). [Filing No. 87.]
Defendants' motion is for judgment on the pleadings or for summary judgment. [Filing No. 87.] In ruling on a motion for judgment on the pleadings, the Court may only consider the complaint, answer, and any documents attached thereto as exhibits. See N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452-53 (7th Cir.1998). Defendants rely on matters outside of the pleadings for all of their arguments.
A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear,
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir.2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir.2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir.2010).
The Court notes at the outset that Mr. Fromer has not complied with Local Rule 56-1(b), which provides that a response to a motion for summary judgment "must include a section labeled `Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment." While Mr. Fromer includes a section titled "Statement Of Material Facts In Dispute," [Filing No. 107 at 8], he does not specifically identify facts that he is disputing. Instead, he provides his version of events, but without tying it to alleged inaccuracies in Defendants' Statement of Material Facts Not in Dispute. This approach does not comply with Local Rule 56-1(b), and has made
Nevertheless, the Court has attempted to sift through Mr. Fromer's version of events, determine which facts set forth by Defendants he disputes, and construe disputed facts in his favor when he has provided citations to evidence in the record. But failure to comply with Local Rule 56-1(b) can result in a concession of the movant's version of events. See, e.g., Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994) (the Seventh Circuit has "repeatedly upheld the strict enforcement of these rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts").
The Court also notes that Mr. Fromer's Statement of Material Facts In Dispute contains a great deal of legal argument, purportedly supported by Mr. Fromer's expert's report. [See, e.g., Filing No. 107 at 8-9 ("A patient presenting with evidence of a MRSA infection should have a culture with sensitivity testing if there is a site to culture" and "[r]epeating cultures can indicate if treatment failure is due to re-infection with a different organism or relapse with the same organism") (citing Filing No. 106-14).] Consequently, the Court discusses Mr. Fromer's expert's opinion in its discussion of Mr. Fromer's claims.
The Court finds the following to be the undisputed facts, supported by admissible evidence in the record.
Corizon is a for-profit corporation that entered into a Professional Services Contract (the "Contract") with the Indiana Department of Correction ("IDOC") to provide healthcare services to IDOC inmates. [Filing No. 106-5 at 2.] The Contract requires that Corizon provide, at a minimum, health and mental health services "in a manner set forth in the Technical Proposal from RFP 5-103, Department policies, procedures and directives, [certain] Performance Measures ..., American Correctional Association ("ACA") and National Commission on Correctional Health Care ("NCCHC") standards, and consistent with correctional and community standards of care." [Filing No. 106-5 at 2.] The Contract also provides that "[w]hen correctional or community standards of care are unclear, [Corizon and IDOC] shall adopt mutually agreed upon standards, treatment guidelines or protocols." [Filing No. 106-5 at 2.]
The Performance Measures attached to the Contract provide guidelines for the treatment of certain conditions, including infectious diseases. [Filing No. 106-6.] Corizon does not have in its possession any NCCHC standards that it adheres to. [Filing No. 106-11 at 2.]
Mr. Fromer was a prisoner of the Indiana Department of Correction at all times relevant to this matter, and was transferred to the Miami Correctional Facility ("MCF") on January 16, 2009. [Filing No. 90-1 at 2-5.] Mr. Fromer had the following initial encounters with healthcare professionals at MCF:
Dr. Marandet was the Medical Director and a physician at MCF when he first examined Mr. Fromer, until Mr. Fromer's eventual transfer. [Filing No. 90-2 at 3.]
When Mr. Fromer reached PCF on June 19, 2012, he was given a 9-day supply of Bactrim DS as Dr. Marandet had prescribed. [Filing No. 90-1 at 51.] Less than two months later, Mr. Fromer began complaining of discharge from his middle toe, [Filing No. 90-1 at 61], which resulted in numerous trips to the medical care facility at PCF and a handful of encounters with Dr. Rajoli, who was the Medical Director and a medical service provider physician at PCF at that time.
Mr. Fromer sought out treatment at JCU only once, on April 1, 2013. He saw nursing staff for "skin irritation on feet" and stated "I just got bigger boots. I wear a 9 1/2 and now I have a new 9 boot which is helping. No current pain or out breaks. I have had a lot of problems in the past." [Filing No. 90-1 at 103.] The nurse examined his feet, heels, and toenails, and stated that there was "no redness or irritation, no drainage, no odor, afebrile. It is unclear why this offender wanted seen. States father sending in boots soon. Currently has inserts in boots which he reports are helping as well. Soak pan offered." [Filing No. 90-1 at 103-04.]
Mr. Fromer was transferred to Plainfield Correctional Facility ("IYC") on April 2, 2013. On April 11, 2013, Mr. Fromer presented to nursing staff for "`MRSA' Right Ankle." The nurse noted "states has been on Keflex or Bactrim every 5 weeks or so to treat outbreaks of `MRSA.' States this `outbreak' has lasted 4 days thus far. Offender is requesting IV antibiotics to `once and for all stop' these `out-breaks.' Offender states that he frequently has pus draining from his finger and toe nails—NO SIGNS & NO EVIDENCE OF THOSE DURING PHYSICAL EXAM OF FEET & HANDS." [Filing No. 90-1 at 107.] She further noted that examination showed "small scabs free of redness in surrounding areas, no drainage, no active bleeding," and "no evidence of infection." [Filing No. 90-1 at 108.] The nurse offered Mr. Fromer hydrocortisone cream and antifungal cream, but he declined them stating that they do not offer relief and are not effective. [Filing No. 90-1 at 108.] The nurse explained to Mr. Fromer that MRSA is not a virus that has recurring "outbreaks," and Mr. Fromer said sometimes the "outbreaks" are staph instead. [Filing No. 90-1 at 108.] The nurse informed Mr. Fromer that MRSA is a form of a staph bacterial infection, and not a viral infection. [Filing No. 90-1 at 108.]
On May 1, 2013, Mr. Fromer complained to nursing staff at IYC of an "on-going MRSA infection." [Filing No. 90-1 at 109.] The nurse noted a "superficial injury to skin," and that there were signs and symptoms of infection including "increased redness [and] increased pain." [Filing No. 90-1 at 109.] He was prescribed Morgidox, an antibiotic. [Filing No. 90-1 at 110.] This is the last medical record that the parties have introduced into evidence which relates to Mr. Fromer's claims.
Mr. Fromer filed two grievances with the Indiana Department of Corrections related to the treatment outlined above. First, Mr. Fromer filed Offender Grievance 73584 on October 15, 2012, which relates to treatment he received at MCF from March 2011 to June 2012. [Filing No. 90-4 at 11.] In Grievance 73584, Mr. Fromer complained about the medical treatment he received at MCF for his feet issues, including that the medications he was given did not help. [Filing No. 90-4 at 11.]
In response to Grievance 73584, Corizon's Director of Nursing provided Mr. Fromer with an October 30, 2012 letter stating "Between 3/21/11 and 6/11/12 you were seen 19 times by medical for this complaint. Multiple rounds of antibiotics were ordered along with foot soaks, which you were non-compliant with. A culture of the drainage from your toes resulted in MRSA.... This is a bacteria that you will always have. It is difficult to treat, but
Mr. Fromer filed a Level 2 appeal related to Grievance 73584 on November 15, 2012, reiterating his complaints. [Filing No. 90-4 at 13.] Corizon responded on January 2, 2013, again stating that Mr. Fromer's medical care was appropriate. [Filing No. 90-4 at 10.]
On October 19, 2012, Mr. Fromer filed a second grievance, Grievance 73429, which related to an incident where he claimed that a nurse practitioner at PCF failed to inform him of the results of a prior biopsy performed at MCF and instead gave him new medication. [Filing No. 90-4 at 3.] Mr. Fromer claimed that a subsequent nurse practitioner he saw told him that she did not want to prescribe the medication to treat MRSA because it was expensive and she "did not want to spend the money on it." [Filing No. 90-4 at 3.] Corizon's Health Services Administrator responded to Mr. Fromer's grievance on October 18, 2012, stating that Mr. Fromer was non-compliant and missed appointments to have his dressings changed, reported that his symptoms were improving, refused toenail removal, and did not return for treatment even though he was told to do so if his symptoms worsened or did not improve. [Filing No. 90-4 at 7.]
Mr. Fromer appealed the decision on October 19, 2012, reiterating his complaints. [Filing No. 90-4 at 2-3.] Corizon's Director of Health Services responded on October 29, 2012, denying the grievance and finding, among other things, that there was no evidence that a biopsy was performed while Mr. Fromer was at MCF. [Filing No. 90-4 at 4.]
Mr. Fromer filed this lawsuit on February 7, 2013. He describes his case as follows:
[Filing No. 24 at 2.]
Mr. Fromer does not assert any state law claims against any Defendants, but rather only asserts an Eighth Amendment claim against each Defendant—specifically: (1) against Corizon for "creating and implementing or causing the implementation of policies, practices, procedures, and customs which result in ineffective and inadequate medical care to [Mr. Fromer] ..."; (2) against Drs. Marandet and Rajoli for "not providing and/or denying [Mr. Fromer] effective and adequate medical treatment"; and (3) against Miami HSA and Putnamville HSA for "creating and implementing policies, practices, procedures, and customs which resulted in the ineffective and inadequate medical care provided to [Mr. Fromer]." [Filing No. 1 at 9-10.] He seeks compensatory and punitive damages, plus attorneys' fees and costs. [Filing No. 1 at 10-11.] Defendants have moved for summary judgment on all of Mr. Fromer's claims. [Filing No. 87.]
Defendants argue that Mr. Fromer cannot pursue his claims in this litigation because he did not exhaust his administrative remedies. [Filing No. 89 at 18-20.] Specifically, they argue that his grievances do not identify or relate to Corizon, Drs. Marandet or Rajoli, or the Miami HSA or Putnamville HSA ("the HSAs"), and that Grievance 73584 does not identify which doctor it relates to. [Filing No. 89 at 19-20.]
In response, Mr. Fromer argues that the grievances and appeals were "sufficient under the requirements of the Prison Litigation Reform Act." [Filing No. 107 at 19.] Defendants do not address their exhaustion of remedies argument in their reply. [Filing No. 114.]
The substantive law applicable to the motion for summary judgment is the Prison Litigation Reform Act ("PLRA"), which requires that a prisoner exhaust his available administrative remedies before bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532, 122 S.Ct. 983 (citation omitted).
"Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (footnote omitted); see also Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004) ("In order to properly exhaust, a prisoner must submit inmate complaints and appeals `in the place, and at the time, the prison's administrative rules require'") (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). "In order to exhaust administrative remedies, a prisoner must take all steps prescribed by the prison's grievance system." Ford v. Johnson, 362 F.3d 395, 397 (7th Cir.2004).
That said, Defendants have the burden of pleading and proving failure to exhaust administrative remedies as an affirmative defense. Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999) ("Because failure to exhaust administrative remedies is an affirmative defense, defendants have the burden of pleading and proving the defense"). When exhaustion of remedies is raised as an affirmative defense, a district court "must not proceed to render a substantive decision until it has first considered [exhaustion of administrative remedies under] § 1997e(a).... Defendants may waive or forfeit reliance on § 1997e(a), just as they may waive or forfeit the benefit of a statute of limitations. [But][w]hen they assert their rights ... then the judge must address the subject immediately." Fluker v. County of Kankakee, 741 F.3d 787, 792 (7th Cir.2013) (emphasis in original) (quoting Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 536 (7th Cir.1999)).
Here, Defendants did not raise exhaustion of administrative remedies as an affirmative defense in their Answer, [Filing No. 20 at 5-6], as they must to properly preserve that defense. Accordingly, the Court finds that Defendants have waived the argument that Mr. Fromer has failed to exhaust his administrative remedies, and the Court will not address the argument's
Mr. Fromer alleges that Corizon violated his Eighth Amendment rights by "implementing or causing the implementation of policies, practices, procedures, and customs which result in ineffective and inadequate medical care to [Mr. Fromer and] violated [his] rights secured to him by the Eighth Amendment...." [Filing No. 1 at 9.] Defendants argue that Mr. Fromer can only assert a cognizable deliberate indifference claim against Corizon if it presents evidence that "Mr. Fromer suffered a constitutional deprivation as the result of an express policy or custom of Corizon...." [Filing No. 89 at 31.] Defendants argue that Mr. Fromer has not presented such evidence.
Mr. Fromer responds by asserting that Corizon failed to establish and/or implement standards for the diagnosis and treatment of MRSA and staph, and that this failure "resulted in the prolonged suffering by [Mr. Fromer] and possible spreading of the condition to other parts of his body." [Filing No. 107 at 23.] Mr. Fromer also argues, however, that Corizon "had several express policies it was required to but did not follow," and that it did not give the doctors any standard procedures to follow. [Filing No. 107 at 24.] Mr. Fromer asserts that Corizon did not provide training to Drs. Marandet or Rajoli or the HSAs, that they did not see the Contract or the standards the Contract required them to follow, and that they did not "create their own diagnostic and treatment policies." [Filing No. 107 at 24.] Defendants do not address Mr. Fromer's arguments which specifically relate to his claim against Corizon in their reply. [Filing No. 114.]
Corizon has contracted with the IDOC to provide medical care to various prisons throughout Indiana. Corizon is "treated the same as a municipality for liability purposes under § 1983." See Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir.2010) (a corporation that contracted with a jail to provide health services is "treated the same as municipalities for liability purposes in a § 1983 action"); see also Hahn v. Walsh, 762 F.3d 617, 639-40 (7th Cir.2014); Valdez v. Corizon, Inc., 2014 WL 1874875, *6 (N.D.Ind.2014) (finding prisoner could only assert § 1983 claim against Corizon for health care received at Indiana State Prison if "poor healthcare leading to the injury [was] the result of the employer entity's policy or practice"); Heard v. Illinois Dept. of Corrections, 2012 WL 832566, *7 (N.D.Ill.2012). Corizon may be liable for harm to persons incarcerated "if it maintains a policy that
"It is well-established that there is no respondeat superior liability under § 1983." Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 (7th Cir.2002). A "private corporation is not vicariously liable under § 1983 for its employees' deprivations of others' civil rights." Id. "In general terms, to maintain a viable § 1983 action against a municipality or similar entity, a plaintiff must demonstrate that a constitutional deprivation occurred as a result of an express policy or custom of the government unit." Id. (citing Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir.2001)).
Mr. Fromer argues that Corizon had policies in place that it was required to follow but did not, and also that it did not have a policy on the diagnosis and treatment of MRSA and staph.
Mr. Fromer is attempting to fit a square peg into a round hole. He must present evidence that Corizon had a specific policy or practice that it enforced that is unconstitutional. Jackson, 300 F.3d at 766. He argues that Corizon had a policy that it did not follow and should have, and that Corizon did not have a MRSA and staph policy and should have. Even if Mr. Fromer could show that Corizon had an adequate policy which Drs. Marandet and Rajoli did not follow in his case, his claim against Corizon would fail. Mr. Fromer cannot rely on the circumstances surrounding his own treatment to establish the existence of a policy or practice. See Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003) ("a showing of isolated incidents does not create a genuine issue as to whether defendants have a general policy or a widespread practice of an unconstitutional nature"). In Palmer, the Seventh Circuit detailed various discovery requests the plaintiff could have made to seek "raw data" to create a genuine issue of material fact as to whether the defendant had a general policy or a widespread practice of an unconstitutional nature. Id. Because the plaintiff in Palmer did not do that, the Seventh Circuit held that he could not create an issue of material fact by only pointing to his own circumstances. Id. A plaintiff's own circumstances "demonstrate nothing more than isolated incidents," which do "not create a genuine issue as to whether defendants have a general policy or a widespread practice of an unconstitutional nature." Id.
As for Mr. Fromer's argument that Corizon did not have a MRSA and staph treatment policy, Mr. Fromer would need to show that Corizon's treatment of him was the result of "a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law." Valdez, 2014 WL 1874875 at *7. In order to show that there was a widespread wrongful practice, a plaintiff must show "that the practice really was widespread, either by showing its prevalence in multiple instances or by showing directly that it had the effect of or was acknowledged as policy...." Id. at *7. Mr. Fromer has only presented evidence regarding his own
In sum, Mr. Fromer has only pointed to his own circumstances, which is not enough to create a genuine issue of material fact as to whether Corizon had a general policy or a widespread practice of an unconstitutional nature. Summary judgment is the moment where a party must show what evidence it has that would convince a trier of fact to accept its version of events, Johnson, 325 F.3d at 901, and Mr. Fromer has failed to present such evidence. For that reason, the Court grants summary judgment in favor of Corizon.
Defendants argue that claims against the HSAs should be dismissed because Mr. Fromer has not identified who the individual HSAs at those facilities were, or how they were personally involved in the case, and how their actions resulted in harm to Mr. Fromer. [Filing No. 89 at 28-29.] Defendants also assert that they are entitled to summary judgment on the claims against the HSAs because Mr. Fromer cannot assert § 1983 claims against the individual HSAs solely for their supervisory role, but must "establish that ... the Health Service Administrators actually knew that [he] had MRSA and inferred there was a substantial risk of serious harm to [him] because it was diagnosed or treated [inappropriately]." [Filing No. 89 at 30.] Because he has not made that showing, Defendants argue, Mr. Fromer's claims against the HSAs fail.
Mr. Fromer responds that his claims against the HSAs are viable because the HSAs "are the chief on-site administrators and the liaisons between Corizon and the facility medical departments," and they "failed to implement required policies and procedures relating to infectious diseases, MRSA and staph." [Filing No. 107 at 23.] He also asserts that his claims against the HSAs are "official capacity claims, ultimately being claims against Corizon." [Filing No. 107 at 23.] Defendants did not reply to Mr. Fromer's arguments on this issue.
On April 14, 2014, the Magistrate Judge ordered Mr. Fromer "to seek leave to amend his complaint to name individuals who are, or were, the Miami or Putnamville HSA against whom he seeks relief in their individual capacities." [Filing No. 81 at 7.]
As discussed above, Mr. Fromer cannot assert a § 1983 claim against Corizon based on a respondeat superior theory of liability. See Jackson, 300 F.3d at 766. Additionally, any claim against Corizon based on its policies and procedures fails because, as discussed above, Mr. Fromer has not pointed to evidence supporting such a claim. The Court grants summary judgment in favor of Miami HSA and Putnamville HSA on Mr. Fromer's claims against them, which are deemed claims against Corizon.
Mr. Fromer's § 1983 claims against Dr. Marandet and Dr. Rajoli remain for the Court to consider. The Eighth Amendment bans "cruel and unusual punishments" and "requires prison officials to take reasonable measures to guarantee the safety of inmates, including the provision of adequate medical care." Minix, 597 F.3d at 830. A cause of action may be brought under 42 U.S.C. § 1983 against "[e]very person who, under color of statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
To sustain a § 1983 claim for violation of the right to adequate medical care, a plaintiff must show that: (1) he had an objectively serious medical condition; (2) the defendants knew of the condition and were deliberately indifferent to treating him; and (3) this indifference caused him some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010). With regard to the deliberate indifference element, the plaintiff must show that the official "acted with the requisite culpable state of mind." Id. This element has two components—(1) the official must have subjective knowledge of the risk to the inmate's health, and (2) the official also must disregard that risk. Id. In sum, an official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. A defendant who recognizes the substantial risk is not liable, though, if he "responded reasonably to the risk, even if the harm ultimately was not averted." Id.
"A difference of opinion as to how a condition should be treated does not give rise to a constitutional violation." Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir.2001). Neither negligence nor even gross negligence constitutes deliberate indifference. Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir.2002); see also Thompson v. Godinez, 561 Fed.Appx. 515, 518 (7th Cir.2014) ("Deliberate indifference is conduct that is intentional or reckless and not simply negligent").
In order to survive summary judgment on a § 1983 claim, a plaintiff "must produce evidence that the defendant `caused or participated in [the] constitutional deprivation.'" Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.2011) (quoting Vance v. Peters, 97 F.3d 987, 991 (7th Cir.1996)). Plaintiff may not rely on the doctrine of respondeat superior but must instead allege personal involvement in the wrongdoing. Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir.2001). A medical director sued under § 1983 "cannot be liable absent personal involvement." Smith v. Rohana, 433 Fed.Appx. 466, 469 (7th Cir.2011). Instead, "[t]here must be a causal connection or affirmative link between the action complained about and the official sued." Arnett v. Webster, 658 F.3d 742, 759 (7th Cir.2011).
Mr. Fromer has clarified that he is not asserting claims relating to any foot conditions other than MRSA and staph, [Filing No. 107 at 19], and Defendants do not dispute that MRSA and staph are serious medical conditions, [Filing No. 89 at 3; Filing No. 89 at 21-28.] Accordingly, the Court proceeds to consider whether Dr. Marandet or Dr. Rajoli were deliberately indifferent in treating Mr. Fromer's MRSA and staph.
Defendants argue that Dr. Marandet responded each time Mr. Fromer presented
Mr. Fromer responds that "[Dr.] Marandet was deliberately indifferent in failing to order a diagnostic test for Fromer for thirteen months and for prescribing the same ineffective line of treatment, which resulted in unnecessary pain and the possible spreading of the infection." [Filing No. 107 at 21.] In support, Mr. Fromer submits an expert report from Dr. Alexander Stemer. However, Dr. Stemer does not specifically refer to Dr. Marandet, but only opines generally that: (1) Mr. Fromer "experienced fractured care, with multiple providers entering formulaic notes, repetitive treatments and often identical unsuccessful regimens," and "[t]here appeared to be indifference on the part of the providers to assimilate the medical record into a coherent document"; (2) Mr. Fromer was treated "for nearly four years (9/17/08-6/15/12) before a simple wound culture was obtained" which confirmed MRSA, and MRSA "was almost certainly the pathogen for the previous 47 months"; (3) Mr. Fromer's "repeated clinical failures were never analyzed to determine the cause of repeated ineffective therapy"; (4) "[m]ultiple medications and treatments were prescribed which actually worsen infection, including repeated courses of topical corticosteroid medications"; (5) Mr. Fromer "was never offered decolonization" and "[h]is environment was not analyzed to determine if there was an environmental source"; (6) the medical record has "no documentation of compliance"; (7) courses of antibiotics were typically short between repeated courses of therapy; (8) two conditions Mr. Fromer had—chronic fungal infection of the skin and ingrown toenails—can be associated with treatment failure of MRSA, and neither was adequately treated; and (9) newer and better therapy was not offered. [Filing No. 106-14 at 3-5.] Dr. Stemer goes on to state how he would have treated Mr. Fromer, including performing repeated cultures and prescribing terbinafine therapy. [Filing No. 106-14 at 5-6.] He also opines
On reply, Defendants rely upon the expert reports of Dr. John Bonema and Dr. Michael McIlroy.
Mr. Fromer filed a surreply, and submitted a supplemental report from Dr. Stemer in which he disputes the points in Dr. Bonema's expert report. He mentions Dr. Marandet by name only once, to note that Dr. Marandet was the first to document "bilateral toe infections secondary to ingrown toenail." [Filing No. 122-2 at 2.] He does not mention Dr. Marandet again. Dr. Stemer opines that:
[Filing No. 122-2 at 2-6.] Dr. Stemer concludes that "I believe it is more medically likely than not that appropriate evaluation and treatment of Mr. Fromer would have resolved his problems without the residual effects he continues to experience." [Filing No. 122-2 at 6.]
Dr. Marandet's treatment of Mr. Fromer spanned approximately a fifteen-month period, from March 24, 2011 to June 15, 2012. Within those fifteen months, Mr. Fromer presented to the health care facility seventeen times for foot issues, and it appears that Dr. Marandet treated him ten of those times. Dr. Marandet's treatment of Mr. Fromer began with Dakin's solution for what Dr. Marandet believed was "surinfected athlete's foot," or a fungal infection. [Filing No. 90-1 at 16.] Dr. Marandet encountered Mr. Fromer nearly two months later, when he noted that Mr. Fromer's foot looked much better with the oral antibiotic he had been taking. [Filing No. 90-1 at 18.] A month after that, Dr. Marandet prescribed Dakin's solution and Bactrim DS, which Mr. Fromer's expert acknowledges would have been effective against MRSA. [See Filing No. 90-1 at 21; Filing No. 106-14 at 3.] Dr. Marandet again prescribed Bactrim DS, along with other medications, approximately six weeks later when Mr. Fromer came in for "surinfected tinea pedia." [Filing No. 90-1 at 23.]
Dr. Marandet again noted signs of infection on October 4, 2011, when he stated that Mr. Fromer had an "[i]ngrowing nail... infected," prescribed Keflex, and requested that Mr. Fromer be scheduled for removal of his toenails. [Filing No. 90-1 at 26.] Keflex was prescribed at least four more times between December 2011 and May 2012. [See Filing 90-1 at 27-39.] During that time, the medical records reflect that Dr. Marandet noted that "Keflex has worked well in the past," [Filing No. 90-1 at 30], and that Mr. Fromer specifically requested Keflex, [Filing No. 90-1 at 31-32]. Other health care providers noted signs of infection on December 4, 2011, [Filing No. 90-1 at 29], March 1, 2012, [Filing No. 90-1 at 31-32], and March 17, 2012, [Filing No. 90-1 at 34]. On March 27, 2012, Dr. Marandet saw Mr. Fromer for "recurrent tinea pedis," and prescribed Mycostatin powder. [Filing No. 901-at 35-36.] Nearly a month later, Mr. Fromer presented again with foot pain and redness, but stated "powder has worked the best and keeps feet comfortable." [Filing No. 90-1 at 37.] Mr. Fromer again reported improvement on Keflex on May 31, 2012, but Dr. Haynes noted that if drainage occurs again he should have a culture. [Filing No. 90-1 at 40.] When drainage started ten days later, a culture was taken
Mr. Fromer received treatment for foot issues for fifteen months, and his infection was only cultured after a different doctor (Dr. Haynes) stepped in and ordered it. At first glance, this long period of treatment, and the fact that Dr. Marandet himself never ordered a culture, may seem to support a deliberate indifference claim. Myrick v. Anglin, 496 Fed.Appx. 670, 674 (7th Cir.2012) ("Delaying treatment may constitute deliberate indifference if the delay exacerbates the injury or unnecessarily prolongs an inmate's pain") (citing Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010)). However, here Dr. Marandet did not delay treatment at all. He provided it, though the condition recurred or persisted. Mr. Fromer has not presented any specific evidence which indicates that Dr. Marandet himself acted with deliberate indifference.
In order for Dr. Marandet to be held liable under § 1983, Mr. Fromer must present evidence that Dr. Marandet was personally involved in the constitutional violation. Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir.2001). Mr. Fromer fails to connect his allegations of deliberate indifference specifically to Dr. Marandet.
The most glaring problem with Mr. Fromer's reliance on Dr. Stemer's expert reports is that they do not address Dr. Marandet specifically—save for one reference in Dr. Stemer's supplemental report to Dr. Marandet being the first medical professional to note "bilateral toe infections secondary to ingrown toenail." [Filing No. 122-2 at 2.] Indeed, Dr. Stemer stated in his deposition that he focused on a 47-month period during which Mr. Fromer sought treatment, [Filing No. 122-1 at 3], even though Dr. Marandet did not treat Mr. Fromer during the first two years of that period. Dr. Stemer's expert reports are not specific in terms of which time period within the 47 months he is referring to and do not criticize any care provided specifically by Dr. Marandet. Also, Dr. Stemer states that Mr. Fromer "suffered fractured care with a failure of his providers to recognize that he was simply prescribed repetitive courses of treatment shown to be ineffective on previous visits." [Filing No. 106-14.] This seems to go against a theory that Dr. Marandet acted with deliberate indifference, and is more a criticism of Corizon. And Dr. Stemer does not say at what point a culture should have been ordered or that Dr. Marandet should have ordered that culture,
Additionally, while "healthcare staff [may not] persist with treatment they know to be ineffective when reasonable alternatives are available," Myrick, 496 Fed.Appx. at 674-75, Mr. Fromer has not presented any evidence that Dr. Marandet himself acted in any other manner besides exercising his good faith medical judgment in treating Mr. Fromer—for example, that he knew Keflex was ineffective but kept prescribing it anyway. See Wooler v. Hickman County, Ky., 377 Fed.Appx. 502 (6th Cir.2010) (affirming grant of summary judgment in favor of medical provider where prisoner had several staph infections over a nine month period and claimed doctor should have cultured for MRSA; court found that doctor's prescription of Keflex reflected his "good-faith belief that Keflex was appropriate treatment for [plaintiff's] infections"). Summary judgment "is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson, 325 F.3d at 901. Mr. Fromer's failure to present evidence specifically showing what Dr. Marandet did that constituted deliberate indifference is fatal to his claim against Dr. Marandet.
Further, the time frame does not necessarily support a deliberate indifference claim when it is viewed in detail. For example, Mr. Fromer was taking Bactrim DS (prescribed at least twice by Dr. Marandet) for several months before he was prescribed Keflex, but Dr. Stemer asserts that Bactrim is appropriate treatment for MRSA.
Mr. Fromer has not presented evidence sufficient to show that Dr. Marandet was
Defendants set forth the same arguments relating to Dr. Rajoli's treatment of Mr. Fromer as they do for Dr. Marandet. [Filing No. 89 at 24-28.] They submit Dr. Rajoli's Certification, in which he outlines the care he provided to Mr. Fromer and states that he treated Mr. Fromer "consistent with [his] medical judgment and [his] understanding of the appropriate medical standard of practice and care under the circumstances." [Filing No. 90-3 at 6.]
Mr. Fromer asserts the same arguments in response and relies on the same general opinions of Dr. Stemer (who does not refer specifically to Dr. Rajoli). Mr. Fromer adds, however, that Dr. Rajoli prescribed Bactrim when Mr. Fromer arrived at PCF even though the records indicated that Bactrim "had not been effective in permanently defeating the symptoms or infection." [Filing No. 107 at 21.] He also argues that Dr. Rajoli "never treated [him] for MRSA," gave conflicting accounts regarding a biopsy of an abscess on Mr. Fromer's foot, and "failed to provide adequate diagnostic testing." [Filing No. 107 at 22.] On reply, Defendants rely on the expert reports from Drs. Bonema and McIlroy and note that Dr. Rajoli has attested that he believed his actions were in accordance with his medical judgment and applicable standards of care under the circumstances. [Filing No. 114 at 2.] Mr. Fromer again relies upon Dr. Stemer's supplemental report on surreply, which does not mention Dr. Rajoli by name.
Mr. Fromer's claim against Dr. Rajoli fails for the same reasons his claim against Dr. Marandet fails. Mr. Fromer has not put forth any evidence indicating that Dr. Rajoli, specifically, treated him with deliberate indifference. Dr. Stemer does not mention Dr. Rajoli by name in either of his reports or tie any conduct to Dr. Rajoli, which is fatal to Mr. Fromer's claim against him. See Sanville, 266 F.3d at 734.
The timeline also does not provide any indication that Dr. Rajoli acted with deliberate indifference. Dr. Rajoli treated Mr. Fromer for approximately three months, seeing him five times. At his initial visit with Dr. Rajoli on September 21, 2012, Dr. Rajoli explained to Mr. Fromer that his ingrown toenail should be removed but Mr. Fromer said his symptoms had improved and he refused to have the removal procedure. [Filing No. 90-1 at 72-75.] When Mr. Fromer came in a month later with lesions and itching, Dr. Rajoli scheduled a "punch biopsy." [Filing No. 90-1 at 79-81.] At the biopsy, Dr. Rajoli noted that "the foot condition healed to the extent there was nothing to perform a biopsy of," but swabbed the foot area for a culture that came back negative for MRSA but positive for staph. [Filing No. 90-1 at 82-83.] Dr. Rajoli prescribed Bactrim to be given by prison staff, because "[c]ompliance with meds has been an issue." [Filing No. 90-1 at 84-86.] Nearly a month later, Mr. Fromer was scheduled for an appointment but did not show up. [Filing No. 90-1 at 89.] At the re-scheduled appointment, Dr. Rajoli examined Mr. Fromer for pain while walking, noted that he had plantar fasciitis, and diagnosed him with a foot sprain. [Filing No. 90-1 at 91-93.] At his last encounter with Mr. Fromer a few weeks later, Dr. Rajoli examined him for an ingrown toenail and offered to remove the toenail, but Mr. Fromer declined.
The Court does not find any evidence, either in the record or in Dr. Stemer's expert reports, indicating that Dr. Rajoli acted in a deliberately indifferent manner. To the contrary, he treated Mr. Fromer every time he presented to him for treatment, took a culture of his foot on the third visit after his initial visit with Dr. Rajoli (and after only one visit where signs of infection were present, [Filing No. 90-1 at 79-81]), and treated Mr. Fromer's staph infection and ingrown toenail for which Mr. Fromer did not seek treatment again while at PCF. Mr. Fromer's main argument that is specific to Dr. Rajoli is that his biopsy of Mr. Fromer's foot wound could not have been adequate to detect MRSA because Dr. Rajoli had noted that the wounds had "temporarily abated" and performed only a swab culture instead. [Filing No. 107 at 15.] But Mr. Fromer cites no evidence to support his assertion that "Dr. Rajoli could not have taken an adequate sample via swab culture to test if [Mr. Fromer] didn't have an open wound so that result is inconclusive as to the Plaintiff's MRSA status." [Filing No. 107 at 15.]
Mr. Fromer's deliberate indifference claim against Dr. Rajoli—based on a failure to test for and treat MRSA—fails as a matter of law. See Estelle, 429 U.S. at 106, 97 S.Ct. 285 ("the question whether... additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment," and "does not represent cruel and unusual punishment"); McCluskey v. Vincent, 505 Fed.Appx. 199, 203 (3d Cir.2012) ("There is no evidence the decision not to order an immediate biopsy or dermatology consultation was made with deliberate indifference to [plaintiff's] condition or was based on anything other than medical judgment"). There simply is no evidence that Dr. Rajoli acted with deliberate indifference to Mr. Fromer's condition, and the Court grants summary judgment in Dr. Rajoli's favor.
In sum, the Court finds that Defendants have waived their argument that Mr. Fromer failed to exhaust his administrative remedies, but also finds that: (1) Mr. Fromer's claim against Corizon fails because Mr. Fromer has not put forth evidence showing that Corizon's policies or practices caused a violation of Mr. Fromer's constitutional rights; (2) Mr. Fromer's claims against the HSAs fail because he has not named those individuals so claims against those individuals are considered claims against Corizon, which fail; and (3) Mr. Fromer's claims against Dr. Marandet and Dr. Rajoli fail because he has not presented evidence that they acted with deliberate indifference toward his medical condition.
Accordingly, the Court
