Gabb v. Wexford Health Sources, Inc.

• Decision Date: 17 June 2019
• Docket Number: No. 18-2351,18-2351
• Citation: 945 F.3d 1027
• Parties: Tyrone GABB, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

945 F.3d 1027

Tyrone GABB, Plaintiff-Appellant,

v.WEXFORD HEALTH SOURCES, INC., et al., Defendants-Appellees.

No. 18-2351

United States Court of Appeals, Seventh Circuit.

Argued March 28, 2019

Decided June 17, 2019

David Michael Shapiro, Esq., Attorney, MACARTHUR JUSTICE CENTER, Chicago, IL, Nicole Langston, Erin M. McGinley, Jason G. Winchester, Attorneys, JONES DAY, Chicago, IL, for Plaintiff - Appellant.

Timothy Charles Sansone, Rodney M. Sharp, Attorneys, SANDBERG PHOENIX & VON GONTARD P.C., St. Louis, MO, Meghan Lewis, Attorney, SANDBERG, PHOENIX & VON GONTARD, Kansas City, MO, for Defendants - Appellees.

Before Ripple, Manion, and Sykes, Circuit Judges.

Manion, Circuit Judge.

While serving a prison sentence at the Lawrence Correctional Center in Illinois, Tyrone Gabb experienced severe back pain whenever he stood too long (15 to 20 minutes). After treatments he received did not relieve his pain, Gabb sued two members of the medical staff at Lawrence, Dr. John Coe and Nurse Tammy Kimmel, alleging they were deliberately indifferent to his back pain in violation of his constitutional right to be free from cruel and unusual punishments. Gabb also sued Wexford Health Sources, Inc., the private company that provided medical services at Lawrence. The district court granted summary judgment to all defendants, and Gabb appeals. Because Gabb has not presented any evidence showing the defendants caused him any harm, we affirm.

I.

This case comes to us on appeal from the grant of summary judgment, so we present the facts "in the light most favorable to [Gabb] and draw all inferences in [Gabb’s] favor." Estate of Simpson v. Gorbett , 863 F.3d 740, 745 (7th Cir. 2017).

Dr. Coe was the medical director at Lawrence. He first saw Gabb for back pain in January 2014. Coe performed an x-ray, but he did not prescribe medication. When he saw Gabb a month later, Coe confirmed Gabb had pain in his lower back, but he again did not prescribe medication.

In September 2014, Gabb underwent another x-ray. This time, Coe diagnosed Gabb with chronic back pain and prescribed the painkiller Motrin

and the muscle-relaxer Robaxin. When Gabb saw Coe again a month later, he told Coe the medications did little. Coe ordered Gabb a back support and changed Gabb’s painkiller prescription from Motrin to Naproxen. Later that month, Gabb complained to a nurse the back support and the painkillers were not providing relief. In February 2015, a physician’s assistant discontinued Gabb’s Naproxen and prescribed Tylenol instead.

In March 2015, Gabb reported to the infirmary with abdominal pain and encountered Nurse Kimmel. Gabb told Kimmel he had osteoarthritis

in his lower back and he believed the Tylenol was causing his stomach pain. He requested a referral to a doctor so he could get a different medication. Because Gabb’s reason for seeking treatment was abdominal pain, the only medication Kimmel could have administered pursuant to protocol was an antacid. Kimmel did not refer Gabb to a doctor or give him an antacid, but instead told him "to (1) lower his dose of Tylenol

; (2) drink plenty of fluids and eat properly; (3) plan on attending his follow-up appointment with the physician’s assistant in June; and (4) come back to the infirmary if his symptoms worsened."

In early April 2015, Gabb reported to the infirmary again complaining of abdominal pain he believed was caused by the Tylenol

. Gabb testified in his deposition that as he came to the room, Kimmel "immediately notified [him] that she was not going to refer [him] to any physician because [he] was not in pain." Gabb says he tried to tell Kimmel about his back pain, but "she verbally abused" and swore at him. She did not refer Gabb to a physician or consult with one concerning an appropriate course of treatment.

At the end of April, Gabb reported to the infirmary for abdominal pain a third time. On this occasion, because he had reported more than twice with the same complaint, he received a referral to Dr. Coe. When he saw Coe a week later, Coe re-prescribed Naproxen

, prescribed Vitamin D (which Coe believed could help with muscle spasms and tightness), and tightened Gabb’s back support. Coe told Gabb better treatment was available, but Wexford would not pay for it.

Coe saw Gabb again in the summer of 2015. Gabb complained the Naproxen

was not working. Coe tightened Gabb’s back brace, demonstrated therapy exercises that could reduce the pain, and suggested Gabb exercise.

In August 2015, a physician’s assistant saw Gabb. The physician’s assistant reported Gabb’s pain was increasing and he suffered from a decreased range of motion. Gabb also had a slower gait and reported tingling in his toes. The physician’s assistant prescribed Mobic

, an anti-inflammatory drug.

In September 2015, Coe saw Gabb again. Gabb reported the pain was creeping into his middle back from his lower back. Coe discontinued the Mobic

and re-prescribed Robaxin. In October 2015, Coe diagnosed Gabb with mild degenerative disk disease and again prescribed Robaxin. He again told Gabb better treatments were available, but he would not refer Gabb because those treatments were too expensive. He also told Gabb that Wexford did not run a pain clinic. Later that month, Coe again prescribed Naproxen. In November 2015, Coe declined a low-bunk request for Gabb. That was the last of Coe’s interactions with Gabb. At the time of his deposition in 2017, Gabb testified he was under the care of a different physician and was still prescribed Naproxen, though he was not taking it because it was ineffective.

Gabb sued Coe, Kimmel, and their employer, Wexford, in December 2015, claiming they violated his right to be free from cruel and unusual punishments. The district court referred the case to a magistrate judge. Coe and Kimmel moved for summary judgment. The magistrate judge recommended denying the motion. The judge found evidence showing Gabb suffered from a serious medical condition. The judge concluded a reasonable jury could find Coe was deliberately indifferent to that condition because he continued to prescribe the same medication knowing it was ineffective and made treatment decisions based on costs, not medical judgment. The judge also concluded a reasonable jury could find Kimmel deliberately indifferent because she was aware of Gabb’s back pain, yet refused to provide any medication or refer Gabb to a doctor.

Coe and Kimmel objected to the magistrate judge’s conclusions on deliberate indifference. The district court sustained the objections, rejected the magistrate judge’s recommendation, and granted the motion for summary judgment. In doing so, the district court catalogued the medical care Coe provided Gabb, concluding it represented a "thorough exercise of medical discretion via numerous treatment strategies," not "dogged persistence." The district court wrote off Coe’s comments about the availability of "better treatment" because "[a]ll of the evidence indicates that Dr. Coe’s medical treatment of Gabb involved the exercise of medical discretion and was not blatantly inappropriate." The district court also concluded Kimmel had provided constitutionally sufficient care; Gabb was just disagreeing with his treatment plan by requesting a different pain medication. Having concluded there was no underlying constitutional violation, the district court granted summary judgment sua sponte to Wexford.

II.

Gabb appeals the entry of summary judgment for the defendants. We review de novo . Estate of Simpson , 863 F.3d at 745. We will affirm "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See FED. R. CIV. P . 56(a). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "summary judgment must be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ " Cooper v. Lane , 969 F.2d 368, 371 (7th Cir. 1992) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "We may affirm the grant of summary judgment on any ground supported by the record, as long as the parties adequately presented the issue before the district court and the nonmoving party had an opportunity to contest it." de Lima Silva v. Dept. of Corrections , 917 F.3d 546, 558 (7th Cir. 2019).

A. Coe and Kimmel

Gabb brings this suit under 42 U.S.C. § 1983, which creates a tort remedy for those injured by the deprivation of a constitutional right. See Roe v. Elyea , 631 F.3d 843, 863–64 (7th Cir. 2011). In order to succeed in a § 1983 suit, a plaintiff must "establish not only that a state actor violated his constitutional rights, but also that the violation caused the plaintiff injury or damages." Id. at 864.

Gabb claims his medical treatment at Lawrence violated his right to be free from cruel and unusual punishments. The Eighth Amendment to the United States Constitution reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Supreme Court tells us the proscription of cruel and unusual punishments creates an "obligation to provide medical care" to prisoners. Estelle v. Gamble , 429 U.S. 97, 102–03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Johnson v. Doughty , 433 F.3d 1001, 1010 (7th Cir. 2006). This does not mean prisoners are "entitled to receive unqualified access to healthcare."

Burton v. Downey , 805 F.3d 776, 785 (7th Cir. 2015) (internal quotation marks omitted) (quoting Hudson v. McMillian , 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ). Nor...