Dunmore v. Shicker
| Decision Date | 07 January 2020 |
| Docket Number | Case No. 3:16-CV-171-MAB |
| Parties | JAMES E. DUNMORE, Plaintiff, v. LOUIS SHICKER, PHIL MARTIN, ILLINOIS DEPARTMENT OF CORRECTIONS, and JOHN B. COE, Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
Pending before the Court are two motions for summary judgment and supplements to those motions (Docs. 82, 84, 99, 101), as well as two motions to exclude the testimony of Plaintiff's exert witnesses (Docs. 98, 100) all of which were filed by Defendants Louis Shicker, Phil Martin, the Illinois Department of Corrections, and John Coe. For the reasons stated below, Defendant Coe's request for summary judgment is granted; the IDOC Defendants' request for summary judgment is denied in part and moot in part; the motion to exclude the testimony of retained expert Brendan Tanner is granted; and the motion to exclude the testimony of retained expert Peter Combs is denied.
Plaintiff James E. Dunmore ("Plaintiff") brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that he was wheelchair-bound and prison officials were not providing him with constitutionally sufficient physical therapy services or with accessible toileting facilities on the prison yard. Following a threshold review of the complaint pursuant to 28 U.S.C. §1915A, Plaintiff was permitted to proceed on the following claims:
(Doc. 7).
On May 15, 2019, Dr. Coe and the IDOC Defendants filed motions for summary judgment on the merits of Plaintiff's claims (Docs. 82, 84). Shortly thereafter, however, the Court gave the parties more time to complete expert discovery, and allowed supplemental briefing related to the motions for summary judgment (Doc. 91). Dr. Coe and the IDOC Defendants filed their supplemental briefs on August 30, 2019, along withmotions to bar the testimony of Plaintiff's physical therapy expert and ADA expert (Docs. 98, 99, 100, 101). Plaintiff filed responses in opposition to the motions for summary judgment and the motions to bar his experts (Docs. 104, 105, 106, and 107). Defendant Coe then filed a reply brief in support of his motion for summary judgment (Doc. 108). No other reply briefs were filed.
The summary judgment briefing narrowed the scope of the claims in this case. To begin with, in his response to the IDOC Defendants' motion for summary judgment, Plaintiff withdrew his claim for deliberate indifference as to Louis Shicker and Phil Martin in Count 1 (Doc. 107). Therefore, Shicker and Martin will be dismissed as Defendants in this case, and given the current stage of litigation, the dismissal will be with prejudice. The dismissal renders the IDOC Defendants' motion for summary judgment moot as to Shicker and Martin.
Second, after Defendants filed their initial summary judgment motions, Plaintiff was transferred from Lawrence to Dixon Correctional Center (Doc. 92). Therefore, to the extent Plaintiff was seeking injunctive relief as to Count 1 for deliberate indifference or Count 2 for violations of the ADA/ Rehab Act, that request is now moot. See, e.g., Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004) () (discussing Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995) (per curiam)). The only relief that remains available to Plaintiff on Counts 1 and 2 is money damages.
That means the Court is left to decide whether summary judgment is appropriate for Defendant John Coe on Plaintiff's deliberate indifference claim in Count 1 and for the IDOC on Plaintiff's ADA/Rehab Act claim in Count 2.
Plaintiff is eighty-one-years-old and has been in IDOC custody since 2004 (Doc. 107-1, p. 4). He has multiple serious medical conditions, such as diabetes, hypertension, high cholesterol, hepatitis C, heart disease, obesity, poor circulation and various orthopedic problems, including longstanding, progressively worsening back pain (see, e.g., Doc. 83-3, pp. 4-5; Doc. 83-2, pp. 15, 16). In November 2011, while Plaintiff was incarcerated at Menard Correctional Center, he underwent posterior spinal fusion surgery at Saint Louis University (Doc. 1, p. 3; Doc. 83-3, pp. 2, 39; Doc. 85-2, p. 17; Doc. 106-5, p. 24).2 Following a week in the hospital, he was sent back to Menard, where he was housed in the infirmary (Doc. 107-1, p. 9). Plaintiff did not have any physical therapy at Menard (Id. at p. 10). He was transferred from Menard to Lawrence Correctional Center on August 12, 2012, in order to receive physical therapy to help with his recovery (Id.). At the time he arrived at Lawrence, he was wheelchair bound, and unable to walk (Id. at pp. 10, 35).
The medical records indicate Plaintiff was evaluated at Lawrence by Dr. Emily Thomann, a physical therapist, on October 31, 2012 (Doc. 83-3, p. 39-40; Doc. 85-2, p. 17). She ordered a four-week course of physical therapy, the goal of which was for Plaintiff to increase his leg strength and to be able to walk at least 50 feet with a walker (Doc. 83-3, pp. 39-40; Doc. 85-2, pp. 7, 17). If he was able to walk at least 50 feet, he would be able to ambulate within his cell house and from his cell to the ADA shower (Doc. 85-2, p. 7).
During this initial course of physical therapy, Plaintiff was able to ambulate short distances with assistance, albeit with considerable pain (Doc. 85-2, pp. 7-10). Dr. Thomann reevaluated Plaintiff on November 28th and continued his physical therapy because he demonstrated improved strength in his legs and he was progressing towards walking with an assistive device (Doc. 85-2, pp. 11, 18). Plaintiff's ambulation continued to improve during his next two sessions, however, he reported that his pain was always present, and nothing seemed to help (Id. at pp. 11-12). At his next session, however, he reported that he had fallen twice because his legs gave out (Id. at p. 13). The physical therapy assistant noted that Plaintiff (Doc. 107-1, p. 19).
Dr. Thomann evaluated Plaintiff for a third time on January 9, 2013 (Doc. 85-2, p. 13; Doc. 83-3, pp. 42-43). Plaintiff told Dr. Thomann that his legs were getting weaker, his back pain had increased, and he had ceased doing his home exercise program (Doc. 85-2, p. 19). Dr. Thomann noted that Plaintiff was not making any progress with physical therapy and was declining physically (Id.). Consequently, she discharged him fromphysical therapy and recommended that he follow up with the medical doctor (Id. at pp. 13-14, 19).
Plaintiff claims "it was his understanding" from Dr. Thomann that the physical therapy program at Lawrence was not "advanced enough to help [him]" and he needed "to be in a more advanced physical therapy program" (Doc. 107-1, pp. 20, 29). Dr. Thomann, however, testified that she did not believe that the program at Lawrence was inadequate or lacked any equipment that might benefit him (Doc. 83-4, pp. 14-15). Plaintiff's expert witness, Dr. Brendan Tanner, opined that the plan of care and the physical therapy treatment he received was appropriate (Doc. 104-1, p. 3). He did not believe "physical therapy services at a difference facility would have altered the outcome, based on the patient's pain level and medical status" (Id.).
Following the discontinuation of physical therapy, Plaintiff followed up with the medical staff as instructed (Doc. 106-4, p. 8). An x-ray of his back was taken and showed that the hardware in his back was intact and the appearance of his spine was unchanged (Id. at p. 24). He was given prescriptions for Ultram and Neurontin to manage his pain (Id. at pp. 8, 11, 12).3
Defendant Dr. John Coe became the medical director at Lawrence in May 2013 (Doc. 83-2, pp. 2, 15). He saw the Plaintiff for the first time in early August 2013 at a Chronic Clinic visit for Plaintiff's other medical problems (Doc. 83-3, pp. 4-5). At that visit, Dr. Coe renewed Plaintiff's prescriptions for Neurontin and Ultram, and scheduled him for another visit to fully evaluate his chronic pain issues (Id. at pp. 4-6). At the second visit on August 26, 2013, Dr. Coe diagnosed Plaintiff with partial paraplegia from spinal stenosis, meaning that "his spinal cord was pinched off enough that he was having the paraplegia problems, which means muscle weakness, possibly spasm, pain, numbness" (Id.; Doc. 83-2, p. 10). The doctor determined Plaintiff should continue to take Neurontin and Ultram to help with his pain, and he also ordered a physical therapy consult (Doc. 83-3, p. 6). For reasons unknown to Dr. Coe, Plaintiff was never scheduled to see the physical therapist (Doc. 83-2, pp. 12, 15). According to Dr. Coe, the nurses were responsible for taking his order and then coordinating with the physical therapists to get Plaintiff scheduled (Id. at p. 12).
Dr. Coe saw Plaintiff multiple times over the next ten months, primarily for issues other than his back pain (see Doc. 83-3, pp. 8-13). During this time, Dr. Coe continued to prescribe Plaintiff Neurontin and Ultram for his pain, and he also prescribed Baclofen (Id. at p. 12).4 After beginning the Baclofen, Plaintiff reported to Dr. Coe that his cramps and spasms were "nearly gone," his legs were not sore, and he could move his legs better(Doc. 83-3, p. 14). Shortly thereafter, however, Plaintiff...
To continue reading
Request your trial