Williams v. O'LEARY

• Decision Date: 27 October 1992
• Docket Number: No. 89 C 6455.,89 C 6455.
• Citation: 805 F. Supp. 634
• Parties: Derrick WILLIAMS, Plaintiff, v. Michael O'LEARY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

805 F. Supp. 634

Derrick WILLIAMS, Plaintiff, v. Michael O'LEARY, et al., Defendants.

No. 89 C 6455.

United States District Court, N.D. Illinois, E.D.

October 27, 1992.

Derrick Williams, pro se.

Philander Scott Neville, Jr., Chicago, for plaintiff.

Thomas A. Morrissey, Gregory Abbott, Atty. General's Office, Chicago, for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Derrick Williams, an inmate confined to the custody of the Illinois Department of Corrections, brings this civil rights action against officials at the Joliet Correctional Center ("Joliet") and the Stateville Correctional Center ("Stateville"), alleging inadequate medical care. Defendants Michael O'Leary, James W. Fairman, Arthur Brewer, George Kurian, Leroy Banks and Clyde Nash now move for entry of summary judgment on Williams' complaint. For the reasons set forth below, the motion is granted in part and denied in part.

I. Summary Judgment Standard

Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). This standard places the initial burden on the moving party to identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir.1991).

II. Background

Williams has been incarcerated in the Illinois prison system since January 5, 1988, first at Joliet (until August 22, 1988), and currently at Stateville. During Williams' confinement at Joliet, defendant James W. Fairman presided as warden. Defendant Michael O'Leary was the warden at Stateville from December 1, 1983, to February 1, 1990. From October 3, 1988, Arthur Brewer, M.D. has been the medical director at Stateville. At all relevant times, George Kurian, M.D. was a staff physician at Stateville. Defendant Leroy Banks was a correctional officer at Stateville from 1979 to 1989, at which time he was promoted to sergeant (a position he held until June 1, 1990). Clyde Nash has been a captain at Stateville since approximately 1982.

On January 7, 1986, Williams sustained an injury to his left leg in an automobile accident. On April 25, 1987, his doctor, a Dr. Greenwald, removed from his left leg a metal plate and screws that had been inserted after the accident. At that time, Dr. Greenwald determined that Williams was inflicted with a chronic condition known as osteomyelitis, an infectious inflammation of the bone marrow.

Shortly after entering Joliet in early 1988, Williams underwent an initial physician's examination, which revealed the scar on his left leg, but classified his health as good. During the examination, Williams' left leg was not x-rayed nor was he diagnosed with osteomyelitis. Less than one month after this initial examination, however, an x-ray was taken of Williams' left leg, and a consultation report dated March 3, 1988 from Dr. Greenwald advised Joliet officials that Williams was still suffering from osteomyelitis. Dr. Greenwald instructed officials (1) to give Williams Duricef (an antibiotic) twice a day, (2) to take Williams' temperature each evening, (3) to take Williams' white blood count or differential, and (4) in the event that he developed an unexplained fever, to hospitalize Williams and administer intravenous antibiotics. Dr. Greenwald reiterated his recommendations following a March 17, 1988 examination of Williams. He further advised officials to return Williams to his clinic on April 21, 1988. According to Williams, Joliet officials did not take his temperature each evening nor did they take his white blood count. Further, Joliet officials did not bring Williams back for the April 21 examination, ignoring his requests to see Dr. Greenwald.

On May 5, 1992, after examining Williams and x-raying his left femur, Dr. Greenwald again confirmed that Williams suffered from chronic osteomyelitis, ordering him to be placed in a "low bunk" and to be brought back in three months for another x-ray. Williams' condition degenerated to the point where, on August 4, 1988, he was transferred to Silver Cross Hospital for intravenous antibiotic treatment. A culture gathered on that date revealed that Williams' osteomyelitis was caused by an organism known as pseudomonas aeruginosa. According to the medical report, pseudomonas aeruginosa is susceptible to amikacin, gentamicin, tobramycin and carbenicillin, and is resistant to ampicillin, cefuroxime, tetracycline, trimeth/sulfa, cephaiothin and cefoxitin. While at Silver Cross Hospital, Williams was treated with gentamicin, an antibiotic his culture revealed combatted pseudomonas aeruginosa. Williams was discharged from Silver Cross Hospital on August 15, 1988, at which time Dr. Greenwald instructed prison officials to place Williams in the infirmary and to treat him with an antibiotic called cipro. Upon returning to Joliet, Williams was placed in the segregation unit, and was not treated with cipro.

On approximately August 22, 1988, Williams was transferred from Joliet to Stateville, where likewise he was placed in segregation. Like the Joliet defendants, the Stateville officials did not treat Williams with cipro. Rather, from August of 1988 until November, 1990, Dr. Brewer and Dr. Kurian treated Williams with Duricef, Keflex and Velosef, antibiotics which Williams claims are ineffective against pseudomonas aeruginosa. As a result of inappropriate medication over this two-year period, Williams suffered pain and swelling in his left leg. On May 8, 1990, after examining Williams on that day, Dr. Brewer sent a letter of consultation to the University of Illinois Hospital. Williams was sent to the University of Illinois Hospital for antibiotic treatment on August 15, 1990, October 24, 1990, and November 14, 1990. On December 4, 1990, doctors at the University of Illinois Hospital performed debrisment surgery on Williams. The last date on which Williams was prescribed antibiotics for his osteomyelitis was January 14, 1991. Since the debrisment surgery, Williams has had no significant problems with his left leg.

III. Discussion

Williams' second-amended complaint alleges that he was deprived of adequate medical care while incarcerated at Joliet from January 5, 1988 to August 22, 1988 (Count I), and while confined at Stateville since August 22, 1988 (Count II). The gravamen of the specific contentions asserted against each movant is as follows. Williams claims that Dr. Brewer and Dr. Kurian, his treating physicians at Stateville, violated his Fifth, Eighth and Fourteenth Amendment rights by their persistent failure to follow Dr. Greenwald's treatment instructions. Specifically, they did not place Williams in the infirmary and, instead of administering the antibiotic prescribed by Dr. Greenwald (cipro), from August, 1988, to November of 1990, they treated Williams with antibiotics that are ineffective against pseudomonas aeruginosa. Second, Williams maintains that Nash's liability stems from his failure to assign Williams to a "low gallery" cell.¹ Third, Williams asserts that defendant Banks interfered with Williams' attempts to obtain medical attention by refusing to take him to the emergency room. Finally, regarding Wardens Fairman and O'Leary, Williams claims that they were obligated by law to ensure that Williams received appropriate medical attention and, in that he did not, Fairman and O'Leary breached a statutory duty and must be held personally accountable. We address the propriety of the claims against each group of defendants seriately.

A. Doctors Brewer and Kurian

To survive the instant motion for summary judgment filed by his treating physicians, Williams must demonstrate "deliberate indifference to his serious medical needs," on the part of Dr. Brewer and Dr. Kurian. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The task of defining the phrase "deliberate indifference," an oxymoron, has not been without equivocation. Nonetheless, the following general principles have emerged. Simple negligence, gross negligence or even recklessness as the term is used in tort cases is insufficient to establish deliberate indifference. Wilson v. Seiter, ___ U.S. ___, ___, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991); McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1265, 117 L.Ed.2d 493 (1992); Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.1988) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989); Smith-Bey v. Hosp. Adm'r, 841 F.2d 751, 759 (7th Cir.1988); Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Rather, "the infliction of suffering on prisoners can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the criminal law sense." Duckworth, 780 F.2d at 652; see also McGill, 944 F.2d at 348; Smith-Bey, 841 F.2d at 759. Recklessness in the criminal law sense, in turn, requires a subjective inquiry into the defendant's mental state. Wilson, ___ U.S. at ___, 111 S.Ct. at 2324-25; McGill, 944 F.2d at 348. In other words, liability cannot be predicated on an objective consideration of what a defendant "should have...