Gallo v. Feinerman et al, No. 3:2007cv00032 - Document 95 (S.D. Ill. 2012)
Court Description: ORDER denying 77 Motion for Summary Judgment. Signed by Judge Michael J. Reagan on 7/12/12. (caa)
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Gallo v. Feinerman et al Doc. 95 I N THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF I LLI NOI S CARL GALLO, JR., ) ) ) ) ) ) ) ) ) Plaint iff, v. DR. ADRI AN FEI NERMAN, Defendant . Case No. 07- cv- 0032- MJR- SCW MEMORANDUM AND ORDER REAGAN, Dist r ict Judge: I . I nt roduct ion Carl Gallo filed suit in t his dist r ict court in January 2007, alleging t hat t wo doct ors, Dr. Ahm ed and Dr. Feinerm an, were deliberat ely indifferent t o his serious m edical needs and t hereby violat ed his Eight h Am endm ent right t o be free of cruel and unusual punishm ent . 1 rem aining Defendant , Feinerm an, now m oves for sum m ary pursuant t o Federal Rule of Civil Procedure 56 ( Doc. 77) . Response in opposit ion t o t he m ot ion ( Doc. 81) . The sole j udgm ent Gallo has filed a So, t he m at t er is fully briefed and ready for disposit ion. I I . Fact ual Findings 11 On February 9, 2009, on t hreshold r eview, t he Court dism issed t he act ion wit h prej udice. On Decem ber 17, 2010, t he Unit ed St at es Court of Appeals for t he Sev ent h Circuit issued it s m andat e affirm ing t he j udgm ent wit h respect t o Dr. Ahm ed, r ev er sing wit h respect t o Dr. Feinerm an and rem anding t he case for furt her proceedings. Ga llo v. Fe in e r m a n, 3 9 9 Fe d.Appx . 1 1 8 ( 7 t h Cir . 2 0 1 0 ) . Dockets.Justia.com The incident s giving rise t o t his case occurred while Gallo was incarcerat ed at Menard Correct ional Cent er ( MCC) . gast roesophageal reflux disease and ulcerat ive Gallo suffers from colit is, which is a gast roint est inal disorder charact erized by pain, blood in t he st ool, abdom inal cram ping, and which m ay result , in severe cases, in t he rem oval of part s of t he bowel ( Doc. 77- 1 at p. 2; Doc. 77- 3, Feinerm an Dep. at p. 11) . Gallo was t aking Pr ilosec for t his condit ion, but , on June 25, 2004, t he prison doct or not ed t hat Prilosec was causing side effect s and t hat reducing t he dosage result ed in less gas, m ucus, and st ool frequency ( Doc. 1- 1 at p. 16) . The doct or prescribed a t rial of Prevacid, not ing t hat it had helped before. ( I d.) . At som e point , Prilosec was again prescribed for Gallo because when he saw a prison doct or on March 2, 2005, he com plained t hat Prilosec and ant acids were causing an allergic react ion: had a rash ( Doc. 1- 1 at p. 18) . his t ongue swelled and he The m edical record also shows t hat Gallo received anot her prescript ion for Prevacid on March 31, 2005. ( I d. at p. 17) . He was scheduled for a flexible fiberopt ic sigm oidoscopy in May 2005 and scheduled t o see Dr. Krieg in four- t o- six weeks aft er t he procedure ( Doc. 1- 1 at p. 19) . Gallo saw Krieg, a par t - t im e doct or at MCC, on July 14 or 16, 2005. ( Doc. 77- 3, Feinerm an Dep. at p. 5- 6; Doc. 77- 1 at p. 2) . At t hat t im e, Krieg cont inued t o prescribe Prevacid t o t reat Gallo’s ulcerat ive colit is ( Doc. 77- 3, Feinerm an Dep. at 11; Doc. 77- 1 at p. 2) . Page 2 of 12 However, on July 29, 2005, Feinerm an discont inued Gallo’s Prevacid prescript ion because it was a non- form ulary dr ug and, inst ead, prescribed Prilosec ( Doc. 77- 1 at p. 3) . I t is unclear whet her Dr. Feinerm an saw Gallo on t hat dat e or if he j ust changed t he prescript ion wit hout having seen Gallo. 2 Gallo saw Feinerm an on August 9, 2005. At t hat t im e, Gallo t old Feinerm an t hat he was allergic t o Prilosec and want ed Prevacid prescribed inst ead ( Doc. 77- 1 at p. 4) . Feinerm an discont inued t he Pr ilosec, but it does not appear t hat anyt hing else was prescribed in it s place. Feinerm an’s affidavit , he sim ply st at es t hat , at Gallo’s ( I d.) . request , In he discont inued Prilosec ( Doc. 77- 2, p. 2, Feinerm an Aff.) . Feinerm an st at ed in his deposit ion t hat when prescribing drugs at MCC, he would consult t he form ular y and prescribe accordingly ( Doc. 773, Feinerm an Dep. at p. 6) . However, he also st at ed t hat it was possible t o obt ain non- form ulary drugs, and virt ually any m edicine was available. I d. Feinerm an t est ified t hat in request ing non- form ulary drugs, it “ would be unusual of t hem t o say, no, you can’t have t hat drug.” ( I d. at 7) . As described by Feinerm an, Prilosec is a brand nam e for om eprazole, and Prevacid is a brand nam e for lansoprazole ( Doc. 77- 3, Feinerm an Dep. at p. 9) . decrease t he am ount Bot h are prot on pum p inhibit ors ( PPI s) used t o of acid in a 2 pat ient ’s syst em and relieve According t o Gallo’s August 1, 2005, grievance, Feinerm an did not see him and did not review his m edical file befor e changing his prescript ion t o Prilosec ( Doc. 1- 1, p. 8) . Page 3 of 12 gast roint est inal sym pt om s. ( I d.) . While t he t wo drugs are sim ilar and serve t he sam e purpose, t hey are not ident ical and have slight ly different chem ical com posit ions. ( I d. at 13) . Feinerm an indicat ed t hat he did not consult wit h Dr. Kr ieg when he discont inued Prevacid and prescribed Prilosec. ( I d. at 11) . He t est ified t hat he did not recall t hat t here was ever any significant concern about allergic react ions t o Prilosec and t hat he had “ been prescribing t hat st uff for t went y years” and had not “ seen it yet .” ( I d. at 12) . However, Feinerm an acknowledged t hat Prilosec could cause allergic react ions, including swelling of t he lips, t hroat and t ongue, and t he sym pt om s of which Gallo com plained were consist ent wit h t hose of an allergic react ion. ( I d. at 12, 13) . He also st at ed t hat he was fam iliar wit h Gallo’s prescript ion hist ory and t he issue relat ed t o Prilosec and Prevacid. ( I d. at 11) . Feinerm an furt her st at ed t hat he would not believe an allergy t o Prilosec exist ed unt il Gallo showed him t he sym pt om s. 3 ( I d. at 14) . Feinerm an did not recall t aking any st eps t o resolve t he quest ion of whet her Gallo was experiencing side effect s as a result of t he prescript ion of Prilosec. ( I d. at 14) . I I I . Conclusions of Law A. Sum m ary Judgm ent St andard 3 According t o a counselor ’s Sept em ber 12, 2005, response t o Gallo’s grievance, Feinerm an st at ed t hat “ he can no longer prescribe Pr ev acid as it is not in t he allowed form ulary. Prilosec is an accept able subst it ut e and … t here is no docum ent at ion t hat would indicat e an allergic react ion t o it ” ( Doc. 1- 1 at p. 15) . Page 4 of 12 Sum m ary j udgm ent is proper only “ if t he adm issible evidence considered as a whole shows t hat t here is no genuine disput e as t o any m at erial fact and t he m ovant is ent it led t o j udgm ent as a m at t er of law.” D yne gy M k t g. & Tr a de v. M ult i Cor p., 6 4 8 F.3 d 5 0 6 , 5 1 7 ( 7 t h Cir . 2 0 1 1 ) ( int e r na l quot a t ion m a r k s om it t e d) ( cit ing F ED .R.CI V .P. 5 6 ( a ) ) ; se e a lso Ruffin- Thom pk ins v. Ex pe r ia n I nfor m a t ion Solut ions, I nc., 4 2 2 F.3 d 6 0 3 , 6 0 7 ( 7 t h Cir . 2 0 0 5 ) . The part y seeking sum m ary j udgm ent bears t he init ial burden of dem onst rat ing – based on t he pleadings, affidav it s, and/ or inform at ion obt ained via discovery – t he lack of any genuine issue of m at erial fact . Ce lot e x Cor p. v. Ca t r e t t , 4 7 7 U.S. 3 1 7 323 ( 1986) . Aft er a properly support ed m ot ion for sum m ary j udgm ent is m ade, t he adverse part y “ m ust set fort h specific fact s showing t hat t here is a genuine issue for t rial.” Ande r son v. Libe r t y Lobby, I nc., 4 7 7 U.S. 2 4 2 , 2 5 0 ( 1 9 8 6 ) ( quot ing F ED .R.CI V .P. 5 6 ( e ) ( 2 ) ) . 4 A fact is m at erial if it is out com e det erm inat ive under applicable law. Ande r son, 4 7 7 U.S. 2 4 2 , 248 ( 1986) ; Ba la nce v. Cit y of Spr ingfie ld, I llinois Police D e pa r t m e nt , 4 2 4 F.3 d 6 1 4 , 6 1 6 ( 7 t h Cir . 2 0 0 5 ) ; H ot t e nr ot h v. Villa ge of Slinge r , 3 8 8 F.3 d 1 0 1 5 , 1 0 2 7 ( 7 t h Cir . 2 0 0 4 ) . A genuine issue of m at erial fact exist s if “ t he evidence is such t hat a reasonable j ury could 4 Though Rule 56 was am ended in 2010, t he am endm ent did not change t he sum m ary j udgm ent st andard. Sow v. For t ville Police D e p’t , 6 3 6 F.3 d 2 9 3 , 3 0 0 ( 7 t h Cir . 2 0 1 1 ) . Page 5 of 12 ret urn a verdict for t he nonm oving part y.” Ande r son, 4 7 7 U.S. a t 2 4 8 . “ A m ere scint illa of evidence in support of t he nonm ovant ’s pet it ion is insufficient ; a part y will be successful in opposing sum m ary j udgm ent only when it present s definit e, com pet ent evidence t o rebut t he m ot ion.” Albie r o v. Cit y of Ka nk a k e e , 2 4 6 F.3 d 9 2 7 , 9 3 1 - 3 2 ( 7 t h Cir . 2 0 0 1 ) ( cit a t ions a nd quot a t ions om it t e d) . On sum m ary j udgm ent , t he Court considers t he fact s in t he light m ost favorable t o t he non- m ovant . Sr a il v. Vill. of Lisle , 5 8 8 F.3 d 9 4 0 , 9 4 8 ( 7 t h Cir . 2 0 0 9 ) . The Court adopt s reasonable inferences and resolves doubt s in t he nonm ovant ’s favor. I d.; N a t ’l At hle t ic Spor t sw e a r , I nc. v. W e st fie ld I ns. Co., 5 2 8 F.3 d a t 5 1 2 . Even if t he fact s are not in disput e, sum m ary j udgm ent is inappropriat e when t he inform at ion before t he court reveals t hat “ alt ernat e inferences can be drawn from t he available evidence.” Spie gla v. H ull, 3 7 1 F.3 d 9 2 8 , 9 3 5 ( 7 t h Cir . 2 0 0 4 ) . Se e a lso Ande r e r v. Jone s, 3 8 5 F.3 d 1 0 4 3 , 1 0 6 4 ( 7 t h Cir . 2 0 0 4 ) . B. Deliberat e I ndifference “ [ T] he t reat m ent a prisoner receives in prison and t he condit ions under which he is confined are subj ect t o scrut iny under t he Eight h Am endm ent .” H e lling v. M cKinn e y, 5 0 9 U.S. 2 5 , 3 1 ( 1 9 9 3 ) . The Eight h Am endm ent ’s prohibit ion against cruel and unusual punishm ent “ requires t he St at e t o provide adequat e m edical care t o incarcerat ed prisoners.” D e Sha ne y v. W in ne ba go Count y De p’t of Soc. Se r vice s, 4 8 9 U.S. 1 8 9 , Page 6 of 12 1 9 8 ( 1 9 8 9 ) . Since an inm at e cannot care for him self because of t he deprivat ion of his libert y, “ it is only ‘j ust ’ t hat t he St at e be required t o care for him .” I d. a t 1 9 9 ( quot ing Est e lle v. Ga m ble , 4 2 9 U.S. 9 7 ( 1 9 7 6 ) ( quot ing Spice r v. W illia m son, 1 9 1 N .C. 4 8 7 , 4 9 0 , ( 1 9 2 6 ) ) . The Eight h Am endm ent im poses a dut y on prison officials t o ensure t hat inm at es receive adequat e m edical care. Fa r m e r v. Br e nna n, 5 1 1 U.S. 8 2 5 , 8 3 2 ( 1994) . Deliberat e indifference t o a prisoner’s serious m edical need const it ut es a violat ion of t he prisoner’s Eight h Am endm ent right s. Est e lle , 4 2 9 U.S. a t 1 0 4 . “ A claim of deliberat e indifference t o a serious m edical need cont ains bot h an obj ect ive and a subj ect ive com ponent .” Gr e e no v. D a le y, 4 1 4 F.3 d 6 4 5 , 6 5 3 ( 7 t h Cir . 2 0 0 5 ) ; Fa r m e r , 5 1 1 U.S. a t 8 3 4 . “ To sat isfy t he obj ect ive com ponent , a prisoner m ust dem onst rat e t hat his m edical condit ion is obj ect ively, sufficient ly serious…. To sat isfy t he subj ect ive com ponent , a prisoner m ust dem onst rat e t hat prison officials act ed wit h a sufficient ly culpable st at e of m ind.” I d. ( cit a t ions a nd quot a t ion m a r k s om it t e d) . I n analyzing whet her a plaint iff suffered from an obj ect ively serious condit ion posing a subst ant ial risk of serious harm , “ [ t ] he quest ion under t he Eight h Am endm ent is whet her prison officials … exposed a prisoner t o a sufficient ly subst ant ial ‘r isk of serious dam age t o his fut ure healt h.…’” Fa r m e r , 5 1 1 U.S. a t 8 4 3 ( quot ing H e lling, 5 0 9 U.S. a t 3 5 ) . Page 7 of 12 To sat isfy t he obj ect ive com ponent , a prisoner m ust show t hat his m edical needs are “ obj ect ively, sufficient ly serious.” Gr e e no, 4 1 4 F.3 d a t 6 5 3 ( cit ing Fa r m e r , 5 1 1 U.S. a t 8 3 4 ) . “ A serious m edical condit ion is one t hat has been diagnosed by a physician … or one t hat is so obvious t hat even a lay person would perceive t he need for a doct or’s at t ent ion.” I d. An inj ury or illness m eet s t he obj ect ive elem ent if t he condit ion is sufficient ly serious or painful so as t o m ake t he denial of t reat m ent uncivilized. Coope r v. Ca se y, 9 7 F.3 d 9 1 4 , 9 1 6 ( 7 t h Cir . 1 9 9 6 ) . “ [ T] here is no requirem ent t hat a prisoner provide ‘obj ect ive’ evidence of his pain and suffering – selfreport ing is oft en t he only indicat or a doct or has of a pat ient ’s condit ion.” Gr e e no, 4 1 4 F.3 d a t 6 5 5 . The second com ponent of t he t wo- part t est requires t hat “ a prison official have a sufficient ly culpable st at e of m ind,” and t hat st at e of m ind is one of “ deliberat e indifference.” Fa r m e r , 5 1 1 U.S. a t 8 3 4 . Deliberat e indifference can be “ m anifest ed by prison doct ors in t heir response t o t he prisoner’s needs.…” Ke lle y v. M cGin nis, 8 9 9 F.2 d 6 1 2 , 6 1 6 ( 7 t h Cir . 1 9 9 0 ) ( quot ing Est e lle , 4 2 9 U.S. a t 1 0 4 - 1 0 5 ) ( int e r na l quot a t ions om it t e d) . To be found liable for deliberat e indifference, t he official m ust “ be aware of fact s from which t he inference could be drawn t hat a subst ant ial risk of serious harm exist s, and he m ust also draw t he inference.” Fa r m e r , 5 1 1 U.S. a t 8 3 7 . “ [ A] fact finder m ay conclude t hat a Page 8 of 12 prison official knew of a subst ant ial risk from t he very fact t hat t he risk was obvious.” I d. a t 8 4 2 . “ Whet her a prison official had t he requisit e knowledge of a subst ant ial risk is a quest ion of fact subj ect t o dem onst rat ion in t he usual ways, including inference from circum st ant ial evidence.…” I d. I f a plaint iff were able t o present evidence t hat a part icular risk was w ell- docum ent ed or “ expressly not ed by prison officials in t he past , and t he circum st ances suggest t hat t he defendant - official being sued had been exposed t o inform at ion concerning t he risk” t he evidence could be sufficient t o find t hat t he indiv idual had act ual knowledge of t he risk. I d. a t 8 4 2 - 4 3 . The act ions com m it t ed m ust be deliberat e or so dangerous t hat t he knowledge of t he risk can be inferred. Snipe s v. D e Te lla , 9 5 F.3 d 5 8 6 , 5 9 0 ( 7 t h Cir . 1 9 9 6 ) . “ A prisoner’s dissat isfact ion wit h a doct or’s prescribed course of t reat m ent does not give rise t o a const it ut ional claim unless t he m edical t reat m ent is ‘so blat ant ly inappr opriat e as to evidence int ent ional m ist reat m ent likely t o seriously aggravat e t he prisoner’s condit ion.’” I d. a t 5 9 2 ( quot ing Thom a s v. Pa t e , 4 9 3 F.2 d 1 5 1 , 1 5 8 ( 7 t h Cir . 1 9 7 4 ) ) . A prisoner does not have t o show t hat t hey were “ lit erally ignored” t o prevail on an Eight h Am endm ent claim . Gr e e n o, 4 1 4 F.3 d a t 6 5 3 . I n Greeno, t he fact t hat t he nurse t hought t he prisoner was “ m alingering and did not have a severe m edical need” was det erm ined t o be an issue for t he j ury t o decide. I d. a t 6 5 5 . The Court in Cooper held t hat Page 9 of 12 t o deliberat ely ignore a request for m edical assist ance was a form of cruel and unusual punishm ent . Coope r v. Ca se y, 9 7 F.3 d 9 1 4 , 9 1 6 ( 7 t h Cir . 1 9 9 6 ) . I n Kelley, t he Court st at ed t hat deliberat e indifference could be found where “ t he clinic personnel deliberat ely gave a cert ain kind of t reat m ent knowing t hat it was ineffect ive, eit her as a m eans of t oying wit h [ t he inm at e] or as a way of choosing ‘t he easier and less efficacious t reat m ent .’” Ke lle y v. M cGinnis, 8 9 9 F.2 d 6 1 2 , 6 1 6 ( 7 t h Cir . 1 9 9 0 ) ( quot ing Est e lle , 4 2 9 U.S. a t 1 0 4 ) ( a ddit iona l cit a t ion om it t e d) . Feinerm an does not argue, nor could he reasonably argue, t hat Gallo did not have a serious m edical condit ion. I nst ead, Feinerm an cont ends t hat his decision t o prescribe Prilosec rat her t han Prevacid does not est ablish deliberat e indifference t o a serious m edical need but rat her com port s wit h t he st andard of m edical care in t he com m unit y ( Doc. 77, p. 6) . Feinerm an assert s t hat , under t hat st andard, he had t o see Gallo’s allergic react ion t o Prilosec before prescribing Prevacid because Gallo’s react ion could have been caused by som et hing ot her t han t hat drug. Also, according t o Feinerm an, Prilosec and Prevacid are “ basically ident ical,” and it would be “ ext rem ely unusual” for a pat ient t o be allergic t o one and not t he ot her. However, by m id- 2005, t he m edical records show t hat Gallo was allergic t o Prilosec but could t olerat e Prevacid t o t reat his condit ion. Feinerm an claim ed t hat he reviewed Gallo’s record, according t o which, Gallo exhibit ed a rash and a swollen t ongue when t aking Prilosec. Also, t he record Page 10 of 12 showed t hat Gallo had less gas, m ucus and st ool frequency when t aking Prevacid inst ead of Prilosec. Feinerm an him self st at ed t hat t he sym pt om s of which Gallo com plained were consist ent wit h a severe allergic react ion. Last ly, Feinerm an conceded t hat it was possible t o obt ain non- form ulary drugs and t hat it would be unusual for a request for a non- list ed drug t o be denied. Adopt ing reasonable inferences and resolving doubt s in favor of Gallo, a genuine issue of m at erial fact exist s as t o w het her Gallo was effect ively left wit hout t reat m ent for serious m edical condit ion when an effect ive drug was available, a drug, m oreover, t hat Feinerm an adm it t ed in his deposit ion could be obt ained even t hough it was non- form ulary. St at ed m ore succinct ly, as t he Sevent h Circuit Court of Appeals sum m ed up Gallo’s allegat ions, Feinerm an’s choice was “ give Gallo a drug t hat helps him , or give Gallo a drug t hat harm s him .” Ga llo, 3 9 9 Fe d.Appx . a t 1 1 9 - 2 0 . Because genuine issues of m at erial fact exist as t o w het her Feinerm an was deliberat ely indifferent t o Gallo’s serious m edical needs, sum m ary j udgm ent is not warrant ed. I V. Conclusion For t hese reasons, t he Court D EN I ES Feinerm an’s m ot ion for sum m ary j udgm ent ( Doc. 77) . This act ion rem ains set for j ury t rial on July 30, 2012, wit h a final pret rial conference set for July 12, 2012. I T I S SO ORDERED. Page 11 of 12 DATED t his 12t h day of July, 2012 s/ Michael J. Reagan MI CHAEL J. REAGAN Unit ed St at es Dist r ict Judge Page 12 of 12
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