MEMORANDUM OPINION AND ORDER
The plaintiff, an inmate in the custody of the Cook County Department of Corrections, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendant, a jail physician, violated his constitutional rights [and potentially the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and/or the Rehabilitation Act, 29 U.S.C. § 701, et seq.] by acting with deliberate indifference to his medical needs. More specifically, the plaintiff alleges that he was denied a wheelchair that another physician had prescribed for him prior to his arrival at the jail. The plaintiff maintains that he severely injured himself in a fall when the defendant forced him to use crutches instead of the wheelchair. The parties have consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). This matter is before the court for ruling on the defendant’s motion for summary judgment. For the reasons stated in this order, the motion is granted.
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
However, Fed.R.Civ.P. 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.” Celotex,
Local rule 56.1 (N.D.Ill.)
The defendant filed a statement of uncontested material facts pursuant to Local Rule 56.1 (N.D.I1L). Together with his motion for summary judgment, the defendant included a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment” [document no. 58], as required by circuit precedent. That notice explained in detail the requirements of the Local Rules and warned the plaintiff that a party’s failure to controvert the facts as set forth in the moving party’s statement results in those facts being deemed admitted. See, e.g., Smith v. Lamz,
Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file:
(3) a concise response to the movant’s statement that shall contain
(A) a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and
(B) a statement, consisting of short numbered paragraphs, of any additional facts that require denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.
L.R. 56.1(b).
The district court may rigorously enforce compliance with Local Rule 56.1. See, e.g., Stevo v. Frasor,
Despite the admonitions stated above, the plaintiff failed to file a proper response to the defendant’s statement of uncontested facts. Instead, the plaintiff has provided his own statement of facts, without specifically admitting or refuting any of the defendant’s numbered statements. Consequently, the defendant has filed a motion to deem facts admitted.
Given the considerations stated above, the defendant’s motion to deem facts admitted is granted, in part, and denied, in part. The court views the defendant’s Rule 56.1 statements supported by the record and not properly rebutted by the plaintiff to be true and uncontested. Finally, the defendant’s statement of facts has been supplemented with additional facts the plaintiff asserted during his deposition and in his response to the motion for summary judgment.
Facts
The plaintiff is a pretrial detainee in the custody of the Cook County Department of Corrections. (Defendant’s Exhibit B, Deposition of Henry E. Sistrunk, p. 4.) The defendant, Marghoob Khan, is a medical doctor employed by the jail’s Cermak Health Services. (Defendant’s Exhibit C, Affidavit of Marghoob Khan, ¶¶ 1, 2.)
Prior to January 2011, the plaintiff enjoyed generally good health, other than suffering from sarcoidosis, an inflammatory condition that sporadically affected his lungs. (Plaintiffs Dep., pp. 23-24.) The plaintiff had never before been hospitalized and was not under a doctor’s care at the time of his arrest. (Id.)
The plaintiff was arrested on January 17, 2011. (Plaintiffs Dep., pp. 10, 26.) During the course of the arrest, the plaintiff sustained an injury to his right leg. (Id.) The plaintiff asserts that his leg was injured when the police “ran [him] over.” (Id., pp. 26-27; Plaintiffs Exhibit Y, Affidavit of Henry Sistrunk, ¶ 2.)
Following his arrest, the plaintiff was taken to Stroger Hospital for treatment of his leg. (Plaintiffs Dep., p. 27.). At the hospital, the plaintiff underwent surgery in two places for a fractured tibia. (Id., pp. 28, 42; Khan Affidavit, ¶ 3.) A plaster cast was applied to his leg. (Plaintiffs Dep., p. 27.) The plaintiff spent about three weeks in the hospital, in part due to complications from an infected incision. (Id., p. 28; Plaintiffs Exhibit T, Orthopedics Outpatient Report.)
Although the plaintiffs left leg was not injured, it was his understanding that he was not supposed to put weight on either leg. (Id., p. 29; Plaintiffs Affidavit, ¶ 6.) He was provided with a wheelchair while in the hospital. (Plaintiffs Dep., p. 28.) At his deposition, the plaintiff testified that his physical therapy consisted of sitting up and elevating his leg, “that kind of thing.” (Id., pp. 29, 32.) However, the plaintiffs medical records reflect that he also practiced walking with assistive devices such as a walker and crutches. (Plaintiffs Group Exhibit L, Cook County Health and Hospitals System Physical Therapy Reports).
The orthopedist made a preliminary finding upon the plaintiffs admission that it was “OK to transfer patient to Cermak with wheelchair.” (Plaintiffs Exhibit M, Preliminary Report.) A doctor’s discharge similarly dictated, “Pt will need to be discharged with wheelchair and to continue wheelchair while working with PT to advance to assistive device (walker).” (Plaintiffs Exhibits N and O, Doctor’s Order dated January 29, 2011; see also Plaintiffs Exhibit Q, Discharge Summary).
Some of the reports noted the plaintiffs “poor motivation to improve” (Plaintiffs Exhibit L), and “drug-seeking behavior,” coupled with exaggerated complaints of pain. (Plaintiffs Exhibits L, M). The plaintiff was a self-confessed heroin user at the time of his arrest. (Exhibit L; Exhibits N, O (prescriptions for methadone).)
Several of the reports refer, ambiguously, to the plaintiff remaining “nonweightbearing.” (See, e.g., Plaintiffs Exhibit Z, Progress Notes.) The documents do not unequivocally indicate whether the plaintiff was advised to refrain from putting weight on either leg, or just his injured leg. (Id.)
On January 31, 2011, the plaintiff was transferred to the Cook County Jail. (Id.) The plaintiff was taken directly to the Cermak Health Services emergency room upon his arrival at the jail. (Id., p. 30.) The plaintiff was “triaged” there, in that his vital signs were taken. (Id.) The plaintiff still had his right leg in a cast from the ankle surgery a few days prior. (Id., pp. 28, 41-42.)
Defendant Khan attended to the plaintiff in the emergency room. (Id., p. 31.). The two discussed the plaintiffs injured leg and his general medical history. (Id., pp. 31-32, 80.) Khan also made a cursory examination of the plaintiffs leg, without, of course, removing the cast. (Id., p. 80; Khan Affidavit, ¶ 5; Plaintiffs Affidavit, ¶ 4.) Khan additionally reviewed the plaintiffs medical records from Stroger Hospital. (Plaintiffs Affidavit, ¶ 5.)
The plaintiff does not recall the specifics of his discourse with Khan. (Plaintiffs Dep., pp. 32, 81.) However, the plaintiff does remember that Khan informed him that he was going to give the plaintiff crutches so that he could get up and start walking. (Id.) The plaintiff objected, telling Khan that a previous physician had told him not to use crutches. (Id.; see also Plaintiffs Exhibit A.A.4, Affidavit of Inmate Johnny Green.) The plaintiff also told Khan that he experienced vertigo when he stood up. (Plaintiffs Affidavit, ¶ 8.) In fact, the plaintiff had a prescription from the hospital (or at least doctors’ recommendations) for a wheelchair. (Plaintiffs Exhibit L-O.).
Khan ordered crutches anyway, firmly stating that the plaintiff did not need crutches but that he did need to walk. (Plaintiffs Dep., pp. 33, 35.) Khan prescribed pain and anti-coagulation medications; he also directed that the plaintiffs dressings be changed daily. (Khan Affidavit, ¶ 5.) The parties dispute whether Khan watched the plaintiff successfully maneuver in crutches.
After Khan was through with his consultation, a member of the nursing staff provided the plaintiff with crutches. (Id., p. 35.) The plaintiff balked at accepting them, again insisting that he did not know how to use crutches and noting that the wheelchair was his own, personal property, and not the State or County’s. (Id., pp. 35-36.) The nurse ignored the plaintiffs concerns and sent him on his way with the crutches. (Id., p. 36.)
The plaintiff stood with the crutches, then used them to walk four or five feet. (Id., pp. 36-37) As the plaintiff exited through the door of the emergency room, he stumbled and fell. (Id.; Green Affidavit.) The plaintiff attributes the fall to being “shaky” because he did not know how to use crutches. (Id., p. 38.) In addition, the plaintiff says that he was still experiencing dizziness whenever he sat up, even several days after the surgery. (Id., pp. 38-39.)
The plaintiff fell forward, hitting his right hand as he landed on the floor, then hitting his left knee, and finally coming down on his right side. (Id., pp. 40-41, 43.) Correctional officers who were monitoring the hospital waiting room either witnessed the plaintiffs fall or observed him crumpled on the ground; they ran to fetch a member of the medical team. (Id., pp. 51-52.) The plaintiff was questioned about the fall and then helped into a wheelchair. (Id., pp. 53-54.)
Afterwards, the plaintiff was taken to his housing unit in the medical ward at Cermak. (Id., pp. 53-54; Khan Affidavit, ¶ 5.) Because the plaintiff was assigned to a hospital bed, he was able to make medical requests whenever needed. (Plaintiffs Dep., p. 61.) The medical staff at Cermak is on call twenty-four hours a day. (Id.) The plaintiff remained at Cermak for about five or six months; he was then transferred to a general population dormitory. (Id., pp. 11, 60.) The plaintiff saw a nurse every day while housed at Cermak. (Id., p. 61.) There were doctors there every day as well. (Id.) Although the plaintiff did not speak to a doctor every day, he “absolutely” could have made a medical request. (Id.)
The plaintiff claims to have injured his right hand and his back when he fell in January 2011; he also believes that he may have re-injured [or exacerbated the injuries to] his right leg. (Id., pp. 54, 56.) The plaintiff has lingering pain in his hand to this day, still wears a bandage, and cannot lift heavy objects. (Id., p. 55.) The plaintiffs wrist was diagnosed with carpal tunnel syndrome prior to his arrival at the jail. (Plaintiffs Exhibit U, “Final Report.”) The plaintiffs hand may need surgery. (Id., pp. 55-56.) X-rays taken at the jail revealed no back injuries, and physicians were unable to find anything wrong with the plaintiffs back. (Plaintiffs Dep., p. 55.) The plaintiffs knees were also xrayed even though he did not complain of a knee injury. (Id.)
Since the date of his fall, the plaintiff has had to undergo six surgeries to his right leg. (Id., p. 58-60.) The plaintiff is unsure about what the reasons are for the surgeries; “[t]hey just tell [him] they are going to do a procedure.” (Id., pp. 58, 60).
Every doctor the plaintiff has seen has told him that his leg has “shifted,” and that the bones will have to be realigned. (Id., p. 83.) The plaintiff continues to receive care and treatment for his injured leg. (Id., pp. 61, 66-67, 70-72, 73-75.)
Although the plaintiff would prefer to see another physician, Khan has rendered treatment “quite a few times” since the date of the events giving rise to this lawsuit. (Plaintiffs Dep., pp. 62-63.)
The plaintiff has remained in a wheelchair ever since the date of the accident underlying this lawsuit. (Plaintiffs Statement of Fact in Opposition to Defendant’s Motion for Summary Judgment, ¶ 33.)
Analysis
No outcome-dispositive facts are in dispute, and the defendant has established that he is entitled to judgment as a matter of law. The plaintiff has failed to demonstrate that a triable issue exists as to whether he had a serious medical need for a wheelchair, as opposed to crutches. Even viewing the facts in the light most favorable to the plaintiff, the record does not support an inference that the defendant acted with deliberate indifference to his serious medical needs.
Correctional officials and health care providers may not act with deliberate indifference to an inmate’s serious medical needs. Estelle v. Gamble,
A. No Objectively Serious Medical Need for Crutches
The court will assume for purposes of this motion that the plaintiffs injured and infected leg constituted a “serious” medical condition. A serious medical condition is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would perceive the need for a doctor’s attention. See Edwards v. Snyder,
Even though the plaintiffs physical therapist and hospital physicians recommended that he be placed in a wheelchair “for now,” the evidence simply does not support a finding that such an accommodation was medically necessary. It is un
The plaintiffs preference to use a wheelchair is not constitutionally protected. Questions about what forms of treatment are warranted are a “classic example of a matter for medical judgment.” Estate of Cole by Pardue v. Fromm,
While the plaintiff contends that several physicians told him that he should remain in a wheelchair, and that he was not to put any weight on his left leg, those assertions are hearsay, and thus inadmissible. Sow v. Fortville Police Dept.,
The decision to place the plaintiff on crutches is not actionable under 42 U.S.C. § 1983. “There is not one ‘proper’ way to practice medicine in prison, but rather a range of acceptable courses based on prevailing standards in the field.” Holloway,
B. No Deliberate Indifference
Nor is there a disputed issue of material fact regarding the subjective component. To establish deliberate indifference, a prisoner must demonstrate that the defendant in question was aware of, and consciously disregarded, the inmate’s medical need. Farmer,
Here, the defendant has explained that, based on his “medical education, experience and evaluation of Mr. Sistrunk’s condition,” he determined that
The decision to issue the plaintiff crutches instead of a wheelchair when he had one good leg was not so far afield as to “demonstrate[d] an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.” Arnett v. Webster,
The court need not resolve the parties’ dispute as to whether Khan observed the plaintiff successfully maneuver in crutches. The court may grant summary judgment if facts are in dispute, so long as those facts are not outcome determinative. See, e.g., Montgomery v. American Airlines, Inc.,
Even if Dr. Khan failed to ensure that the plaintiff could use crutches without effort, any oversight did not rise to the level of a constitutional violation. Deliberate indifference requires a showing of “more than mere or gross negligence.” Collins v. Seeman,
To establish deliberate indifference, a plaintiff must present evidence that an individual defendant intentionally disregarded the known risk to inmate health or safety. Matos,
C. No Liability for Plaintiffs Fall
It is regrettable that the plaintiff fell and injured himself almost immediately after getting up on crutches. However, even if, in hindsight, it would have been advisable for the plaintiff to have worked himself up to crutches, the risk of injury was not so high as to implicate the Constitution. The courts have routinely found such minor, potential hazards not to be sufficiently serious to rise to the level of a constitutional violation. For example, in Christopher v. Buss,
Similarly, in Murphy v. Walker,
D. Any Claim that Plaintiff Was Denied Needed Medical Care After He Fell Is Untimely
In response to the defendant’s motion for summary judgment, the plaintiff adds a claim that he was denied medical care after he fell. First, any such claim is untimely. The plaintiff expressly stated at his deposition that his “only complaint” against Khan was that he took away the plaintiffs wheelchair. (Plaintiffs Dep., p. 75.) The summary judgment stage “is too late in the day to be adding new claims.” Zeidler v. A & W Restaurants, Inc.,
In any event, the record is devoid of evidence that Dr. Khan was even aware that the plaintiff had fallen, let alone that the latter had a serious medical need for treatment of his injuries. According to the plaintiff, another doctor and an inmate worker helped him after he fell; there is no indication that Khan was at the scene. (See Plaintiffs Affidavit, ¶ 11; Plaintiffs Dep., p. 53.) Moreover, the plaintiff contradicts his assertion that he received no
In sum, the defendant’s motion for summary judgment is granted on the plaintiffs Fourteenth Amendment medical claim. Inmates are not constitutionally entitled either to “demand specific care” or even to receive the “best care possible;” rather, they are entitled to “reasonable measures to meet a substantial risk of serious harm.” Arnett v. Webster,
E. No Tenable Claim Under the Americans with Disabilities Act or the Rehabilitation Act
Finally, the court discerns no violation of the plaintiffs federal statutory rights. In conducting its required initial review under 28 U.S.C. § 1915, the court noted that in addition to his constitutional claim, the plaintiff might have a potential cause of action under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. [hereinafter, the “ADA”]. See Minute Order of June 15, 2011 (Norgle, J.). Since that time, the Seventh Circuit has observed that the relief available under the provisions of the ADA and the Rehabilitation Act, 29 U.S.C. § 794, et seq., is “coextensive,” but that suits under the Rehabilitation Act avoid the “thorny question” of sovereign immunity. See Jaros v. Illinois Dept. of Corrections,
Under both the ADA and the Rehabilitation Act, prisons must make reasonable accommodations for inmates with disabilities. Jaros,
Conclusion
For the foregoing reasons, the defendant’s motion for summary judgment is granted. Viewing the record in the light most favorable to the plaintiff, no reasonable person could find that the defendant either (a) acted with deliberate indifference to plaintiffs serious medical needs, or (b) failed to provide reasonable accommodations for his disability.
If the plaintiff wishes to appeal this final order, he may file a notice of appeal with this court within thirty days of the entry of judgment. Fed. R.App. P. 4(a)(4). A motion for leave to appeal in forma pauperis should set forth the issues the plaintiff plans to present on appeal. See Fed. RApp. P. 24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $455.00 appellate filing fee irrespective of
IT IS THEREFORE ORDERED that the defendant’s motion to strike and to deem facts admitted [# 76] is granted in part and denied in part. The plaintiffs motion to include Exhibit A.A.4 [# 78] is granted. The defendant’s motion for summary judgment [# 57] is granted. The clerk is directed to enter judgment in favor of the defendant pursuant to Fed. R.Civ.P. 56. The case is terminated. The plaintiffs motion for access to law library [# 79] is denied as moot.
Notes
. The arresting officers reported that the plaintiff had injured himself by jumping from a window, and not from being struck by the squad car. (Plaintiff's Exhibit Q, Discharge Summary dated January 31, 2011.) For purposes of the motion for summary judgment, the court will assume the plaintiff's account to be true.