IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BLANTON SIMS, )

)

Plaintiff, )

) No. 12 C 677

v. )

)

DR. SCHAEFER, I. CARTER, WEXFORD ) Judge John Z. Lee

HEALTH SOURCES, INC., and MARCUS )

HARDY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Blanton Sims brings this civil rights action pursuant to 42 U.S.C. § 1983 against 

Defendants Ronald Schaefer, M.D., Imhotep Carter, M.D., and Wexford Health Sources, Inc. 

(“Wexford”) (collectively, “Defendants”), alleging deliberate indifference to his medical needs 

while he was incarcerated at Stateville Correctional Center. Sims alleges Dr. Schaefer acted with 

deliberate indifference when he changed Sims’s cholesterol medication and then refused to treat 

an eye infection. Sims also contends Dr. Carter and Wexford acted with deliberate indifference 

by ignoring his complaints about Dr. Schaefer. Defendants now move for summary judgment on 

all counts. For the following reasons, the Court grants in part and denies in part Defendants’ 

motion.

Factual Background1

Blanton Sims, an inmate at Stateville Correctional Center, has high cholesterol. Defs.’ 

LR 56.1(a)(3) Stmt. ¶¶ 3, 40. Sims also has peripheral arterial disease, and controlling his 

cholesterol levels is “very important.” Pl.’s LR 56.1 (b)(3)(C) Stmt. ¶ 4. 

1 The following facts are undisputed, unless otherwise noted.

 
On January 21, 2009, Sims was prescribed the cholesterol medication Zocor by Dr. 

Zhang, his physician at the time. Id. ¶ 6. This medication was discontinued on September 17, 

2009, when Dr. Zhang started Sims on Lipitor, another cholesterol medication. Id. ¶ 7. Dr. 

Schaefer, a staff physician at Stateville, renewed the Lipitor prescription on September 18, 2010, 

and again on February 16, 2011. Id. ¶ 9; Defs.’ LR 56.1(a)(3) Stmt. ¶ 28. 

On or about March 30, 2011, Sims submitted a Lipitor refill tab to a nurse. Pl.’s LR 56.1 

(b)(3)(C) Stmt. ¶ 10. Instead of refilling the prescription, Dr. Schaefer put Sims back on Zocor. 

Defs.’ LR 56.1(a)(3) Stmt. ¶ 46. Dr. Schaefer does not remember whether he reviewed Sims’s 

medical history before changing the prescription. Pl.’s LR 56.1 (b)(3)(C) Stmt. ¶ 13. According 

to Sims, the decision was arbitrary in that “Dr. Schaefer [did] not know why he discontinued 

[his] Lipitor prescription.” Id. ¶¶ 11, 19. According to Dr. Schaefer, the change was made 

because Lipitor was no longer listed on the Stateville formulary. See Defs.’ LR 56.1(a)(3) Stmt. 

¶ 19; Defs.’ Reply Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 11. The formulary identifies preferred drugs 

“used to treat particular conditions,” although it does not prevent a physician from requesting a 

different drug from Wexford, should the physician believe “that a non-formulary drug should be 

prescribed.” Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 18–20. 

Sims filed a grievance about the change in his medication on April 11, 2011, complaining 

that Dr. Schaefer prescribed Zocor instead of Lipitor “without discussing it with [him].” Pl.’s 

LR 56.1 (b)(3)(C) Stmt. ¶ 19. Defendants claim that, on April 29, 2011, Stateville’s grievance 

officer responded to the grievance and included a note from Dr. Schaefer explaining that Zocor 

would be adequate for Sims’s medical needs. Defs.’ LR 56.1(a)(3) Stmt. ¶ 8. Sims asserts he 

appealed this grievance internally; Defendants contend he did not. Pl.’s LR (b)(3)(C) Stmt. ¶ 20. 

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In any event, Sims opted to not take Zocor following the change in prescription, a 

decision he discussed with Dr. Carter, who at the time was Stateville’s On-Site Medical Director, 

during an evaluation on August 4, 2011. See Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 48–49, Ex. 4, Carter 

Dep,. at 11:19–23. Eventually, however, Sims continued taking Zocor again in lieu of Lipitor, 

although the parties dispute the exact date that occurred. See Pl.’s LR 56.1 (b)(3)(C) Stmt. ¶ 21. 

The parties also dispute the relative effectiveness of the two drugs.2 See id. ¶ 22. Zocor 

and Lipitor both belong to a class of medications referred to as “statins”; Zocor is known 

generically as “simvastatin,” while Lipitor is known generically as “atorvastatin.” Defs.’ LR 

56.1(a)(3) Stmt. ¶ 21. According to Defendants, the drugs “are equally effective in treating [high 

cholesterol].” Id. ¶ 22. 

On October 12, 2011, Sims visited Dr. Schaefer for a physical examination. Pl.’s LR 

56.1 (b)(3)(C) Stmt. ¶ 30. The parties disagree as to what exactly happened during the 

examination. Sims claims he told Dr. Schaefer “the eye infection he had been catching had 

started to come back, and [he] was experiencing symptoms like itching, burning, discoloration, 

and puss[sic]/mucus in his eyes.” Id. ¶ 32. According to Dr. Schaefer, however, Sims showed 

no visible signs of an eye infection. Defs.’ Reply Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 32. 

Nevertheless, they agree that Sims asked for a refill of his eye drop prescription which had run 

2 In multiple instances, Sims offers as an undisputed “fact” medical opinions and cites to medical 

records, pamphlets, or his own deposition testimony as support. See Pl.’s LR 56.1 (b)(3)(C) Stmt. ¶¶ 3–6, 

8, 22. For example, in explaining the relative effect certain drugs had on his cholesterol levels, Sims cites 

only to the records themselves and to his deposition testimony. See id. ¶ 22. This is improper. While 

Sims may testify as to his own personal experiences (pain, symptoms, etc.), he is not an expert and 

therefore may not provide a medical opinion. See, e.g., Newell v. Ngu, 589 F. App’x 782, 786 (7th Cir. 

2014) (explaining that a plaintiff cannot give an opinion on the cause of his medical condition, but may 

testify that he suffered from a recurring infection and “experienced pain and discomfort during the [period 

in question].”). “[S]ummary judgment may only be defeated by pointing to admissible evidence in the 

summary judgment record that creates a genuine issue of material fact.” United States v. 5443 Suffield 

Terrace, 607 F.3d 504, 510 (7th Cir. 2010) (emphasis added). And because any medical opinion 

testimony from Sims would be inadmissible at trial, the Court strikes those statements of fact that 

necessarily rely upon it.

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out. Id. ¶ 33. Sims claims Dr. Schaefer would not refill the prescription “because Sims was not 

there to have any prescription refilled.” Pl.’s LR (b)(3)(C) Stmt. ¶ 33. Further, Sims asserts Dr. 

Schaefer said he would not examine Sims’s eyes because of the recent grievance Sims submitted 

about changing his Lipitor prescription to Zocor. Id. ¶ 34. Dr. Schaefer claims that Sims was 

taking prescription eye drops — specifically, an antihistamine called Patanol — to merely 

control itching caused by common allergies, see Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 52–54, and denies 

that he “would not [have] refill[ed] [Sims’s] prescription if he discovered a condition . . . that 

required treatment.” Defs.’ Reply Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 33. 

Sims filed an emergency grievance that same day regarding the physical examination 

with Dr. Schaefer. Pl.’s LR (b)(3)(C) Stmt. ¶ 36. Sims also sent that grievance to the 

Administrative Review Board. Id. ¶ 37. The Board required a Grievance Officer’s response, 

which Sims never received. Id.

Sims also wrote letters complaining of the same to Dr. Carter and Wexford. Pl.’s LR 

56.1 (b)(3)(C) Stmt. ¶¶ 38–39. Neither Dr. Carter nor Wexford admit to receiving these letters, 

on account of prison procedures for screening inmate’s mailings. See Defs.’ Reply Pl.’s LR 

56.1(b)(3)(C) Stmt. ¶¶ 38–39. Dr. Carter admitted, however, that pus exuding from one’s eye 

could evidence a “serious medical complaint” and that, if true, Dr. Schaefer’s actions “would 

more than likely be inappropriate.” See Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 38, Ex. 4, Carter Dep., at 

59:3–4, 19–24. Sims was eventually prescribed eye drops on December 8, 2011, and an order 

for those drops was placed on December 20, 2011. See id. ¶ 40.

Legal Standard

Summary judgment is appropriate if the evidence demonstrates that there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as a matter of 

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law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If no reasonable 

jury could find in favor of the nonmoving party, then no genuine dispute exists. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Once the movant has demonstrated that there is no genuine issue of material fact, the 

nonmovant bears the burden of setting forth specific facts demonstrating that there are disputed 

material facts that must be decided at trial. Celotex, 477 U.S. at 322. In setting forth such 

specific facts, the nonmovant is required to “go beyond the pleadings” and support his 

contentions with documentary evidence. Id. at 324. The inquiry is essentially “whether the 

evidence presents a sufficient disagreement to require submission to the jury, or whether it is so 

one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

Analysis

I. Exhaustion of Administrative Remedies

As an initial matter, Defendants assert that Sims has failed to exhaust his administrative 

remedies as to the grievances filed April 11, 2011, and October 12, 2011, and that any related 

claims are consequently barred. Under the Prison Litigation Reform Act (“PLRA”), “[n]o action 

shall be brought with respect to prison conditions under section 1983 of this title, or any other 

Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “To exhaust 

remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s 

administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).

In this instance, the prison rules required Sims to appeal any unsatisfactory response to 

his grievance “in writing to the [Director of the Department of Corrections] within 30 days after 

the date of the decision,” who then determines if the matter “requires a hearing before the 

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Administrative Review Board.” 20 Ill. Admin. Code §§ 504.802, 504.850(a)–(b); see also

Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014) (“If the officer denies the grievance, and the 

warden affirms that denial, the prisoner can appeal to the Administrative Review Board, an entity 

within the Illinois Department of Corrections having statewide jurisdiction.”) (internal citations 

omitted).

With regard to the grievance submitted April 11, 2011, Defendants claim Sims did not 

appeal the grievance officer’s response finding that his medical needs were being adequately 

cared for. See Defs.’ LR 56.1(a)(3) Stmt. ¶ 9, Ex. 13 at 1. Defendants refer to the response form 

dated June 7, 2011, in which the box “Committed Person’s Appeal to the Director” is left blank. 

Id. Indeed, if Sims did not sign this part of the form or forward it to the address contained 

therein within thirty days, he would have failed to exhaust his administrative remedies. See, e.g., 

Boyce, No. 13 C 5746, 2015 WL 5462137, at *14 (Where plaintiff did “not present[] competent 

evidence that he appealed his grievances and emergency grievances to the ARB,” plaintiff failed 

to exhaust administrative remedies.). Sims, however, provides a signed and dated version of that 

same document, indicating that he did appeal the decision to the Director. Pl.’s Resp. Defs.’ LR 

56.1(a)(3) Stmt. ¶ 9, Ex. C. Defendants believe the signature to have been added after the fact. 

Defs.’ Reply Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 20. At any rate, all of this goes to show that there is 

a genuine factual dispute as to whether Sims properly appealed the April 11, 2011 grievance. It 

would thus be inappropriate to grant summary judgment in favor of defendants on the basis of 

exhaustion as to these claims.

With regard to the emergency grievance submitted October 12, 2011, Defendants claim 

that Sims “neither re-filed his grievances nor appealed the denial of his grievance to the ARB.” 

Defs.’ Mem. 4. Defendant cite to no evidence, affidavit, or deposition testimony to support this 

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contention in their Local Rule 56.1 statement. See Defs.’ LR 56.1(a)(3) Stmt. ¶ 12. 

Furthermore, Defendants undermine this assertion in their reply to Sims’s statement of additional 

facts, where they admit he forwarded the grievance to the Administrative Review Board. See 

Defs.’ Reply Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 37. “Failure to exhaust is an affirmative defense that 

a defendant has the burden of proving.” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). 

And, suffice it to say, Defendants have not met that burden here to warrant summary judgment.

II. Deliberate Indifference as to Dr. Schaefer and Dr. Carter

Defendants additionally contend there is no genuine issue of material fact from which a 

jury could find Dr. Schaefer and Dr. Carter were deliberately indifferent to Sims’s medical 

needs. Defs.’ Mem. 5–13. “The Eighth Amendment to the Constitution of the United States 

proscribes the infliction of ‘cruel and unusual punishments,’” and thereby “imposes upon prison 

officials the duty to ‘provide humane conditions of confinement’” to the incarcerated. Vance v. 

Peters, 97 F.3d 987, 991 (7th Cir. 1996). A prisoner raising such a claim must prove: (1) a 

deprivation — in this case, the denial of a medical need — that is “objectively, sufficiently

serious”; and (2) that the defendant demonstrated a “sufficiently culpable state of mind” by 

deliberately ignoring the plaintiff's alleged need or risk. Id. 

Defendants’ arguments focus on the latter, “subjective” inquiry, which is an exacting 

standard to meet. The Supreme Court in defining “deliberate indifference” adopted the 

“subjective recklessness” definition from criminal law. Farmer v. Brennan, 511 U.S. 825, 837 

(1994). According to that definition, “the official must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 

inference.” Id. “Neither negligence nor even gross negligence is a sufficient basis for liability; 

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rather, liability attaches only if the conduct is intentional or criminally reckless.” Chapman v. 

Keltner, 241 F.3d 842, 845 (7th Cir. 2001).

A. Dr. Schaefer’s Change of Prescription from Lipitor to Zocor

Defendants begin by challenging whether Sims has provided sufficient evidence from 

which a jury could conclude Dr. Schaefer acted with deliberate indifference when he changed 

Sims’s prescription from Lipitor to Zocor. Sims’s claim for deliberate indifference in this regard

rests almost entirely on two facts: (1) Dr. Schaefer did not give him a reason for the change in 

medication — or at least, a reason that satisfied Sims; and (2) Dr. Schaefer’s deposition 

testimony where he admits he does not recall whether he reviewed Sims’s medical history. See

Pl.’s Resp. 9. According to Sims, had Dr. Schaefer reviewed Sims’s medical history, he would 

have seen that Zocor was less effective and that changing his prescription from Lipitor to Zocor 

posed a substantial risk to Sims, a patient with peripheral arterial disease. See id. This argument 

fails for a number of reasons.

First, the argument is predicated on the assumption that Zocor is, in fact, less effective 

than Lipitor. As noted above, Sims is not an expert qualified to make such a judgment and he 

has provided no other evidentiary basis from which a jury could reasonably conclude that the 

contention is true. Perhaps more to the point, even assuming Zocor is less effective than Lipitor, 

these facts at best still only permit the inference that Dr. Schaefer was negligent by failing to 

review Sims’s medical records. And medical negligence does not suffice in proving deliberate 

indifference. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). 

It is apparent from the record and Sims’s response brief that his dispute with Dr. Schaefer 

over the change in his prescription boils down to a disagreement with Dr. Schaefer’s medical 

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judgment. This is insufficient to prove deliberate indifference. Berry, 604 F.3d at 441. 

Accordingly, the Court grants summary judgment in favor of Defendants on these claims.

B. Dr. Schaefer’s Refusal to Prescribe Eye Drops

Defendants also contend Sims has failed to produce “evidence showing that Dr. Schaeffer 

violated any standard of medical judgment by deciding not to renew Plaintiff’s Patanol 

prescription, or that he was even aware of Plaintiff’s alleged eye condition.” Defs.’ Mem. 8. 

This is untrue. Specifically, Sims testified that he was exhibiting symptoms such as 

discoloration of the eyes and a pus- or mucus-like discharge and that he revealed this to Dr. 

Schaefer. Pl.’s LR 56.1 (b)(3)(C) Stmt. ¶ 32. More importantly, however, Sims claims that Dr.

Schaefer admitted at the time that he would not examine his eyes or prescribe any medication out 

of retaliation for Sims having previously filed a grievance against him. Id. ¶ 34. Sims can testify 

as to what happened between him and Dr. Schaefer during the October 12, 2011 physical, and, if 

believed, a jury could reasonably conclude Dr. Schaefer intentionally denied Sims medical care 

related to a serious medical condition. It is not for the Court to decide who is being truthful on

summary judgment; that is the job of the trier of fact. The Court thus denies Defendants’ motion 

as to these claims.

C. Dr. Carter’s Actions Regarding The Denial of Eye Drops

Defendants argue that summary judgment is appropriate as to Dr. Carter because Sims 

has failed to sufficiently establish Dr. Carter’s personal involvement in the denial of prescription 

eye drops. Defs.’ Reply 22–23. According to Defendants, even assuming Dr. Carter did in fact 

receive the letters, they are still insufficient to save Sims’s claims against Dr. Carter because 

only those persons “who cause or participate in the violations” can be liable in a claim for 

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deliberate indifference. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). But ignoring an 

inmate’s letters can, in some circumstances, form the basis of a deliberate indifference claim. 

In the Seventh Circuit, “an inmate's letters to prison administrators may establish a basis 

for § 1983 liability.” Vance, 97 F.3d at 993. This is because, once an official knows of a 

substantial risk to the inmate, “the refusal or declination to exercise the authority of his or her 

office may reflect deliberate disregard.” Id. Here, Defendants admit that Sims wrote two letters 

to Dr. Carter. Those letters are quite specific in that they describe the date of his incident with 

Dr. Schaefer, the basis of Dr. Schaefer’s refusal to treat his eye condition, and the nature of his 

symptoms. Even Dr. Carter admitted in his deposition that the symptoms described in the letters

could evidence a “serious medical complaint” and that, if true, Dr. Schaefer’s actions “would 

more than likely be inappropriate.” See Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 38, Ex. 4 at 59:3–4, 19–

24. Accordingly, a jury could reasonably conclude that if Dr. Carter actually received the letters

— which is disputed — he acted with deliberate indifference by ignoring his medical needs. The 

Court thus denies summary judgment as to Sims’s claims against Dr. Carter.

D. Effect of Delay in Treatment

Defendants further claim that Sims, to survive summary judgment, must “produce 

verifying medical evidence that he suffered an additional injury connected with . . . the alleged 

delay in prescribing Patanol.” Defs.’ Mem. 13; see Langston v. Peters, 100 F.3d 1235, 1240 (7th 

Cir. 1996) (“An inmate who complains that delay in medical treatment rose to a constitutional 

violation must place verifying medical evidence in the record to establish the detrimental effect 

of delay in medical treatment to succeed.”) (quoting Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th 

Cir. 1995)). It is true that Defendant has not provided expert testimony that would establish the 

delay in treatment’s detrimental effect. See supra n.2. However, viewing the record in a light 

10
most favorable to Sims, the Court does not find this fatal to his claims. Unlike the cases cited by 

Defendants, the delay is not merely a matter of hours, but a matter of months. See Langston, 100 

F.3d at 1241 (“Apart from the rape, there is no evidence that as a consequence of the assault 

[plaintiff] suffered from a serious injury which required immediate treatment,” and therefore, 

absent some medical evidence to the contrary, the prison official’s one-hour delay in obtaining 

medical treatment did not amount to constitutional deprivation.). But more importantly, Sims 

can at least prove on the record before the Court that he suffered from pain during the months in 

question and that his symptoms and condition worsened. From this, a reasonable jury could 

conclude that “the delay unnecessarily prolonged and exacerbated [that] pain.” Williams v. 

Liefer, 491 F.3d 710, 716 (7th Cir. 2007). Accordingly, the Court denies Defendants’ motion in 

this regard.

III. Monell Claims Against Wexford

Defendants lastly claim that summary judgment is appropriate as to Wexford because 

Sims has failed to set forth facts sufficient to prove a pattern or policy under Monell. Private 

corporations acting under color of state law — such as Wexford — may be held liable for 

injuries resulting from unconstitutional policies or practices. Monell v. Dep’t of Social Servs. of 

City of N.Y., 436 U.S. 658, 690–91(1978); Estate of Novack ex rel. Turbin v. Cnty. of Wood, 226 

F.3d 525, 530 (7th Cir. 2000). To recover, a plaintiff must demonstrate the alleged injury was 

caused by an official policy or widespread practice; respondeat superior is not a recognized 

theory in deliberate indifference actions. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479–

80 (1986). This can be established by proof of “(1) an express municipal policy; (2) a 

widespread, though unwritten, custom or practice; or (3) a decision by a municipal agent with 

11
‘final policymaking authority.’” Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 

2011). 

Sims argues he has set forth enough facts from which a reasonable jury could infer he 

was harmed by a widespread, unwritten practice. Sims relies on language from this Circuit that 

municipal liability may be demonstrated “‘by showing a series of bad acts and inviting the court 

to infer from them that the policymaking level of government was bound to have noticed what 

was going on and by failing to do anything must have encouraged or at least condoned, thus in 

either event adopting, the misconduct of subordinate officers.’” Estate of Novack, 226 F.3d at 

531 (quoting Jackson v. Marion Cnty., 66 F.3d 151, 152 (7th Cir. 1995)). Here, Sims filed 

multiple grievances and wrote four letters to Wexford and Dr. Carter, but his medical needs still 

went unaddressed for months. Construing all facts in Sims’s favor, the Court finds that a 

reasonable jury could conclude Wexford “at least condoned” the ignoring of inmates’ medical 

requests. See, e.g., Gallo v. Ghosh, No. 08 C 6974, 2013 WL 5587081, at *4 (N.D. Ill. Oct. 10, 

2013) (“[T]here remains a genuine dispute as to whether Wexford participated in any 

constitutional violation by condoning an unofficial policy of ignoring sick box requests or by 

failing to correct misconduct that it was bound to have known about.”). Defendants’ motion is 

therefore denied as to Wexford.

Conclusion

For these reasons, the Court grants in part and denies in part Defendants’ motion for 

summary judgment [129]. The Court grants summary judgment in favor of Dr. Schaefer on 

Plaintiff’s claims related to the change in Plaintiff’s cholesterol medication. The Court denies 

the motion in all other aspects.

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SO ORDERED ENTER: 9/25/15

__________________________________

JOHN Z. LEE

United States District Judge

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