36691/01245/MHW/REN 

UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

DAVID GEVAS,

Plaintiff,

v.

WEXFORD HEALTH SOURCES, INC., et al.,

Defendants.

No. 2012 CV 01297

Hon. John Z. Lee, District Judge

DEFENDANTS’ MEMORANDUM OF LAW 

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants, WEXFORD HEALTH SOURCES, INC., TIFFANY UTKE, L.P.N., 

IMHOTEP CARTER, M.D., HEIDI MOSS, R.N., PARTHASARATHI GHOSH, M.D., 

LATANYA WILLIAMS, P.A., RONALD SCHAEFER, M.D., and ARTHUR FUNK, M.D. (the 

“Wexford Defendants”), by and through their attorneys, Matthew H. Weller and Ronald E. 

Neroda of CASSIDAY SCHADE LLP, and for their Memorandum of Law in Support of Motion 

for Summary Judgment, hereby state as follows:

The MAR forms collectively evidence several dates that the Plaintiff was administered 

his medications, when he is setting forth claims to the contrary. Moreover, the records show that, 

overall, the Plaintiff received consistent administration of his prescribed medications. The 

medical records also show that the Plaintiff was seen and evaluated by medical providers on 

numerous occasions, and received appropriate prescription renewals

I. Introduction

This case involves a claim by Plaintiff, David Gevas, for deliberate indifference against 

multiple Defendants. The Plaintiff has been an inmate of the Illinois Department of Corrections 

since 1996 following two murder convictions. (See 

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https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx). He has set forth three 

claims in this case: first, that he did not receive optical care products, and specifically proper 

fitting contact lenses; second, that his prescription for Tramadol medication was improperly 

allowed to expire; and third, that he did not receive his prescribed Tramadol, Remeron, 

Depakote, and Benadryl, medications, due to the medications being out of stock at Stateville 

Correctional Center (“Stateville”). (See Plaintiff’s Complaint, Doc. #63, and Amended 

Complaint, Doc. #227).

The Plaintiff’s claims are subject to dismissal at this stage for numerous reasons. First, 

the only Wexford Defendant named in the claim relative to the Plaintiff’s contact lenses is 

Tiffany Utke, R.N., and the Plaintiff has not presented sufficient evidence of Nurse Utke’s 

involvement in the Plaintiff’s asserted claim against her; or, that the Plaintiff’s constitutional

rights were ever violated, in the first instance, with respect to his eye care.

Next, for many of the instances when the Plaintiff claims that he was subject to cruel and 

unusual punishment for not receiving certain medications, the undisputed medical records make 

clear that he either received his medication on the particular date(s), or, that he did not have a 

current prescription for a medication, which was a decision based on a provider’s medical 

judgment and not subject to a claim for deliberate indifference.

Going further, even where the records appear to show that the Plaintiff did not receive a 

medication when he had a current prescription, the sparse dates of not receiving these particular 

medications do not amount to a claim for deliberate indifference against these Defendants. The 

Plaintiff has not made any showing that the conditions for which he was prescribed the 

medications at issue in this case were considerably worsened by occasionally missing some

doses of a particular medication.

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Finally, and perhaps most significantly, even accepting the Plaintiff’s claims as true at 

this stage, the Plaintiff has not made the necessary showing of personal involvement, as he must 

under the law, by any of the individual Wexford Defendants. Moreover, the Plaintiff has not 

shown that any policy or widespread practice by Wexford Health Sources, Inc. (“Wexford”), 

caused any violation of the Plaintiff’s constitutional rights. 

II. Applicable Law

A. Elements of a deliberate indifference claim against an individual medical provider

The burden is on the Plaintiff to demonstrate deliberate indifference to a serious medical 

need or condition, and the test of deliberate indifference is a significantly high burden for the

Plaintiff to overcome. See Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011); see also Hernandez v. 

Tex. Dept. of Protective & Regulatory Servs., 380 F.3d 872, 882 (5th Cir. 2004). To establish 

deliberate indifference against an individual defendant, a plaintiff must prove: (1) the existence 

of a serious medical need or risk; (2) that the defendant was subjectively aware of the serious 

medical need or risk; and (3) that the defendant demonstrated a culpable mental state by

deliberately ignoring the plaintiff’s serious medical need or risk. Estelle v. Gamble, 429 U.S. 97, 

107 (1976); Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994); Vance v. Peters, 97 F.3d 

987, 991 (7th Cir. 1996). In summation, a plaintiff must establish that a defendant actually knew 

(independently and subjectively) that the plaintiff required treatment for a serious medical need 

or risk and nevertheless purposely and deliberately withheld such treatment. See Sellers, 41 F.3d 

at 1102 (emphasis added). 

“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.” Shockley v. 

Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). Deliberate indifference “is merely a synonym for 

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intentional or criminally reckless conduct.” Salazar v. City of Chicago, 940 F.2d 233, 238 (7th 

Cir. 1991); Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence, gross 

negligence, or even tortuous recklessness is not enough. Id. Unsuccessful medical treatment, 

neglect, or medical malpractice, are not sufficient to prevail in a claim for deliberate 

indifference. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). 

Critically, deliberate indifference may only be inferred “when the medical professional’s 

decision is such a substantial departure from accepted professional judgment, practice, or 

standards as to demonstrate the person responsible did not base the decision on such a 

judgment.” Estate of Cole v. Pardue, 94 F.3d 254, 261-62 (7th Cir. 1996); see Collingnon v. 

Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998). A defendant’s response to a serious 

medical need must be so plainly inappropriate as to permit such an inference. Hayes v. Snyder, 

546 F.3d 516, 524 (7th Cir. 2008). A medical professional is “entitled to deference in treatment 

decisions unless no minimally competent medical professional would have so responded under 

those circumstances.” Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008).

Deliberate indifference constitutes unnecessary and wanton infliction of pain, that which 

is “repugnant to the conscience of mankind,” or which is “so grossly incompetent, inadequate, or 

excessive as to shock the conscience or be intolerable to fundamental fairness.” Estelle, 429 U.S. 

at 106-07. Only then can a plaintiff prevail.

It must also be noted that the constitution does not require that prisoners receive 

“unqualified access to health care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Moreover, mere 

dissatisfaction or disagreement with a providers’ course of treatment is insufficient to prevail in a 

claim for deliberate indifference. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).

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It is well established that inmates are entitled to only “adequate medical care.” Boyce v. 

Moore, 314 F.3d 884, 888 - 889 (7th Cir. 2002); see also Forbes v. Edgar, 112 F.3d 262, 267 

(7th Cir. 1997) (“Under the Eighth Amendment, [the plaintiff] is not entitled to demand specific 

care. She is not entitled to the best care possible. She is entitled to reasonable measures to meet a 

substantial risk of serious harm to her.”). Along these same lines, inmates are not permitted to 

dictate the health care that they receive while incarcerated. Forbes v. Edgar, 112 F.3d 262, 267 

(7th Cir. 1997). 

In a claim for deliberate indifference, the law requires the Plaintiff to place verifying 

medical evidence in the record to support his claim that the alleged actions or inactions by the

Defendants harmed him. See Langston v. Peters, 100 F.3d 1235, 1240-41 (7th Cir. 1996). 

Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013), citing Williams v. Liefer, 491 F.3d 710, 

714-15 (7th Cir. 2007). Without any medical evidence of inadequate treatment, a prisoner’s selfserving opinion of the quality of treatment is insufficient to raise a genuine issue of material fact. 

Walker v. Zunker, 30 Fed Appx. 625, 628, (7th Cir. 1999). See also Napier v. Madison County, 

238 F.3d 739, 742 (6th Cir. 2001). 

B. Required Personal Involvement

Individual liability under 42 U.S.C. §1983 also requires direct and personal involvement 

in the situation that causes injury to an inmate. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 

1995). Section 1983 creates a cause of action based on personal liability that is predicated upon 

fault. Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005). Thus, “to be liable under 

Section 1983, the individual defendant must have caused or participated in a constitutional 

deprivation.” Id. Moreover, in Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986), the 

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Seventh Circuit held that Section 1983 liability arises only from direct and individual 

wrongdoing. 

“In essence, this standard requires proof of causation, i.e., that the individual defendant 

actually caused the Plaintiff’s injury through his own conduct.” Volk v. Coler, 638 F.Supp. 1540, 

1547. (C.D. Ill. 1986)(emphasis in original). The burden is on the Plaintiff to establish personal 

involvement through pleadings and evidence. Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 

1989). Furthermore, the doctrine of respondeat superior does not apply to actions filed under 42 

U.S.C. § 1983. Pacelli v. Devito, 972 F.2d 871, 877 (7th Cir.1992).

C. Elements of a deliberate indifference claim against a corporate entity

In order to recover against a corporate defendant, such as Wexford, under Section 1983, a

plaintiff must show that the alleged injury was the result of the corporation’s official policy or 

widespread practice. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986); City of 

Oklahoma City v. Tuttle, 471 U.S. 808, 817 (1985); Monell v. New York City Dep’t Soc. Servs., 

436 U.S. 658, 690-91 (1978). An official policy or practice may be established through an 

express policy, a widespread practice which, although unwritten, is so entrenched and wellknown as to carry the force of policy, or through the actions of an individual who possesses the 

authority to make final policy decisions on behalf of the municipality or corporation. See

Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011); Waters v. City of Chicago, 

580 F.3d 575, 581 (7th Cir. 2009). 

When evaluating whether a plaintiff has produced sufficient evidence to demonstrate that 

a corporation endorsed a widespread practice, the term “widespread” cannot be overlooked. 

Phelan v. Cook County, 463 F.3d 773, 789-90 (7th Cir. 2006). It is not enough to demonstrate 

that policymakers could, or even should, have been aware of the unlawful activity because it 

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occurred more than once. Id. Also, broad, vague statements about occurrences affecting other 

inmates in a detention facility do not support an inference of a “widespread” custom. Grieveson 

v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008). 

Notably, the Plaintiff must also show a direct causal connection between the claimed 

wrongful policy or practice and the alleged harm done. In other words, the policy or practice 

must be the “moving force [behind] the constitutional violation.” City of Canton v. Harris, 489 

U.S. 378, 389 (1989). Specifically, a plaintiff has the burden to show that the alleged policy or 

practice created a risk of serious harm that was so patently obvious that the corporation must 

have been aware of it and, by failing to act to rectify it, sanctioned the harmful conduct. Smith v. 

Sangamon County Sheriff’s Dep’t, 715 F.3d 188, 192 (7th Cir. 2013). This requirement 

“distinguish[es] acts of the [corporation] from acts of employees of the [corporation], and 

thereby make[s] clear that [corporate] liability is limited to actions for which the [corporation] is 

actually responsible.” Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515 (7th 

Cir. 2007)(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)) (emphasis in Estate 

of Sims). Consequently, corporate defendants cannot be held responsible for the acts or

omissions of their employees under a theory of respondeat superior. Woodward, 368 F.3d at 927. 

III. Argument

A. Refuted Dates of Missed Medications

“When opposing parties tell two different stories, one of which is blatantly contradicted 

by the record, so that no reasonable jury could believe it, a court should not adopt that version of 

the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 

372, 380-81 (2007)(holding that the “[r]espondent’s version of events is so utterly discredited by 

the record that no reasonable jury could have believed him. The Court of Appeals should not 

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have relied on such visible fiction...”). The records in this case refute any claim by the Plaintiff 

that he did not receive his prescribed medications on numerous occasions, or that he was in 

anyway deprived of adequate medical care. (See Defendants’ Statement of Facts).

Furthermore, the Medication Administration Records (“MAR”), produced through 

discovery, make clear that the Plaintiff has overwhelmingly received his prescribed medication

on a consistent and uninterrupted basis during the time period at issue in this case. Even where 

there are sparse dates within the records suggesting that the Plaintiff occasionally may not have 

received his medications, those few missed doses do not amount to “cruel and unusual 

punishment,” or conduct that is “repugnant to the conscience of mankind.” As such, the few 

dates at issue do not amount to a claim for deliberate indifference under the law in this circuit.

In an apparent attempt to refute the foregoing, the Plaintiff testified that his medical 

records have been fabricated and that “they...covered...up” dates of him not receiving his 

medication “as much as humanly possible.” (See Ex. “C,” p. 190). By his very own admission, 

however, the Plaintiff cannot point to any specific dates on which his records were fabricated, as 

he claims. (See Ex. “C,” p. 191). The Plaintiff is not permitted to proceed past this stage of the

litigation based on such unsubstantiated and speculative claims. Newell v. Ngu, 589 Fed. Appx. 

782, 787 (7th Cir. 2014). Furthermore, and perhaps more importantly, the Plaintiff has not 

produced any evidence that the purported fabrication was done at the hand of any of the Wexford 

Defendants in this case and, as such, cannot show any personal involvement in this regard. 

Finally, the law does not permit the Plaintiff to go forward with such claims when they are 

clearly refuted by the records in this case. See supra, Scott, 550 U.S. at 380-81. 

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B. Claims Asserted in Complaint

The Plaintiff filed his original pro se pleading in February, 2012. (See Doc. #63). 

Following appointment of counsel, Plaintiff filed a Verified Amended Complaint on November 

25, 2013 (Doc. #227). Other than adding a new party, Director of the IDOC, S.A. Godinez, the 

Amended Complaint merely incorporates by reference the same allegations as set forth in the 

original Complaint.

1. Claim One: Contact Lenses 

As against Defendants, Tiffany Utke, L.P.N., and Dr. Norman Patterson, O.D., the 

Plaintiff claims that they: deliberately “refused to submit the Plaintiff,” for a right contact lens 

that fit properly; ordered the Plaintiff a hard contact lens knowing that he wore soft contact 

lenses; ordered the wrong reading glasses for the Plaintiff; and, allowed the Plaintiff’s 30-day 

disposable contact lenses to run out. (See Doc. #63, p. 5, paras 27 – 29; p. 6, para. 36; p. 7, para. 

39). Dr. Patterson was the optometrist at Stateville during the relevant time period. He previously 

settled the Plaintiff’s claim against him and, subsequently, provided a deposition in this case. 

The Plaintiff’s claim against Nurse Utke fails for two reasons. First, the underlying gist of 

the claim is defeated by the undisputed, independent, testimony of Dr. Patterson. Dr. Patterson’s 

testimony makes clear that there was no deliberate indifference, whatsoever, with respect to the 

Plaintiff’s care vis-a-vis the eye clinic at Stateville.

Dr. Patterson testified that he saw the Plaintiff many times in the eye clinic and many 

more times than other patients. (See Ex. “D,” pp. 17 - 18). Contrary to the Plaintiff’s complaints, 

however, Dr. Patterson confirmed that the Plaintiff was able to see without issue. (See Ex. “D,”

pp. 17 – 18). Furthermore, there was no reason why the Plaintiff needed to wear contact lenses 

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rather than glasses. (See Ex. “D,” pp. 38, 42). Even still, there was no instance where the 

Plaintiff ultimately did not receive his contact lenses. (See Ex. “D,” pp. 49 – 50).

There is a process for approval, ordering, and making of contact lenses for inmates, 

which takes time to complete. (See Ex. “D,” pp. 49 – 50). During any period of time that the 

Plaintiff was waiting for his new contact lenses to arrive, he still had his eye glasses to wear. 

(See Ex. “D,” pp. 49 – 50). Thus, it cannot be said that the Plaintiff was deliberately ignored in 

anyway with respect to his eye care. 

The crux of the Plaintiff’s claim is that he did not receive proper fitting contact lenses on 

a timely basis. In this case, it is undisputed that the eye clinic staff took all reasonable measures 

to provide the Plaintiff with multiple replacement contact lenses (which were not afforded any 

other inmate at Stateville), and that the Plaintiff’s eye glasses were perfectly suitable for his 

vision at all times. (See Ex. “D,” p. 19). It should also be highlighted that the Plaintiff is not 

claiming that any harm was actually done to his eye or his actual vision, and Dr. Patterson’s 

testimony makes clear that, after he saw the Plaintiff numerous times in the eye clinic, it was 

known that the Plaintiff could see properly with his eye glasses. (See Doc. #63, pp. 5 – 8; and 

Ex. “D,” p. 19).

There is not a viable claim with respect to the Plaintiff’s eye care, against any party. See 

Zuege v. Knoch, 423 Fed. Appx. 621, 623 (7th Cir. 2011)(“Even gross negligence is insufficient 

to establish a constitutional violation if the defendants are not subjectively aware of a risk of 

harm from their inadequate treatment.”). Here, as in the Zuege case, the undisputed record shows 

that Dr. Patterson repeatedly examined the Plaintiff, and reasonably responded to all of the 

Plaintiff’s complaints. Zuege, 423 Fed. Appx. at 623. (See Ex. “D,” pp. 17 – 18, 27) .Under 

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these facts, the Plaintiff has not made out any case for deliberate indifference with respect to his 

first claim in this case.

The Plaintiff’s claim against Nurse Utke also fails because the contradicted record makes 

clear that Nurse Utke did not have the necessary personal involvement, or culpable state of mind,

such that she could be liable for the Plaintiff’s claim against her. Indeed, the Plaintiff himself 

testified that Nurse Utke was not always present when he had appointments with Dr. Patterson, 

and that when Nurse Utke was present, his interactions with her would be limited to her handing 

him his contacts and having him sign a form of receipt. (See Ex. “C,” pp. 210 - 211).

Nurse Utke was one of the nurses stationed to work in the eye clinic at Stateville. Her 

duties in the eye clinic included scheduling inmates for appointments and giving them their eye 

glasses upon delivery to the eye clinic. Other than giving the Plaintiff’s contacts and contact 

solution to him, Nurse Utke did not provide any other services to the Plaintiff in the eye clinic. 

(See Ex. “P,” pp. 44 - 46). She also did not personally receive any notes or internal mail from 

the Plaintiff. (See Ex. “P,” p. 89). What she did do was, when she received a request from the 

Plaintiff, add the Plaintiff to the optometrist’s schedule for an appointment, or speak with the 

optometrist directly to determine when the Plaintiff could be seen. (See Ex. “P,” pp. 39 – 40). 

When Nurse Utke received a request or complaint from the Plaintiff that his contacts or glasses 

were not working, she followed the procedure of putting the Plaintiff on the schedule to see the 

optometrist. It is undisputed that the Plaintiff was seen frequently in the eye clinic. (See Ex. “P,”

pp. 41 – 42).

Notwithstanding the foregoing, the Plaintiff claims that Nurse Utke “refused to submit,” 

him for a proper fitting right contact lens. Nothing in the record of this case remotely suggests 

that Nurse Utke had any role in ensuring that the Plaintiff’s contact lenses fit properly. In fact, 

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the testimony of Dr. Patterson establishes that the Plaintiff was literally the only inmate at 

Stateville with contact lenses and the State had not equipped the eye clinic with equipment to fit 

contact lenses. (See Ex. “D,” pp. 18, 26, 29).

The Plaintiff also claims that Nurse Utke deliberately ordered him hard contact lenses 

knowing that he wore soft contact lenses. First, even accepting this claim as true, it does not rise 

to the level of deliberate indifference under the law. Beyond that, the undisputed evidence is that 

Dr. Patterson saw and examined patients in the eye clinic. (See Ex. “D,” pp. 11, 16 - 17). His 

orders would then go through to Wexford for approval and further processing. (See Ex. “D,” p. 

49 – 50). It is undisputed that the examination and ordering of optical care products for the 

Plaintiff’s eye care was done by Dr. Patterson, and Nurse Utke was not involved in that process.

(See Ex. “P,” pp. 44 – 46; Ex. “D,” p. 17).

There is no evidence that Nurse Utke acted with any culpable state of mind because she 

played no part in Dr. Patterson’s treatment decisions and, moreover, nothing in the record 

suggests that she had any authority to act, as the Plaintiff claims she should have, with respect to 

the Plaintiff’s eye care. Williams v. Guzman, 346 Fed. Appx. 102, 106 (7th Cir. 2009).

2. Claim Two: Expired Prescription Orders - Tramadol

The Plaintiff claims that on the dates when he did not receive his Tramadol, the 

Defendants allowed the medication to expire without re-evaluating the Plaintiff and/or represcribing the Tramadol “before the prescribed Tramadol expired.” (See Doc. #63, pp. 8 – 9, 

para. 53). Even accepting as true that the Plaintiff did not receive continuous Tramadol 

prescription renewals as alleged, he has still failed to raise a genuine question of material fact as 

to deliberate indifference on the part of any Wexford Defendant.

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To begin, it is undisputed that there was a mechanism and procedure in place for inmates

at Stateville to request refills for current prescriptions and to request a medical appointment 

(“sick call,” in the Stateville parlance) in order to obtain a prescription renewal. Moreover, it is 

undisputed that the Plaintiff was aware of this procedure. (See Ex. “K,” p. 84, 102; Ex. “C,” pp. 

32 – 33). Indeed, the evidence is clear that it was incumbent upon the Plaintiff (or any inmate for 

that matter), after one of his prescription orders had expired, to request an appointment with the 

medical staff if he desired to have his prescription renewed. (See Ex. “K,” p. 102). This, of 

course, is the same practice that any patient, incarcerated or otherwise, would similarly follow 

with his or her healthcare provider. (See Ex. “K,” p. 104, 105). Here, the Plaintiff is attempting 

to shift his portion of the responsibility for his own healthcare to the Defendants. As with any 

person under a treater’s care, it is incumbent upon the patient to follow-through with his own 

care and treatment. The undisputed evidence shows that the Plaintiff knew that he had available 

to him a means by which he could request medical appointments, and that if he desired a 

medication renewal, he needed to make such a request.

Put another way, to succeed in his claim that he suffered a constitutional violation 

because his Tramadol prescription was “allowed” to expire, the Plaintiff would have to present 

evidence that he requested a prescription renewal, or to be seen for an evaluation, that he was 

medically indicated for the same, and that he was harmed when his request was disregarded by

one of the Defendants. Williams v. Guzman, 346 Fed. Appx. 102, 105-106 (7th Cir. Ill. 2009).

There is no evidence of any of this in the record of this case. Indeed, the record is replete with 

instances where the Plaintiff was permitted access to medical providers, evaluated, and given

prescription renewals. Furthermore, simply because he was provided with subsequent Tramadol 

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prescription renewals, the record in this case does not support that permitting the prior 

prescriptions to expire without an immediate renewal was deliberate indifference.

There is no evidence, whatsoever, that any Defendant ever denied or refused to see the 

Plaintiff when requested to do so. More pointedly, the Plaintiff has not placed any evidence into 

the record of this case to show that any individual Defendant acted in deliberate and conscious 

disregard to the Plaintiff being harmed by not having a continuous prescription for Tramadol. 

Williams v. Guzman, 346 Fed. Appx. 102, 106 (7th Cir. 2009).

“Deliberate indifference to a known risk is a form of intent...to show scienter by the 

deliberate-indifference route, a plaintiff must demonstrate that the public official knew of risks 

with sufficient specificity to allow an inference that inaction is designed to produce or allow 

harm.” Vance v. Rumsfeld, 701 F.3d 193, 204 (7th Cir. 2012). There is no such evidence in the 

record of this case that the intermittent expirations of the Plaintiff’s Tramadol prescription 

constituted deliberate indifference.

The medicine behind this case also refutes the Plaintiff’s claim. The law is clear that the 

Plaintiff is not permitted to dictate his own medical care. Tramadol is treated as a controlled 

substance. (See Ex. “J,” p. 36). It is undisputed, here, that Tramadol is a potent, narcotic-like 

drug, which is not medically recommended to be taken on a continuous, or uninterrupted, basis. 

(See Ex. “J,” pp. 28, 34 – 36).

The record in this case reflects exactly the opposite of the well established legal 

definition of deliberate indifference and the testimony of the Plaintiff’s treaters’ sheds further 

light on this matter: to wit, the Plaintiff’s Tramadol prescription was never intended by any of his 

providers to be continuous or non-stop. The medical testimony makes clear that there was no 

deliberate indifference in allowing time in between the Plaintiff’s active prescriptions for 

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Tramadol, in order for him to be revaluated prior to receiving a further order for this opiate-like 

medication. The undisputed facts show that each of the Plaintiff’s medical providers agreed that 

the medication should not be given indefinitely and it was appropriate to have breaks in 

administration of the medication for re-evaluation. (See Ex. “K,” p. 73, 155). The Plaintiff has 

provided no verifying medical evidence contrary to this position. Going further, if the Plaintiff 

desired a more prompt appointment for renewal, he had a mechanism through which to request 

the appointment, and he also had access to other forms of pain management, including 

Ibuprofen.

The Plaintiff has created no genuine question of material fact that any of the Wexford

Defendants allowed the Plaintiff’s prescriptions to expire out of conscious disregard for the 

Plaintiff’s medical care or his wellbeing. In fact, the only evidence in the record of this case is 

that it was medically appropriate (and, in fact recommended) that the Plaintiff not take Tramadol

in a continuous and non-stop fashion. (See Ex. “K,” p. 73, 155). As such, there is no genuine 

question of material fact as to any constitutional violation with respect to the Plaintiff’s claims 

that his Tramadol prescription was wrongly permitted to expire prior to renewal.

3. Claim Three: Medication Not in Stock - Tramadol, Depakote, Remeron, and 

Benadryl

In his third claim, the Plaintiff asserts that there were “numerous occasions” when his 

Tramadol, Remeron, Depakote, and Benadryl medications ran out of stock. (See Doc. #63, p. 12, 

paras. 76 - 77; p. 13, para. 85). At this stage, the Plaintiff has provided only a few specific dates 

when certain of his medications were not delivered to him. Even assuming, arguendo, that the 

Plaintiff has accurately set forth the dates (or “numerous occasions”) when his medications had 

run out at Stateville, his claim still fails. The undisputed record in this case makes clear that none 

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of the individual Wexford Defendants had the requisite personal involvement relative to

Plaintiff’s claim that medications were permitted to run out of stock.

The chain of actions through which medications at Stateville are prescribed by providers,

and subsequently distributed to inmates, is set forth in Defendants’ Statement of Facts. It is the 

function of the Stateville registered nurses who pass watch-take medications (which all of the 

medications at issue in this case are) to turn in a refill sticker to the IDOC pharmacy technician, 

Ms. Beattie, when a prescription was due for a refill. Ms. Beattie was to fax the refill sheets to 

Boswell. (See Ex. “F,” p. 26). The Plaintiff has presented no evidence that any of the individual 

Wexford Defendants were involved in that process. It was the responsibility of the IDOC 

personnel to submit the prescription orders to Boswell, the offsite pharmacy. (See Ex. “E,” p. 

24; Ex. “F,” p 10). It was Boswell’s independent contractual obligation to timely fill and deliver 

the prescription orders. It was then the responsibility of the IDOC personnel to receive the 

medications, confirm that the prescription orders were properly filled, and ensure that the 

Stateville nurses and medical technicians received the medications for distribution to inmates in 

the cell houses. (See Ex. “F,” p 11, 12, 13 – 14, 15, 16 15, 41 – 42). Notably, it is undisputed 

that the pharmacy functions onsite at Stateville were operated by IDOC personnel. (See Ex. “F,”

p. 12; Ex. “H,” p. 29).

Nothing in the undisputed record supports a claim for deliberate indifference against any 

of the Wexford Defendants. There is no evidence, for example, that any of the Wexford 

Defendant physicians, or the physicians’ assistant, Ms. Williams, deliberately failed to order a 

prescription for the Plaintiff when medically indicated. Moreover, as the uncontradicted record 

shows, once a provider completes a prescription order, the responsibility for delivery of 

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medication to Stateville and distribution of medication to inmates rested with the IDOC and 

Boswell.

There is no evidence that any other Wexford Defendant had any involvement in the 

medication ordering or distribution process for the Plaintiff, such that the Plaintiff may proceed 

with his claim against them. (See Ex. “F,” pp. 50, 51, 53). It is undisputed that the Wexford 

Defendants did not have any personal involvement in the steps in the process for ordering and 

delivering medications that could have caused the medications to run out. 

The record makes clear that, other than the IDOC personnel charged with the ordering 

and distribution of medication, the only other position at Stateville which could have had any 

connection to the Plaintiff’s claim that his medications ran out, would be members of the nursing 

staff through their actions in forwarding a medication refill sticker to the IDOC pharmacy

technician. The only registered nurse who the Plaintiff has named among the Wexford 

Defendants, with respect to this claim, is Heidi Moss, R.N., and it is undisputed from Nurse 

Moss’s testimony, that she did not have any involvement in distributing medications to the 

Plaintiff or receiving renewal stickers from him. (See Ex. “L,” pp. 213 – 214; Ex. “Q,” pp. 10, 

40, 29).

In short, the Plaintiff has not made any showing that any of these Defendants caused the 

Plaintiff’s medications to run out or purposely and intentionally disregarded a known instance, or 

even risk, of the Plaintiff’s medication being out of stock. Moreover, even if the Plaintiff could 

make such a showing, the sporadic instances in which the MARs indicate that the Plaintiff did 

not receive certain medications do not evidence a systemic deprivation or pattern of conduct by

any Wexford Defendant, which would amount to a constitutional claim for cruel and unusual 

punishment.

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IV. No Unconstitutional Policy or Practice by Wexford Health Sources, Inc.

The two claims that the Plaintiff asserts against Wexford are that it allowed his Tramadol 

prescription to expire without an immediate renewal and that it allowed the stock of his 

prescribed medications to run out at Stateville. (See Doc. #63, pp. 8 - 14). The Plaintiff’s claim 

against Wexford fails because he has not raised any genuine question of material fact that a 

policy or practice in place by Wexford caused any of the claimed constitutional deprivations in 

alleged by Plaintiff. 

It is well established that, in order to go forward with a claim against Wexford, the 

Plaintiff must show that a policy or practice by Wexford was the “moving force [behind]” his 

claimed constitutional violation. City of Canton, 489 U.S. at 389. Because the Plaintiff has made 

no such showing at this stage, his claim against Wexford must be dismissed with prejudice. 

At the outset, and as set forth herein, the Plaintiff has not made out any claim of 

deliberate indifference regarding the expiration of his Tramadol prescription. Furthermore, even 

if the periodic (and medically recommended) expiration of his Tramadol medication amount to a 

constitutional violation, there is no evidence, whatsoever, that allowing the medication to expire 

was a direct result of a policy or practice in place by Wexford. There is also no evidence that any 

policy or practice in place by Wexford caused a widespread and pervasive problem of Tramadol 

prescriptions not being renewed for inmates, if medically indicated. Phelan, 463 F.3d at 789-90.

By the same token, the Plaintiff has made no showing that on the few occasions that his

prescribed medication had run out of stock at Stateville, the issue arose as a direct result of a 

policy or widespread practice, by Wexford, at Stateville. It is, as already discussed herein,

undisputed that the process for ordering, delivery, and distribution of medications at Stateville 

was operated and controlled by the IDOC and co-Defendant, Boswell. 

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There is no evidence in the record of this case that Wexford had any policy or practice in 

place that could have contributed to any instance where the Plaintiff’s medication had run out. 

But, even if there was, that would not even be enough. The Plaintiff has presented no evidence 

that any policy or practice in place by Wexford caused a widespread and pervasive problem of 

medications running out of stock at Stateville. Phelan, 463 F.3d at 789-90. Accordingly, the 

Plaintiff’s claim against Wexford in this case must be dismissed with prejudice.

V. Conclusion

For all of the foregoing reasons, the Plaintiff has failed to raise a genuine question of 

material fact as to any of his claims against the Wexford Defendants such that he should be 

provided the opportunity to present his case to a jury. All of the evidence in the record of this 

case shows that no reasonable jury could find that the Plaintiff suffered any constitutional 

violation by any of these Defendants. Therefore, the Plaintiff’s claim should be dismissed, with 

prejudice, in its entirety. 

WHEREFORE, Defendants, WEXFORD HEALTH SOURCES, INC., TIFFANY UTKE, 

L.P.N., IMHOTEP CARTER, M.D., HEIDI MOSS, R.N., PARTHASARATHI GHOSH, M.D., 

LATANYA WILLIAMS, P.A., RONALD SCHAEFER, M.D., and ARTHUR FUNK, M.D., 

respectfully pray that this Court enter an Order granting summary judgment, dismissing the 

Plaintiff’s claims against all Defendants with prejudice, and for such other relief as the Court 

deems necessary and just.

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Respectfully submitted,

CASSIDAY SCHADE LLP

By: /s/ Ronald E. Neroda

Attorney for Defendants,

WEXFORD HEALTH SOURCES, INC., 

TIFFANY UTKE, L.P.N., IMHOTEP 

CARTER, M.D., HEIDI MOSS, R.N., 

PARTHASARATHI GHOSH, M.D., 

LATANYA WILLIAMS, P.A., RONALD 

SCHAEFER, M.D., and ARTHUR FUNK, 

M.D.

Matthew H. Weller #6278685

Ronald E. Neroda #6297286

CASSIDAY SCHADE LLP

20 North Wacker Drive

Suite 1000

Chicago, IL 60606

Telephone: (312) 641-3100

Facsimile: (312) 444-1669

Email: mweller@cassiday.com

Email: rneroda@cassiday.com

Case: 1:12-cv-01297 Document #: 333 Filed: 03/19/15 Page 20 of 21 PageID #:3691
CERTIFICATE OF SERVICE

I hereby certify that on March 19, 2015, I electronically filed the foregoing Memorandum 

of Law with the clerk of the court for Northern District of Illinois, using the electronic case filing 

system of the court. The electronic case filing system sent a “Notice of E-Filing” to the attorneys 

of record in this case.

/s/ Ronald E. Neroda

8016322 RNERODA

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