IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CALVIN WHITING,

Plaintiff,

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v. ) No. 12 C 2917

WEXFORD HEALTH SOURCES, 

INC., et al.,

Defendants.

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MEMORANDUM OPINION AND ORDER

Calvin Whiting (“Whiting”) alleges that Alfonso David, M.D. 

(“Dr. David”) and his employer, Wexford Health Sources, Inc. 

(“Wexford”), were deliberately indifferent to his medical

condition--swollen lymph nodes that were diagnosed as cancerous 

two months after they appeared--while he was incarcerated at an 

Illinois prison.

Dr. David and Wexford have filed separate motions for 

summary judgment, which I grant for the reasons stated below. 

I.

At the summary judgment stage, I must view the evidence in 

the light most favorable to Whiting and draw all reasonable 

inferences in his favor. See Shields v. Ill. Dep’t of 

Corrections, 746 F.3d 782, 786 (7th Cir. 2014). I will not, 

however, credit any Local Rule 56.1 statements and responses 

1
“that consist of hearsay, speculation, legal conclusions, 

improper argument, and evasive denials, in addition to those 

that do not properly cite to the record, are unsupported, or are 

otherwise improper.” Boudreau v. Gentile, 646 F. Supp. 2d 1016, 

1019 (N.D. Ill. 2009).

Whiting began his prison sentence at the Hardin County Work 

Camp and its parent institution, the Shawnee Correctional 

Center, in July 2010. Defs.’ Statement of Facts (“DSOF”), Dkt. 

No. 172, at ¶ 68. On October 15, 2010, Whiting complained to a 

nurse about “nodules” or growths on his left jaw and in his left 

groin area. Id. at ¶ 12. He reported increased tenderness in 

these regions and pain in his left ear. Id. The nurse who 

examined Whiting prescribed an antibiotic (amoxicillin) and a 

pain reliever (Motrin) based on her impression that he may have 

had an ear or throat infection. Id.

Ten days later, Whiting reported to a nurse that Motrin had 

not relieved his pain and showed her two new “bumps” on his 

neck. See Dkt. No. 173-3 at Whiting Ex. 009. The nurse 

scheduled Whiting to see Dr. David, the Medical Director at 

Shawnee Correctional Center, during the next sick call. Id. 

The next day, Whiting complained to a different nurse, “I’m 

getting more of these lumps all over my body. I can’t eat or 

sleep and [am] getting more pain all over.” Id. at Whiting Ex. 

012. The nurse observed “multiple enlarged nodes” on Whiting’s 

2
neck and a firm, enlarged mass on his left jaw. Id. Per Dr. 

David’s instructions, she admitted Whiting to the prison’s

infirmary. Id.

Dr. David examined Whiting on October 27, 2010. Id. at 

Whiting Ex. 021. Whiting complained that he was “dying.” Id. 

After observing Whiting’s symptoms, Dr. David submitted a 

request to Wexford for a biopsy of the mass on Whiting’s left 

jaw to determine whether lymphoma--a cancer of the lymphatic 

system--was causing his enlarged nodes. Id. Dr. David could

have ordered an emergency biopsy on his own, but decided to 

submit his request through Wexford’s collegial review process. 

Dkt. No. 165-1 (“Dr. David Dep.”) at 29-30. 

Dr. David and a doctor on Wexford’s collegial review 

committee discussed the biopsy request. DSOF at ¶ 80. On 

November 1, 2010 Wexford denied Dr. David’s request for a 

biopsy, but recommended an alternative treatment plan. Id. at ¶

81-82. Specifically, Wexford recommended trying a course of two 

antibiotics, one after the other, and resubmitting the biopsy 

request if necessary. Dkt. No. 173-3 at Whiting Ex. 026. 

Although only a biopsy could have determined whether Whiting had 

lymphoma, Dr. David explained that Wexford’s recommended course 

of treatment was consistent with his initial impression that 

Whiting had an ear or throat infection. Dr. David Dep. at 59. 

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If Whiting responded positively to the antibiotics, it would

have been less likely that he had lymphoma. Id. 

After Wexford denied his biopsy request, Dr. David 

summarized this thought process as follows:

[M]y initial impression of the presented signs and 

symptoms was an infectious process going on. And 

while in my mind there’s that possibility of blood 

dyscrasia such as lymphoma present in this patient, I 

was directing more [of] my attention or the treatment 

or management to my impression at that time. We don’t 

right away do an invasive procedure on anyone 

presenting with earache or sore throat or enlarged 

lymph nodes, such as a biopsy of those lymph glands. 

We would rather consider treatment for whatever we 

think the patient is having at that time. And, going 

further, when collegial review denied my request for a 

biopsy but gave an alternative plan of trying 

additional courses of antibiotics, I thought it was a 

reasonable alternative plan at the time. But, at the 

same time, they gave a recourse that if those trial of 

antibiotics will not work that I can submit my request 

for a biopsy again, which was done in [December 2010].

Id. at 61-62. Dr. David explained the alternative treatment 

plan to Whiting on November 1, 2010 and started giving him the 

first of the recommended antibiotics and pain medication. Dkt. 

No. 173-3 at Whiting Ex. 045. 

Whiting showed signs of improvement in response to the 

antibiotics, but sometimes voiced complaints of pain and 

frustration about not having a definitive diagnosis. DSOF at ¶¶

9, 13. On November 3, 2010, a nurse observed that Whiting’s

“scattered and circular lesions appear[ed] to be decreasing in 

size and redness” and were “not as severe as one week ago.” 

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Dkt. No. 173-3 at Whiting Ex. 051. Three days later, on 

November 6, 2010, a nurse reported that the mass on Whiting’s 

neck had decreased in size and the areas on his back and chest 

“continue[d] to improve.” Id. at Whiting Ex. 060. Whiting’s 

condition then started to decline. He reported a “new bump” and 

increasing pain on November 7, 8, and 9. Id. at Whiting Ex. 

062, 064-065. By November 29, 2010, Whiting was complaining of 

multiple “knots” on his body. Id. at Whiting Ex. 087. The 

nurse who examined Whiting that day observed nodules at the edge 

of his hairline, on both sides of his neck, under his left 

armpit, and on his right deltoid. Id. She scheduled Whiting to 

see Dr. David during the next sick call. Id.

Dr. David examined Whiting on December 2, 2010. Id. at 

Whiting Ex. 092. Whiting was “very upset” and claimed that Dr. 

David was “letting him die.” Id. Dr. David explained why 

Wexford had denied his first request for a biopsy, but decided 

to resubmit the request. Id. Wexford approved Dr. David’s

request on December 6, 2010. DSOF at ¶ 14. 

A biopsy performed on December 21, 2010 revealed that 

Whiting had a rare and aggressive type of non-Hodgkin’s

lymphoma. DSOF at ¶ 11.1

 As soon as Dr. David received a verbal 

report of the biopsy results, he advised Wexford of the findings 

1 Whiting’s precise diagnosis was Stage IV ALK positive

anaplastic large cell lymphoma, which represents less than five 

percent of all non-Hodgkin’s lymphomas. DSOF at ¶ 57. 

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and requested that Whiting be referred to an oncologist and 

receive CT scans of his chest, abdomen, and pelvis to determine 

the extent of the cancer. Id. at ¶ 16. Wexford approved the 

referral and scans Dr. David had requested. Id.

From January 2011 to May 2011, Whiting received 

chemotherapy treatment from Dr. Mahnaz Lary, an oncologist in 

private practice. Id. at ¶¶ 17, 34-37. Whiting’s lymph nodes 

started to shrink right away. Id. at ¶ 48. On June 9, 2011, 

PET scans revealed that Whiting’s lymphoma was in complete 

remission, which was the best possible result he could have 

achieved. Id. at ¶¶ 41, 48, 58, 70. Dr. David was responsible 

for approving every step of the chemotherapy treatment and scans

Whiting received while under Dr. Lary’s care. Id. at ¶ 54. 

When Whiting complained to Dr. Lary that Dr. David was 

neglecting him, she “reassured him that his medical care, other 

than the fact that the prison system limited us in the speed of 

what we needed to do, was fine.” Id. at ¶ 46. Dr. Lary never 

had issues with Dr. David’s attentiveness to Whiting’s case and

was able to provide all of the medical care she thought was 

necessary and appropriate. Id. at ¶¶ 38, 53-54.

When asked whether any delay in performing a biopsy on 

Whiting’s enlarged lymph nodes and starting his chemotherapy 

treatment had a negative impact on his prognosis, Dr. Lary 

testified that any such delay was medically “irrelevant” and did 

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not “harm” Whiting because his lymphoma reached the point of 

complete remission. Id. at ¶¶ 39-40. In Dr. Lary’s opinion, 

any delay in the diagnosis of Whiting’s lymphoma had no causal

connection to whether he would suffer a relapse. Id. at ¶ 43-

44.

After Whiting finished his chemotherapy treatment, Dr. 

David noticed that Whiting had developed a “pea-size node” on 

the front of his torso and other enlarged lymph nodes. DSOF at 

¶ 21.2 This change occurred over the course of weeks or months. 

Id. On August 23, 2011, Dr. David consulted with Dr. Lary, who 

indicated that Whiting’s lymphoma might be recurring and 

recommended another round of CT and PET scans of his chest, 

abdomen, and pelvis. Id. at ¶¶ 21. The scans performed in 

September 2011 revealed that Whiting’s lymphoma had recurred. 

Id. at ¶¶ 22, 42.

On September 14, 2011, after receiving the results of 

Whiting’s scans, Dr. David conferred with Dr. Lary, who 

recommended high dose chemotherapy and a stem cell transplant at 

the Siteman Cancer Center at Barnes Jewish Hospital in St. 

2 In response to Paragraphs 21 to 23 of Defendants’ joint 

statement of facts, Whiting refers to medical records from June 

2011 to October 2011 that do not appear on the docket. 

Moreover, Whiting cannot introduce new facts in response to a 

Rule 56.1 statement. See Ciomber v. Cooperative Plus, Inc., 527 

F.3d 635, 643-44 (7th Cir. 2008) (holding that district court 

did not abuse its discretion in refusing to consider facts 

presented in a Rule 56.1 response as opposed to a separate 

statement of additional facts).

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Louis, Missouri. Id. at ¶ 22, 51. Dr. Lary submitted these 

requests to Wexford and Dr. Louis Shicker, the Medical Director 

of the Illinois Department of Corrections (“IDOC”). Id. at ¶¶ 

23, 27. Dr. David was initially advised that IDOC did not cover 

stem cell transplants, so Whiting’s family would have to apply 

for clemency or commutation of his sentence. Id. at ¶ 23. Dr. 

David subsequently learned that Dr. Shicker was working to 

obtain IDOC’s approval for the recommended treatments. Id. at ¶ 

27. IDOC ultimately approved both a second round of 

chemotherapy for Whiting and a stem cell transplant. Id. at ¶ 

28. 

After Whiting’s lymphoma recurred, he received pain 

medication and twenty-four hour monitoring in the Shawnee 

Correctional Center infirmary. Id. at ¶ 24. Dr. David also 

explained to Whiting that he was trying to make arrangements for 

Whiting to receive additional chemotherapy treatment. Id. at ¶ 

25. Whiting’s condition was stable until October 5, 2011, when 

Dr. David noticed that Whiting was “extremely weak” and refusing

to take his pain medications. Id. at ¶ 28. Dr. David also 

examined the left side of Whiting’s neck, which was filled with 

fluid. Id. Based on these changes, Dr. David notified Wexford 

and Dr. Shicker that Whiting needed immediate hospitalization. 

Id. Dr. Shicker agreed. Whiting was transferred by ambulance 

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to Barnes Jewish Hospital in St. Louis on October 5, 2011. Id.

at ¶¶ 26, 28.

The oncologist who treated Whiting at Barnes Jewish 

Hospital, Dr. Nancy Bartlett, testified that Whiting was “almost 

dead” when he arrived. See Dkt. No. 165-3 (“Dr. Bartlett Dep.”) 

at 38. Whiting had low blood pressure and “huge lymph nodes all 

over his neck.” Id. at 13. Whiting received chemotherapy 

treatment from Dr. Bartlett from October 2011 to December 2011, 

when a PET scan showed that his lymphoma was once again in 

complete remission. DSOF at ¶¶ 62-63. This was the best 

possible result Whiting could have achieved. Id. at ¶ 64. 

Although Dr. Bartlett encountered “some resistance” when 

speaking with Dr. David about the course of treatment Whiting 

needed, she was able to deliver all the medical care she thought 

was necessary and appropriate to treat his condition. Id. at ¶¶ 

56, 61. She has no opinion about why Whiting suffered a relapse 

after his lymphoma went into complete remission in June 2011. 

Id. at ¶ 59, 65.

Whiting’s prison sentence ended in January 2012, which 

triggered a change in insurance coverage that prevented him from 

undergoing a scheduled stem cell transplant at Barnes Jewish 

Hospital. Id. at ¶ 67. Dr. Bartlett referred Whiting to the 

University of Chicago Medical Center, where he received 

additional chemotherapy treatment and a stem cell transplant in 

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May 2012. Id. at ¶¶ 67, 71, 106. A biopsy performed in June 

2012 revealed that Whiting’s lymphoma was still present. Id. at 

¶ 107. Since June 2012, Whiting has been receiving palliative 

chemotherapy and remains a candidate for another stem cell 

transplant. Id. at ¶¶ 109-11. Whiting’s oncologist at the 

University of Chicago, Dr. Justin Kline, has no opinion about 

the medical treatment Whiting received at Shawnee Correctional 

Center, including the timing of his biopsy. Id. at ¶¶ 114-15. 

After reviewing Whiting’s medical records, however, Dr. Kline 

opined that Whiting would not have experienced the pain he did 

from October 2010 and January 2011 if his chemotherapy had 

started shortly after Dr. David first requested a biopsy. See 

Dkt. No. 173-4 at ¶ 11.

II.

Whiting sued Dr. David and Wexford--the only Defendants 

against whom he is still pursuing Section 1983 claims--for 

allegedly showing deliberate indifference to his medical 

condition. See Dkt. No. 48 (“Second Am. Compl.”).

In order to survive Dr. David’s and Wexford’s motions for 

summary judgment, Whiting must show that, when viewed in the 

light most favorable to his claim, “the evidence is such that a 

reasonable jury could return a verdict [in his favor].” 

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

A.

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“To recover against Wexford under...current [Seventh 

Circuit] precedent, [Whiting] must offer evidence that his 

injury was caused by a Wexford policy, custom, or practice of 

deliberate indifference to medical needs, or a series of bad 

acts that together raise the inference of such a policy.” 

Shields, 746 F.3d at 796; see also Iskander v. Vill. of Forest 

Park, 690 F.2d 126, 128 (7th Cir. 1982) (applying Monell

standard to private corporations sued under § 1983 for the first 

time). 

In his brief opposing Wexford’s motion for summary 

judgment, Whiting has not even attempted to identify a corporate 

policy, custom, or practice that caused his injuries. Instead, 

Whiting focuses exclusively on Wexford’s denial of Dr. David’s 

request for a biopsy and recommendation of an alternative 

treatment plan. Shields explains that such isolated treatment 

decisions “do not add up to a pattern of behavior that would 

support an inference of a custom or policy, as required to find 

that Wexford as an institution/corporation was deliberately 

indifferent to [Whiting’s] needs.” 746 F.3d at 796. Therefore, 

Wexford is entitled to summary judgment on Whiting’s deliberate 

indifference claim.

B.

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Whiting’s other claim is that Dr. David’s failure to order 

an emergency biopsy of his enlarged nodes in October 2010

constituted deliberate indifference to his medical condition.3 

“A claim of deliberate indifference to a serious medical 

need contains both an objective and a subjective component.” 

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). The 

objective component requires an inmate to demonstrate that he 

had a “serious medical condition,” meaning “one that ha[d] been 

diagnosed by a physician as mandating treatment or one that 

[was] so obvious that even a lay person would [have] perceive[d]

the need for a doctor's attention.” Id. The subjective 

component requires the inmate to demonstrate that prison 

officials acted with a culpable state of mind--i.e., that they 

knew of and disregarded an excessive risk to the inmate’s 

health. Id.

1.

The relevant question with respect to Whiting’s medical 

condition is whether Dr. David’s decision to follow Wexford’s

treatment plan instead of ordering an emergency biopsy had 

objectively serious medical consequences. See Jackson v. 

3 To the extent Whiting once alleged that Dr. David was 

deliberately indifferent to his medical condition at any other 

point in time--e.g., after his lymphoma recurred in 2011--

Whiting has abandoned those arguments in his summary judgment 

briefing. See Milligan v. Bd. of Trustees of Southern Ill. 

Univ., 686 F.3d 378, 386-87 (7th Cir. 2012) (failure to make an 

argument results in forfeiture).

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Pollion, 733 F.3d 786, 790 (7th Cir. 2013) (defining relevant 

inquiry as the medical consequences, if any, of depriving inmate 

of blood pressure medication for three weeks rather than whether 

his underlying hypertension was objectively serious).

“In cases where prison officials delayed rather than denied 

medical assistance to an inmate, courts have required the 

plaintiff to offer verifying medical evidence that the delay 

(rather than the inmate's underlying condition) caused some 

degree of harm.” Williams v. Liefer, 491 F.3d 710, 714-15 (7th 

Cir. 2007) (internal quotation omitted); see also Langston v. 

Peters, 100 F.3d 1235, 1240 (7th Cir. 1996) (adopting “verifying 

medical evidence” requirement). In other words, Whiting “must 

offer medical evidence that tends to confirm or corroborate a 

claim that the delay [in ordering a biopsy] was detrimental.” 

Williams, 491 F.3d at 715.

Dr. David argues that the two-month delay in ordering a 

biopsy of Whiting’s enlarged nodes did not harm him because his 

cancer responded to chemotherapy treatment and went into 

complete remission by June 2011. This is not a case like 

Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013), where the 

prisoner alleged that the delay in diagnosing his cancer allowed 

it to spread and severely limited his treatment options. Here, 

Dr. Lary testified that complete remission of Whiting’s lymphoma 

was the best possible outcome he could have achieved from 

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chemotherapy treatment. She characterized any delay in 

diagnosing Whiting’s lymphoma as medically “irrelevant” because 

his cancer went into complete remission. Dr. Lary Dep. at 93. 

There is no evidence that diagnosing and treating Whiting’s 

lymphoma sooner would have prolonged his period of remission or 

reduced the odds of a relapse. Id. at 47.

Whiting counters that “[n]othing in the record disproves 

that early detection and treatment [of his lymphoma] in 2010 

would or could not have lengthened [his] period of remission.” 

DSOF at ¶ 43. That argument turns the verifying medical 

evidence requirement on its head. It is Whiting’s burden to 

show that the delay in diagnosing his lymphoma caused harm. The 

most Whiting can say is that Dr. Bartlett once told him that his 

condition would be “different” if he had started chemotherapy 

earlier. Dkt. No. 165-4 (“Whiting Dep.”) at 72. That testimony 

is vague as how Whiting’s condition would be different. 

Moreover, Dr. Bartlett expressly declined to give an opinion 

about why Whiting’s lymphoma recurred after going into complete 

remission by June 2011. Dr. Bartlett Dep. 46.

The objective component of Whiting’s deliberate 

indifference claim boils down to whether the two-month delay in 

diagnosing his lymphoma inflicted unnecessary pain. See Smith 

v. Know County Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012) (per 

curiam) (noting that “even if [prisoner’s] condition did not 

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worsen from the delay [in treatment], deliberate indifference to 

prolonged, unnecessary pain can itself be the basis for an 

Eighth Amendment claim”). Whiting has presented medical records 

showing that he suffered pain between October 2010 and December 

2010 because of his enlarged nodes. See Williams, 491 F.3d at 

716 (holding that medical records constituted “verifying medical 

evidence” from which a jury could have concluded that delay in 

treatment “unnecessarily prolonged and exacerbated” inmate’s 

pain). Dr. Kline has also said that Whiting “would not have 

experienced the pain he did between October 27, 2010 and January 

2011” if he had started chemotherapy treatment shortly after Dr. 

David first requested a biopsy. Dkt. No. 173-4 at ¶ 11.

In sum, Whiting has presented sufficient evidence that the 

two-month delaying in diagnosing his lymphoma resulted in 

objectively serious pain. 

2.

The next question is whether Dr. David was deliberately 

indifferent to the pain Whiting experienced from his undiagnosed 

lymphoma.

“A medical professional is entitled to deference in 

treatment decisions unless ‘no minimally competent professional 

would have so responded under those circumstances.’” Sain v. 

Wood, 512 F.3d 886, 894-95 (7th Cir. 2008) (quoting Collignon v. 

Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998)). Whiting 

15
must present evidence from which a reasonable jury could find 

that Dr. David’s decision not to order an emergency biopsy 

before December 2010 was “such a substantial departure from 

accepted professional judgment, practice, or standards, as to 

demonstrate that [he]...did not base the decision on...a

[medical] judgment.” Collignon, 163 F.3d at 988 (quoting 

Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982)).

Whiting’s claim against Dr. David bears striking 

similarities to Duckworth v. Ahmad, 532 F.3d 675 (7th Cir. 

2008), where the Seventh Circuit affirmed the grant of summary 

judgment to two prison physicians who allegedly should have 

ordered a cystoscopy to rule out bladder cancer--Duckworth’s

eventual diagnosis--as soon as they noticed blood in his urine. 

The second physician who treated Duckworth, Dr. Francis Kayira,

“was aware that [bladder] cancer was a risk but erroneously 

thought that another condition [i.e., a urinary tract infection 

or kidney stones] was more likely causing Duckworth's symptoms.” 

Id. at 680. Dr. David was in essentially the same position as 

Dr. Kayira when he accepted Wexford’s alternative treatment plan 

despite his lingering concern that Whiting might have lymphoma. 

The antibiotics Whiting received were not “obviously 

ineffective” such that Dr. David’s decision to persist in that 

course of treatment for one to two months amounted to deliberate 

indifference. Id. at 682. Whiting’s condition actually 

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improved for a short period of time after Dr. David implemented 

Wexford’s recommended course of antibiotics. When Whiting’s 

condition declined, Dr. David’s resubmitted his request for a 

biopsy, which was approved. Cf. id. (noting that Dr. Kayira 

ordered “more advanced testing” as Duckworth’s condition 

worsened).

The Seventh Circuit’s explanation of why Dr. Kayira was 

entitled to summary judgment in Duckworth applies with equal 

force to Dr. David:

[T]here is no evidence that Kayira knew of and 

disregarded the risk of cancer even if he was aware 

that it was a possibility. Duckworth points to the 

expert testimony of an experienced urologist stating 

that cancer should always be ruled out first before 

other conditions when a patient has gross hematuria. 

This may be a fair statement of how a reasonable 

doctor would treat Duckworth's symptoms, but it does 

not shed any light into Dr. Kayira's state of mind. 

Nor did Dr. Kayira's chosen course of treatment so 

depart from accepted professional practice as to allow 

the jury to infer indifference. Dr. Kayira tried to 

cure what he thought was wrong with Duckworth, an 

opinion he arrived at using medical judgment...[I]t 

may have been prudent for Dr. Kayira to rule cancer 

out first. But this is just to reiterate the standard 

for medical malpractice, which falls short of 

deliberate indifference.

532 F.3d at 681.

In sum, no reasonable jury could find that Dr. David’s

decision to follow a Wexford’s treatment plan instead of 

ordering an emergency biopsy of Whiting’s enlarged nodes 

17
amounted to deliberate indifference. Therefore, Dr. David is 

entitled to summary judgment.

III.

Dr. David’s and Wexford’s motions for summary judgment are 

GRANTED for the reasons stated above.

 ENTER ORDER:

 

_____________________________

 Elaine E. Bucklo

United States District Judge

Dated: February 27, 2015

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