UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARCUS JENKINS, )

)

Plaintiff, ) No. 12 C 3836

)

vs. )

) Judge Ronald A. Guzmán

WEXFORD HEALTH SOURCES, )

INC., RONALD SCHAEFER, M.D. )

and SHANAL BARNETT, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff sues defendants pursuant to 42 U.S.C. § 1983 for their alleged violations of his

Eighth Amendment rights. Defendants have filed Federal Rule of Civil Procedure (“Rule”) 56

motions for summary judgment. For the reasons set forth below, the Court grants the motions.

Facts

At all relevant times, plaintiff was an inmate at the Illinois Department of Corrections’

Stateville facility, defendant Wexford was the medical service provider for Stateville, defendant

Schaefer was a physician at Stateville and defendant Barnett was a medical technician at

Stateville. (Pl.’s Resp. Wexford & Schaefer’s LR 56.1(a) Stmt. ¶¶ 2-4, 6.) While at Stateville,

plaintiff went to its asthma clinic every four months, where he was examined by a doctor and

given prescriptions for: (1) a Qvar inhaler, which was to be used twice a day to prevent an

asthma attack; and (2) an Albuterol inhaler, which was to be used four times a day as needed to

alleviate an asthma attack. (Wexford & Schaefer’s LR 56.1(a) Stmt., Ex. E, Pl.’s Dep. at 11-12,

25-26; id., Ex. B, Pl.’s Med. Records at 00027-28, 00032-33.) 

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Defendant Schaefer examined plaintiff at Stateville’s September 21, 2010 and February

16, 2011 asthma clinics, noted both times that plaintiff had “good control” of his asthma and

refilled plaintiff’s prescriptions. (Id., Ex. B, Pl.’s Med. Records at 00027-28, 00032-33; id., Ex.

A, Schaefer Dep. at 29-38; Pl.’s Resp. Wexford & Schaefer’s LR 56.1(a) ¶¶ 14, 16.) 

Though each Albuterol inhaler should last about six months, plaintiff says the inhaler he

received after the February 16, 2011 clinic was nearly empty by the end of April 2011 and

completely empty by May 4, 2011. (See Wexford & Schaefer’s LR 56.1(a) Stmt., Ex. A,

Schaefer Dep. at 60-61; Pl.’s LR 56.1 Stmt., Ex. A, Pro Se Compl., Ex. 1, Letter from Pl. to

Schaeffer [sic] (Apr. 27, 2011); id., Ex. 2 Letter from Pl. to Schaeffer [sic] (May 4, 2011).) 

Consequently, between late April and May 9, 2011, plaintiff says he made a written refill request

through the prison’s established process, asked Barnett for a refill and sent three letters

requesting refills to Schaefer. (Wexford & Schaefer’s LR 56.1(a) Stmt., Ex. E, Pl.’s Dep. at 56-

57; Pl.’s LR 56.1 Stmt., Ex. A, Pro Se Complaint, Ex. 2, Letter from Pl. to Schaeffer [sic] (May

4, 2011); id., Ex. 4, Letter from Pl. to Schaeffer [sic] (May 9, 2011).) Schaefer says he rarely

sees letters from inmates, and in any event, did not see the letters from plaintiff. (Wexford &

Schaefer’s LR 56.1(a) Stmt., Ex. A, Schaefer Dep. at 20-24.) Barnett has no recollection of

plaintiff asking her for a refill, but says it is her practice to note such requests in an inmate’s

medical file. (Pl.’s Resp. Barnett’s LR 56.1(a) Stmt. ¶¶ 5-15.) Plaintiff’s medical records do not

reflect that he requested a refill from Barnett or anyone else between February 16, 2011 and May

10, 2011. (Id. ¶¶ 16-17; see Wexford & Schaefer’s LR 56.1(a) Stmt., Ex. D, Shute Dep. at 41-

43; see generally id., Ex. B, Pl.’s Med. Records.)

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In March and April 2011, Wexford launched an asthma initiative to educate patients

about the causes and treatment of the condition and “to identify patients whose asthma may not

be in control.” (See Wexford & Schaefer’s LR 56.1(a) Stmt., Ex. G, 2011 Asthma Care

Initiative at 2 (Apr. 11, 2011); see also id., Asthma Care Initiative: Asthma Training Tool (Mar.

4, 2011); id., Asthma Care Initiative: Focus on Education (Mar. 4, 2011); id., Asthma Care

Initiative: Focus on Control (Mar. 29, 2011).) The initiative documents state that airway

inflammation should be treated with regular use of a “maintenance” inhaler like Qvar and airway

constriction should be treated with a “rescue” inhaler like Albuterol. (Id., Asthma Care

Initiative: Asthma Training Tool at 2 (Mar. 4, 2011); id., 2011 Asthma Care Initiative at 2-3

(Apr. 11, 2011).) They also state that “increasing use of [an Albuterol inhaler] or [use of

Albuterol] more than two days a week for symptom relief . . . generally indicates inadequate

control of asthma and the need for initiating or intensifying anti-inflammatory therapy.” (Id.,

Asthma Care Initiative: Focus on Control at 2 (Mar. 29, 2011).) Accordingly, the policy directs

doctors and pharmacists to “dispens[e] . . . one [Albuterol] inhaler every 180 days” (id., 2011

Asthma Care Initiative at 2 (Apr. 11, 2011)), and to write on each inhaler: “1-2 puffs only when

needed[.] [R]epeat in 4-6 hours if needed[.] (If no relief please go to [Health Care Unit.])” 

(Id., 2011 Asthma Care Initiative: Focus on Control at 2 (Mar. 29, 2011)) (emphasis original). 

Moreover, it states: 

If a patient presents with an empty [Albuterol] canister prior to the authorized

refill date . . . . [t]he patient should be evaluated by a clinician, and improved

asthma control should be sought. If a clinician is not available[,] the patient

should be held and observed until he/she can be evaluated. 

This is not to be interpreted as a limit on [Albuterol] inhalers for patients. If

it is determined that a patient needs an inhaler after evaluation, please order

one and have it dispensed. . . .

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(Id. at 2-3) (emphasis original). 

On May 10, 2011, plaintiff was admitted to the infirmary, complaining of chest tightness

and shortness of breath. (Pl.’s LR 56.1 Stmt. ¶¶ 21-22; Wexford & Schaefer’s LR 56.1(a) Stmt.,

Ex. B, Pl.’s Med. Records at 00035-38.) He was given a breathing treatment, oral steroids, an

Albuterol refill, and held overnight for observation. (Wexford & Schaefer’s LR 56.1(a) Stmt.,

Ex. B, Pl.’s Med. Records at 00035-38.) There is no dispute that this was an appropriate course

of treatment. (Id., Ex. A, Schaefer Dep. at 51-52.)

On May 11, 2011, Dr. Shute examined plaintiff and noted that plaintiff’s lungs were clear

and he was relaxed. (Id., Ex. D, Shute Dep. at 28-30, 33-34.) Shortly thereafter, plaintiff was

discharged from the infirmary. 

Plaintiff alleges that defendants violated his Eighth Amendment rights by refusing to

refill his Albuterol inhaler and by limiting, for financial reasons, inmates’ access to such

inhalers. (See First Am. Compl. ¶ 4.)

Discussion

To prevail on a summary judgment motion, “the movant [must] show[] that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

 Fed. R. Civ. P. 56(a). At this stage, we do not weigh evidence or determine the truth of the

matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all

evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost

Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only

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when the record as a whole establishes that no reasonable jury could find for the non-moving

party. Id.

Failing to provide medical treatment to an inmate violates the Eighth Amendment only if

it constitutes deliberate indifference to an objectively serious medical need. Estelle v. Gamble,

429 U.S. 97, 104 (1976). “An objectively serious medical need is one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593

(7th Cir. 2001) (quotations omitted). A defendant acted with deliberate indifference if “[he] was

subjectively aware of the prisoner’s serious medical need[] and disregarded an excessive risk

that a lack of treatment posed to the prisoner’s health or safety from lack of treatment.” Id.

The parties dispute whether the record suggests that plaintiff’s asthma is a serious

medical condition. The Court need not decide that issue, however, because there is no triable

issue of fact as to deliberate indifference. Viewed favorably to plaintiff, the record does not

suggest that Schaefer even knew about, let alone deliberately ignored, plaintiff’s requests for an

Albuterol refill. With respect to Barnett, it suggests – at most – that she may have been

negligent in addressing a single refill request plaintiff made to her verbally. In short, no

reasonable trier of fact could conclude from the record that Schaefer or Barnett acted with

deliberate indifference. Thus, they are entitled to judgment as a matter of law on plaintiff’s

claims. 

The same is true for Wexford, which can only be held liable under § 1983 if one of its

policies caused the alleged constitutional violation. See Monell v. Dep’t of Social Servs. of City

of N.Y., 436 U.S. 658, 691 (1978); Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010). In his

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complaint, plaintiff alleges that Shute told him Wexford had changed its policy on distributing

Albuterol inhalers to save money. (See Pro Se Compl. ¶ 21; First Am. Compl. ¶ 4(b).) Shute

denies making the statement, and Wexford’s asthma policy says nothing about costs. (See

Wexford & Schaefer’s LR 56.1(a) Stmt., Ex. D, Shute Dep. at 45-47, 51-53; see generally id.,

Ex. G, 2011 Asthma Care Initiative (Apr. 11, 2011); id., Asthma Care Initiative: Asthma

Training Tool (Mar. 4, 2011); id., Asthma Care Initiative: Focus on Education (Mar. 4, 2011);

id., Asthma Care Initiative: Focus on Control (Mar. 29, 2011).) More importantly, and despite

what he alleged in the complaint, plaintiff testified as follows:

A. . . . [Dr. Shute] told me that Dr. Schaeffer [sic] should have responded to

my requests and that I didn’t receive the inhaler because Wexford had

changed their policy on distributing asthma inhalers. 

Q. Is that everything you recall Dr. Shute telling you?

A. Yes.

(Id., Ex. E, Pl.’s Dep. at 34.) Because there is no evidence that suggests Wexford had a policy of

denying inmates Albuterol inhalers to save money, it is entitled to judgment as a matter of law

on plaintiff’s claims.

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Conclusion

For the reasons set forth above, the Court finds that there is no genuine issue of material

fact as to plaintiff’s claims against defendants, who are entitled to judgment as a matter of law. 

Accordingly, the Court grants defendants’ motions for summary judgment [83 & 94] and

terminates this case.

SO ORDERED. ENTERED: October 7, 2013

__________________________________

HON. RONALD A. GUZMAN

United States District Judge

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