IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

LaVertis Stewart, )

)

Plaintiff, ) Case No. 12 C 50273

 ) 

 vs. )

)

Wexford Health Sources, Inc., et al., ) Judge Philip G. Reinhard

)

Defendants. )

ORDER

Defendant’s motion for summary judgment [412] is granted. Judgment is entered in

favor of defendant, Wayne Steele, and against plaintiff. Any status hearings previously set

before Magistrate Judge Jensen are stricken. This case is terminated.

STATEMENT-OPINION

Plaintiff, LaVertis Stewart, brings this action against defendants, Wayne Steele (in both

his individual capacity and his official capacity), Kenneth Blickenstaff, in his capacity as

personal representative of the Estate of Antreas Mesrobian, M.D., deceased, Arthur Funk, M.D.,

and Wexford Health Sources, Inc. (“Wexford”) pursuant to 42 U.S.C. § 1983 claiming

defendants violated his constitutional right not to be subjected to cruel and unusual punishment. 

Steele moves for summary judgment [412]. Blickenstaff, Dr. Funk, and Wexford separately

move for summary judgment [406].

1

Plaintiff is an inmate in the custody of the Illinois Department of Corrections (“IDOC”)

and has been incarcerated at IDOC’s Dixon Correctional Center (“Dixon”) since 2003. Wexford

is contracted to provide medical services at Dixon. Steele was the Assistant Warden of

Operations at Dixon from May 2016 until April 2017. Pursuant to IDOC policy, black box

restraints are used on all inmates who leave Dixon unless an inmate has a medical exemption. A

black box restraint is a set of normal handcuffs with a black box over the link between the cuffs. 

IDOC does not have any policies regarding which inmates should receive a black box exemption. 

Wexford medical providers determine whether an inmate should receive a black box exemption

and IDOC employees follow the orders of those providers. Only the prison warden has the

1

 The motion of Blickenstaff, Dr. Funk, and Wexford is disposed of by a separate order entered today.

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authority to override a medical provider’s decision to grant a black box exemption.2

Plaintiff has several medical conditions that require ongoing care, including hepatitis C, cirrhosis

of the liver, carpal tunnel, tennis elbow, arthritis, shoulder bursitis, shoulder impingement,

shoulder capsulitis/arthritis, arthritis bone spurs, and tendinitis. According to plaintiff, wearing

the black box causes him pain both while wearing the black box and in the days after. Plaintiff

has repeatedly asked for black box exemptions and repeatedly notified Wexford and IDOC staff

about the issues he experiences with the black box. Plaintiff sometimes was denied a black box

exemption by Wexford providers and sometimes was granted an exemption by them. While Dr.

Mesrobian was Dixon’s medical director, he never granted plaintiff a black box exemption. Dr.

Carter granted him a black box exemption in April 2010 and renewed the exemption for another

six months on October 11, 2010. Plaintiff received another black box exemption on April 25,

2011 for another six months. This black box exemption expired and plaintiff was placed in the

black box restraints when out on a medical writ on May 29, 2012. Plaintiff was again given a

black box exemption on February 12, 2013. This exemption was for a year. He received another

year-long black box exemption on January 9, 2014 and a four month black box exemption on

December 24, 2014. After May 29, 2012, plaintiff does not recall wearing the black box restraint

until November 4, 2016. He recalls being placed in the black box on four occasions after

November 4, 2016, including on December 6, 2016 and December 23, 2016. Plaintiff received a

black box exemption again in March 2017 this time from Dr. Chamberlain. 

 

Plaintiff claims Steele, in both his individual capacity and in his official capacity, was

deliberately indifferent to plaintiff’s serious medical needs. Looking to his individual capacity

clam, plaintiff claims Steele failed to take action to get plaintiff a black box exemption despite

Steele’s knowledge that wearing the black box restraints created a substantial risk of serious

harm to plaintiff. He claims Steele even directed Wexford medical providers not to give inmates

black box exemptions unless they had a broken wrist or arm. 

2

 In paragraph 16 of his statement of facts, Steele states “[t]here are no IDOC employees that can override

a clinical decision of a provider in deciding whether an inmate should receive a black box permit.” (Dkt # 413, ¶ 16)

This statement is taken from the deposition testimony of IDOC employee Amber Allen. (Dkt # 413-7, p. 7 [Ex. G. p.

23:5-11]). Plaintiff disputes this statement of fact (Dkt # 420-1, p. 5, response to Dkt # 413, ¶ 16) He cites to the

deposition testimony of Steele and Dr. Funk to support his dispute. Steele testified that the warden could overturn a

black box exemption but that he had “never seen a warden overturn a doctor.” (Dkt # 407-5, p. 13 [Ex. E, p.50:1-4]). 

When asked whether he was aware of anyone else who could override a decision to provide a “no-black-box permit”

he responded “[a]gain, I don’t think there’s anything in there to override a medical person.” When asked if he was

aware of any times where such a permit was overridden, he responded “[n]o, not in my entire career.” (Id.) Dr. Funk

testified “security also said they had the discretion to vary the cuffing based on their assumption of need.”(Dkt #

407-7, p. 22 [Ex. G p. 84:2-12]). Plaintiff also states in his dispute of ¶ 16 that “[s]everal correctional officers

testified IDOC employees can remove a black box from an inmate in certain circumstances.” But, this does not go to

overriding a black box exemption given by a doctor but to removing the restraints at a particular time (i.e. having an

MRI) when a black box exemption has not been given. Neither Dr. Funk’s testimony nor that of the correctional

officers suggests any IDOC employee can override a medical provider’s grant of a black box exemption. Taking the

evidence most favorably to the plaintiff, Steele’s testimony that the prison warden could overturn a doctor’s black

box exemption, will be taken as true rather than ¶ 16 of Steele’s statement of fact which stated no IDOC employee

could overturn a black box exemption.

 

2
“As the ‘put up or shut up’ moment in a lawsuit, summary judgment requires a

non-moving party to respond to the moving party's properly-supported motion by identifying

specific, admissible evidence showing that there is a genuine dispute of material fact for trial.

Such a dispute exists when there is sufficient evidence favoring the non-moving party to permit a

trier of fact to make a finding in the non-moving party's favor as to any issue for which it bears

the burden of proof.” Grant v. Trustees of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017)

(citations and quotation marks omitted).

Plaintiff does not present any admissible evidence that Steele directed Wexford medical

providers to grant black box exemptions only to inmates with broken arms or wrists. The only

evidence plaintiff argues on this point is his own testimony that Dr. Chamberlain told him Steele

had issued this directive.3 This statement of Dr. Chamberlain’s is inadmissible hearsay.

As relevant here, Fed. R. Evid. 801(a) defines “statement” to mean “a person’s oral

assertion.” Rule 801(b) defines “declarant” to mean “the person who makes the statement.” Dr.

Chamberlain is the declarant and his statement is that Steele had instituted a policy that

prevented inmates from receiving exemptions unless they had a broken wrist or a broken arm. 

Plaintiff is offering this statement in evidence to prove the truth of the matter asserted in the

statement – i.e. that Steele had instituted a policy that Wexford medical providers should grant

black box exemptions only to inmates with broken arms or wrists. This falls within the

definition of hearsay. Fed. R. Evid. 801(c). 

Plaintiff argues, however, that this statement is not inadmissible hearsay because,

pursuant to Fed. R. Evid. 801(d)(2)(D), it is instead, a non-hearsay admission by Wexford. Rule

801(d)(2)(D) provides that a statement made by an opposing “party’s agent or employee on a

matter within the scope of that relationship and while it existed” is not hearsay when it is offered

against the opposing party. Since Dr. Chamberlain was an employee of Wexford when he made

the statement and the statement was made within the scope of his employment relationship with

Wexford, plaintiff contends the statement is admissible non-hearsay under Rule 801(d)(2)(D).

The problem with this argument is that the statement is being offered against Steele not

against Wexford. Dr. Chamberlain was not Steele’s employee and Rule 801(d)(2)(D) applies

only where the statement is made by an employee of the party against whom the statement is

3

 Plaintiff also stated in a declaration he filed [420-2] that Wexford employee Nurse Tuell told him Steele

had issued this directive. While plaintiff does not discuss Nurse Tuell’s statement in his brief, her statement is

hearsay for the same reasons as Dr. Chamberlain’s statement. The court notes that Steele asserts the court should

disregard facts asserted in plaintiff’s declaration as they are “inadmissible as self-serving statements without factual

support.” Steele cites Palmer v. Marion County, 327 F.3d 588 (7th

 Cir. 2003) for this proposition. But, as the Court

of Appeals clarified in Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013), statements in affidavits, deposition

testimony, and “other written statements by their nature are self-serving” and are admissible when based on personal

knowledge. The statements in plaintiff’s declaration are not inadmissible because they are self-serving though some

of them, like the one concerning Nurse Tuell’s statement about Steele issuing a directive, may be inadmissible for

other reasons. 

3
being offered. Dr. Chamberlain’s statement to plaintiff that Steele instituted a policy that

inmates could not receive black box exemptions unless they had broken wrists or arms is not an

admissible statement by an employee of the party against whom it is offered. It is hearsay and

inadmissible. Fed. R. Civ. P. 802.

Plaintiff also argues the statement is not hearsay pursuant Rule 801(d)(2)(A) because

“Steele’s statement to Dr. Chamberlain falls squarely into the definition of a non-hearsay

admission because Steele himself is a defendant.” Fed. R. Evid. 805 provides: “Hearsay within

hearsay is not excluded by the rule against hearsay if each part of the combined statements

conforms with an exception to the rule.” As just discussed, Dr. Chamberlain’s statement to

plaintiff is hearsay. Thus, even if Steele’s purported statement to Dr. Chamberlain is not hearsay,

Dr. Chamberlain’s statement to plaintiff about it is hearsay. Since one part of the combined

statements (Dr. Chamberlain’s) is hearsay, neither part of the combined statements is admissible.

See Jordan v. Binns, 712 F.3d 1123, 1131 (7th Cir. 2013) (holding inadmissible the statement of a

state trooper about what the defendant told the trooper the plaintiff had said to the defendant (that

the accident was plaintiff’s fault not defendant’s) because while the plaintiff’s statement was a

non-hearsay admission by the party against whom it was being offered, the defendant’s statement

to the trooper was hearsay). 

Plaintiff also contends Steele was deliberately indifferent to plaintiff’s serious medical

needs because Steele was actually aware Wexford refused to give plaintiff a black box exemption

and of the pain plaintiff was experiencing as a result. Plaintiff argues Steele acknowledges

having at least two conversations with plaintiff about these issues. Plaintiff also states he sent

Steele four letters explaining that Wexford’s refusal to give him a black box exemption was

causing him “enormous pain, injury, and suffering” and that Steele admits he was aware of a

grievance plaintiff filed regarding this issue. Plaintiff argues Steele cites “no evidence that he did

anything to investigate or correct Dixon’s staff’s repeated refusal to provided [plaintiff] a Black

Box exemption. Even after promising [plaintiff] he would look into the issue, Steele has no

evidence he took any action at all.”

 Plaintiff was not placed in the black box restraints for the approximately four and one

half year period beginning May 29, 2012 and ending November 4, 2016. At some point prior to

November 4, 2016, when plaintiff learned his black box exemption had expired he went to see

Dr. Chamberlain to get it renewed. Dr. Chamberlain did not renew it at that time. Thereafter,

plaintiff was placed in the black box restraints on November 4, 2016, December 6, 2016,

December 23, 2016 and on at least two other occasions after November 4, 2016. 

As noted above, Steele began working at Dixon in May 2016 and left Dixon in April

2017. While plaintiff argues Steele acknowledges having “at least two conversations with

[plaintiff] about these issues” (Dkt. # 419, p.7), plaintiff’s citations to the record in support of

this argument (Dkt. # 413, ¶¶ 36-37) in turn cite to plaintiff’s testimony in his continued

deposition (Dkt # 413-4, pp.3-4). In that testimony plaintiff testified that he had “[t]wo, at the

most, probably” conversations with Steele and that “in one, I had to ask him about the situation

4
of me not getting the black box.” Plaintiff did not recall when this conversation took place but

he testified it was the only conversation he had with Steele about the black box and that it lasted

for “[j]ust a few seconds.” (Dkt. # 413-4, p. 4). In that conversation, Steele responded to

plaintiff’s question about a black box exemption by saying he would look into it.

Plaintiff also testified he sent Steele four letters concerning a black box exemption. He

testified the content of the letters was “[i]nforming him that I had injuries to my shoulder and

both my wrists, and that I went to U of I regularly to see specialists; and being in the black box

caused me excruciating pain, and that I had had exemptions before, and that Dr. Chamberlain had

told me that according to orders issued by him, by Warden Steele, that he wasn’t supposed to

give out any more black box exemptions unless a person had a broken wrist or arm.” (Dkt # 413-

4, p. 4) Steele did not respond to any of these letters. Plaintiff also filed a grievance dated

January 3, 2017. Steele testified in his deposition he was aware of this grievance because it was

directed at him. The grievance detailed plaintiff’s shoulder, forearm, and wrist injuries and the

pain wearing the black box restraints caused him. (Dkt # 420-3, pp. 2-3) Evidence supplied by

plaintiff, shows this grievance proceeded through the IDOC grievance process with the grievance

officer noting that “all treatment including medical orders must be ordered by the Medical

Practitioner and not a matter of inmate preference. This Grievance Officer has no authority to

evaluate clinical decisions made by a licensed physician.” (Dkt # 420-3, p.4) The grievance

officer recommended denying the grievance and the warden concurred. (Id.) The denial was

appealed and the Administrative Review Board denied the appeal noting “only a doctor can order

this exemption.” (Dkt # 420-3, p. 5) The director of IDOC concurred in this decision. 

Steele never spoke with Dr. Chamberlain about plaintiff’s medical care or Dr.

Chamberlain’s refusal to give plaintiff a black box exemption.

Plaintiff’s argument essentially is that from Steele’s brief conversation with plaintiff

about the black box, the four letters plaintiff sent him (the letters are not in the record and there is

no evidence in the record that Steele ever saw them), and plaintiff’s January 3, 2017 grievance,

that Steele should have ordered Dr. Chamberlain to give plaintiff a black box exemption and that

his failure to do so was deliberately indifferent to plaintiff’s serious medical needs. 

“Courts interpret the Eighth Amendment, as incorporated through the Fourteenth

Amendment, to impose a duty on states to provide adequate medical care to incarcerated

individuals. Officials violate this duty if they display deliberate indifference to serious medical

needs of prisoners.” McGee v. Adams, 721 F.3d 474, 480 (7th

 Cir. 2013) (quotation marks and

citations omitted.) To survive a motion for summary judgment, plaintiff “must satisfy two

elements, one objective and one subjective.” Id. “To satisfy the objective element, [plaintiff]

must present evidence supporting the conclusion that he had an objectively serious medical need.

A medical need is considered sufficiently serious if the inmate's condition has been diagnosed by

a physician as mandating treatment or is so obvious that even a lay person would perceive the

need for a doctor's attention. As for the subjective element, [plaintiff] must show that the

defendants were aware of his serious medical need and were deliberately indifferent to it.

5
Deliberate indifference is more than negligence and approaches intentional wrongdoing. To

establish deliberate indifference, [plaintiff] must meet essentially a criminal recklessness

standard, that is, ignoring a known risk. Even gross negligence is insufficient to impose

constitutional liability.” Id., at 480-81 (quotation marks and citations omitted).

“[I]f a prisoner is under the care of medical experts, a non-medical prison official will

generally be justified in believing that the prisoner is in capable hands.” Arnett v. Webster, 658

F.3d 742, 755 (7th Cir. 2011). Non-medical defendants can rely on the expertise of medical

personnel. Id. “An administrator does not become responsible for a doctor’s exercise of medical

judgment simply by virtue of reviewing an inmate grievance.” Adams v. Durai, 153 F. Appx.

972, 975 (7th

 Cir. 2005).

The evidence submitted shows that Wexford medical staff was responsible for

determining black box exemptions based on the exercise of their professional medical judgment

and IDOC employees abided by the Wexford provider’s decisions on granting black box

exemptions. As discussed in the order entered today granting summary judgment to Wexford,

Dr. Funk, and Dr. Mesrobian’s personal representative, plaintiff did not present any evidence that

leaving this decision to the professional medical judgment of the Wexford medical staff was

unconstitutional. The court noted in that order that “there is no evidence any member of

Wexford’s medical staff who treated plaintiff was unaware of plaintiff’s medical conditions nor

of his claim that wearing the black box restraints caused him severe pain. The evidence

presented in this case shows the medical staff members plaintiff asked for a black box exemption

evaluated plaintiff’s request in light of his medical conditions and exercised their professional

judgment in either granting or denying the request. Plaintiff may be dissatisfied with some of the

decisions made by Wexford’s staff members but he has not offered any evidence that a policy

allowing the exercise of professional medical judgment in determining whether to grant black

box exemptions is, itself, a violation of plaintiff’s Eight Amendment rights.”

Dr. Chamberlain exercised his professional judgment. Initially he judged plaintiff’s

medical conditions did not warrant a black box exemption. Later, he determined a black box

exemption should be issued to plaintiff. Plaintiff has not presented any evidence from which it

could be concluded that Steele was deliberately indifferent to plaintiff’s serious medical needs by

not directing Dr. Chamberlain to grant the black box exemption sooner. There is no evidence

Steele had the authority to direct Wexford staff to issue black box exemptions. In fact, the

evidence shows only members of the medical staff could make this determination. The only

evidence Steele even knew of plaintiff’s complaints about not receiving a black box exemption is

plaintiff’s one brief conversation with Steele and the January 3, 2017 grievance. 

The evidence does not show Steele was personally involved in any constitutional

deprivation of plaintiff’s rights or that he turned a blind eye to any constitutional deprivation, or

that any constitutional deprivation occurred at all. Steele is entitled to summary judgment on the

individual capacity claim against him. 

6
Plaintiff’s official capacity claim against Steele (as plaintiff acknowledges) is actually a

claim against IDOC. Neither a state nor its officials acting in their official capacity are “persons”

under 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Therefore,

an official capacity claim against an IDOC official does not present a cognizable claim against

IDOC. Heard v. Tilden, 809 F.3d 974, 981 (7th Cir. 2016). So, damages are not recoverable on

the official capacity claim against Steele under Section 1983.

Plaintiff also asks for an injunction in his official capacity claim against Steele requiring

IDOC to give him a permanent black box exemption.4

 His claim is that IDOC had inadequate

policies about black box exemptions, had an unconstitutional custom or practice regarding black

box exemptions, and through the actions of Steele, an IDOC decisionmaker with respect to black

box exemptions, imposed an unconstitutional policy by directing Wexford medical staff to only

grant black box exemptions to inmates with broken wrists or arms.

To prevail, plaintiff must show IDOC had an unconstitutional policy. J.K.J. v. Polk

County, 928 F.3d 576, 587 (7th Cir. 2019). “This can be done by showing either: (a) an express

policy that, when enforced, causes a constitutional deprivation; (b) a widespread practice that,

although not authorized by written law or express policy, is so permanent and well settled as to

constitute a custom or usage with the force of law; or (c) that the constitutional injury was caused

by a person with final decision policymaking authority.” Id., at 587-88. 

As discussed above there is no admissible evidence that Steele directed Wexford medical

staff to only grant black box exemptions to inmates with broken wrists or arms. 

As discussed in the order entered today on Wexford’s motion for summary judgment,

there is no evidence that the policy IDOC and Wexford employed of leaving the decision on

black box exemptions to Wexford’s medical providers was deliberately indifferent to inmates

serious medical needs. The evidence presented in this case shows the medical staff members

plaintiff asked for a black box exemption evaluated plaintiff’s request in light of his medical

conditions and exercised their professional judgment in either granting or denying the request. 

Plaintiff has not offered any evidence that a policy allowing the exercise of professional medical

judgment in determining whether to grant black box exemptions is, itself, a violation of

plaintiff’s Eight Amendment rights.

There is also no evidence IDOC had an unconstitutional custom or practice regarding

black box exemptions. The evidence shows that the times he was denied an exemption were the

result of the exercise of professional medical judgment. He has no evidence, beyond his own

experience of sometimes being denied an exemption, to support his claim of a custom or practice

to deny black box exemptions. His own experience, in which the exercise of professional

4

 Steele is no longer employed at Dixon or by IDOC. Since Dixon’s warden would be responsible for

ensuring that any injunctive relief was carried out, it is the warden that should have been named in the official

capacity action. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). 

7
medical judgment resulted in him often obtaining black box exemptions and sometimes being

denied the exemptions, is not evidence of a custom or practice to deny such exemptions. 

Plaintiff presents no other evidence of a custom or practice of denying black box exemptions for

reasons other than the professional medical determination that an exemption was not warranted

under the circumstances.

For the foregoing reasons, defendant’s motion for summary judgment [412] is granted. 

Judgment is entered in favor of defendant, Wayne Steele, and against plaintiff. Any status

hearings previously set before Magistrate Judge Jensen are stricken. This case is terminated.

Date: 9/10/2019 ENTER:

_______________________________________

United States District Court Judge

Electronic Notices. (LC)

 

 

8