6831, 1998 WL 699656, *5 (N.D. TI]. September 30, 1998) (Williams, J.), iter alia. Ifa party is
allowed lo create a genuine issuc of material fact by changing his prior testimony, “the very
purpose of the summary judgment motion--to weed out unfounded claims, specious denials, and
sham defenses--would be severcly undercut.” Babrocky, 773 F.2d at 861. Contradictory
testimony will not defeat summary judgment.

In his deposition, the plaintiff admitted that he did receive pain medication and that Dr.
Ting would prescribe a different pain medication every time the plaintiff complained that the
current drug was not alleviating his pain. See Plaintiff's deposition, p, 48, That fact is
substantiated by the plaintiff's voluminous medical records, which reflect orders for various pain
medications. The defendants’ failure to assuage the pain altogether does not rise to the level of
deliberate indifference, Where, as here, a physician provides constitutionally acceptable care, his
or her inability to effect a final cure is not proof of deliberate indifference. Snipes v. DeTella, 95
F.3d 586, 591 (7" Cir. 1996), cert. denied, 519 U.S. 1126 (1997). The defendants were not
deliberately indifferent to any pain the plaintiff endured as a result of having a breathing tube.

The record does not conclusively establish whether the plaintiff generally had access to a
properly functioning suction machine while he was incarcerated at the jail, Again, some of the
confusion is caused by the plaintiff's own, varying representations: he has alternately claimed
that the suctioning machine had.a weak vacuum pull, that it did not work at all, and that it was
non-existent, Bul in any event, the court may grant summary judgment if facts are in dispute, so
long as those facts are not outcome determinative. Matter of Wildman, 859 F.2d 553, 556 (Chi
Cir. 1988); Nash v. DeTella, No. 00 C 2784, 2001 WL 1160840, *2 n. 5 (N.D. Ill. Oct. 2, 2001)

(Zagel, J.) In this case, irrespective of whether the plaintiff had the use of a properly working

19



On May 8, 2002, the plaintiff was evaluated for a transfer to 3 North (a hospital unit).

(Medical Records, p. 39.) The doctor noted:

Patient states doing well, not having problems € tracheostomy tube; getting
tracheostomy care when needed; states he’s very comfortable and happy é
TRACHEOSTOMY care in RU Medical Area. States his tube has been changed
and he’s [illegible]. Denies shortness of breath, clogging of tube or problems
breathing, also dcnics GERD symptoms. Pt has been seen by ENT doctors = 7x at
Cermak being the last visit on 5/3/02. Also seen by ENT doctors at Cook County
hospital about 4 or 5 times; and seen in sick call visits several times without any
complaints of life threatening situations. P1 stable without any acute complaints
and refuses to be transferred to 3 North hospital arca. Refusal form signed by
patient after patient was clearly explaincd about refusal implications. Pt also is a
worker and has been working for over 4 months in RU Medical Arca in the
Clothing Department. Continuc with tracheostomy care, Follow-up with ENT as
advised. RTC as advised by Dr. Ting. (/d.)

At a second visit to the health care unit that day, the doctor noted on the plaintiff's
medical progress chart:

No complaints; said he focls fine. ... He said he is happy with the tracheotomy
care he is [illegible]. He said he is getting suction, [illegible], clean of
trachcotomy hole daily. He said the nurse always gives him the cleaning kit and
suclion. When ever he wants. He said he has no problem with his tracheotomy
care [illegible]. @ shortness of breath @ fever © obstruction. He feel (sic) fine.
Alert [illegible], neck supple, [illegible] tracheotomy tube. [legible] clean. No
obstructions. ... (/d., p. 40.)

The plaintiff signed a form confirming that he had refused placement on 3N/3W hospital
wing for routine tracheotomy care.’ (Id.,p. 41.) Five days later, the plaintiff was transferred to
another unit, (Defendants’ Exhibit C, Housing [istory, p. 2.) The plaintiff left the jail on May

20, 2002, a week later. (Plaintiff's Deposition, p. 8.)

“The medical progress notes reporting that the plaintiff was completely satisfied with his
tracheostomy care just weeks after he filed suit may be taken with a grain of salt. Hlowever, the
plaintiff cannot deny that he declined placement in the hospital wing since the signed refusal form
is in the record.

13



Peters, 100 F.3d 1235, 1240 (7" Cir. 1996) (emphasis in original), quoting Beyerbach v. Sears,
49 F.3d 1324, 1326 (8" Cir. 1995).

In sum, the medical care provided by the defendants was not so erroneous or so woefully
inadequate as to amount to an essential denial of medical care. Reed v. McBride, 178 F.3d 849,
854 (7" Cir. 1999), Although the plaintiff alleges that he suffered dire problems stemming from
his tracheotomy tube, his medical records do not reflect that he communicated most of the worst
of his alleged concems to the medical staff. As to those problems that he did voice, the medical
staff found no objective signs of problems or infections to substantiate the plaintiff's concerns.
The plaintiff has provided no medical records and no witnesses to support his claims.
Conclusion

Even drawing every reasonable inference in favor of the plaintiff, the court finds that the
defendants have established that they arc entitled to judgment as a matler of law. The record
shows that the plaintiff had no serious medical need, apart from routine maintenance of his
trachcotomy tube, and that, in any case, the defendants did not act with deliberate indifference.
The plaintiff has failed to cite any independent evidence in support of his claims that he had
serious health complications, that he did not reccive routine stoma care, or that he was otherwise
denied needed medical attention. The vast weight of the evidence supports the defendants’
position; the court finds that no reasonable person could conclude that the defendants acted with
deliberate indifference to the plaintiff's serious medical nceds. Consequently, the defendants’
motion for summary judgment must be granted.

For the foregoing reasons, the case is terminated. If the plaintiff wishes to appeal this

final judgment, he must file a notice of appeal with this court within thirty days of the entry of

23



the jail. (/d.) The defendant Carlos Altez is a physician’s assistant at thc jail. (Defendants’
Answer, { 10.)

In September 1999, the plaintiff had a tracheotomy or tracheostomy because of breathing
problems and because one of his vocal cords was not working properly. (Plaintiff’s Deposition,
pp. 10, 13.) The surgery left the plaintiff with a stoma’ in his neck. (/d., p. 10.) A device
consisting of a permanent trachcotomy tube attached by “fangs” was placed in the plaintiff's neck
during ihe surgery. (/d., pp. 10-12.) To keep the tracheotomy tube clean and free of fluid and
other obstructions, the plainti{f regularly used a suctioning device as well as a “trach kit” (brush,
wires, pipe cleaners, colton swabs, and gauze). (/d., pp. 14-15.)

On July 28, 2001, almost two years after the tracheotomy tube was implanted, the plaintiff
was arrested for residential burglary and held at the Cook County Jail pending trial. (Amended
Complaint, p. 6; Plaintiff's Deposition, p. 8.) The plaintiff was incarcerated at the jail from July
28, 2001, to May 20, 2002. (/d.)

Upon the plaintiff's arrival at the jail, a physician performed an initial medical scrcening
in the receiving unit. (/d., pp. 8-9, Defendants’ Exhibit B, Medical Records, pp. 1-4, “Medical
Intake Record and assessment forms.) Following the medical screening, the plaintiff was placed
in Division 10, the segregation unit, overnight. (Plaintiff's Deposition, p. 16.)

The next day, the plaintiff was seen at Cermak Health Services Emergency room by Dr.
Enoch Anaglate (not a defendant). (Plaintiffs Deposition, p. 18; Medical Records, pp. 5-7.)

Anaglate noted that the plaintiff had a trachcotomy tube and complained of shortness of breath.

‘A stoma is an artificial permanent opening made in surgical procedures, according to
Merriam-Webster's Collegiate Dictionary (10" ed.), at p. 1158.

4



suction pump, there is no genuine dispute that he had regular use of the cleaning tools of a
tracheotomy kit, and that doctors never noted any obstructions or infection whenever they
examined his breathing tube. The plaintiff's claim that the tube often became clogged is entirely
unsubstantiated by his medical records.

The medical staff addressed the plaintiff's concerns whenever he submitted a medical
request slip complaining of a medical problem, Moreover, each of the defendants, as well as the
ENT specialists at Cermak and at the Cook County Hospital, administered the same basic
{treatment plan. The fact that all of the plaintiff's treating physicians largely agreed on the care of
his trachcotomy tube bolsters the conclusion that the defendants were not deliberately indifferent.
See Steele y. Choi, 82 F.3d 175, 178-79 (7® Cir.), cert. denied, 519 U.S. 897 (1996); see also
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 262 (7" Cir. 1996), cert. denied, $19 U.S. 1109
(1997) (“liability may be imposed only when the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or standards as to demonstrate that the
person responsible did not base the decision on such a judgment”),

In Steele, a prison physician diagnosed an inmate as suffering from a drug overdose and
treated him accordingly. Doctors at an outside hospital reached the same conclusion; only after
the inmate’s condition deteriorated did health care professionals realize that the inmate was
expenencing a brain hemorrhage. The Court of Appeals affirmed the entry of summary judgment
in favor of the prison doctor, finding that “[i]f two sets of outside doctors could draw the same
(erroneous) conclusion [about the nature and scriousness of the plaintiff’s condition], it is
difficult at best to claim that another diagnosis was ‘obvious.’” Steele, 82 F.3d al 178. Here, as

in Steele, other physicians made the same assessment, that the plaintiff was doing well;

20



Any brief delays in receiving medical attention are not actionable under 42 U.S.C. § 1983
under the facts of this case. Where a plaintiff alleges a constitutional violation based on a delay
of medical treatment, “the relevant question is whether the delay in access to treatment was so
unreasonable under the circumstances as to suggest deliberate indifference.” Brown v. Briick, 92
C 2094, 1995 WL 263488, *7 (N.D. Il. May 3, 1995) (Nordberg, J.) The plaintiff complains that
he spent one night in the segregation unit before being transferred to the medical unit, but as
discussed above, the plaintiffhad no serious condition that warranted hospitalization; his treating
physicians placed him in the residential treatment unit only because his tracheotomy tube
required regular, ongoing maintenance. In fact, the plaintiff eventually chose not to reside in the
treatment unit and was moved to the general population, contrary to the defendants’
recommendation.

Furthermore, the replacement of the plaintiff's tracheotomy tube was apparently entircly
elective; it is undisputed that the plaintif himsclf declined to have the stoma replaced for some
time before he eventually decided he wanted a removable tube. See Defendants’ Exhibit B,
Medical Records, p. 11. Because replacement of the plaintiff's tracheotomy tube was not critical,
he is not entitled to damages for having to wait for the procedure. Where, as here, the plaintiff's
medical complaints were of a non-emergency nature, the short delays in providing treatment did
not amount to deliberate indifference. See, e.g., Gulierrez v. Peters, 111 F.3d at 1374; Lucien v.
Godinez, 814 F. Supp. 754, 755 (N.D. I. 1993). A plaintiff who complains that a “delay in
medical treatment rose to a constitutional violation must place verifying medical evidence in the

record to establish the detrimental effect of delay in medical treatment to succecd.” Langston v.

22


any objective symptoms. Every single medical cntry—by the named defendants, by non-defendant
jail physicians, and by ENT specialists at both Cermak and the Cook County Hospital-states that
the plaintiffs trachcotomy tube was clear and free of obstruction, that the plaintiff evidenced no
difficulty breathing, and that there were no lesions or signs of infection.

The notes of both the gencral practitioners and specialists directed that the plaintiff
continue with the “routine” maintenance plan and invariably dirccted that he return anywhere
from four to cight weeks later for follow-up appointments; plainly, no one thought his health
situation necessitated close supervision. The plaintiff's medical records make no mention of his
ever communicating to the health care staff that he was fainting, unable to eat or drink, or relying
on fellow inmates to squeeze the air out of him. The plaintiff's charts reflect no concerns
whatsoever about major problems or complications.

The plaintiff did twice complain of bleeding, but occasional, minimal bleeding appears to
be completely run-of-the-mill, just as with dental flossing. The first time, the sight of blood only
madc the plaintiff worry, he was not experiencing pain or other problems, See Defendants’
Exhibit B, Medical Records, p. 12.) The second time, the defendant Altez examined the plaintiff
but found no signs of infection. (/d., p. 27.) The plaintiff has provided no medical evidence that
he had any “serious” health problems associated with his tracheotomy tube.

No Deliberate Indifference

Even assuming (without finding) that the plaintiff did have any trachcotomy-rclated
problems serious enough to implicate constitutional concerns, the record does not support a
finding that the defendants acted with deliberate indifference to Ins condition. The plaintiffs

medical records reflect a comprehensive maintenance plan, which included his placement in the

17



lungs were clear. (/d.) Mansour renewed the nasal spray prescription, recommended that the
plaintiff continue with routine tracheotomy carc, and scheduled a return appointment on January
29, 2002. (Ud., pp. 22, 57.)

On January 4, 2002, the plaintiff saw an ENT specialist again. (Jd., p. 25.) At that
appointment, the plaintiff requested an appointment at the Cook County Hospital for routine
cleaning. (/d.) The doctor indicated that he would refer the plaintiff to the hospital and
scheduled a return appointment in eight weeks. (/d.)

On January 27, 2002, the plaintiff filled out a health service request form insisting that he
needed to go (o the hospital. (/d., p. 23.) The plaintiff complained that he could not breathe, that
his trachcotomy tube hurt when he cleaned it, and that the tube was blocked. (/d.) An
appointment was scheduled for two days later. (/d.)

Dr. Mansour examined the plaintiff again on January 29, 2002. (d., p. 24.) Mansour
noted the plaintiff’s subjective complaints, but his objective observations were that the plainuff's
throat was clear and without lesions, that he demonstrated no shortness of breath, that he said he
was not having problems breathing or talking, that the tube was in place, that there was no
drainage, that the tube looked clear of mucus, and that there was “very good air exchange.” (/d.)
Mansour scheduled a follow-up appointment the following week and gave the plaintiff another
prescription for Ocean Nasal Spray. (/d.)

Ata doctor’s visit on February 4, 2002, Mansour noted that the plaintiff had “o
complaints @ present” and that he was scheduled at Cook County Hospital’s Fantus Clinic four
days later for a possible tube change. (/d., p. 26.) Mansour ordered another prescription or nasal

spray. (/d,)


Plaintiff's Exhibit D, Affidavit of Ronald Myers, 2.)? The nursing staff generally watched the
plaintiff clean his tracheotomy to make sure that he did it correctly. (Plaintiff's Deposition, pp.
20, 23, 26.)

On August 9, 2001, the plaintiff filled out a Detainee Health Scrvice Request form stating
that he needed to see a doctor becausc his tracheotomy tube did not “feel right.” (Defendants’
Exhibit B, p. 9.) The plaintiff was referred to “sick call” the same day. (/d.)

The plaintiff saw Dr. Ting for the first time on August 14, 2001. (Defendants’ Exhibit B,
Medical Records, p. 10.) At that visit, the plaintiff complained of a weak suction machine. (Id.,
p. 11.) The plaintiff told Ting that he did not wish to change from his implanted tracheotomy
tube to a removable one that was altached as a “cuff with ties” because he feared risk of injury
from other inmates. (/d.) Ting prescribed the plaintiff Amoxicillin (an antibiotic), Tylenol and
Motrin. (/d., p. 53.) Ting also referred the plaintiff to an ENT (ear, nose and throat) specialist.
(Id, p. 10.)

The plaintiff saw an ENT specialist ten days later, on August 24, 2001. (Plaintiffs

Deposition, p. 27.) At the time of his first visit to the ENT specialist, the plaintiff was not

?For purposcs of summary judgment, the court will accept as true the factual
representations the plaintiff makes in his sworn affidavit (unless in conflict with his deposition
teslimony). However, the plaintiff cannot now retract the statements he made during his
deposition. A party may not create issues of credibility by contradicting his own carlicr, sworn
testimony. See, e.g., Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162,
1168-69 (7" Cir. 1996), relying on Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7" Cir.
1985), inter alia.

Furthermore, the court has disregarded the plaintiffs references to medical records he
altered. Indeed, although the plaintiff has explained in response to the defendants’ motion to
strike that he did not intend to mislead the court, his submission of tampered medical records
could casily be construed as “fraud” upon the court, which must “lead to immediate termination
of the suit.” Sleun v. Lesza, 181 F.3d 857, 859 7" Cir. 1999),

6



(Mcdical Records, p. 6.) Anaglate prescribed three medications: Compazine [a medication used
to control nausea and vomiting, according to the Physician's Desk Reference, 57" cd. (2003), at
p. 1489], Imodium [a medication aimed at diarrhea and gastro-intestinal problems], and Raitin
{which docs not appear in the PDR}, along with daily stoma care. (/d., pp. 7-8, 53.) Although the
doctor’s notes are only semi-Icgible, the court can discerm that he wrote, “@ SOB” (no shortness
of breath). (Jd., p. 5.)

After seeing the doctor, the plaintiff was transferred from Division 10 to the Residential
Treatment Unit, or “Medical Dormitory.” (Plaintiff's Deposition, pp. 18-19; Medical Records,
pp. 6, 7.) On the plaintiffs medical dormitory admission form, Anaglate listed the plaintifi’s
medications and noted that he needed dressing changes for his tracheotomy tube. (Medical
Records, p. 7.) The plaintiff remained in the medical dormitory until May 13, 2002, a week
before he left the jail. (Plaintiff's Deposition, p. 18.)

When the plaintilf arrived at the jail, his throat was unclogged and he initially experienced
“no problems” with the tracheotomy tube. (Plaintiff's Deposition, p. 21; Medical Records, p. 7.)

Although the plaintiff claims that the jail did not have a functioning mechanical suction
pump (Plaintiff's Deposition, pp. 23-25), the health care staff did provide him with trachcotomy
care kits like the ones he would obtain trom the hospital prior to his incarceration. (Id., pp. 24-
26.) The plaintiff's medical records reflect that he received tracheotomy care daily, or nearly
daily, (Defendants’ Exhibit B, Treatment Dressing Records, pp. 41-47.) However, the plaintiff

maintains that on certain occasions, he went up to ten days without a kit. (d., pp. 22, 24;



hospital residential unit for closer observation than the plaintiff would have reccived had he been
housed in general population, daily [or nearly] daily cleanings supervised by the nursing stalT,
numcrous visits to the staff physicians, and frequent cxaminations by on-site and off-site ENT
specialists. The plaintiff was provided with kits for tracheotomy care, and multiple medications
were prescribed for antibiotic treatment and for pain. The doctors’ notes uniformly reflect that
care was “routine,” and that the plaintiff was doing reasonably well for someone with a breathing
tube inserted in his neck.

It is not surprising that the plaintiff sometimes experienced pain, particularly after surgery
to replace the tracheotomy tube. Certainly, prolonged and severe pain can amount to a serious
medical need, Walker v. Benjamin, 293 F.3d 1030, 1039-40 (7" Cir. 2002), and the subjective
element of deliberate indifference encompasses conduct such as the refusal to treat a prisoncr’s
chronic pain. Jones v. Simek, 193 F.3d 485 (7" Cir. 1999). However, not every “ache and pain or
medically recognized condition involving some discomfort can support an Eighth Amendment
claim.” Gutierrez v. Peters, 111 F.3d 1364, 1370-72 (7" Cir. 1997). In this case, the record
establishes that the defendants made reasonable efforts to minimize any pain the plaintiff was
expericncing,

The plaintiff has made inconsistent statements concerning the treatment of his pain.
During the course of this case, the plaintiff has alternately stated that he received only over-the-
counter Tylenol, that he never received prescribed pain medication, and that the pain medication
he received was entircly ineffective. But as noted in footnote 2, a party may not create issues of
credibility or fact by contradicting his own swom testimony. See also Ilhardt v. Sara Lee Corp.,

118 F.3d 1151, 1152 n. 1 (7" Cir. 1997); Eckert v. Kemper Financial Services, Inc., No. 95 C

18



On October 21, 2001, the plaintiff filled out a health service request form complaining
that he had not yet sccn the ENT. (/d., p. 19.) An appointment was scheduled for November 10,
2001. Ud., p. 20.)

At the November 10, 2001, appointment, the ENT physician noted that the plaintiff’s
neck was “clean, no messes,” that the tracheotomy tube was capped and in place, and that there
were “no ulcers or messes.” (/d., p. 20.) The doctor additionally noted that the plaintiff “dcnicd”
shortness of breath. (/d.). The doctor directed that routine tracheotomy care be continued, and
thai he return to the ENT in four to six weeks, (/d.)

On November 13, 2001, the plaintiff saw the defendants Ting and Altez about his
tracheotomy. (/d., p. 21.) At that appointment, the plaintiff denied acute complaints, according
to the medical progress notes, (/d..) The plaintiff was directed to continue with the routine
tracheotomy care and return to Cermak in two to three weeks. (/d.)

Ten days later, on November 23, 2001, the plaintiff saw an ENT doctor again.? At that
time, the plaintiff reiterated that he wanted his tracheotomy tube removed. The physician
recommended Ocean Nasal Spray for the plaintiff, directed him to continue the maintenance plan
previously put in place, and scheduled an appointment for twelve wecks later. Ting wrote a
prescription for nasal spray on the same day. (/d., p. 57.)

Twelve days later, on December 4, 2001, ihe plaintiff retumed to Cermak for a follow-up
visit. (Ud, p. 22.) The defendant Mansour examined the plaintiff and charted that his stoma

(trachcotomy tube) was clean, that here was no evidence of infection, and that the plaintiff's

*The court finds no medical records for November 21, 2001. However, the plaintiff does
not contest the representations made by the defendants in this paragraph.

8



judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis should set
forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 2A(ay(1(C); Hyche v.
Christensen, 170 F.3d 769, 771 (7 Cir. 1999), If the plaintiff does choose to appeal, he will be
liable for the $105 appellate filing fee irrespective of the outcome of the appeal. Evans v. Illinois
Dept. of Corrections, 150 F.3d 810, 812 (7 Cir. 1998). Furthermore, if the appeal is found to be
non-meritorious, the plaintiff may also accumulate a “strike” for purposes of 28

US.C. § 1915(g). The plainuff is warned that if a prisoner has had a total of three federal cases
ot appeals dismissed as frivolous, malicious, or failing to state a claim, he may not file suit in
fedcra] court without prepaying the filing fce unless he is in jmminent danger of serious physical
injury.

IT IS THEREFORE ORDERED that the defendants” motion for summary judgment
(docket #52) is granted. The clerk of the court is directed (o enter judgment in favor of the
defendants pursuant to Fed. R. Civ. P. 56, The case is terminated. The parties are to bear their
own costs.

Enter:

David H. Coar
United States District Judge

Date: a Ki 02

24


Minute Order Porm (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge
or Magistrate Judge

DAVID H. COAR

Sitting Judge if Other
than Assigned Judge

CASE NUMBER

02 € 1590

DATE

D |_|
Ss a ufo

CASE Ronald Myers (#N-30973) vs. Dr. James McAuley, et al.
TITLE
[in the following box (a) indicute the party fling the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state brictly the nature
MOTION: af the motion being presented.

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above, |

(2) oO Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue

(4) oO Ruling/Hearing on _setfor_ ats

(5) o Status hearing[held/continued to] [set for/re-sct for] on setfor____all

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor_ at .
(7) o Trial[set for/re-sct for]on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to _ at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OGeneral Rule 21 OFRCP41(a)(1) 1 FRCP41(a)(2).

(10) MM [Otherdocketentry) For the reasons set forth in the accompanying Memorandum Opinion and Order,
the defendants’ motion for summary judgment [#52] is granted, The clerk of the court is directed to enter

judgment in favor of the defendants pursuant to Fed. DU The case is terminal ed., The parties
- | bo

are to hear their own costs.
number of polices

al)

No notices required, advised in open curl,

[See attached Memorandum Opinion and Order.]

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

S| Docketing to mail notices.

JY | Mail AO 450 form.

LYNOD LONE a en

Copy to judge/mugistrate judge. ot

, dag mailed notice

Dbaeeye

courtruom eer en
mim deputy's .
initials

end ey

~" utestimerreceivadin,,
central Clerk? Office

naling deputy initials



“sick call” appointment was scheduled for March 12, 2002. (/d.) In addition, Dr. Ting prescribed
Amoxicillin and Motrin to combat pain and infection. (Medical Records, p. 61.)

On February 24, 2002, the plaintiff filled out another detainee health service request form,
complaining of persisting pain. (/d., p. 31.) A liccnsed practical nurse who spoke to the plaintiff
noted on the form that the plaintiff was claiming throat and neck pain and insisting that the pain
was not relieved by Tylenol. (/d.)

On March 4, 2002, the plaintiff filled out another request form asking to see a doctor.

(id., p. 32.) The plaintiff wrote, “You put me on pain medicine and now it stop[ped]. | need to
see you doctor about this and the other medicine stop.” (/d.) The plaintiff was referred to sick
call the same day. (/d.)

On March 12, 2002, the plaintiff had an appointment with the defendant Mansour. (/d., p.
33.) Mansour’s notes concerning the cxamination indicated that the plaintiff “feels much better,”
that his breathing was better, that his vital signs were “OK,” that his tracheotomy bore no
evidence of infection, that the (racheotomy tube was in place, and that his lungs were clear. (/d.)
Mansour prescribed the plaintiff Tylenol and Disalcid [a non-steroid anti-inflammatory drug also
used for pain]. (/d., p. 63.)

On March 20, 2002, the plaintiff saw Dr. Ting again. (/d., p. 34.) Ting noted on the
plaintiff's medical progress notes that he complained of difficulty swallowing for about a month,
but that there were no objective signs ofa problem. (/d.) The plaintiff had no difficulty talking
or breathing, his neck was supple, and the tracheotomy tube was clean and without blockage or
obstructions. (/d.) Because the plaintiff complained that the Amoxicillin caused gastro-intestinal

problems, Ting prescribed three new medications: Motrin, Naprosyn (another non-steroidal anti-

il



On February 10, 2002, the plamtiff submitted another detainee health service request
form. (Id., p. 27.) The plaintiff stated, “I need to sce the Doctor about my trach tube being
cloggy & bleeding.” (/d.) The defendant Altez noted on the form that an ENT had referred the
plaintiff to Fantus Clinic and that the plaintiff was “waiting to go,” but that the appointment had
been postponed twice. (/d.) Altez further noted that the plaintiff nevertheless showed no signs of
infection. (Id.)

The plaintiff was seen at Cermak’s “sick call” on February 14, 2002, four days later. (/d.,
pp. 28, 29.) Ting referred the plaintiff back to an ENT specialist. (/d.)

The next day, February 15, 2002, the plaintiff saw an ENT at the Cook County Hospital.
(Plaintiff's Deposition, p. 61.) At that visit, the ENT replaced the plaintiff's tracheotomy tube.
(id.) Later that day, the plaintiff retumed to Cermak Health Services and saw another ENT. (/d.,
p. 63; Plaintiff's Medical Records, p. 28.) The Cermak ENT examined the plaintiff and
recommended that he return in sixteen weeks. (Medical Records, p. 28.) Unspecified health care
personnel also wrote the plaintiff a prescription for pam medication, although the plaintiff states
that he never reccived it, (Plaintiff's Deposition, p. 63.)

Two or three days after his tube was replaced, the plaintiff saw the defendant Ting. (éd.,
p.65.) fhe plaintiff told (he doctor he was still in pain. (/d.) Ting prescribed the plaintiff new
medication. (Id.)

On February 20, 2002, the plaintiff filled out another detainee health service request form
asking for pain medication. (Medical Records, p. 30.) A health care provider named Brown
noted on the form the next day, “Detaince stated difficult to swallow, swollen, & painful. —A

new trach put in [illegible]. B[lood] p[ressurc] 132/76. Tylcnol Suspension Lig. 30 cc.” (/d.) A

10



experiencing any throat problems. (/d., p. 28.) Either the ENT doctor or the defendant Ting
wrote the plaintiff prescriptions for tracheotomy care (saline irrigation) and a bedside humidifier.
(Medical Records, p. 56.) The specialist recommended that the plaintiff return to Cermak in four
weeks.

The plaintiff maintains that he began to experience problems swallowing and eating
around the end of August 2001. (Plaintiff's Deposition, pp. 28-29.) On August 29, 2001, the
plaintiff submitted a Delaince Health Service Request form indicating that he found a small
amount of bright red blood when he cleaned out his tracheotomy tube. (Medical Records, p. 12.)
The request slip did not mention any problems breathing or eating. (/d.) A nurse who spoke to
the plaintiff noted that he had no breathing problems, that he was just concemed by the sight of
blood. (d.)

On September 17, 2001, the plaintiff was treated in the Cermak Emergency Room for a
scalp laceration after he fell in the shower. (Medical Records, pp. 13-14.) The Ambulance
Report Sheet attributed the fall to “no lights.” (7d., p. 13.) The medical records do not reflect any
statement by the plaintiff to health care providers that he fell because he had lost consciousness
due to an inability to breathe. (/d., pp. 13-15.) The plaintiff received staples or sutures. (/d., pp.
14-15.) The staples were removed on September 24, 2001, upon the plainuft Ps request. (fd., p.
16.)

On October 3, 2001, the plaintiff saw the defendant Altez at Cermak. (/d., p. 17.) Altez
wrote a prescription for the plaintiff to continue receiving routine tracheotomy care with suction
for six weeks. (/d., pp. 17, 56.) Carlos also referred the plaintiffto an ENT to evaluate the

plaintiff's request for closure of his tracheotomy tubc. Ud., pp. 17-18.)



defendants and non-defendants alike also provided essentially the same, standard maintenance
plan for the plaintiff's tracheotomy tube, belying any inference that the defendants’ approach was
blatantly inappropriate.

Although the plaintiff may have been dissatisfied with the caliber and efficacy of his
overall care, the defendants’ treatment did not violate the Constitution. Mere disagreement with
a doctor’s prescribed course of treatment does not implicate the Fourteenth Amendment. Snipes
v. DeTella, 95 F.3d 586, 592 (7 Cir. 1996), cert. denied, 519 U.S. 1126 (1997). Additionally,
evidence that some medical professionals would have chosen a different course of
treatment—evidence the plaintiff has not even provided in this case-might establish negligence,
but is insufficient to make out a constitutional claim. Collignon v. Milwaukee County, 163 F.3d
982, 989 (7" Cir. 1998), relying on Steele, 82 F.3d at 179, The Constitution is not a vehicle for
bringing claims for medical malpractice. Bryant v. Madigan, 84 F.3d 246, 249 (7" Cir, 1996).

It is not even entirely clear what better or different treatment the plaintiff wanted.
Regardless, the question of whether a certain diagnostic technique or form of treatment should be
prescribed “is a classic cxample of a matter for medical judgment.” Estelle v. Gamble, 429 US.
97, 107 (1976). A prisoner does not have a right to a particular type of medical treatment.
Meriwether v. Faulkner, 821 F.2d 408, 413 (7 Cir. 1987). A plaintiff can show that the
professional disregarded a serious medical necd “only if the professional’s subjective response
was so inadequate that it demonstrated an absence of professional judgment, that is, that no
minimally competent professional would have so responded under those circumstances.”

Collignon, 163 F.3d at 989. The plaintiff has not met bis burden of production.

21



Lamz, 321 F.3d 680, 683 (7" Cir. 2003). The court is not required to “wade through improper
denials and legal argument in search of a genuinely disputed fact.” Jd., citing Bordelon v.
Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7" Cir. 2000). And a mere
disagreement with the movant’s asserted facts is inadequate if made without refercnce to specific
supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7" Cir. 1993).

Nevertheless, because the plaintiff is proceeding pra se, the court has considered the
factual assertions he makes in his bricf and affidavit, but only to the extent that the plaintiff could
properly testify about the matters asserted at trial. Affidavils must concern facts about which the
affiant is competent to testify, must be based on personal knowledge, and must sct forth such
facts as would be admissible in evidence. Fed. R. Civ. P. 56(e). A witness may not testify to a
mattcr unless evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter, Fed, R. Evid. 602. It should additionally be noted that the validity of
medical records and entries in the medical records cannot be disputed in the absence of any
contrary evidence. Moss v. Morman, No, 99 C 3571, 2001 WL 1491183, at *4 (NLD. Ill. Nov. 26,
2001) (Andersen, J.)

The court therefore finds that the following facts are undisputed for purposes of this
motion [or there is no genuine issue as to these facts]: Thc plaintiff, Ronald Myers, is a state
prisoner. (Defendants’ Exhibit A, Deposition of Plaintiff Ronald Myers, at p. 6.) At the time of
the events giving rise to this action, the plaintiff was an inmate at the Cook County Jail.
(Amended Complaint, p. 2, Part I, “Plaintiff(s)” section.)

The defendant James McAuley is the jail’s Medical Director. (/d., Part TI, “Defendant(s)”

section, pp. 2-2A.) The defendants Andrew Ting and Mohammed Mansour are staff physicians at



DISCUSSION

Even viewing the record in the light most favorable to the plaintiff, no reasonable person
could find that the defendants acted with deliberate to the plaintiff's serious medical needs. The
record establishes that the plaintiff received comprehensive medical care, even if he was
unsatisfied with it. The plaintiff's cvidence, consisting of unsupported statements and
contradictory swom testimony, is insufficicnt to create a triable issuc of fact, The plaintiff has
failed to meet his burden under Fed. R. Civ. P. 56 for the case to survive summary judgment.

The court recognizes that, in ruling on a motion for summary judgment, the court cannot
weigh the affidavits or the credibility of the parties. Castillo v. United States, 34 F.3d 443, 445
(7" Cir, 1994), Nevertheless, “there is no issue for trial unless there is sufficient cvidence
favoring the nonmoving party for a jury to return a verdict for that party. Tf the evidence is
merely colorable, ot is not significantly probative, summary judgment may be granted.”
Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 249-50 (1986) (citations omitted). The inquiry is
essentially “whether the evidence presents a sufficient disagreement to require submission to the
jury, or whether it is so onc-sided that one party must prevail as a matter of law.” fd, at 251-52.
In this case, the evidence almost entirely refutes the plaintiff s allegations.

It is well established that the Due Process Clause prohibits deliberate indifference to the
scrious medical needs of a pretrial detainee. Qian v. Kautz, 168 F.3d 949, 955 (7" Cir, 1999);
Salazar v, City of Chicago, 940 F.2d 233, 237-38 (7" Cir. 1991). Deliberate indifference has
both an objective and a subjective element: the inmatc must have an objectively scrious medical
condition, and the health care provider must be subjectively aware of and consciously disregard a

risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S, 825, 837 (1994); Estelle v.

14



staff deemed monitoring of the plaintiff's condition sufficiently important to house him in the
residential treatment unit. The court therefore finds that the plaintiff's medical needs were
“senous.””

Nevertheless, the record fails to support the plaintiff's claim that he had serious
complications during his incarceration at the jail. In his complaint, the plaintiff alleged that he
endured agonizing pain, fainting, a great deal of bleeding, a diminished ability to eat and drink,
and so much difficulty breathing that fellow inmates literally had to squeeze the air out of him on
occasion, The medical records in no way substantiate those claims. To the contrary, the record
indicates that the plaintiff suffered from relatively minor, chronic problems one might expect
from having a tracheotomy tube in one’s throat.

Multiple facts lead the court to the inescapable conclusion that the plaintiff's medical
problems did not rise to the level of severity contemplated by Fsted/e and ils progeny. First, the
plaintiffs “Treatmcnt/Dressing Record,” taken in the normal course of business, document
tracheotomy care performed nearly every single day of the plaintiff's incarceration, from February
10, 2002, through July 31, 2001, through March 11, 2002. See Defendants’ Exhibit B, Plaintiff's
Medical Records, pp. 42-48. [Presumably, a page is missing from the record covering the
plaintiff's last two months at the jail.]

Despite the daily Treatment/Dressing Records, the plaintiff insists that he sometimes went
up to ten days without cleanings. But even if there were occasional missed dates, the routine care
must have kept the plaintiff’s tracheotomy tube reasonably clean, as the nurses” notes reflect no
problems. To the contrary, while some of the plaintiff's health request slips described pain and

breathing problems, none of the health care providers with whom he came into contact observed

16



However, Rule 56(c) “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322. “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Chiaramonte y. Fashion Bed Group, Inc., 129 F.3d 391, 393 (7" Cir. 1997), cert, denied, 523
U.S. 1118 (1998).

FACTS

The defendants have filed a statement of uncontested material facts pursuant to Local
Rule 56.1. Together with their motion, the defendants served on the plaintiff the required notice
under Local Rule 56.2, advising him what he nceded to do to contest the motion, and specifically
what he needed to do to dispute their statement of uncontested facts. In addition, the court’s
Minute Order of July 10, 2003, struck the plaintiff’s original statement of contested facts and
instructed him how to respond, reminding him that every asscrtion of fact he made had to be
supported by a citation to the record. Despite this, many of the plaintiffs denials are unsupported
by the evidence to which he points. Unsupported statements in a brief arc not evidence and
cannot be given any weight. See, e.g., Johnson v. Spiegel, Inc., No. 92 C 0680, 2002 WL
1880137, at *4(N.D. Il]. Aug. 15, 2002) (Pallmeyer, J.), citing In the Matter of Morris Paint and
Varnish Co., 773 F.2d 130, 134 (7" Cir. 1985), Furthermore, the plaintiff has failed to provide
his own statement of additional facts he wishes the court to consider.

The plaintiff's failure to properly respond to the defendants’ statements of material facts

as directed warrants disregard of any contrary assertions he makes in his briefs. See Smith v.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF LLLINOIS lei
EASTERN DIVISION Sep TED
SEP 7

“8 7
RONALD MYERS, #N-30973 TM

Plaintiff,
v. NO. 02 C 1590

DR. JAMES McAULEY, et al, HON. DAVID H. COAR

wee ee Se SS

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiff, currently a state prisoner, has brought this pro se civil rights action pursuant
to 42 U.S.C. § 1983. The plaintiff claims that the defendants, health care providers at the Cook
County Jail, violated the plaintiff's constitutional rights by acting with deliberate indifference to
his serious medical needs. More specifically, the plaintiff alleges that the defendants refused to
provide proper maintenance and medical care for his tracheotomy/breathing tube. This matter is
before the court for consideration of the defendants’ motion for summary judgment. For the
reasons stated in this order, the motion will be granted.

Summary judgment “shall be rendered sorthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issuc as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Prime
Northgate Plaza Ltd. Partnership v, Lifecare Acquisitions Corp., 985 F. Supp. 815, 817 (N.D. Ill.
1997). In determining whether factual issucs exist, the court must view all the evidence and draw
all reasonable inferences in the light most favorable to the non-moving party. Walker vy.

Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7° Cir. 2000).


inflammatory pain medication), and Taguire. (/d., p. 63.) [Neither party explains what Taguire is
used for and the drug is not listed in the Physician 's Desk Reference.] Ting referred the plamuff
to an ENT two days later and directed that he return to Cermak in four to six wocks. (/d., p. 34.)

On March 22, 2002, an ENT specialist examined the plaintiff. (/d., p. 35.) The ENT
noted that the plaintiff's mouth was pink and moist and without lesions, and that his neck was
soft and supple. (/d.) The ENT directed that the plaintiff return in two weeks, (/d.)

On March 27, 2002, the plaintiff was prescribed Ibuprofen and Prevacid (a medication
uscd to relicve heartburn, acid reflux and ulcers). (/d., p. 62.)

On April 19, 2002, an unnamed physician referred the plaintiff back to an ENT specialist
for a follow-up appointment. (/d., p. 36.) The plaintiff saw the ENT the next day, April 20,
2002. (d.) Although the ENT’s notes are illegible, the consultation form shows that the plaintiff
was to return in six weeks. (/d.)

On April 30, 2002, the plaintiff saw the defendant Ting at “sick call.” (/d., p. 37.)
Among other [mostly illegible] notes, Ting charted that the plaintiff's neck was supple, that he
demonstrated no trouble breathing and no shortness of breath, and that the tracheotomy tube
looked clean. (/d.) At the same appointment, Ting prescribed the plaintiff Motrin, Prevacid, and
Elavil (a drug used to treat depression and migraine headaches, as well as to manage chronic
pain). (Ud., p. 63.) Ting prescribed Elavil because the plaintiff told him that Naprosyn was not
casing his pain. (Plaintiff’s deposition, pp. 39, 41.) Each time the plaintiff saw Dr. Ting and

complained that the current pain medication was not alleviating his pain, Ting would prescribe a

different drug. (/d., p. 48.)



Gamble, 429 U.S. 97, 103-04 (1976); Sherrod v, Lingle, 223 F.3d 605, 610 (7" Cir. 2000). In
this case, the court will assume for purposcs of this motion that tracheotomy maintenance is a
“serious” medical need; however, the plaintiff has failed to make a triable showing that the
defendants acted with deliberate indifference.

In denying the defendants’ motion to dismiss, the court noted that the fact that a prisoner
received some medical attention docs not necessarily defeat his Section 1983 claim; deliberate
indifference to a serious medical need can be manifested by “woefully inadequate action” as well
as by no action at all. Reed v. McBride, 178 F.3d 849, 854 (7" Cir. 1999). But the more fully
developed record demonstrates that the plaintiff received constitutionally adequate medical
treatment. At best, the plaintiff has greatly cxaggerated both his medical complaints and any
deficiencies in the care he received; at worst, this is an entirely trumped-up lawsuit.

No Serious Health Complication

Even though the plaintiffs tracheotomy or tracheostomy pre-dated his incarceration by
almost two years, the court finds that he had a “serious” medical condition. Under the Seventh
Cireuit’s standard,

A “serious” medical nced is onc that has been diagnosed by a physician as

mandating treatment or one that is so obvious that cven a lay person would casily

recognize the necessity for a doctor’s attention. ... {Indications of a serious

medical need include] the existence of an injury that a reasonable doctor or patient

would find important and worthy of comment or treatment; the presence of a

medical condition that significantly affects an individual’s daily activities; or the

existence of chronic and substantial pain.

See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7 Cir. 1997). Even though the plaintiff's medical

records repeatedly refer to “routine maintenance,” the importance of a breathing tube is obvious;

its proper functioning would constitute an objectively serious medical need. In fact, the medical

1s