the prescription, notwithstanding the return of Hardy’s painful symptoms. As of the date of this
lawsuit, well over a month had passed and Dr. Aguinaldo had failed either to schedule Hardy for
a check-up or to re-order his medication. Jd., pp. 12-14.

Throughout the relevant time period, Hardy says, he filed “countless” grievances. Id., p.
15. He has attached copies of a number of grievances both to his complaint and to his
memorandum in opposition to the defendants’ motion for summary judgment. With regard to his
hand, a grievance dated May 28, 2001 reflects no response. A second grievance dated June 10,
2001 likewise reflects no response. A grievance dated June 11, 2001 was denied at the
institutional level after a significant delay; the counselor’s response, made some five months
later, stated, “Old fx. [fracture]. Ortho consult not indicated. Resolved.” A subsequent
grievance dated January 25, 2002, was denied as time-barred. The counselor wrote,

Your grievance is untimely. I checked with the grievance officer, who stated

those past grievances were returned to you because they were filed as emergency

grievances and were denied as emergency grievances. You never filed them thru

regular channel and no grievance could be located recommending ortho

evaluation.

On July 2, 2001, Hardy filed a grievance concerning both his hand and his stomach
problems. The counselor responded, “This medical issue is being forwarded to the Medical
Dept. for appropriate disposition. 9/18/01 medical records show that a second prescription for
Tagamet was ordered on 7/30/01.” On September 26, 2001, Hardy filed another grievance
stemming from his continued dissatisfaction with his treatment or lack of treatment for his hand
and stomach. The counselor noted, “This medical issue is being forwarded to the HCU for

appropriate disposition. Will have Dr. Aguinaldo rewrite for prescriptions originally ordered but

not delivered on 10-9-01. All meds delivered & signed for on 10/10/01-resolved.” Another


mere disagreement with a physician’s treatment does not implicate the Eighth Amendment.
Neither medical malpractice, Steele v. Choi, 82 F.3d 175, 178-79 (7" Cir. 1996), nor
dissatisfaction with a doctor’s prescribed course of treatment, Snipes v. DeTella, 95 F.3d 586,
592 (7" Cir. 1996), gives rise to an Eighth Amendment claim. But Hardy maintains that he was
essentially denied basic, needed medical care; he does not simply demand a particular treatment.

The subjective element of deliberate indifference encompasses conduct such as the
refusal to treat a prisoner’s chronic pain, Jones v. Simek, 193 F.3d 485 (7" Cir. 1999), the refusal
to provide pain medication prescribed by a doctor, Ralston v. McGovern, 167 F.3d 1160, 1162
(7" Cir. 1999), or erroneous treatment based on a substantial departure from accepted medical
judgment, practice, or standards. Sherrod, 223 F.3d at 611; Vance v. Peters, 97 F.3d 987, 992
(7" Cir. 1996). The fact that a prisoner received some medical attention does not necessarily
defeat his 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).

Hardy contends that he was denied both pain medication and needed treatment for a
broken hand for three weeks, and that follow-up care, including a recommended visit to an
orthopedic specialist, was similarly delayed or denied altogether. Though Dr. Aguinaldo
originally honored Hardy’s request for a new prescription to control his stomach virus, Hardy
contends that the doctor ignored his repeated requests to renew the medication or look into the
source of his symptoms. A reasonable fact finder could infer from this that Dr. Aguinaldo acted
with deliberate indifference. At this stage of the proceedings — particularly in view of Hardy’s

pro se status and his inability to conduct discovery up to this point — the record does not support


grievance system through which a prisoner can seek to correct a problem, then the prisoner must
utilize that administrative system before filing a claim” under 42 U.S.C. § 1983. Massey v.
Helman, 196 F.3d 727, 733 (7" Cir. 1999), cert. denied, 532 U.S. 1065 (2001).

Defendants argue that Hardy did not pursue a proper appeal of any of his grievances to
the Administrative Review Board. As a general rule, an inmate must comply with the rules
established by the State with respect to the form and timeliness of grievances. Pozo v.
McCaughtry, 286 F.3d 1022, 1023-25 (7" Cir. 2002). But in this case, unlike in Pozo, Hardy
alleges that he received no response to several of his grievances. The Seventh Circuit has
recently held that prison officials’ failure to respond to an inmate’s grievances renders
administrative remedies “unavailable” and excuses the prisoner from pursuing them further.
Lewis v. Washington, No. 00-2017, __ F.3d__, 2002 WL 1843329 (7" Cir. Aug. 21, 2002).

Second, Hardy was granted—or ostensibly granted-the basic relief sought at the
institutional level. On at least three separate occasions, the plaintiffs grievances were forwarded
to the health care unit for “appropriate disposition” and were deemed “resolved.” As the Seventh
Circuit has stated,

Requiring a prisoner who has won his grievance in principle to file another

grievance to win in fact is certainly problematic. Although the time spent in

exhausting administrative remedies is tolled for purposes of limitations on filing a

federal complaint . . . this would be cold comfort to a prisoner caught in some

never-ending cycle of grievances. For, if a prisoner who wins on his initial

grievance must file one further grievance to get practical relief, what is to prevent

the prison system from repeatedly failing to follow through and requiring the

prisoner to endlessly seek a real resolution?

Dixon v, Page, 291 F.3d 485, 490 (7" Cir. 2002) (internal citation omitted). Although Dixon

dealt with multiple grievances as opposed to the appeal process, the same reasoning applies in


grievance dated October 1, 2001, and relating to Hardy’s stomach condition garnered the
following response, “This medical issue is being forwarded to the H.C.U. for appropriate
disposition. See 1* grievance — resolved.”

An appeal to the Administrative Review Board was returned to Hardy on February 21,
2002. Hardy was advised, “Need to provide Grievance Officer’s report and/or send G.O.’s final
report.” The appeal was in reference to “medical treatment” but did not specify which medical
issue Hardy was attempting to appeal.

Defendant Miller has submitted an affidavit in support of summary judgment in which
she states that she lacks any involvement with the plaintiff or in the medical care of any
particular inmate. Miller, a registered nurse, appears to indicate that she deals with inmate
complaints about medical treatment, but she says nothing about any of Hardy’s grievances, other
than to describe, in a single sentence, her general practice of investigating such complaints and
reviewing them to the medical director (a medical doctor) and/or the attending physician. She
states that she did not direct anyone to deny medical treatment to Hardy.

Discussion

Defendants argue that Hardy failed to exhaust internal administrative remedies prior to
filing suit and that there is no evidence that they acted with deliberate indifference to his serious
medical needs. We address these arguments in turn.

1. Exhaustion

The Prison Litigation Reform Act of 1996 provides that “[n]Jo action shall be brought

with respect to prison conditions ... by a prisoner ... until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997(e)(a). “[I]f a prison has an internal administrative


she is entitled to judgment as a matter of law. Plaintiff is a pro se litigant who only recently filed
this suit and has had no opportunity to take any discovery. Under the circumstances, Miller is
not entitled to summary judgment at this time.

3. Deliberate indifference - Dr. Aguinaldo

A prison health care provider’s deliberate indifference to an inmate’s serious medical
condition violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Sherrod v. Lingle, 223 F.3d 605, 610 (7" Cir.
2000). Deliberate indifference has both an objective and a subjective element: the inmate must
have an objectively serious 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, 511 U.S. at
837; Sherrod, 223 F.3d at 610. Hardy has made a showing on both aspects of the standard that is
sufficient to avoid entry of summary judgment.

Dr. Aguinaldo does not contest that a broken hand constitutes an objectively serious
medical need. Hardy’s helicobacter pylori infection is likewise an arguably serious condition
because, untreated, it allegedly caused sharp pain, burning and cramps. Compare Sherrod, 223
F.3d at 610 (inflamed appendix was objectively serious); Zentmeyer v. Kendall County, 220 F.3d
805, 810 (7" Cir. 2000) (an ear infection, though a “common malady,” could be deemed
objectively serious where it “inflicted prolonged suffering” and required extensive treatment);
see also Gutierrez v. Peters, 111 F.3d 1364, 1373 (7" Cir. 1997) (a condition is objectively
serious if “failure to treat [it] could result in further significant injury or unnecessary and wanton.
infliction of.

Dr. Aguinaldo nevertheless contends that there was no deliberate indifference because


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
ay Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 02 C 3614 DATE 9/10/2002
CASE Hardy vs. Aguinaldo
TITLE .
[Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(63) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) im Answer brief to motion due. . Reply to answer brief due. :
(4) q Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial{set for/re-set for] on at
(8) QO ([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) ClLocal Rule 41.1. CIFRCP41(a)(1) COFRCP41(a)(2).
ao) =f [Other docket entry] _ For the reasons set forth on the attached order, the Court denies defendants’
motion for summary judgment (9) and also denies plaintiff's motion for a formal order regarding access
to the law library (21). Counsel for defendant Miller is directed to advise the appropriate prison officials
of the Court’s request that they grant Hardy reasonable use of the resources of the prison library during
the pendency of this action.
(1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

SEP 11 2002

date docketed

Notices mailed by judge’s staff.

Notified counsel by telephone.

v | Docketing to mail notices.

Mail AO 450 form.

tig

Copy to judge/magistrate judge.

date mailed notice
courtroom vron.

OR deputy’s
initials

Date/time received in
central Clerk’s Office

railing deputy initials

Document
Number

Z/



Conclusion
For the foregoing reasons, the Court denies defendants’ motion for summary judgment
(docket item #9) and also denies plaintiff's motion for a formal order regarding access to the law
library (docket item #21). Counsel for defendant Miller is directed to advise the appropriate
prison officials of the Court’s request that they grant Hardy reasonable use of the resources of the

prison library during the pendency of this action.

Date: September 10, 2002 Ay sll wu eZ

MATTHEW F. KENNELL’
United States District Judg

11


entry of judgment in favor of Dr. Aguinaldo.
4, Plaintiff's motion for access to law library

Hardy has submitted a letter motion for an order granting him access to the Stateville law
library. The law certainly entitles an inmate to access to a law library sufficient to enable him to
research the law to determine what facts are necessary to state a cause of action, perform basic
research, formulate legal theories, and get through initial stages of lawsuit. See, e.g., Smith v.
Shawnee Library System, 60 F.3d 317, 322 (7" Cir. 1995); Brooks v. Buscher, 62 F.3d 176 (7"
Cir. 1995). But we cannot say at this point that Hardy has been wrongfully denied the necessary
access.

Hardy’s motion is therefore denied. The Court certifies, however, that Hardy has a civil
rights action pending and requests prison officials to grant him reasonable access to the prison
library during the pendency of this case. Prison officials may determine the manner that best
accommodates Hardy’s needs, balanced by penological concerns of safety, security, and orderly
administration.

As a final concern, Hardy is reminded that he must comply with the Court’s basic filing
requirements. He is required to provide the Court with the original plus a complete judge’s copy
of every document filed and to mail to defense counsel a copy of every document filed with the
Court. Every document filed with the Court must include a certificate of service showing that a
copy was sent to opposing counsel. The Clerk will provide the plaintiff with another copy of the
court’s filing instructions. In the future, the Court will not consider documents that lack a proper

certificate of service.

10


this case.

The combination of these two factors defeats defendants’ non-exhaustion argument. The
evidence indicates that Hardy’s grievances reflect that they were ignored or deemed “resolved.”
It appears that Hardy did the best he could to bring his problems to the attention of the authorities
at Stateville through the grievance process, and under the circumstances the Court finds that he
satisfied the PLRA’s exhaustion requirement as to both of his claims.

2. Personal involvement of Miller

Defendant Miller argues that she is entitled to summary judgment because Hardy lacks
evidence of her personal involvement in the alleged deprivations of his constitutional rights.
“Section 1983 creates a cause of action based on personal liability and predicated upon fault;
thus, liability does not attach unless the individual defendant caused or participated in a
constitutional deprivation.” Vance v. Washington, 97 F.3d 987, 991 (7" Cir. 1996). To establish
Miller’s liability, Hardy must show that she was personally involved in the deprivations or that
those deprivations occurred at her direction or with her knowledge and consent. See Gentry v.
Duckworth, 65 F.3d 555, 561 (7" Cir. 1995).

Miller’s position as health care administrator is not a sufficient basis to support a claim
against her. And there is no reason to doubt her claim that she had no direct involvement in
treating Hardy. But Miller (whose affidavit does not actually describe what her responsibilities
are) appears to be involved in dealing with inmate complaints about lack of medical care, and she
does not squarely deny having dealt with Hardy’s grievances. Viewed in light of Hardy’s
evidence indicating that at least some of his grievances were ignored — resulting in further delays

or denial of treatment — the Court cannot say that Miller’s affidavit is sufficient to establish that


hospital until after he talked to Internal Affairs. Hardy insisted that he was willing to talk to
Internal Affairs and was only waiting to be called or visited by an investigator. Jd. Hardy went
without a splint, a cast, or any pain medication until June 11, 2001, almost three weeks after he
injured his hand. Jd., pp. 10-11. At least as of the date Hardy filed this suit (May 20, 2002), over
a number of months had elapsed and he stiil had not been seen by an orthopedic specialist. (Id.,
p. 10.

On or about June 26, 2001, Hardy consulted Dr. Aguinaldo regarding a burning sensation
in his stomach, advising the doctor that he had acid reflux disease. He told the doctor that prior
to his transfer to Stateville, a medication called Tagamet had worked well for him, but that the
Zantac he was prescribed after his placement at Stateville did not help his condition. Dr.
Aguinaldo promised to re-order the Tagamet and to arrange for Hardy to undergo an upper
gastro-intestinal examination to verify whether his stomach pains were in fact caused by acid
reflux. However, over a month passed before Hardy was prescribed Tagamet. An upper gastro-
intestinal x-ray was taken on an unspecified date, but Hardy was never informed of the results.
Id., pp. 11-12.

The burning sensation in Hardy’s stomach worsened, and he began to suffer cramping
and sharp pain. When he complained to Dr. Aguinaldo about his symptoms, the doctor only said,
“T gave you Tagamet & a U.G.I. What more do you want me to do?” Eventually, Hardy’s
psychiatrist arranged to have him tested for helicobacter pylori, a bacterial infection that affects
the stomach lining. The test results came back positive for helicobacter pylori on September 5,
2001, but Dr. Aguinaldo provided no treatment until October 10, 2001, despite repeated requests

from Hardy. Even then, the medication lasted only two weeks and Dr. Aguinaldo failed to renew


care unit. Defendant Dr. Euaristo Aguinaldo is a staff physician at Stateville. Jd., Part II. (By
order dated June 3, 2002, the Court dismissed the complaint as to all other defendants pursuant to
28 U.S.C. § 1915(e)(2)(B).)

On May 23, 2001, Hardy injured his hand while opening a box. He showed his swollen
hand to a correctional officer, who surmised that it was broken. The officer called a sergeant,
who promised to send someone from the health care unit to look at Hardy’s hand, but no one
from the health care unit visited Hardy that day or night. The next morning, Hardy showed his
hand to a medical technician who was making rounds. The medical technician told Hardy he
would be x-rayed that morning, but he was not called to the health care unit until the early
afternoon. Jd,, p. 6.

Hardy saw Dr. Aguinaldo around 12:30 p.m. and then had to wait an hour longer to get an
x-ray. Id. Hardy waited again in a holding cell; eventually, Dr. Aguinaldo passed by and told
Hardy that he would be seen by “the bone doctor” the next day. But shortly thereafter, the
medical technician informed Hardy that he could not receive any further treatment until after he
had been seen by Internal Affairs, which, according to the technician, was required to investigate
such incidents of injury. Jd., p. 8.

The next day, Hardy was neither called to Internal Affairs nor seen by the medical staff.
Finally, that evening a medical technician went to Hardy’s cell and reported that x-rays had
confirmed that his hand was, in fact, broken. The technician expressed surprise that Hardy had
not been seen by an orthopedic specialist or had his hand splinted. She assured Hardy that he
would “definitely” be called to the health care unit on May 27, 2001. Jd.

Hardy complained to prison officials, who once again told him that he could not go to the


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION D 0 CKETEN
NEDRICK J. HARDY SR., #B-50437 ) SEP 11 2002
Plaintiff, }
v. } Case No. 02 C 3614
DR. E.P. AGUINALDO and }
BARBARA MILLER, )
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Nedrick Hardy, a state prisoner, has brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983. Hardy claims that the defendants, health care providers at the
Stateville Correctional Center, violated his constitutional rights by delaying or denying medical
attention for his broken hand and denying him adequate treatment for a severe stomach ailment.
Defendants have moved for summary judgment. For the reasons stated below, the Court denies
defendants’ motion.

Summary judgment is appropriate if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In deciding the motion, the Court must view ail the
evidence and draw all reasonable inferences in the light most favorable to the non-moving party.

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

Facts
Hardy has been confined at the Stateville Correctional Center at all times relevant to this

lawsuit. Cplt., p. 2, Part I. Defendant Barbara Miller is the administrator of Stateville’s health

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