R. Clv. P. 56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). “In the light
most favorable” simply means that summary judgment is not appropriate if the court must make

“a choice of inferences.” See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also

First Nat’] Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss
(America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences

from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

When the defendant moves for summary judgment, the court must view the record and all

inferences in a light most favorable to the plaintiff. Ameritech Benefit Plan Comm. v.

Communication Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences

construed in the plaintiff's favor must be drawn from specific facts identified in the record that
support the plaintiff's position. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir.
1994). Under this standard, “[c]onclusory allegations alone cannot defeat a motion for summary

judgment.” Thomas v. Christ Hospital and Medical Center, 328 F.3d, 890, 892-93 (7th Cir.

2003) (citing Lujan v. Nat’] Wildlife Federation, 497 U.S. 871, 888-89 (1990)). With these

principles in mind, the court examines Defendants’ Motion.
B. Deliberate Indifference

The Eighth Amendment to the United States Constitution prohibits “cruel and unusual
punishments;” this Amendment was made applicable to the States by the Fourteenth
Amendment. U.S. Const. amend VIII; Estelle v. Gamble, 429 U.S. 97, 101 (1976). Numerous
Supreme Court decisions have held that the Eighth Amendment “proscribes more than physically
barbarous punishments,” but also “punishments which are incompatible with ‘the evolving

standards of decency that mark the progress of a maturing society.”” Id. at 102 (quoting Trop vy.


surgical repair for the hernia amounts to deliberate indifference. As the court has noted, Turley’s
hernia was reducible. Reducible hernias generally do not present medical emergencies, and
generally do not call for immediate surgery. “In general, no urgent condition exists if the hernia
is reducible.” Hutp://www.mame.amedd.army.mil/Referral/guidelines/gensurg_hernias. htm.
“Hernias, even those that ache, if they are not tender and [are] easy to reduce (push back into the
abdomen), are not surgical emergencies.” Attp://www.emedicinehealth.com/fulltext/13842.htm.
“Ifthe hernia is reducible (can easily be pushed back into the abdomen) it is not usually an
immediate danger.” Http://www.usurg.com/news/Hernia.htm. In prescribing a conservative
course of treatment, rather than immediate surgery, Defendants thus were not deliberately

indifferent to Turley’s hernia. See Estelle, 429 U.S. at 104-05. Turley merely disagrees with the

course of treatment prescribed by Defendants; such disagreement cannot, without more, establish
deliberate indifference. See Snipes, 95 F.3d at 591. Finally, the court notes that Smith arranged
for Turley to get a second opinion regarding his hernia, and that surgeons at UIC eventually did
repair the hernia.

As to Turley’s alleged knee problems, the court notes that Aguinaldo examined Turley’s
knee on at least two separate occasions, and determined that no abnormalities in the knee existed.
On April 11, 2002, Aguinaldo found that the knee was not swollen or tender, that the patella was
intact, and that Turley experienced no pain when flexing the knee. Despite this, Aguinaldo
prescribed exercise and an ace bandage for Turley. Again, the fact that Turley disagrees with this
course of treatment cannot, without more, establish deliberate indifference. See id,

The court has examined the record in this case, and determines that, given the totality of

the medical care Turley received, and drawing all inferences in Turley’s favor, there is no



B. Procedural History

Turley first filed two Grievances within the Illinois Department of Corrections. Both
Grievances were denied. Then, on June 26, 2002, Turley filed a complaint in the District Court
against Aguinaldo, Smith, and various other defendants alleging a violation of 42 U.S.C. § 19832
Turley asserts that Aguinaldo and Smith were deliberately indifferent to his medical needs
regarding his knee injury and his hernia in violation of the Eighth and Fourteenth Amendments.
Aguinaldo and Smith have since filed a Motion for Summary Judgment. That Motion is fully
briefed and before the court.

II. DISCUSSION

A. Standard of Decision

Summary judgment is permissible when “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). The
nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see
Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that
raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See
Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999).

In deciding a motion for summary judgment, the court can only consider evidence that
would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, $62 (7th Cir. 1996). The court views the record and all

reasonable inferences drawn therefrom in the light most favorable to the non-moving party, FED.

*The other defendants, administrators within the [linois Department of Corrections, have
been dismissed as parties in this case. The court also notes that Turley has filed two other suits
in the Northern District of Illinois, case numbers 03 C 8491 and 02 C 8889.

4


Dulles, 356 U.S. 86, 100-01 (1958)). Punishments that “‘involve the unnecessary and wanton

infliction of pain’” are therefore unconstitutional. 1d, at 103 (quoting Gregg v. Georgia, 428 U.S.

153, 173 (1976)).

It follows from these principles, the Estelle court held, that the government is obligated to

provide medical care to those it punishes by incarceration. Id. The “deliberate indifference to
serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain’
proscribed by the Eighth Amendment.” Id, at 105 (quoting Gregg, 428 U.S. at 173). “Regardless
of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of
action under § 1983.” Id.; see also Eades v. Thompson, 823 F.2d 1055, 1060 (7th Cir. 1987).
Not every instance of arguably deficient medical care creates a cause of action for a
prisoner, however. In order to make out a legitimate claim of deliberate indifference, a prisoner
must establish “both objective and subjective elements.” Walker v. Benjamin, 293 F.3d 1030,

1037 (7th Cir. 2002) (citing Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)). “In the

medical care context, the objective element requires that the inmate’s medical needs be
sufficiently serious.” Id, “The subjective element requires that the prison official acted with a
sufficiently culpable state of mind.” Id.; see also Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir.
1996). In order to establish deliberate indifference, the plaintiff must therefore show that “the
defendants actually knew of a substantial risk of harm to the inmate and acted or failed to act in

disregard of that risk.” Walker, 293 F.3d at 1037.

Estelle and its progeny also provide that where a prison physician is only negligent in

treating an inmate, no cause of action under § 1983 exists. Estelle, 429 U.S. at 106 (“a complaint

that a physician has been negligent in diagnosing or treating a medical condition does not state a



genuine issue of material fact as to whether Defendants acted with deliberate indifference

towards Turley’s medical conditions. See Walker, 233 F.3d at 501. Turley was seen numerous

times by both prison physicians and medical technicians. Turley’s hernia was properly diagnosed
by Defendants. Turley initially received conservative treatment for this hernia, but then received
a second opinion, and finally surgery to correct the problem. Turley received treatment for his
knee problems despite the fact that Aguinaldo could find nothing wrong with the knee. Turley’s

claim of deliberate indifference therefore fails. See Estelle, 429 U.S. at 104-06 (deliberate

indifference constitutes “the unnecessary and wanton infliction of pain”).
Il. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment, brought pursuant
to Federal Rule of Civil Procedure 56(b), is granted.

IT IS SO ORDERED.

ENTER:

CHARLES RONALD NORGLE, Judge

United States District Court

Dated: ed Z LOS



IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GREGORY J. TURLEY,

Case No. 02 C 4592
Plaintiff,
v. Honorable Charles R. Norgle

Dr. KEVIN SMITH and
Dr. EVARISTO AGUINALDO,

Defendants.

OPINION AND ORDER

CHARLES R. NORGLE, District Judge

Before the court is Defendants Kevin Smith’s and Evaristo Aguinaldo’s Motion for
Summary Judgment, brought pursuant to Federal Rule of Civil Procedure 56(b). For the
following reasons, Defendants’ Motion for Summary Judgment is granted.

I, BACKGROUND!

A. Facts

Plaintiff Gregory Turley (“Turley”) is presently incarcerated within the Illinois
Department of Corrections. At all times relevant to this matter, Turley was housed at the
Stateville Correctional Center in Joliet, Illinois. Drs. Kevin Smith (“Smith”) and Evaristo
Aguinaldo (“Aguinaldo”) were both licensed physicians working at Stateville at all times
relevant to this matter. Smith and Aguinaldo will be referred to collectively as “Defendants.”

On April 10, 2001, Turley met with a medical technician in Stateville, and complained of

' The court takes the undisputed facts from the parties’ Local Rule 56.1 Statements, and
notes disputed facts within the text.


valid claim of medical mistreatment under the Eighth Amendment”); Snipes, 95 F.3d at 590
(@[mJere negligence or even gross negligence does not constitute deliberate indifference”); see

also Eades, 823 F.2d at 1060, In addition, the mere fact that an inmate disagrees with a course of

treatment provided by a prison physician does not, without more, establish deliberate
indifference. Snipes, 95 F.3d at 591 (“mere disagreement with the course of {the inmate’s]
medical treatment [does not constitute] an Eighth Amendment claim of deliberate indifference’).
The court must “examine the totality of an inmate’s medical care when determining
whether prison officials have been deliberately indifferent to an inmate’s serious medical needs.”

Walker v. Peters, 233 F.3d 494, 501 (7th Cir. 2000); see also Reed v. McBride, 178 F.3d 849,

855 (7th Cir. 1999); Dunigan ex rel. Nyman v, Winnebago County, 165 F.3d 587, 591 (7th Cir.

1999); Gutierrez, 111 F.3d at 1375. The court will therefore “look at all of the medical services
[Turley] received” in determining whether Drs. Smith and Aguinaldo acted with deliberate
indifference towards Turley’s medical conditions. See Reed, 178 F.3d at 855.

C. Turley’s Assertion that Defendants Acted with Deliberate Indifference to his Medical
Conditions

In this case, the court first notes that Turley was afforded numerous opportunities to visit
with prison physicians. Turley was seen by prison doctors on April 10, 2001, January 22, 2002,
February 6, 2002, March 15, 2002, April 11, 2002, April 24, 2002, and July 19, 2002. Turley
also was seen several times by medical technicians during this period.

As to Turley’s hernia, Turley does not dispute that Defendants correctly diagnosed his
right inguinal hernia. However, he asserts that Defendants were incorrect in prescribing

conservative treatment for his hernia, and that Defendants’ reluctance to immediately schedule


pain in his left knee. (Turley asserts that he injured his knee in 1989, and has suffered from
chronic pain and weakness in the knee since that time.) The technician referred Turley to
Aguinaldo, who examined Turley that same day. Turley explained his chronic injury to
Aguinaldo, and requested that Aguinaldo prescribe a knee brace for him. Aguinaldo examined
Turley, and found no abnormalities in the knee. Aguinaldo instructed Turley on exercises to
strengthen the knee, and prescribed Tylenol for the pain, but he determined that Turley’s knee
was normal and that a knee brace was not medically indicated.

Turley then asserts that on January 12, 2002, as he was descending a flight of stairs, his
left knee “popped out” of joint, and he fell awkwardly into a handrail, injuring himself in the
groin area. Turley visited Aguinaldo again, who diagnosed Turley with a right inguinal hernia.
“An inguinal hernia occurs when a loop of bowel pushes through a weakness in the inguinal
canal, which is a triangle-shaped opening between the layers of abdominal muscle near the
groin.” Http://www.nhsdirect.nhs.uk/en.asp?TopicID=238. Aguinaldo referred Turley to a
surgeon for consultation. On February 6, 2002, Turley was seen by Dr. Natesha, who diagnosed
a reducible right inguinal hernia, and recommended that it be surgically repaired. A hernia is
“reducible” if it can be returned to the abdominal cavity, either spontaneously or manually.
Http://www.emedicine.com/emerg/topic251.htm. A reducible hernia is generally not a medical
emergency, and immediate surgery is not always indicated. Http://www.usurg.com/news/
Hernia.htm. The acting Medical Director at Stateville, Defendant Smith, determined that
because Turley’s hernia was reducible, and not incarcerated or strangulated, surgery was not the
best option in this case. A hernia is “incarcerated” when it is no longer reducible.

Http://www.emedicine.com/emerg/ topic251.htm. A hernia is “strangulated” when it is


incarcerated and the supply of blood to the bowel is cut off. Id. A strangulated hernia is a
medical emergency requiring immediate surgery. Http:/www.emedicinehealth.com/fulltext/
13842.htm. Because Turley’s hernia was neither incarcerated nor strangulated, Smith prescribed
conservative treatment of rest and avoidance of strenuous activity.

On March 15, 2002, Turley visited Aguinaldo once more, complaining of severe pain in
his lower abdomen, near his groin area. Upon examining Turley, Aguinaldo determined that
Turley was not presently in distress, and that the hernia was still reducible and not incarcerated or
strangulated. Aguinaldo took no further action at that time. On April 9, 2002, Turley indicated
to a medical technician that he was again experiencing abdominal pain. Turley then visited
Aguinaldo on April 11, 2002, at which time Turley did not complain about abdominal pain.
Aguinaldo also examined Turley’s knee during this visit, and determined that Turley’s knee was
normal. In response to Turley’s complaints about knee pain, however, Aguinaldo prescribed
exercise and an ace bandage for Turley’s knee. Turley then visited Smith on April 24, 2002.
Smith determined that since Turley’s hernia was still reducible, and still not incarcerated or
strangulated, surgery was again not indicated at that time. Smith gave Turley a prescription for
Tagamet, a heartbum medication.

On July 19, 2002, Smith offered to set up an appointment with another doctor so that
Turley could get a second opinion regarding his hernia. Turley eventually obtained a second
opinion from doctors at the University of Iilinois at Chicago (“UIC”), who recommended that
Turley’s hernia be surgically repaired. On September 25, 2002, doctors at UIC repaired Turley’s

hernia.