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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION 

GILBERT ARREOLA, )

)

Plaintiff, )

 v. ) No. 03 C 2854

)

MUHAMMAD CHOUDRY, M.D.; ) Hon. Matthew F. Kennelly

ERNESTO VELASCO, Director of Cook )

County Jail; MICHAEL SHEAHAN, Cook )

County Sheriff; and COOK COUNTY, )

)

Defendants. )

DR. MUHAMMAD CHOUDRY’S FEDERAL RULE OF CIVIL PROCEDURE 50

MOTION FOR JUDGMENT AS A MATTER OF LAW

NOW COMES Defendant, MUHAMMAD CHOUDRY, M.D., by his attorneys, HEYL,

ROYSTER, VOELKER & ALLEN, and for his Motion for Judgment as a Matter of Law, pursuant

to Federal Rule of Civil Procedure 50, states as follows: 

I. INTRODUCTION

1. Plaintiff Gilbert Arreola claims under 42 U.S.C. § 1983 that Defendant Muhammad

Choudry, M.D., the Medical Director at Hill Correctional Center (hereinafter “HCC”) in 2001,

violated Plaintiff’s Eighth Amendment right to be free of cruel and unusual punishment by treating

Plaintiff with deliberate indifference on April 23, 2001.

2. This Court, having had the benefit of hearing all of Plaintiff’s evidence in this matter,

should grant judgment as a matter of law in favor of Dr. Choudry, pursuant to Federal Rule of Civil

Procedure 50, because he is shielded from liability based upon the doctrine of qualified immunity.

Alternatively, this Court should grant judgment as a matter of law in favor of Dr. Choudry because

there is no legally sufficient evidentiary basisfor the jury to find that Dr. Choudry knew that Plaintiff
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was seriously injured on April 23, 2001, and consciously disregard that risk. Finally, in the

alternative, this Court should dismiss Plaintiff’s prayer for punitive damages as a matter of law

because there is no evidence that Dr. Choudry acted maliciously or in reckless disregard of Plaintiff’s

constitutional rights. 

II. STANDARD OF REVIEW

3. Rule 50(a) allows a court to enter judgment as a matter of law during trial whenever

“a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). See Murray v. Chicago

Transit Auth., 252 F.3d 880, 887 (7th Cir. 2001). This standard mirrors the standard for granting

summary judgment. Murray, 252 F.3d at 886-87. 

4. In ruling on a Rule 50 motion, the courtshould give credence to the evidence favoring

the nonmovant, as well as that evidence supporting the moving party that is uncontradicted and

unimpeached, at least to the extent that that evidence comes from disinterested witnesses. Starks v.

Powers, No. 02-CV-1252-JPG, 2006 WL 929359 (S.D. Ill. April 10, 2006) (citing Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000)). See also Thomas v. Stalter, 20 F.3d

298, 304 (7th Cir.1994) (stating that the district court mayweigh the evidence in evaluating a motion

for a new trial; in doing so, it may assess the witness’ credibility).

III. EVIDENCE AT TRIAL

5. Plaintiff’s Testimony: Plaintiff testified that on April 22, 2001, he injured his ankle

while playing soccer at HCC. He was taken to the infirmary where he was housed overnight and

provided care by the nursing staff. While Plaintiff was in the infirmary, he testified that he was given

aspirin, cold packs, and his foot was wrapped and elevated. None of his requests for aspirin or cold

packs were refused. Plaintiff was seen by Dr. Choudry on the morning of April 23, 2001,
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accompanied by Officer Adelphino Pacheco, Jr. Plaintiff testified that Dr. Choudry obtained his

identification card and learned from the back of the card that Plaintiff was Jewish, which, according

to Plaintiff, Dr. Choudry stated with a smirk. Plaintiff testified that Dr. Choudry tossed the

identification card to Officer Pacheco, who commented that he had never previously seen a "Hispanic

Jew." Plaintiff testified that he took this statement as a joke. Plaintiff further testified that Dr.

Choudry refused to order an x-ray, did not conduct an hands-on examination of his foot/ankle, did

not tell Plaintiff of his diagnosis, and did not provide Plaintiff with any bandage or wrap for his foot

and ankle. Dr. Choudry did, however, send him back to the housing unit with a walker. 

6. Knox County Complaint: The Knox County Complaint that Plaintiff signed under

oath was, or will be, admitted as substantive evidence at trial. Therein, Plaintiff affirms under oath

that: (1) Dr. Choudry diagnosed his injury as a sprain and informed Plaintiff of his belief that no

bones had been broken or fractured (para. 6(c)); (2) Dr. Choudry treated Plaintiff’s injuries as a

sprain, bound his ankle with the use of a foot wrap and provided Plaintiff with aspirin (para. 6(d));

(3) Dr. Choudry advised Plaintiff that his foot and ankle were returning to a normal condition; and,

(4) Dr. Choudry assured Plaintiff that, in the course of about one week, he would fully recover use

of hisfoot and ankle, and that hisfoot and ankle would be in as good condition as before the accident

(para. 7).

7. Officer Adelphino Pacheco, Jr.: Officer Pacheco testified that it was his routine

practice to accompany Dr. Choudry on his rounds in April of 2001. He testified that he never

witnessed Dr. Choudry ever try to discover an inmate’sreligion, and he never observed Dr. Choudry

discriminate against any inmate, or deny any inmate medical treatment, on religious grounds.

Moreover, contrary to the testimony of Plaintiff, Officer Pacheco testified that he never uttered the

phrase “Hispanic Jew,” Dr. Choudry never commented on Plaintiff’sreligion, and he never witnessed
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the occurrence described by Plaintiff. Officer Pacheco testified unequivocally that he would

remember the events described by Plaintiff if they had occurred in his presence.

8. Dr. CraigBeyer: Plaintiff’sretained orthopedic physician, Dr. Beyer, testified that the

standard of care required Dr. Choudry to order an x-ray of Plaintiff’s ankle on April 23, 2001, based

upon his review of the nurse’s progress notes. Dr. Beyer further testified that the Ottawa Rule(s),

which is a screening tool used to determine whether x-rays are immediately indicated, can represent

the minimum level of acceptable medical care if properly applied.

9. Tyrone Reyna: Inmate Tyrone Reyna testified that he observed Plaintiff get injured

while playing soccer. He further testified as to his observations of Plaintiff’s ankle and subjective

complaints, and that he and other inmates helped Plaintiff with Plaintiff’s activities of daily living so

that Plaintiff would not have to bear weight on his ankle. 

10. Dr.MuhammadChoudry’sVideotapedDeposition: Plaintiff’sdepositiondesignations

for Dr. Choudry, and Defendant’s counter-designations, were played for the jury through the use of

Dr. Choudry’s videotaped deposition at trial. Therein, Dr. Choudry testified that the Ottawa Rule(s)

was an accepted medical practice in April of 2001 to screen patients to determine whether x-rays are

immediatelyindicated. Dr. Choudry further testified asto his assessment that Plaintiff could have had

an ankle sprain on April 23, 2001, and that x-rays were not immediately indicated as a result of the

Ottawa Rule(s) examination that he performed with respect to Plaintiff’s ankle on April 23, 2001.

Dr. Choudry testified byway of his deposition that he recommended that Plaintiffreturn in 7-10 days,

and that he would have ordered x-rays if Plaintiff was still complaining of pain at that time, in

accordance with the Rule(s). Dr. Choudry’s further testified that it was his understanding that

Plaintiff had access to 24 hour nursing care if his symptoms worsened prior to his follow-up
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appointment. Finally, Dr. Choudry testified that he has never refused medical treatment to anyone

based on religious grounds.

IV. DR. CHOUDRYIS SHIELDEDFROMLIABILITYBASEDUPONTHEDOCTRINE

OF QUALIFIED IMMUNITY.

11. Since Dr. Choudry was employed to provide medicalservices to inmates at HCC, he

is entitled to assert the defense of qualified immunity. Williams v. O'Leary, 55 F.3d 320, 324 (7thCir.

1995) (holding that a private physician, whose employer contracted with the state to provide medical

services, was entitled to assert the defense of qualified immunity in a deliberate indifference suit;

affirming the district court’s entry of judgment as a matter of law on qualified immunity grounds);

Sherman v. Four County Counseling Center, 987 F.2d 397, 405-06 (7th Cir. 1993) (same in the

context of a psychiatric facility). 

12. Thus, Dr. Choudrywillbe immune fromliability in this matter ifthis Court determines

that his conduct “does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Sherman, 987 F.2d at 401. In order to make this

determination, this Court must first determine whether the alleged conduct violated Plaintiff’s

constitutional rights. If his rights were violated, this Court must decide whether they were clearly

established at the time the violation occurred. Sherman, 987 F.2d at 401, 406.

13. Whether a constitutional right is clearly established is a question of law. The right

must be sufficiently particularized to put potential defendants on notice that their conduct is probably

unlawful. Until a particular constitutionalright has been stated so that reasonably competent officers

would agree on its application to a given set of facts, it has not been clearly established. Sherman,

987 F.2d at 401, 406-07. See Greffey v. State of Ala. Dept. of Corrections, 996 F.Supp. 1368 (N.D.

Ala. 1998) (in a medical deliberate indifference case, the plaintiff must establish that the medical

defendant's actions were clearly as great a departure from appropriate medicalstandards as previous
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departures found unconstitutional in prior cases; “[v]iewed through the clear lens of hindsight, [the

doctor’s] clinical impressions may have been faulty . . . [but] that does not necessarily mean either

that [the doctor’s] conduct constituted psychological malpractice, or that it rose to the level of a

constitutional violation.”). 

14. It is Plaintiff’s burden to convince the Court that a clearly established constitutional

right existed on April 23, 2001. Id. at 408. Plaintiff failed to satisfy this burden since Plaintiff

presented no evidence to establish that the application of the Ottawa Rule(s) was unconstitutional,

or that the Constitution required Dr. Choudry to order x-rays of his ankle on April 23, 2001.

Plaintiff’s own retained orthopedic surgeon, Dr. Beyer, even admitted that the Ottawa Rule(s)

represent the minimum level of acceptable medical care. Moreover, no case has ever been decided

which prohibits a physician from applying the Ottawa Rule(s) in order to determine whether x-rays

are indicated immediately. Furthermore, no case has ever held that x-rays are always required for

every patient who seeks medical treatment for an injured ankle. The United States Supreme Court

even suggested to the contrary in Estelle, by stating:

[T]he question whether an X-ray-or additional diagnostic techniques or forms oftreatment-is

indicated is a classic example of a matter for medical judgment. A medical decision not to

order an X-ray, or like measures, does not represent cruel and unusual punishment. At most

it is medical malpractice . . . .

Estelle, 429 U.S. at 107. As a result, this Court should enter judgment as a matter of law in favor

of Dr. Choudry on qualified immunity grounds because Plaintiff failed to prove that he had a “clearly

established” constitutional right to x-rays on April 23, 2001. 

15. Plaintiff’s testimony regarding Dr. Choudry’s purported religious discrimination is

inapposite to this Court’s qualified immunity analysis because the subjective good faith of Dr.

Choudry isirrelevant to determining whether qualified immunity applies. Rather, it is the "objective

legal reasonableness" of Dr. Choudry’s actions or failure to act, assessed in light of the "clearly
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established" legalrules, that controls. Wilson v. Layne, 526 U.S. 603, 614 (1999). See also Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (establishing an objective standard for qualified immunity to

make summary judgment an appropriate device to “avoid excessive disruption of government and

permit the resolution of many insubstantial claims”). 

16. In conclusion, because Plaintiff has not presented evidence at trialto demonstrate that

Dr.Choudry’s alleged departure fromprofessionaljudgment was comparable to that previouslyfound

to constitute a violation of constitutional rights, this Court should grant judgment as a matter of law

in favor of Dr. Choudry and against Plaintiff. 

V. NO REASONABLE JURY COULD FIND IN FAVOR OF PLAINTIFF WITH

REGARD TO HIS DELIBERATE INDIFFERENCE CLAIM.

17. Alternatively, now that this Court has had the opportunity to hear, and weigh,

Plaintiff’s evidence in this matter, it should grant judgment as a matter oflaw in favor ofDr. Choudry,

pursuant to FederalRule of Civil Procedure 50, because there is no legally sufficient evidentiary basis

for the jury to find that Plaintiff was subjected to cruel and unusual punishment in violation of the

Eighth Amendment on April 23, 2001.

18. The law is well settled that a prison inmate plaintiff, attempting to prevail on a claim

of medical mistreatment pursuant to 42 U.S.C. § 1983, must prove “acts or omissions sufficiently

harmful to evidence deliberate indifference to a serious known medical need;” “claims of negligence

and/or malpractice are insufficient to support such a cause of action.” Estelle v. Gamble, 429 U.S.

97, 106 (1976); Farmer v. Brennan, 511 U.S. 825 (1994); Sherrod v. Lingle, 223 F.3d 605 (7th Cir.

2000). The established standard contains both an objective and a subjective component that Plaintiff

must prove. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). The inmate must have an

objectively serious medical condition, and must establish that the health care provider was
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subjectively aware of and consciously disregarded a risk to the inmate’s health or safety. Farmer,

511 U.S. 837 (1994); Sherrod, 223 F.3d 610; Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999).

19. Subjective recklessness, as used in the criminal law, is the appropriate test for

“deliberate indifference.” Farmer, 511 U.S. at 839; Salazar v. City of Chicago, 940 F.2d 233, 238

(7th Cir.1991) (holding that neither simple nor gross negligence is sufficient). The medical officer

must know that there is a serious injury or risk of permanent disablement, and then must consciously

disregard that risk. Farmer, 511 U.S. at 837. Even when clear mistakes in diagnosis and treatment

are made, “[m]edical malpractice does not become a constitutional violation merely because the

victimis a prisoner.” Estelle, 429 U.S. at 106. A physician's diagnosis of a condition is presumptively

representative of the physician's state of mind. Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th

Cir.1996), cert. denied, 519 U.S. 1109 (1997). 

20. This matter is analogous to Brown v. Borough of Chambersburg, 903 F.2d 274, 278

(3rd Cir. 1990). In Brown, the plaintiff inmate testified at trial that, when he went to see the prison

physician complaining of pain in hisribs, the doctor conducted only a visual examination of his upper

chest and did not press on his ribs or order x-rays, thereby failing to discover the full extent of his

injuries. The testimony of both the plaintiff and the doctor revealed that the doctor concluded that

the plaintiff had only a bruise. Upon release from custody, the plaintiff obtained medical treatment

at a hospital where two ribs were found to be broken. The Seventh Circuit stated: 

Even if we accept as credible plaintiff's testimony that the doctor did not touch the injured

area, we could not characterize the doctor's conclusion based on a visual examination that

plaintiff had only a bruise as a failure to exercise medical judgment. The most that can be said

of plaintiff's claim is that it asserts the doctor's exercise of deficient professional judgment.

Brown, 903 F.2d at 278. See also Ruvalcaba v. City of Los Angeles, 167 F.3d 514 (9th Cir. 1999)

(granting the prison doctor’s motion for judgment as a matter of law even though the doctor failed

to take the inmate’s medical history and failed to diagnose the inmate’s fracture; “[a]lthough such
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errors may support a finding that [the doctor] was negligent, the facts do not support an inference

that [the doctor] acted purposely with deliberate indifference”).

21. Similarly, even if this Court takes Plaintiff’s testimony as true that Dr. Choudry only

conducted a visual inspection of his ankle and did not conduct an hands-on examination, “[t]he most

that can be said of plaintiff's claim is that it asserts the doctor's exercise of deficient professional

judgment.” Brown, 903 F.2d at 278. Such does not rise to the level of a constitutional violation. 

22. Even though Plaintiff testified that Dr. Choudry made disparaging remarks about his

religion on April 23, 2001, such does not establish that Dr. Choudry consciously disregarded the risk

of a fracture. Moreover, this Court is permitted to assess Plaintiff’s credibility and give Plaintiff’s

testimony no credence particularly in light of his prior inconsistent sworn statements in his Knox

County Complaint that Dr. Choudry diagnosed hisinjury as a sprain and treated hisinjury as a sprain

by wrapping his foot and providing him with aspirin. Also, this Court can consider the testimony of

Officer Pacheco, who is a disinterested witness, that Dr. Choudry never made the disparaging

remarks, even though Plaintiff identified Officer Pacheco as an eyewitness to the occurrence. See

case law cited supra Paragraph 4, which allows the Court to weigh Plaintiff’s credibility and the

testimony of disinterested witnesses. See also Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.

1997) (affirming judgment on the pleadings in favor of the defendant prison doctor where it was

alleged that delays in treatment resulted in an infected pilonidal cyst; the court found the plaintiff’s

allegations in his complaint to be binding admissions and “fatally undermined” his deliberate

indifference claim because he gave a detailed account of the treatment he received). In short, no

reasonable jury could find that Dr. Choudry acted with deliberate indifference based upon Plaintiff’s

trial testimony, since Plaintiff’strial testimony is contradicted by his own prior sworn statements and

the testimony of the above-referenced disinterested witnesses. 
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23. Furthermore, even presuming that Plaintiff had sustained a fractured ankle prior to his

being seen by Dr. Choudry, any initial misdiagnosis of the problem does not reflect such substandard

care asto rise to the level of an Eighth Amendment violation. Asthis Honorable Court is well aware,

neither simple medical malpractice, Steele v. Choi, 82 F.3d 175, 178-79 (7th Cir. 1996), nor mere

dissatisfaction with a doctor’s prescribed course of treatment, Snipes v. DeTella, 95 F.3d 586, 592

(7th Cir. 1996), is actionable under 42 U.S.C. § 1983. A health care provider’s erroneous treatment

implicates the Constitution only when that provider’s conduct reflects a substantial departure from

accepted medical judgment, practice, or standards. Sherrod, 223 F.3d at 611; Vance v. Peters, 97

F.3d 987, 92 (7th Cir. 1996).

24. So long as medical care is provided, which is the case here (i.e., cold packs, aspirin,

elevation, foot wraps, a walker, and a recommendation that Plaintiff return to see Dr. Choudry in

seven to ten days), there is no deliberate indifference because such care meets "minimalstandards of

adequacy." Holmes v. Sheahan, 930 F.2d 1196, 1199 (7th Cir.1991). See Taylor v. Dutton, 85 F.3d

632, 1996 WL 253856 (7thCir.1996) (affirming summary judgment to prison doctor who treated the

plaintiffinmate’storn anterior cruciate ligament with wraps, ice, injections, and medical “lay-ins,” as

opposed to arthroscopic surgery, whichwasrecommended byone ofthe inmate’s consulting doctors,

since the inmate did not establish that the prison doctor knew of an excessive risk to his health, and

then failed to act; “mere difference in opinion” is insufficient to establish deliberate indifference). 

25. In sum, no reasonable jury could conclude based upon the evidence that the treatment

provided to Plaintiff in the infirmary, including cold packs, aspirin, foot wraps, and elevation,

followed by Dr. Choudry’s diagnosis of a sprain and treatment which included the doctor providing

a walker and a recommendation that Plaintiff return in seven to ten days, was so inadequate as to

constitute cruel and unusualpunishment under the EighthAmendment. As a result, thisCourt, having
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had the benefit of hearing and weighing the evidence, should enter judgment as a matter of law in

favor of Dr. Choudry.

VI. PLAINTIFF’S PRAYER FOR PUNITIVE DAMAGES SHOULD BE DISMISSED

BECAUSE THERE IS NO EVIDENCE THAT DR. CHOUDRY’S CONDUCT WAS

MALICIOUS OR IN RECKLESS DISREGARD OF PLAINTIFF’S RIGHTS.

26. In order for Plaintiff to recover punitive damages, he must prove that Dr. Choudry’s

conduct was malicious or was in reckless disregard of Plaintiff’s rights. Conduct is malicious if it is

accompanied by illwill orspite, or is done for the purpose of injuring Plaintiff. Conduct isin reckless

disregard ofPlaintiff’srightsif, under the circumstances, it reflects complete indifference to Plaintiff’s

safety or rights. See Seventh Circuit Pattern Jury Instruction No. 7.24. 

27. This Court should strike and dismiss Plaintiff’s prayer for punitive damages in this

matter as a matter of law because there is no evidence that Dr. Choudry acted maliciously or in

reckless disregard of Plaintiff’s constitutional rights. 

WHEREFORE, for the foregoing reasons, Dr. Choudry respectfully requests that this

Honorable Court enter judgment as a matter of law in his favor, and against Plaintiff, pursuant to

Federal Rule of Evidence 50, or, alternatively, to dismiss Plaintiff’s prayer for punitive damages as

a matter of law, and for such other relief as this Court deems just and proper.

MUHAMMAD CHOUDRY, M.D. 

BY: s/ Scott G. Salemi 

HEYL, ROYSTER, VOELKER & ALLEN 

Scott G. Salemi, Esq. 

ARDC 6209932 

G:\93\P0493\P0493PMI 039
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PROOF OF SERVICE

The undersigned certifiesthat a copy of the foregoing instrument wasserved upon all parties

to the above cause via in-hand delivery and the CM/ECF System on the 16th

 day of May , 2007.

TO: Laura Cullison

Skadden Arps Slate Meagher & Flom LLP

333 West Wacker Drive

Chicago, IL 60606

Mr. Dominic Lanzito, A.S.A.

Mr. Paul Castiglione, A.S.A.

Office of Cook County States Attorney

500 Richard J. Daley Center

Chicago, IL 60602

BY: s/ Scott G. Salemi 

Scott G. Salemi