IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

Donna Louise DuPree,

Plaintiff,

v.

Dr. Patricia Burke, 

Defendant.

No. 20 C 4889

Honorable Nancy L. Maldonado

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Donna Louise DuPree initiated this civil rights lawsuit pursuant to 42 

U.S.C. § 1983 claiming that she received inadequate medical care when she was a pretrial detainee 

at Kane County Adult Justice Center. DuPree alleges that Defendant Dr. Patricia Burke violated 

DuPree’s rights under the Fourteenth Amendment’s Due Process Clause by wrongfully denying

DuPree surgery for a rectocele and pelvic organ prolapse, which caused her condition to become 

more painful. Dr. Burke has now moved for summary judgment, arguing that: (1) DuPree’s 

diagnosed condition was not an objectively serious medical condition; (2) Dr. Burke provided 

objectively reasonable treatment; (3) DuPree lacks verifying medical evidence that Dr. Burke’s 

alleged delay in treatment caused her any harm; and (4) punitive damages are inappropriate. (Dkt. 

58.) For the reasons stated below, the Court grant’s Dr. Burke’s motion for summary judgment. In 

short, while the Court concludes there is a genuine dispute of fact as to whether DuPree was 

suffering from an objectively serous medical condition, the Court also concludes that DuPree has 

failed to come forward with sufficient evidence from which any jury could conclude that Dr. 

Burke’s treatment was objectively unreasonable, or that any delay in treatment caused an 

independent harm. Dr. Burke is therefore entitled to summary judgment. 

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Background

I. Northern District of Illinois Local Rule 56.1

Before providing the factual record on summary judgment, a brief note on the local rules 

governing summary judgment practice is warranted in light of DuPree’s pro se status and her 

failure to comply with those rules. 

Local Rule 56.1 governs the procedures for filing and responding to motions for summary 

judgment in this court. The rule is intended “to aid the district court, which does not have the 

advantage of the parties’ familiarity with the record and often cannot afford to spend the time 

combing the record to locate the relevant information, in determining whether a trial is necessary.”

Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (cleaned up). Local Rule 56.1(a) requires 

the moving party to provide a statement of material facts that complies with Local Rule 56.1(d). 

N.D. Ill. Local Rule 56.1(a)(2). Local Rule 56.1(d) requires that “[e]ach asserted fact must be 

supported by citation to the specific evidentiary material, including the specific page number, that 

supports it. The court may disregard any asserted fact that is not supported with such a citation.”

N.D. Ill. Local Rule 56.1(d)(2).The opposing party must then respond to the movant’s proposed 

statements of fact. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); N.D. 

Ill. Local Rule 56.1(e). In the case of any disagreement, “a party must cite specific evidentiary 

material that controverts the fact and must concisely explain how the cited material controverts the 

asserted fact. Asserted facts may be deemed admitted if not controverted with specific citations to 

evidentiary material.” N.D. Ill. Local Rule 56.1(e)(3). “[M]ere disagreement with the movant’s 

asserted facts is inadequate if made without reference to specific supporting material.” Smith v. 

Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

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DuPree is proceeding pro se and so Dr. Burke served her with a “Notice to Pro Se Litigant 

Opposing Motion for Summary Judgment” as required by Local Rule 56.2. (Dkt. 61.) DuPree

responded by filing a response to Dr. Burke’s Statement of Facts (Dkt. 74), a Statement of 

Additional Material Facts (Dkt. 73), and a memorandum opposing the motion (Dkt. 72). Dr. Burke

then responded to DuPree’s Statement of Additional Material Facts. (Dkt. 78.)

DuPree’s filings fail to comply with Local Rule 56.1 in many respects. For example, 

DuPree responded to many of Dr. Burke’s factual statements by stating that she had insufficient 

information to admit or deny the statements. (See, e.g., Dkt. 74, ¶¶ 5–8, 21, 34, 38, 40, 43, 46, 51, 

72-73.) But this is not a proper response under the Local Rules, as all asserted facts must be either 

admitted or denied, in whole or in part. See N.D. Ill. Local Rule 56.1(e)(2). While a party is free 

to raise objections in their response, such as an objection that the asserted fact lacks support or is 

based on inadmissible evidence, a party must still indicate whether they admit or deny the fact 

notwithstanding the objection or they risk waiving any dispute. See id. (“In the event that the 

objection is overruled, the failure to admit or dispute an asserted fact may constitute a waiver.”). 

Separately, DuPree’s factual assertions in her Statement of Additional Material Facts (Dkt. 73) fail

to comply with the Local Rules in that the Statement does not consist of numbered paragraphs, 

mixes argument with factual assertions, and does not cite to the record. DuPree’s responses to Dr. 

Burke’s Statement of Material Facts, while they are in numbered paragraphs, suffer from many of 

the same flaws, as DuPree attempts to assert additional facts in her responsive statement.

The Court notes that it enjoys broad discretion to require strict compliance with Local Rule 

56.1, or to relax the rules and excuse noncompliance. Edgewood Manor Apartment Homes, LLC 

v. RSUI Indem. Co., 733 F.3d 761, 770 (7th Cir. 2013). Further, while pro se litigants are entitled 

to some flexibility, they are not excused from following the local rules. See, e.g., Coleman v. 

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Goodwill Indus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011) (nonprecedential) 

(“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance 

with local rules”). Ultimately, the Court will excuse DuPree’s failure to comply with the technical 

formatting requirements in the local rules and will consider the additional facts identified by 

DuPree in her statements to the extent they are supported by the record, or if she could properly 

testify to them. See Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (noting a district’s 

entitlement to take a “flexible approach” and construe a pro se submission leniently). On the other 

hand, where DuPree has not properly responded to one of Dr. Burke’s asserted facts, the Court 

will deem the fact admitted and accept it as true to the extent it is supported by the record. See 

Lamz, 321 F.3d at 683 (7th Cir. 2003).

Finally, the Court notes that it is also mindful that failure to strictly comply with Local 

Rule 56.1, or indeed to respond at all to a motion for summary judgment, does not automatically 

warrant judgment in favor of the moving party. Raymond v. Ameritech Corp., 442 F.3d 600, 608 

(7th Cir. 2006) (moving party has “ultimate burden of persuasion” to show entitlement to judgment 

as a matter of law). The Court will apply these standards in evaluating the evidence and factual 

record below.

II. Factual Background

Except as otherwise noted below, the following represents the undisputed facts as presented 

in the parties’ Local Rule 56.1 statements. Where the facts are disputed, the Court indicates each 

side’s position. 

DuPree is a former detainee at the Kane County Adult Justice Center who was detained 

there intermittently from 2012 to 2013, 2013 to 2014, and in 2016, 2017, 2018, and 2019. (Dkt. 

59 ¶ 2.) Dr. Patricia Burke is a physician who formerly worked at the Kane County Adult Justice 

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Center from September 2017 to June 2020. (Id. ¶ 3.) Dr. Burke obtained her undergraduate degree 

from the University of Chicago and her medical degree from the Yale School of Medicine. (Id.)

She is licensed in Illinois and is board certified in internal medicine and geriatrics. (Id.) Dr. Burke 

has decades of experience treating internal medicine complaints. (Id.) Dr. Burke consulted on

Dupree’s medical treatment more than two dozen times over the course of DuPree’s detention at 

Kane County Adult Justice Center, from March 22, 2018 to June 20, 2019, when DuPree was 

ultimately transferred to the custody of the Illinois Department of Corrections. (See id. ¶¶ 10, 74.)

At the outset, the Court notes that not all of Dr. Burke’s treatment of DuPree during her 

detention period is relevant to this lawsuit. The parties’ statements of fact and the medical records 

from DuPree’s treatment indicate that DuPree has an extensive medical history with a number of 

chronic conditions, and that Dr. Burke treated Dupree with respect to a number of these other

issues during her detention. But DuPree’s operative second amended complaint only specifically 

raises claims related to Dr. Burke’s treatment of DuPree’s rectocele and pelvic organ prolapse, and 

the lack of surgery for those medical issues. (Dkts. 16, 17.) Now, however, DuPree apparently 

seeks to broaden the scope of her claims to include other aspects of her treatment. For example, 

throughout both her response to Dr. Burke’s statement of facts and her responsive memorandum, 

DuPree raises numerous other complaints about Dr. Burke’s treatment decisions concerning other 

medical conditions, including DuPree’s sleep apnea, back, hip, and neck pain. (See, e.g., Dkt. 74.

¶¶ 19, 20, 22, 23, 56, 57, 61, 64, 68. 69.) But DuPree cannot amend her complaint to expand her 

claims of mistreatment in response to a summary judgment motion. See Prakel v. Indiana, 100 F. 

Supp. 3d 661, 671 (S.D. Ind. 2015) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th 

Cir. 1996)). Rather, the scope of DuPree’s claims islimited to what she pled in her second amended 

complaint, which only mentions Dr. Burke’s treatment of her rectocele and pelvic organ prolapse.

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The Court has therefore focused its discussion of the factual record on Dr. Burke’s 

treatment of DuPree as it relates to the conditions at issue, i.e. her rectocele and pelvic organ 

prolapse, and the Court has limited its discussion of DuPree’s unrelated treatment and medical 

concerns, providing details only as is necessary for context. 

A. Medical Care for DuPree’s Rectocele/Pelvic Organ Prolapse.

1. Diagnosis and Initial Treatment Between July 14, 2018, and August 13, 2018.

Dr. Burke first saw DuPree on March 22, 2018, and treated DuPree ten times between 

March 22 and July 9, 2018, though it is undisputed that none of these visits involved care for a 

pelvic organ prolapse of any kind, and that DuPree did not report that she was experiencing 

symptoms of pelvic organ prolapse during any of these initial ten examinations. (See id. ¶¶ 10–

28.) Then, on July 14, 2018, nurses advised Dr. Burke (who was not on site at the time) that DuPree 

had been brought to the clinic for a medical assessment of a suspected prolapsed uterus that was 

reportedly very painful. (Id. ¶ 29.)1 Dr. Burke ordered that DuPree be taken to the local emergency 

room via ambulance. (Id.)

At Northwestern Delnor ER, DuPree was found to have minimal prolapse that was noted 

as occurring only when she was sitting upright. (Id. ¶ 30.) When DuPree was flat, Northwestern 

treaters found no prolapse, ulceration, or erythema (reddening of the skin). (Id.) The medical 

providers at Northwestern assessed DuPree with a Grade 1 uterine prolapse that was reducible, 

meaning that it could be put back into place, and noted that the area around the prolapse was not 

“significantly tender.” (Id.) The ER physician advised that DuPree should be referred for a followup with an obstetrician-gynecologist and ordered a clear liquid diet for four days. (Id.) DuPree

contends that Dr. Burke knew or should have known that the prolapse would get worse with daily 

1 Uterine prolapse is when the uterus is not properly supported and falls into the vagina. (Id. ¶ 9.)

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activities and should have consulted with the ER doctor as to what could be done to prevent the 

prolapse from getting worse. (Id.; See also Dkt. 74 ¶ 30.)

On July 15, 2018, Nurse Kamila Adamowicz notified Dr. Burke that DuPree had elevated 

blood pressure, felt shaky, and was complaining of the high sodium content in the liquid diet 

ordered by Northwestern. (Dkt. 59 ¶ 31.) Dr. Burke ordered that DuPree be given a soft diet with 

supplemental protein shakes rather than the liquid diet. (Id.) Later that day, Dr. Burke received 

another report that DuPree reported experiencing vaginal bleeding and abdominal pain when she 

tried to pass stool. (Id.) Nurse Adamowicz noted a scant amount of blood on the wall of DuPree’s 

vagina and assessed DuPree as having a visible uterine prolapse. (Id.) Dr. Burke ordered that 

DuPree be provided with lubricating jelly, bed rest, Ibuprofen, and Tylenol, and that an 

appointment with Dr. Burke be scheduled for the next day. (Id.)

The next day, on July 16, 2018, Dr. Burke examined DuPree. (Id. ¶ 32.) Dr. Burke reviewed 

the history of bowel complaints and pelvic prolapse, which DuPree identified as uterine prolapse.

(Id.) DuPree had been given Milk of Magnesia, and reported that she was no longer straining at 

stool, but that her stools were becoming loose. (Id.) DuPree reported that she could urinate well 

and was not incontinent. (Id.) According to Dr. Burke, DuPree requested a consultation with Dr. 

Shyamani, DuPree’s prior physician in Elgin, Illinois, because Dr. Shyamani had allegedly told 

her that if “this” occurred again, DuPree would need a hysterectomy. (Id.) Upon examination, Dr. 

Burke noted a bulge at the vaginal entrance and slight blood on the lateral vaginal wall. (Id.) As 

Dr. Burke tried to reduce the mass, it caused DuPree some discomfort and the tissue fell 

immediately. (Id.) Dr. Burke explained that she did not feel a firm body, which would be 

characteristic of the uterus, which is what DuPree believed had prolapsed. (Id.)

Based on her examination, Dr. Burke diagnosed DuPree with a Grade 2 prolapse of the 

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vagina or uterus with mild bleeding. (Dkt. 59 ¶ 33; see Dkt. 68 at 49.) Dr. Burke prescribed Tylenol 

# 3 and Nortriptyline, and planned to arrange for care from a gynecologist promptly. (Id.) While

DuPree disputes that she received gynecological care promptly, it is undisputed that she was 

eventually seen by a gynecologist on August 6, 2018, as will be detailed further below. (See Dkt. 

74 ¶ 33.)

Dr. Burke separately searched online for Dr. Shyamani and learned that the doctor was an 

internal medicine doctor, not a gynecologist. (Dkt. 59 ¶ 34.) Dr. Burke spoke to Dr. Shyamani, 

who indicated they had never treated DuPree for a prolapse, but instead reported that DuPree had 

a rectocele repair by a different physician, Dr. Guske, in Hoffman Estates. (Id. ¶¶ 34–35.) A 

rectocele occurs when the rectum prolapses into the back of the vaginal wall. (Id. ¶ 9.) DuPree

had never reported to Dr. Burke or anyone at Kane County that she had a rectocele repair prior to 

incarceration. (Id. ¶ 35) Dr. Burke concluded that DuPree’s symptoms were compatible with 

DuPree having a rectal prolapse into the vagina (i.e., a rectocele). (Id.) Dr. Burke noted in her 

examination records that Kane County would contact Dr. Guske. (Id.)

2

Dr. Burke examined DuPree again on July 20, 2018. (Dkt. 59 ¶ 37.) DuPree reported relief 

from a soft diet but complained of constipation and vaginal bleeding, including having passed a 

clot that morning. (Id.) On examination, Dr. Burke found DuPree more comfortable than in prior 

visits that week. (Id.) Dr. Burke’s medical assessment was vaginal bleeding with cramps, a history 

2 DuPree denies telling Dr. Burke that Dr. Shyamani had told her that if “this” re-occurred, she would need a 

hysterectomy. (See Dkt. 74 ¶ 32.) DuPree also appears to dispute that she never told Dr. Burke about her prior 

rectocele. In her response to Dr. Burke’s statement of facts on this point, DuPree states that she lacks sufficient 

information to respond, which the Court noted above is not a proper means of disputing a fact. DuPree attempts to go 

further in her responsive brief, claiming that she affirmatively told Dr. Burke about her rectocele surgery with Dr. 

Guske at her first appointment on March 22, 2018; but the medical records from the visit on which she relies do not 

clearly support that claim, and only mention treatment for a lower bowel obstruction. (See Dkt. 72 at 20; see also Dkt. 

68 at 56.) The Court could thus deem the fact that she never reported the rectocele as admitted, given that DuPree has 

not properly disputed the fact. In any event, the question of whether she reported the prior issue, even if disputed, 

would not change the outcome and is therefore immaterial. 

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of rectocele, and prolapsing tissue. (Id.) Dr. Burke noted the need to rule out postmenopausal 

uterine bleeding and obtain records from DuPree’s prior general surgeon. (Id.) Dr. Burke planned 

for DuPree to start Milk of Magnesia for 14 days, take Motrin, have an ultrasound, and restart a 

soft diet. (Id.) DuPree does not dispute these facts, but faults Dr. Burke for not having obtained a 

gynecological evaluation by this date. (See Dkt. 74 ¶ 37.)

On July 20, 2018, Wexford approved Dr. Burke’s request for DuPree to have an offsite 

gynecological evaluation, a request she had made three days earlier. (See Dkt. 59 ¶ 38; see also

Burke Decl., Dkt. 65 ¶¶ 63, 67.) During the collegial review with Wexford’s Dr. Neil Fisher, a 

plan was made to prioritize a prompt gynecological consultation and go from there. (Id.) That same 

day, Dr. Burke reviewed Dupree’s pharmacy records, noted that Nortriptyline could interfere with 

DuPree’s psychiatric medications, and developed a plan to discontinue that medication and change 

DuPree’s Motrin prescription to a Naprosyn prescription, in case that drug was more helpful for 

DuPree’s pain. (Id.)

On August 2, 2018, Dr. Burke, who was not on site, received a report from nursing staff 

that DuPree was in distress from recurrent prolapsed uterus and excessive menstrual bleeding. (Id.

¶ 39.) Dr. Burke ordered that DuPree be taken to Northwestern Delnor ER. (Id.) DuPree contends, 

without citation to any evidence, that this ER visit could have been avoided if Dr. Burke had 

scheduled an earlier gynecological consultation. (See Dkt. 74 ¶ 39.)

DuPree reported to the Northwestern Delnor ER staff that she had vaginal bleeding and a 

prolapsed uterus for five days of mild severity with no abdominal pain, back pain, dizziness, 

dysuria (painful urination), fatigue, fever, or nausea. (Dkt. 59 ¶ 40.) DuPree further told ER staff 

that her uterus comes out and she pushes it back in, typically with scant blood, but she had heavy 

clots on that day. (Id.) On examination, the Northwestern doctor found no active bleeding, no 

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masses, no edema, tenderness, or deformity, but found a few small, dark blood clots. (Id.) The ER 

doctor discussed his findings with the on-call obstetrician and decided there was no need for 

admission to the hospital or medication. (Id.) The doctor recommended an endometrial biopsy to 

rule out gynecological cancer and completed an abdominal x-ray. (Id.) The x-ray found surgical 

clips were suggested in the upper midline pelvis, and that an early bowel obstruction could not be 

excluded. (Id.)

Dr. Burke saw DuPree for a follow-up on August 3, 2018. (Id. ¶ 41.) DuPree complained 

of poor appetite, uterine bleeding and cramping and some nausea, but no vomiting and good bowel 

movements. (Id.) Dr. Burke noted that an ultrasound in the ER had shown an unremarkable 

antegrade uterus. (Id.) Jail nursing staff also informed Dr. Burke that the ER staff had made a 

comment about a possible small bowel obstruction, though DuPree denied having additional 

testing done other than the ultrasound, and the ER did not inform Dr. Burke that an x-ray was 

done. (Id.) A urine dipstick test was performed, which showed the expected blood as the only 

abnormality. (Id.) Dr. Burke’s medical assessment was vaginal bleeding, history of rectocele, now 

with nausea and a little dehydration, and somewhat abnormal bowel sounds. (Id. ¶ 42.) Dr. Burke 

noted the potentially significant role of rectocele and the potential early small bowel obstruction, 

and further noted that bleeding with clots was unusual because DuPree had not had menses in 

years. (Id.) Dr. Burke’s plan of care was to refer DuPree to a gynecologist or urogynecologist and

to order a liquid diet for 24 hours and several lab tests. (Id.) DuPree’s response to the facts from 

this examination, consistent with her responses to other factual statements regarding her treatment 

during this time period, is to admit the facts related to Dr. Burke’s treatment, but protest that she 

should have received a referral to an outside gynecologist sooner. (See Dkt. 74 ¶ 41.)

That same day, August 3, 2018, Dr. Burke spoke with Dr. Pineiro, a gynecologist, who 

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agreed to see DuPree. (Id. ¶ 43.) Dr. Burke also spoke to Stephanie Myers, Dr. Guske’s clinical 

assistant, who was concerned about a possible small bowel obstruction and recommended certain 

radiological tests to assess DuPree before making a follow up appointment with Dr. Guske, who 

had performed DuPree’s prior surgery. (Id.) In her response, DuPree faults Dr. Burke for failing 

to obtain these recommended tests, which the medical records describe as an obstructive series or

CT to check for a bowel obstruction and a CT of her abdomen and pelvis to assess her prolapse. 

(Dkt. 74 ¶ 35; see Dkt. 68 at 48.)

On August 3, 2018, Dr. Burke drafted a detailed summary of DuPree’s current medical 

history. (Dkt. 59 ¶ 44.) She noted that over the last few weeks, DuPree had developed a pelvic 

prolapse that was aggravated by straining at stool. (Id.) This initially was believed to be a uterine 

prolapse, but Dr. Burke could not feel a cervix on examination, and DuPree was presenting with 

predominantly rectal rather than bladder symptoms, but had also developed vaginal bleeding with 

clots and severe uterine cramping and urinary frequency. (Id.) Dr. Burke also noted that DuPree

had been seen in the ER for a second time the day before, received fentanyl for her pain, and had 

a pelvic ultrasound. (Id.) Dr. Burke stated that efforts were ongoing to obtain a consultation with 

the appropriate specialist. (Id.)

On August 6, 2018, DuPree had a consultation with Dr. Pineiro, who found a normal 

examination other than a mild rectocele with no uterine prolapse. (Id. ¶ 45.) For her postmenopausal bleeding, an endometrial biopsy was performed. (Id.) DuPree was started on 

Progesterone to control her bleeding. (Id.) On August 7, 2018, Dr. Burke spoke with Dr. Pineiro, 

who reported that the biopsied cervical tissue was very thin, but that the sample was benign. (Id. ¶ 

46) Dr. Pineiro further reported that the current plan of treatment should be sufficient, but that 

DuPree might need additional treatment for her bleeding issue after release. (Id.)

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Dr. Burke saw DuPree again on August 13, 2018. (Id. ¶ 47.). (Id.) On examination, Dr. 

Burke’s assessment was rectocele with a history of severe adhesions. (Id.) She noted the benign 

biopsy results, but that the biopsy was perhaps inadequate, and a formal report from the 

gynecologist was pending. (Id.) The notes indicate DuPree reported considerably less pain than 

before, but that pain and moderate bowel dysfunction from the rectocele persisted. (Id.) Dr. 

Burke’s plan of care was to maintain bowel movements to prevent straining, to check with 

gynecology to determine whether further tests were needed to rule out endometrial cancer, to try 

to taper DuPree’s Gabapentin dosage from high to moderate, because Gabapentin can be a 

problematic medication in jails, and to try to reduce DuPree’s dosage of Tylenol with codeine 

because it can cause constipation. (Id. ¶ 48.)

2. Dr. Burke Concludes in August 2018 that Surgery was not Urgent and Necessary.

A critical point of contention in this case is Dr. Burke’s conclusion that surgery to address 

DuPree’s rectocele was not urgent and necessary, but rather would be elective and could be 

deferred. Although the precise timing of this conclusion is not explicit in the parties’ briefing and 

supporting materials, Dr. Burke appears to have begun considering the issue in early-mid August 

2018. Specifically, the issue appears to have been first broached at DuPree’s August 13, 2018 

examination, when Dr. Burke had a conversation with DuPree about potential further testing on 

the rectocele and the possibility of surgery. According to Dr. Burke, she explained to DuPree that 

Dr. Burke had been advised that DuPree was expected to remain in custody through the end of 

August into September, and that the timing of her release was important in shaping her treatment 

plan. (Id. ¶ 49.) Dr. Burke explained that, given the chronic, intermittent, and brief nature of 

DuPree’s episodes of prolapse, there was no medical urgency to begin the process of preparation 

for a potential surgery immediately with her limited time remaining in the jail. (Id. ¶ 50.) Even if 

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they did, Dr. Burke noted that DuPree likely could not complete the process before her scheduled 

release in the coming month. (Id.) In terms of further testing, Dr. Burke went on to explain that 

there was no need for testing for further diagnosis, as a diagnosis had been established, but rather 

the issue was whether to take steps such as additional tests and consultations for a potential elective 

surgery, given that the surgery was not urgently needed. (See id. ¶49.) Dr. Burke indicates that 

she explained that either an MRI or CT scan would be needed for an elective surgery, either of 

which would have to be done off-site. (Id.)

DuPree characterizes this conversation on August 13, 2018 differently. She contends that 

Dr. Burke told her that she needed surgery to get better, and it probably would not happen as long 

as she was detained because it was too expensive. (See Dkt. 74 ¶ 49.) DuPree further disputes Dr. 

Burke’s characterization of the potential surgery as elective, rather than medically necessary. (See 

id.) But as will discussed further below, the only evidence she cites in support of this dispute is 

her two prior emergency room visits, even though the emergency room treaters did not recommend 

surgery as a result of their examinations. (Id.) DuPree separately disputes Dr. Burke’s 

characterizations of her episodes of prolapse as intermittent and brief, instead asserting that they 

occurred whenever she was sitting up or walking, and caused considerable pain. (See Dkt. 74 ¶ 

50.) Again however, she cites to no independent medical evidence for this contention, nor evidence 

that suggests the frequency of the episodes necessitated urgent surgery. 

As to what led to Dr. Burke to tell DuPree that surgery was not urgently need: Dr. Burke 

states that around the time of this August 13, 2018 examination—she does not provide an exact 

date—Dr. Burke also consulted with her colleague, Dr. Fisher from Wexford, about the possibility 

of surgery on DuPree. (Dkt. 59 ¶ 51.) Dr. Fisher relayed that he had consulted by phone with a 

university colorectal surgeon, who conveyed that doing a second operation for rectocele on a 

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patient with DuPree’s history—specifically her prior rectocele surgery, multiple episodes of bowel 

obstructions, multiple bowel resections, and known severe adhesion—would be difficult, with a 

chance of failure perhaps as high as 50 percent, and would pose a high likelihood of prolonged 

hospitalization. (Id.) Dr. Fisher also indicated that the Kane County Sherriff would likely only 

authorize scheduling a surgery for a detainee who was due to be released in a few weeks if Dr. 

Burke affirmed that the procedure was urgent and medically necessary, as opposed to elective. 

(Id.)3

Dr. Burke states that, based on the considerations provided by Dr. Fisher, she concluded 

that it was not possible to say that surgery was necessary and urgent prior to DuPree’s anticipated 

release date, given the high chance of failure and the high likelihood of complications. (Id. ¶ 52.)

Dr. Burke further considered the fact that DuPree had been mostly successful at avoiding episodes 

by using stool softeners, and had previously acknowledged that she could usually resolve a

prolapse episode with manipulation, which was also noted by the ER treaters during her second 

visit. (Id.) Dr. Burke also was aware that DuPree had other abdominal problems, including irritable 

bowel, gas, and adhesions, such that even successful rectocele surgery would probably not 

eliminate all of her abdominal and pelvic complaints. (Id.) In light of these concerns and Dr. 

Fisher’s note that surgery would only be approved if urgent and medically necessary, Dr. Burke 

states that she concluded it was a reasonable strategy to postpone offsite testing and consultations 

regarding elective rectocele surgery. (Dkt. ¶ 53.) In other words, based on DuPree’s pattern of 

3 DuPree responds to Dr. Burke’s statements about her conversation with Dr. Fisher simply by saying that she

lacks information to admit or deny the facts. (Dkt. 74 ¶ 51.) The Court could likely deem the facts admitted then based 

on DuPree’s improper response. The Court notes, however, that there would be a potential hearsay (and hearsay within 

hearsay) issue if the Court were to consider Dr. Fisher’s statements, and his statements about what others told him, 

for the truth of the matter asserted in those statements. See Fed. R. Evid. 801(c)(2). The Court can consider the 

statements, however, to show their effect on Dr. Burke’s decision making and recommended course of action. See, 

e.g., Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 430 (7th Cir. 2004) (explaining that a court can consider at 

summary judgment testimony that would otherwise be hearsay evidence if offered for the truth of the matter asserted 

if it considers it only for the effect on the listener).

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symptoms, Dr. Burke could not conclude that surgery was urgent and necessary rather than 

elective, and therefore did not recommend proceeding with it. (Id.)

In response to Dr. Burke’s explanations, DuPree again disputes Dr. Burke’s conclusion as 

to the necessity of surgery, pointing primarily to the fact that Dr. Fisher did not examine DuPree. 

Dupree also faults Dr. Burke for not performing the CT scan or MRI recommended by Dr. Guske’s 

office before consulting with Dr. Fisher and determining whether surgery was necessary. (See Dkt. 

74 ¶¶ 52–53; see also Dkt. 73 at 4.) Dr. Burke responds by disputing that the tests recommended 

by Dr. Guske’s office were necessary, and further noting that Dr. Pineiro did not recommend 

imaging. (See Dkt. 78 at 4.)

3. Treatment from August 22, 2018, to June 12, 2019.

Dr. Burke asserts that her conclusion that surgery was unnecessary was confirmed when 

she next saw DuPree on August 22, 2018, because DuPree did not mention any abdominal or pelvic 

pain and denied any constipation. (Dkt. 59 ¶ 54.) In response, DuPree contends that Dr. Burke did 

not ask her about her abdominal pain. (See Dkt. 74 ¶ 54.) In any event, Dr. Burke addressed

DuPree’s separate complaints of musculoskeletal pain, and also informed DuPree of further advice 

received from the gynecologist, Dr. Pineiro. (Dkt. 59 ¶¶54–55.) Specifically, Dr. Burke informed 

DuPree that Dr. Pineiro had followed up on the biopsy to state that it was “incomplete” but 

satisfactory in her case, and that she should take six months of Progesterone. (Id. ¶ 55.) If bleeding 

resumed, another biopsy would be performed, with dilation of the cervix. (Id.) DuPree contends, 

without citation to the record, that she did not receive Progesterone. (See Dkt. 74 ¶ 55.)

Dr. Burke saw DuPree on three more occasions on August 29, September 12, and October 

2018. (See Dkt. 59 ¶¶ 56–58.) During these visits, Dr. Burke discussed and treated a number of 

DuPree’s ongoing medical concerns, including her symptoms related to her rectocele, and adjusted 

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her medication. (Id.)

On October 9, 2018, DuPree was discharged from the Kane County Adult Justice Center

to Gateway Foundation, a substance abuse treatment center, where she remained for 90 days before 

moving to a halfway house in Oak Park, Illinois. (See Pl.’s Dep., Dkt. 59-1 at 86:1-5; Dkt. 59 ¶ 

59.) DuPree returned to Kane County custody on December 14, 2018, however, because she 

violated the terms of her release. (Pl.’s Dep., Dkt. 59-1 at 86:6–8; see Dkt. No. 59 ¶ 59; Dkt. No. 

74 ¶ 59.) DuPree contends that she was still under Kane County’s authority while she was at the 

treatment center and halfway house, but points to no evidence in support of this proposition. (See

Dkt. 74 ¶ 59.) DuPree also notably testified in her deposition that she had no pain or discomfort 

from the rectocele or prolapse when she returned to the Kane County Adult Justice Center in 

December 2018. (Dkt. 59 ¶ 60.) DuPree acknowledges her testimony, but also states that she had 

“intermittent” abdominal pain from uterine prolapse while at the Gateway center and the halfway 

house. (See Dkt. 74 ¶ 60.)

Dr. Burke next saw DuPree on December 19, 2018, at which time DuPree reported that she 

was doing well and had been doing yoga. (Dkt. No. 59 ¶ 61.) DuPree’s rectocele had retracted 

some and was less troublesome, and there was no more constipation. (Id.) Upon examination, 

DuPree was cheerful and mobile. (Id.) Dr. Burke assessed DuPree as having chronic pain 

syndrome of an uncertain nature, but stated that she was doing well. (Id.) Dr. Burke’s plan of care

was pain control through ibuprofen, psychiatric medications, and yoga/exercise. (Id.)

In late January 2019, DuPree again was released from the Kane County Adult Justice 

Center. (Id. ¶ 62.) On January 24, 2019, while on release, DuPree consulted with Dr. Guske and 

complained of abdominal discomfort and a possible prolapsed rectum. (Id.) DuPree reported that 

the prolapse protruded 2-3 centimeters with difficult bowel movements, but it also self-reduced.

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(Id.) On examination, the surgeon found that DuPree had a rectocele, but no prolapse. (Id.) His 

assessment was gaseous abdominal distension, gas pain, constipation, rectocele, and anal prolapse.

(Id.) He prescribed stool softeners and referral to a different colorectal surgeon for 

recommendations and possible treatment. (Id.) DuPree was then reincarcerated at the Kane County 

Adult Justice Center on February 28, 2019. (Id. ¶ 63.)

Dr. Burke next treated DuPree on March 20, 2019, her twentieth consultation with DuPree.

(Id.) DuPree reported dealing with gastrointestinal difficulties and said that she had rectocele 

surgery scheduled before her re-arrest. (Id.) DuPree denied having severe gastrointestinal 

symptoms, however, although she complained of indigestion and constipation. (Id.) DuPree then 

saw Dr. Burke three more times in April and early May 2019 regarding various complaints, though 

none appeared to be directly related to her rectocele. (Id. ¶¶64–66.)

On May 17, 2019, DuPree again saw Dr. Burke, and Dr. Burke noted in her records that 

DuPree had recently filed a grievance about needing rectocele surgery. (Id. ¶ 67.) But during the 

visit, DuPree reported that she was not concerned about the rectocele because the Milk of Magnesia 

she was receiving was helping to aid her bowel movements and the rectocele was far from her top 

priority. (Id.) DuPree stated that her top priority was her ongoing neck pain and difficulty sleeping 

due to inadequate neck support. (Id.) At this visit, Dr. Burke told DuPree that if she would be 

incarcerated beyond June 2019, they would discuss referral to a gynecologist in regard to DuPree’s 

vaginal bleeding. (Id.)

4 Dr. Burke offered DuPree fiber supplements for her rectocele and 

constipation, but she refused. (Id.)

On June 12, 2019, DuPree came for a follow-up visit related to her vaginal bleeding, which 

4 DuPree denies that the records from the May 17, 2019, visit reflect that a follow-up with a gynecologist would 

be discussed if DuPree was incarcerated beyond June; however, the records do reflect such a note. (See Dkt. 74 ¶ 68; 

see also Dkt. 68 at 3.)

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she noted was sometimes accompanied by cramps. (Id. ¶ 71.) This was Dr. Burke’s twenty-sixth 

and last consultation with DuPree. (Id.) DuPree also complained of chronic bowel incontinence 

due to rectal prolapse, which was a new complaint, as DuPree had previously reported 

constipation, not incontinence. (Id.) DuPree also complained of shortness of breath and chest 

pressure unrelated to activity, which Dr. Burke noted was unusual for her. (Id.) Dr. Burke treated 

DuPree and planned to follow up on a number of different tests and medication questions, though 

most appear to be unrelated to DuPree’s rectocele. In any event, Dr. Burke would no longer treat 

DuPree after this point.

4. DuPree’s Treatment After Leaving Kane County.

On June 20, 2019, DuPree was transferred from Kane County into Illinois Department of 

Corrections custody. (Id. at ¶ 74.) After transfer to IDOC custody, DuPree asserts that her condition 

continued to worsen and also went untreated by IDOC officials, though DuPree attributes at least 

part of the delay to the COVID-19 pandemic. (Id. ¶ 75; see Dkt. 74 ¶ 75.) DuPree eventually had 

surgery to address her rectocele on June 29, 2021, two years after leaving the Kane County Adult 

Justice Center. (Id.) The Court observes that medical records attached to DuPree’s Statement of 

Additional Material Facts indicate that DuPree had a laparoscopic hysterectomy to treat a uterine 

prolapse, followed by a later surgery to correct her rectal prolapse. (See Dkt. 73 at 61–68.)

B. Procedural History

DuPree initiated this lawsuit pro se on August 20, 2020. (Dkt. 1.) The Court screened 

DuPree’s original and first amended complaint pursuant to 28 U.S.C. § 1915A, dismissing both 

for failure to state a claim. (Dkts. 12, 14.) DuPree’s second amended complaint, filed on April 4, 

2021, passed screening, however, as the Court found it stated a claim for a violation of the Due 

Process Clause of the Fourteenth Amendment based on DuPree’s allegations that Dr. Burke did 

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not recommend DuPree for surgery because it was too costly. (Dkt. 17.) The parties then proceeded 

to engage in discovery, which was significantly delayed due to DuPree’s incarceration and delays 

in communication between the parties caused by the COVID-19 pandemic and medical 

quarantines at DuPree’s facility of incarceration. Discovery was eventually completed in 2022 and 

Defendant’s filed their instant motion for summary judgment on November 21, 2022. (Dkt. 56). 

The motion is fully briefed and ripe for decision. 

Standard of Review

On summary judgment, the Court must view the record in the light most favorable to the 

non-moving party and grant the motion if the movant “show[s] that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Gupta v. Melloh, 

19 F.4th 990, 997 (7th Cir. 2021); Fed. R. Civ. P. 56(a). Summary judgment is warranted “against 

a party who fails to make a showing sufficient to establish the existence of an element that is 

essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party seeking summary judgment bears the initial burden of showing the grounds for 

her motion. Id. at 323. Once she has done so, “the burden shifts to the non-moving party to provide 

evidence of specific facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th 

Cir. 2012). A factual dispute is genuine when a reasonable jury could return a verdict in favor of 

the non-moving party. Id.

The Court must construe all facts in the light most favorable to the nonmoving party and 

draw all legitimate inferences in favor of that party. Nat’l Athletic Sportswear, Inc. v. Westfield 

Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). “A court’s role is not to evaluate the weight of the 

evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead 

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to determine whether there is a genuine issue of triable fact.” Id.

Discussion

I. Legal Standards

DuPree’s operative amended complaint asserts a claim pursuant to 42 U.S.C. § 1983 that 

Dr. Burke violated DuPree’s due process rights under the Fourteenth Amendment by failing to 

adequately treat her rectocele while she was a pre-trial detainee at Kane County Adult Justice 

Center5. In order to succeed on a claim that jail officials or medical personal violated due process 

rights of a pretrial detainee in the provision of medical treatment, a plaintiff must show that they 

had an objectively serious medical condition, and further, that: (1) “the defendant[s] acted 

purposefully, knowingly, or recklessly when considering the consequences of [their] response to 

the medical condition at issue in the case”; and (2) “the challenged conduct was objectively 

unreasonable in light of the totality of the relevant facts and circumstances.” James v. Hale, 959 

F.3d 307, 318 (7th Cir. 2020); Williams v. Ortiz, 937 F.3d 936, 942–43 (7th Cir. 2019) (“Said more 

succinctly, Williams must demonstrate that genuine issues of material fact exist on two questions: 

(1) whether he suffered from an objectively serious medical condition and (2) whether the medical 

staff's response to it was objectively unreasonable.”). As to the second element of objective 

unreasonableness, courts “must view the evidence and gauge objectively, without regard to any 

subjective belief held by an individual defendant, whether the response ‘was reasonable.’” See 

Holman v. Triplett, No. 1:17-CV-4710, 2020 WL 5570039, at *5 (N.D. Ill. Sept. 17, 2020) (citing

McCann v. Ogle Cnty., Illinois, 909 F.3d 881, 886 (7th Cir. 2018)). 

Critically, “[m]ere disagreement with a doctor’s medical judgment is not enough to 

establish that a course of medical treatment was objectively unreasonable.” McClendon v. 

5 Although DuPree was subsequently transferred to IDOC custody, her complaints are limited to her pretrial 

detention at Kane County, and therefore her claims are governed by the Fourteenth Amendment. 

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Lochard, No. 19-CV-373, 2021 WL 3172982, at *8 (N.D. Ill. July 27, 2021) (collecting cases); 

Smith v. Kapotas, No. 18 C 4260, 2020 WL 553619, at *5 (N.D. Ill. Feb. 4, 2020) (“[A] pretrial 

detainee is not entitled to the treatment of his choice, nor may he state a constitutional claim merely 

by second-guessing a medical provider's professional judgment.”); see also Arnett v. Webster, 658 

F.3d 742, 754 (7th Cir. 2011) (“[A]n inmate is not entitled to demand specific [medical] care.”). 

Instead, a plaintiff must point to some evidence in the record demonstrating that the doctor’s 

treatment decisions were “so far afield of accepted professional standards” that a jury could find 

they were not a product of medical judgment. See Cashner v. Widup, No. 17-1079, 2017 WL 

11622116, at *3 (7th Cir. Nov. 30, 2017) (citations omitted); Pyles v. Fahim, 771 F.3d 403, 409 

(7th Cir. 2014) (“The federal courts will not interfere with a doctor's decision to pursue a particular 

course of treatment unless that decision represents so significant a departure from accepted 

professional standards or practices that it calls into question whether the doctor actually was 

exercising his professional judgment.”).

II. Analysis

In the instant motion for summary judgment, Dr. Burke argues that: (1) DuPree’s rectocele 

was not a serious medical need; (2) Dr. Burke provided objectively reasonable treatment; (3) 

DuPree lacks verifying medical evidence that Dr. Burke’s treatment caused her harm; and (4) 

DuPree’s punitive damages claim fails as a matter of law. The Court will address each issue below. 

As previewed above, the Court ultimately agrees that Dr. Burke is entitled to summary judgment, 

because DuPree has failed to create any triable issue of fact as to whether Dr. Burke’s treatment 

was objectively unreasonable, or whether DuPree was harmed by any delay in treatment. 

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A. Serious Medical Condition

Dr. Burke first argues that DuPree was not suffering from an objectively serious medical 

condition. A serious medical condition is one that has been diagnosed by a physician as requiring 

treatment or one that is so obvious that even a lay person would perceive the need for treatment.

Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The condition need not be life-threatening 

to be serious. Id. Rather, a serious medical condition is one that significantly affects the 

individual’s daily activities, or causes chronic and substantial pain. Hayes v. Snyder, 546 F.3d 516, 

522–23 (7th Cir. 2008).

The Court notes that the parties disagree as to the precise condition from which DuPree

was suffering; Dr. Burke describes the condition as rectocele, while DuPree, citing to the diagnosis 

she received in the Northwestern Delnor ER, contends that she actually had a uterine prolapse that 

aggravated her rectocele. (See Dkt. 72 at 23.) But regardless of the parties’ dispute over the correct 

diagnosis for DuPree’s pelvic prolapse, the Court finds that DuPree has brought forth evidence 

that she was suffering from a serious medical condition.

Dr. Burke argues that the rectocele was not a serious medical condition because it was 

intermittent and could be reduced (put back into place) by DuPree. But even if that is true, that 

does not render the condition non-serious. As DuPree notes in her response, her prolapse led to 

significant bouts of pain and two visits to an emergency room. (See id. at 12–13, 23–24.) Further, 

there is evidence in the record indicating that physicians (including Dr. Burke) recognized

DuPree’s condition as requiring treatment, and that the physicians themselves recognized that it 

caused her pain and affected her daily activities. And, of course, DuPree ultimately had surgery to 

address the condition. There is thus sufficient evidence creating at least a genuine dispute of fact 

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as to whether DuPree was suffering from an objectively serious medical condition. The Court 

therefore finds that summary judgment is not proper on this ground.

B. Whether Dr. Burke’s Treatment was Objectively Unreasonable

Dr. Burke next argues that her treatment of DuPree was objectively reasonable under the 

circumstances, pointing in particular to: her 26 consultations with DuPree during her time in the 

Kane County Adult Justice Center; her decision to send DuPree to the emergency room twice when 

the prolapse presented itself; her prescription and subsequent modification of medications; her 

attempts to locate DuPree’s prior treaters and discuss her condition with them; and the fact that 

Dr. Burke consulted with a specialist, Dr. Pineiro, who diagnosed DuPree with rectocele, 

performed a biopsy, and advised that Dr. Burke’s treatment plan was sufficient. Dr. Burke argues 

that her treatment and conclusions were objectively reasonable under the circumstances, and 

DuPree’s criticism of her care amounts to mere disagreement with her treatment decisions, which 

does not support a constitutional claim. See Williams, 937 F.3d at 944 (noting that dissatisfaction 

or disagreement with course of treatment did not amount to objectively unreasonable medical 

care).

DuPree makes several arguments in opposition. First, DuPree contends that Dr. Burke 

“ignored” her diagnosis of uterine prolapse and instead treated her symptoms of rectocele. (See

Dkt. 72, at 21, 24–31.) But the record does not support a conclusion that Dr. Burke ignored the 

pelvic prolapse. Rather, Dr. Burke twice directed that DuPree be brought to the emergency room 

because of these issues. Dr. Burke also provided medication, contacted DuPree’s past treaters, 

obtained approval from Wexford for a consultation with a specialist, Dr. Pineiro, and discussed 

DuPree’s symptoms and diagnosis with Dr. Neil Fisher of Wexford, who himself discussed 

DuPree’s case with a university colorectal surgeon. Like Dr. Burke, Dr. Pineiro did not believe the 

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prolapse was uterine, instead diagnosing DuPree with mild rectocele with no uterine prolapse. In 

short, Dr. Burke did not ignore DuPree’s medical condition and instead took numerous steps to 

diagnose and address DuPree’s symptoms. DuPree’s argument here thus appears to be a mere 

disagreement with the precise diagnosis of her condition. But if this diagnosis of rectocele was a 

mistake, and DuPree was suffering both rectocele and a uterine prolapse, as she asserts, it was still 

incumbent on DuPree to come forward with evidence that the diagnosis and treatment she did 

receive was objectively unreasonable under the circumstances. But she has failed to offer such 

evidence, both respect to the diagnosis itself and the treatment she received, particularly given that 

an independent specialist concurred with Dr. Burke’s diagnosis and the course of treatment. See 

Gullo v. Sauk Cnty. Jail Med., No. 21-cv-86, 2021 WL 1564464, at *2 (W.D. Wis. Apr. 21, 2021) 

(holding that a misdiagnosis did not violate the Fourteenth Amendment) (citing Dunigan ex rel.

Nyman v. Winnebago Cty., 165 F.3d 587, 592 (7th Cir. 1999) (stating that misdiagnosis is “possible 

evidence of negligence or malpractice,” but “does not implicate constitutional concerns”)).

Second, DuPree faults Dr. Burke for failing to obtain “specialized CT scans and MRI for 

the uterine prolapse.” (See Dkt. 72, at 15–16.) DuPree contends that had Dr. Burke conducted these 

tests, she “may have discovered that it was the uterine prolapse that was in turn aggravating [her]’s 

previous rectocele.” (Id. at 19.) DuPree points to the CT scans recommended by Dr. Guske’s 

clinical assistant to check for a bowel obstruction and assess the prolapse. (See id.) But DuPree’s 

speculation that additional testing would have resulted in a faster or different diagnosis does not 

create a question of fact as to whether Dr. Burke’s treatment was objectively reasonable. See 

Vogelsberg, 2022 WL 1154767, at *3 (rejecting a pretrial detainees unsupported assertion that 

earlier testing would have resulted in a faster diagnosis as nothing more than speculation and mere 

disagreement with a doctor’s chosen course of treatment, which “does not make the treatment 

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objectively unreasonable.”). Further, Dr. Guske’s suggested testing was not binding on Dr. Burke, 

particularly given that “jail personnel have latitude in applying outside recommendations in light 

of the unique challenges and policies only present in a correctional setting.” Summers v.

Standiford, No. 19 C 2978, 2022 WL 3908673, at *5 (N.D. Ill. Aug. 30, 2022) (citing Jackson v.

Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (“There is not one “proper” way to practice medicine in 

a prison, but rather a range of acceptable courses based on prevailing standards in the field.”)); see 

also Scott v. Khan, No. 20 C 4120, 2022 WL 3576682, at *5 (N.D. Ill. Aug. 19, 2022) (“[A] mere 

difference of opinion” between medical professionals does not show that correctional doctor’s care 

was inadequate). DuPree speculates that Dr. Burke did not provide Dr. Guske’s office with “the 

proper diagnosis of uterine prolapse” during their telephone consultation, and that Dr. Guske’s 

office might have warned Dr. Burke of the dangers of not repairing the prolapse if she had done 

so. (See Dkt. 72, at 21–22.) But there is nothing in the record that supports this contention, and 

DuPree’s speculation is insufficient to create a question of fact. See McCoy v. Harrison, 341 F.3d 

600, 604 (7th Cir. 2003).

Ultimately it was Dr. Burke, not Dr. Guske, who was DuPree’s primary care doctor while 

she was jailed, and as such Dr. Burke was “free to make an independent medical determination 

about the necessity of certain treatments or medications” as long as that determination was based 

on her professional judgment and did not go against accepted professional standards. McClendon, 

2021 WL 3172982, at *9 (N.D. Ill. July 27, 2021). This includes diagnostic testing like CT scans 

or an MRI. See Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014) (“An MRI is simply a diagnostic 

tool, and the decision to forego diagnostic tests is a classic example of a matter for medical

judgment.”) (cleaned up). The record reflects that Dr. Burke ultimately determined that scans were 

not necessary to make a diagnosis. While Dr. Burke acknowledges that the scans would have been 

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necessary for elective surgery, the record further reflects that Dr. Burke decided in August 2018

that surgery for DuPree’s prolapse was not medically necessary, given the intermittent nature of 

her episodes, the fact that DuPree could avoid episodes by using stool softeners, and her ability to 

resolve an episode with manipulation. Given DuPree’s anticipated release date at the time in

September 2018, Dr. Burke determined that it did not make sense to go ahead with testing and 

consultations for an elective surgery when that process likely could not be completed prior to her 

release, and further when that surgery was not medically necessary.

DuPree nonetheless contends that it was objectively unreasonable for Dr. Burke to 

determine that further scans and surgery were unnecessary and could not be completed prior to her 

discharge. DuPree contends, without citation to the record, that she was still in Kane County’s 

custody while at the Gateway Foundation treatment center, and therefore Dr. Burke could have 

arranged for testing while she was at that facility. She also suggests that Dr. Burke could have 

recommended that her treatment at Gateway Foundation be delayed while she received testing and 

treatment for her prolapse. (See Dkt. 72 at 30.) But there is no indication in the record that DuPree

required urgent treatment at the time she went to Gateway. Nor is there any evidence that Dr. 

Burke was personally involved in providing treatment for inmates while at Gateway.

As to whether the surgery was necessary, DuPree contends that Dr. Burke told her that the 

surgery would not happen as long as she was detained because it was too expensive. But even 

accepting this as true, DuPree is still required to come forward with evidence that Dr. Burke’s 

treatment decisions, and her specific conclusion that surgery would be elective and not medically 

necessary, were objectively unreasonable in light of the totality of circumstances. See Voss v.

Marathon Cnty., No. 18-cv-540, 2021 WL 148732, at *10 (W.D. Wis. Jan. 15, 2021). In other 

words, it is not enough to accept DuPree’s contention that Dr. Burke said that surgery would be 

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too expensive; rather she must also point to at least some piece of evidence that suggests that not 

having surgery was objectively unreasonable. She has not done so. Specifically, DuPree has not 

brought forth any evidence from any treater that surgery was medically necessary at the time 

DuPree was confined at the Kane County Adult Detention Center. DuPree points to her emergency 

room visits as evidence of the seriousness of the condition, but it is undisputed that treaters at 

Northwestern Delnor ER decided that hospitalization was not necessary during DuPree’s August

3, 2018, visit, and none recommended surgery. Instead, those treaters recommended a biopsy to 

rule out gynecological cancer, a recommendation that Dr. Burke followed. Additionally, Dr. Burke 

was told by Dr. Fisher that he consulted with a colorectal surgeon who opined that a second surgery 

for rectocele was likely to have a high chance of failure and a high likelihood of prolonged 

hospitalization. Dr. Burke’s belief that conservative treatment was appropriate was therefore 

supported by multiple sources, and was also at least partially supported by the fact that DuPree’s 

symptoms had improved when she returned to jail custody in December 2018. The Court further 

observes that neither Dr. Pineiro nor Dr. Guske, who examined DuPree in January 2019 when she 

was out of custody, recommended immediate surgery for her condition.

In short, DuPree’s conclusory assertions that she should have received further testing, 

should have received surgery, and that these tests and procedures could have been completed while 

she was still in Kane County custody, are unsupported by the record. DuPree’s bald assertions are 

simply insufficient to create any triable issue of fact that Dr. Burke’s conclusion that further testing 

and surgery were not medical necessary was objectively unreasonable. 

Finally, DuPree points to an alleged delay in treatment by a gynecologist following her 

emergency room visits. In her response brief, DuPree points out that her discharge paperwork from 

Northwestern Delnor ER recommended follow-ups with certain treaters within two days of the 

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July 14, 2018, visit. (See Dkt. 72 at 8; see Dkt. 73 at 38.) The record reflects that Dr. Burke 

requested approval for an offsite gynecological exam from Wexford on July 17, 2018, and received 

approval three days later. Dr. Pineiro agreed to see DuPree on August 3, 2018, and the visit was 

conducted three days later on August 6, 2018. DuPree has not brought forth evidence that this 

timeline was objectively unreasonable under the circumstances.

Delays in treatment that aggravate an injury or needlessly prolong an inmate’s pain may 

violate the Constitution. See Gomez v. Randle, 680 F.3d 859, 865–66 (7th Cir. 2012) (holding that 

a four-day delay in treatment could give rise to actionable deliberate indifference claim where it 

caused inmate “prolonged, unnecessary pain as a result of a readily treatable condition.”). But “the 

length of delay that is tolerable depends on the seriousness of the condition and the ease of 

providing treatment.” Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (cleaned up); 

see also Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016) (en banc) (observing that while 

“inexplicable delay in treatment which serves no penological purpose” can support a claim,

“delays are common in the prison setting with limited resources”); McGowan v. Hulick, 612 F.3d 

636, 640 (7th Cir. 2010) (“Delay is not a factor that is either always, or never, significant.”).

In this case, Dr. Burke arranged for a gynecological evaluation within 23 days of DuPree’s 

first trip to the emergency room. There is nothing in the record that suggests that she dragged her 

feet in this process, or that DuPree required a more immediate evaluation. In any event, minor 

delays caused by the need to obtain approval for a consultation with a specialist and to locate a 

specialist do not violate the Constitution. See Berry v. Peterman, 604 F.3d 435, 442 (7th Cir. 2010)

(“Anyone who has ever visited a doctor’s office knows that some delaysin treatment are inevitable, 

particularly absent a life-threatening emergency. Such delays are even more likely in the prison 

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environment.”). DuPree has thus failed to show that Dr. Burke acted objectively unreasonably in 

arranging for DuPree’s genealogical evaluation. 

In sum, while DuPree criticizes various aspects of her care, she has not brought forth 

evidence that her treatment was “such a significant departure from accepted professional standards 

or practices that it was objectively unreasonable.” Williams v. Patton, 761 F. App’x. 593, 597 (7th 

Cir. 2019) (unpublished) (cleaned up). Rather, the record reflects “persistent and reasoned medical 

attention” that is inconsistent with unreasonable medical care. Vogelsberg, 2022 WL 1154767, at 

*3 (citing Williams, 937 F.3d at 944). In other words, there is insufficient evidence from which 

any jury could conclude that Dr. Burke’s treatment decisions were objectively unreasonable. Dr. 

Burke is thus entitled to summary judgment.

C. Verifying Medical Evidence that any Delay in Treatment Caused Harm

The Court could stop its analysis there, but a few further issues that additionally warrant 

summary judgment in Dr. Burke’s favor are worth addressing. First, many of DuPree’s contentions

are based on the claim that Dr. Burke’s decisions subjected her to an unreasonable delay in 

treatment. In such a case alleging an unconstitutional delay in treatment, Dupree was obligated to 

bring forth “verifying medical evidence” that the alleged delays of which she complains caused 

her “some degree of harm” independent of her underlying condition. Miranda, 900 F.3d at 347

(citing Williams v. Liefer, 491 F.3d 710, 714–15 (7th Cir. 2007) (“In cases where prison officials 

delayed rather than denied medical assistance to an inmate, courts have required the plaintiff to 

offer ‘verifying medical evidence’ that the delay (rather than the inmate’s underlying condition) 

caused some degree of harm.”). While expert testimony can be used to demonstrate a delay was 

harmful, medical records alone can suffice. Id.; see also Walters v. Germaine, No. 19-cv-763, 2023 

WL 2374346, at *3 (S.D. Ill. Mar. 6, 2023) (verifying evidence can include expert opinions, 

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medical records, treatment notes or physician notes). On the other hand, evidence of diagnosis and 

treatment, standing alone, is insufficient to meet this requirement for verifying medical evidence

if it would not assist a jury in determining whether the delay exacerbated the plaintiff’s condition 

or otherwise caused harm. Walters, 2023 WL 2374346, at *3.

Here, the Court concludes that DuPree has failed to come forth with verified medical 

evidence that the delay in treatment caused her any independent harm or exacerbated her condition. 

That DuPree’s condition progressively got worse and she ultimately had surgery to treat her pelvic 

organ prolapse, more than two years after leaving the jail’s custody for the last time, is insufficient

evidence on its own. See Summers, 2022 WL 3908673, at *6 (N.D. Ill. Aug. 30, 2022) (stating that 

the fact that plaintiff eventually had surgery on fractured finger was not evidence that the splint 

removal of which he complained exacerbated his condition). Rather, it was incumbent on DuPree 

to point to some medical evidence in the record that would, at the very least, allow the reasonable 

inference that it was Dr. Burke’s decisions— and any alleged delays related to those decisions—

that were the cause of DuPree’s condition getting worse and ultimately requiring surgery. But 

while DuPree states in conclusory fashion that she has verifying evidence that Dr. Burke’s delay 

in treatment caused her harm, she does not point to any specific medical record or other evidence 

in the record supporting this proposition. (See Dkt. 72, at 31–34.) “Summary judgment is the ‘put 

up or shut up’ moment in a lawsuit.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). In 

response to Dr. Burke’s properly supported motion, DuPree was required to submit evidence 

setting forth specific facts showing a genuine issue for trial. Id. DuPree was required to point to 

evidence showing a specific harm caused by Dr. Burke’s alleged delay in treatment, rather than 

her underlying condition. She has not done so, so summary judgment is proper on this additional 

ground as well. See Sterling v. Wexford Health Sources, Inc., No. 16 C 6280, 2021 WL 5906067, 

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at *7–8 (N.D. Ill. Dec. 13, 2021) (holding that simply pointing to medical records, without setting 

forth specific injury reflected in those records, was insufficient to create a question of fact as to 

whether delay in treatment caused harm).

D. Punitive Damages

Finally, for the sake of completeness, the Court additionally agrees with Dr. Burke’s 

argument that DuPree is not entitled to punitive damages. In a § 1983 action, a jury may be 

permitted to assess punitive damages “when the defendant’s conduct is shown to be motivated by 

evil motive or intent, or when it involves reckless or callous indifference to the federally protected 

rights of others.” Green v. Howser, 942 F.3d 772, 781 (7th Cir. 2019). The assessment of punitive 

damages requires a determination that the defendant acted with deliberate indifference or reckless 

disregard. Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 930 (7th Cir. 2004). This is 

the same standard required for § 1983 liability in the Eighth Amendment context, which is 

generally a more stringent standard than the objective reasonableness standard under the 

Fourteenth Amendment. See id. Because DuPree has not met the Fourteenth Amendment standard 

for liability for inadequate medical care, she necessarily has not shown deliberate indifference

justifying punitive damages.

***

In sum, the Court concludes that Dr. Burke is entitled to summary judgment on DuPree’s 

claims under § 1983. Final judgment will be entered in favor of Dr. Burke. If DuPree wishes to 

appeal, she must file a notice of appeal with this Court within thirty days of the entry of judgment.

See Fed. R. App. P. 4(a)(1)(A). If DuPree seeks leave to proceed in forma pauperis on appeal, she 

must file a motion for leave to proceed in forma pauperis in this Court stating the issues she intends 

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to present on appeal. See Fed. R. App. P. 24(a)(1).6

Conclusion

For the forgoing reasons, Defendant Dr. Burke’s motion for summary judgment (Dkt. 58)

is granted. The Clerk is directed to enter final judgment for Dr. Burke and against DuPree. Civil 

case terminated.

DATE: March 29, 2024 ________________________

Nancy L. Maldonado

United States District Judge

6 DuPree need not bring a motion to reconsider this Court’s ruling to preserve her appellate rights. However, 

if DuPree wishes the Court to reconsider its judgment, she may file a motion under Federal Rule of Civil Procedure 

59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days of the entry of this judgment. See Fed. R. Civ. P. 

59(e). The time to file a motion pursuant to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 

59(e) motion suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R. App. P. 

4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and, if seeking relief under Rule 

60(b)(1), (2), or (3), must be filed no more than one year after entry of the judgment or order. See Fed. R. Civ. P. 

60(c)(1). The time to file a Rule 60(b) motion cannot be extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion 

suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon only if the motion is filed within 

28 days of the entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).

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