Frison v. Obassi

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE FRISON,

Plaintiff,

v. Case No. 17-cv-212

WEXFORD MEDICAL SERVICES, Judge Martha M. Pacold

Defendant.

MEMORANDUM OPINION AND ORDER

George Frison, a former inmate at Stateville Correctional Center, developed a

painful hernia while he was incarcerated. Frison brought this lawsuit under

42 U.S.C. § 1983, alleging that the medical care and treatment he received at

Stateville was constitutionally deficient. Defendant Wexford now moves for

summary judgment. [130]. For the following reasons, Wexford’s motion [130] is

granted.

BACKGROUND

The court views the facts, which are undisputed unless otherwise noted, in

the light most favorable to Frison. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

Frison was a prisoner at Stateville from December 2009 until December

2016. See [149] ¶ 1.1 Wexford is a private corporation that contracts with the

Illinois Department of Corrections (IDOC) to provide medical treatment to inmates

at Stateville. [143] ¶¶ 1, 8.

In January 2013, Frison saw a Wexford physician, Dr. Saleh Obaisi, for a

medical examination, during which Dr. Obaisi diagnosed Frison with an abdominal

hernia. [149] ¶ 2.2

1 Bracketed numbers refer to docket entries and are followed by the page or paragraph

number. Page numbers refer to the CM/ECF page number.

2 Wexford argues that Frison’s statements about Dr. Obaisi’s diagnosis are inadmissible

hearsay. [149] ¶ 2. But under Federal Rule of Evidence 803, statements that are

Nearly three years later, on December 9, 2015, Frison began experiencing

pain in his abdomen. Frison testified that he immediately requested treatment but

was not seen by a nurse until December 22, nearly two weeks later. [131-1] at 55;

[149] ¶¶ 4–5. The medical notes from this visit indicate that Frison reported that

he felt a “stabbing pain” in his abdomen and had a “golf ball size” “bump” sitting

“above [Frison’s] navel area.” [149] ¶¶ 5–7; [142] at 5.

On June 14, 2016, Frison was approved for a general surgery evaluation to

treat his “re-current incarcerated hernia.” [142] at 7. An “incarcerated” hernia is

one that is “trapped,” or cannot be manually pushed back into place. See [131-2] at

11, 21–22.

On July 12, 2016, Frison was examined by an independent physician (i.e., a

doctor who was not affiliated with Wexford or employed by IDOC) named Dr. Jose

Trevino. [143] ¶¶ 14–15. After examining Frison, Dr. Trevino determined that

Frison’s hernia was not actually incarcerated but instead was “reducible,” meaning

that it could be pushed back into place. [143] ¶¶ 10–11. Reducible hernias

generally do not need to be repaired urgently; 80–90% of people live with reducible

hernias for years without having surgery and some people with reducible hernias

never undergo surgery. [143] ¶¶ 12–13.3 Nevertheless, Dr. Trevino recommended

that Frison’s hernia be surgically repaired. [143] ¶ 17. The parties dispute whether

Dr. Trevino indicated that the surgery was urgent. Compare [131-2] at 20 (Dr.

Trevino testifying that the surgery could be done “[w]henever we g[o]t it

authorized”) with [131-1] at 84 (Frison testifying that Dr. Trevino told him that the

reasonably pertinent to “medical diagnosis or treatment” and that describe the patient’s

“medical history” or “past or present symptoms or sensations” are not hearsay. Fed. R.

Evid. 803(4)(A)–(B). Accordingly, the court will assume without deciding that Frison’s

“diagnosis . . . as told to him by his doctors, and his accounting of his symptoms to a doctor,

are not hearsay” for purposes of adjudicating the summary judgment motion. Flournoy v.

Est. of Obaisi, No. 17-cv-7994, 2020 WL 5593284, at *2 (N.D. Ill. Sept. 18, 2020).

Frison also alleges that Dr. Obaisi told him that Wexford “did not want to pay to

have hernia surgeries performed” because it viewed them as “cosmetic.” [131-1] at 51; [149]

¶ 3. Unlike the alleged hernia diagnosis, it is not clear how this alleged statement by Dr.

Obaisi directly relates to Frison’s diagnosis or treatment because, as explained below, the

evidence shows Frison’s hernia surgery was delayed due to a communication issue, not Dr.

Obaisi’s (or Wexford’s) action or inaction. In any event, Frison does not rely on or even cite

this alleged statement in his summary judgment brief, so the court does not consider it

here.

3 Frison attempts to dispute these statements, but cites no record or other materials in

support of the dispute. Northern District of Illinois Local Rule 56.1 requires that denials be

supported by specific record citations. LR 56.1(b)(3). Because Frison did not comply with

Local Rule 56.1, these statements are “deemed admitted.” Cracco v. Vitran Express, Inc.,

559 F.3d 625, 632 (7th Cir. 2009).

surgery should take place within two weeks). For purposes of adjudicating the

summary judgment motion, viewing the record in the light most favorable to Frison,

there is a genuine dispute of fact as to whether Dr. Trevino indicated that the

surgery should take place within two weeks.

Frison’s surgery did not take place until March 2017, almost a year after Dr.

Trevino’s recommendation. The cause of this delay is that—for an unknown or

unspecified reason—Dr. Trevino’s recommendation was never forwarded to Wexford

for collegial review. See [141] at 3. The issue apparently did not come to IDOC’s

attention until in or around January 2017, when a member of the IDOC

Administrative Review Board emailed someone named Christine Brown (whose title

is unknown but who is not alleged to be affiliated with Wexford) in connection with

“reviewing a grievance filed by I/M [inmate] Frison regarding alleged hernia

issues.” [149] ¶ 11. Brown responded that Frison was referred for surgery by Dr.

Trevino but that “it does not appear it [the surgery recommendation] was forwarded

to Wexford for collegial review.” [149] ¶ 14; see also 143 ¶ 21 (undisputed that Dr.

Trevino never contacted anyone at Wexford regarding Frison’s treatment).

On January 13, 2017, Brown’s correspondence was forwarded to Dr. Steven Meeks,

IDOC Agency Medical Director, and Randy Pfister, the Warden at Stateville.

[149] ¶ 15. Without consulting Wexford, Dr. Meeks unilaterally decided to

authorize the hernia surgery with Dr. Trevino, which took place a few weeks later,

on March 6, 2017. [149] ¶¶ 16–17. During this surgery, Dr. Trevino repaired

Frison’s hernia. [143] ¶ 18.

Frison filed this lawsuit in December 2016, bringing claims against Wexford,

Dr. Obaisi, the director of IDOC, a member of IDOC’s Administrative Review Board,

and the warden of Stateville. Since then, Dr. Obaisi has passed away, and he—

along with all other defendants apart from Wexford—have been dismissed from this

litigation. [143] ¶¶ 1–6. Wexford now moves for summary judgment. [130].

ANALYSIS

I. Legal Standard

Summary judgment is proper where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). A genuine dispute as to any material fact exists if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which

facts are material. Id.

The party seeking summary judgment has the burden of establishing that

there is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323.

After a “properly supported motion for summary judgment is made, the adverse

party must set forth specific facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 250 (quotation marks and citation omitted). Construing the

evidence and facts supported by the record in favor of the nonmoving party, the

court gives the nonmoving party “the benefit of reasonable inferences from the

evidence, but not speculative inferences in [its] favor.” White v. City of Chi., 829

F.3d 837, 841 (7th Cir. 2016) (citations omitted). “The controlling question is

whether a reasonable trier of fact could find in favor of the non-moving party on the

evidence submitted in support of and opposition to the motion for summary

judgment.” Id. (citation omitted).

Wexford seeks summary judgment on Eighth Amendment claims. The

Eighth Amendment protects prisoners from conditions of confinement that “involve

the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337,

347 (1981). This protection extends to the denial or delay of medical care. Estelle v.

Gamble, 429 U.S. 97, 104–05 (1976). To establish a violation of this right, a plaintiff

must show that he had “(1) an objectively serious medical condition to which (2) a

state official was deliberately, that is subjectively, indifferent.” Whiting v. Wexford

Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (citation and quotation

marks omitted). It is undisputed that Frison suffered from an objectively serious

medical condition.

While Wexford is a private corporation, “the Monell theory of municipal

liability” allows plaintiffs to bring § 1983 claims “against private companies that act

under color of state law.” Whiting, 839 F.3d at 664 (citations omitted) (describing

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978)). Because

Wexford “has contracted to provide essential government services” (medical care),

Wexford is “subject [under § 1983] to at least the same rules that apply to public

entities.” Hildreth v. Butler, 960 F.3d 420, 426 (7th Cir. 2020) (quoting Glisson v.

Ind. Dep’t of Corr., 849 F.3d 372, 378–79 (7th Cir. 2017) (en banc) (alterations in

Hildreth)).

There is no respondeat superior liability under section 1983. Gaston v.

Ghosh, 920 F.3d 493, 494 (7th Cir. 2019). Rather, in order to defeat summary

judgment on his Monell claim against Wexford, Frison must present evidence from

which a jury could find that Wexford itself was the “direct cause or moving force

behind the constitutional violation.” Woodward v. Corr. Med. Servs. of Ill., Inc., 368

F.3d 917, 927 (7th Cir. 2004) (quotation marks and citation omitted). He can satisfy

this burden by showing one of three things: (1) an express policy that Wexford’s

officers officially promulgated; (2) a widespread practice that was so permanent and

well-settled that it constituted a custom or practice despite not being expressly

adopted; or (3) that a person at Wexford with final policymaking authority caused

the constitutional injury. Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019).

II. Wexford’s Motion for Summary Judgment

Wexford raises several arguments in support of its motion for summary

judgment. As a threshold matter, Wexford argues that Frison is barred from

bringing this lawsuit because he failed to exhaust his administrative remedies.

The Prison Litigation Reform Act (“PLRA”) requires that before filing a

§ 1983 lawsuit, an inmate must first exhaust all administratively available

remedies within the prison, 42 U.S.C. § 1997e(a), including by filing grievances (and

appeals of grievance denials) in accordance with the prison’s administrative rules,

see Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “If a prisoner fails to

exhaust his administrative remedies before filing suit, the district court must

dismiss the complaint.” Taylor v. Cook Cty., No. 11-cv-7427, 2013 WL 2285806, at

*3 (N.D. Ill. May 23, 2013). This is because § 1997e(a) “makes exhaustion a

precondition to suit.” Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999)

(emphasis omitted).

Wexford argues that Frison failed to exhaust administrative remedies by not

following the administrative grievance procedures applicable to IDOC inmates.

[132] at 11–12. The Illinois Administrative Code sets out the procedure for the

filing of grievances by IDOC inmates. See Dole v. Chandler, 438 F.3d 804, 809 (7th

Cir. 2006). An inmate must file a grievance with a grievance officer within 60 days

after discovery of the problem that gives rise to the grievance. 20 Ill. Adm. Code

§ 504.810. The grievance officer is required to advise the Chief Administrative

Officer (“CAO”) at the facility in writing of the findings on the grievance within two

months, after which the CAO must advise the inmate of the resolution of the

grievance. Id. § 504.830. The inmate must appeal an adverse decision of the CAO

in writing within 30 days. Id. § 504.850.

Although Frison’s second amended complaint alleges that Frison “filed over

ten written grievances,” [44] ¶ 26, it does not attach copies of these grievances or

provide any details about them (such as with whom they were filed, when they were

filed, how they were handled, or whether they were appealed). Moreover, Frison’s

Local Rule 56.1 statements of fact mention only one of these grievances, which

appears to have been submitted sometime around or before January 2017. See

[142] ¶ 11. IDOC responded to this grievance by promptly authorizing Frison’s

surgery, which took place less than two months later. [142] ¶¶ 11–17; [143] ¶ 18.

Accordingly, Wexford argues that no reasonable factfinder could decide that Frison

exhausted administrative remedies.

Frison’s opposition brief does not respond to Wexford’s failure-to-exhaust

argument. This amounts to waiver of any possible counterargument that Frison

might have made in support of his claims. See Nelson v. Napolitano, 657 F.3d 586,

590 (7th Cir. 2011) (“Neither the district court nor this court are obliged to research

and construct legal arguments for parties, especially when they are represented by

counsel.”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to

respond to an argument . . . results in waiver.”); Alvarez v. Wexford Health Sources,

Inc., No. 13-cv-703, 2016 WL 7046617, at *16 n.14 (N.D. Ill. Dec. 5, 2016) (a

plaintiff’s failure to respond to arguments at summary judgment results in the

plaintiff “conceding the point”). Because Frison has not put forward any arguments

or evidence suggesting that he met § 1997e(a)’s exhaustion requirement, Wexford’s

motion for summary judgment is granted on the basis that Frison did not exhaust

administrative remedies.

Even apart from exhaustion, Frison’s claim cannot succeed on the merits

because Frison has not presented evidence creating a genuine dispute of material

fact that Wexford was deliberately indifferent to Frison’s serious medical needs. As

noted above, in order to prevail on a Monell claim against Wexford, Frison must put

forward evidence of: (1) an express policy that Wexford’s officers officially

promulgated; (2) a widespread practice that was so permanent and well-settled that

it constituted a custom or practice despite not being expressly adopted; or (3) that a

person at Wexford with final policymaking authority caused the constitutional

injury. Spiegel, 916 F.3d at 617. Here, Frison does not allege that any Wexford

employee or officer with final policymaking authority caused his injury, nor does he

allege that Wexford officially promulgated an unconstitutional policy. Instead,

Frison argues that Wexford employed a widespread custom or practice of

unreasonably delaying medical care. See [141] at 7–9.

To survive summary judgment on a “custom or practice” claim, Frison must

present evidence that would allow a reasonable jury to determine that Wexford’s

unconstitutional practices were “so pervasive that acquiescence on the part of

policymakers was apparent and amounted to a policy decision.” Hildreth, 960 F.3d

at 426 (quotation marks and citation omitted). It is “difficult,” but “not impossible,”

for a plaintiff to show a widespread custom or policy based solely on his own

experience. Id. (quotation marks and citation omitted). Frison must also put

forward evidence that Wexford’s policymakers knew about and failed to correct the

practice, id., and that Wexford’s conduct was the “moving force” behind his injury,

J.K.J. v. Polk Cty., 960 F.3d 367, 377 (7th Cir. 2020) (en banc). In other words,

Frison must provide evidence of a direct causal link between Wexford’s conduct and

his injury. Id.

Frison has not met this burden. Although the parties’ statements of fact

mention twelve dates on which medical providers or prison staff were allegedly

indifferent to Frison’s serious medical needs, see [143] ¶¶ 22–34, Frison has not

presented evidence linking these delays to a Wexford custom or practice. Seven of

the twelve instances of deliberate indifference cited in the statements of fact

involved unidentified nurses with unknown employers, and the statements of fact

do not explain what transpired during these encounters. Indeed, Frison does not

allege that these unnamed nurses were Wexford employees. See [143] ¶¶ 25–28, 30.

Another two allegations involve encounters with an unnamed physician’s assistant,

[143] ¶¶ 29, 32, but again Frison’s summary judgment materials do not explain

what happened during these encounters and do not allege that the assistant was

employed by Wexford. The remaining three allegations of deliberate indifference

relate to conduct by Dr. Obaisi, who clearly was a Wexford employee, see [143]

¶¶ 23–24, 31, 33. But the three allegations regarding Dr. Obaisi do not state a

claim for two independent reasons.

First, three instances of deliberate indifference “are insufficiently numerous”

to survive summary judgment on a Monell “practice or custom” claim. Hildreth, 960

F.3d at 426. While the Seventh Circuit “has not adopted any bright-line rules

defining a widespread practice or custom,” it has acknowledged that “evidence of

four” or fewer “instances that [the plaintiff] alone experienced is simply not enough

to foster a genuine issue of material fact that the practice was widespread.” Id. at

427–28 & n.6 (quotation marks and citations omitted). Here, Frison’s allegations

that Wexford delayed or denied treatment involve three instances involving Dr.

Obaisi that Frison alone experienced; these three instances do not provide enough

evidence “that there is a true [Wexford] policy” of denying or delaying care to

survive summary judgment. Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir.

2006), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th

Cir. 2016) (quoting Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)).

Second, Wexford’s opening brief argues that Dr. Obaisi’s treatment was the

product of reasonable medical judgment, and therefore cannot support a derivative

Monell claim against Dr. Obaisi’s employer, Wexford. See [132] at 6, 9–11; see also

Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); Forbes v. Edgar, 112 F.3d

262, 267 (7th Cir. 1997). Frison does not respond to this argument with any facts or

evidence. Frison’s brief does not set forth any concrete allegations regarding Dr.

Obaisi’s conduct during these instances, apart from the statement that “Frison was

examined by Dr. Obaisi (a Wexford employee) and Dr. Obaisi diagnosed [Frison]

with having a hernia.” [141] at 2. Frison does not attempt to explain how or why

any diagnoses or prescriptions issued by Dr. Obaisi were inadequate, let alone why

Dr. Obaisi’s conduct (or the conduct of any other Wexford employee) was so

unreasonable as to rise to the level of deliberate indifference.

Instead, Frison argues that he should have been scheduled for surgery

immediately after Dr. Trevino (who, again, was not employed by Wexford)

evaluated him and recommended surgery,4 and that “there was a failure in

communicating Dr. Trevino’s recommendation to Wexford.” [141] at 8. All of this

4 Another portion of Frison’s brief seems to contend that surgery should have occurred

immediately after Frison’s initial complaints in 2015 (see [141] at 6 (alleging that surgery

was delayed “for years” after “Frison presented symptoms of an incarcerated hernia in

December 2015”), but Frison’s brief and Local Rule 56.1 statements do not cite any record

evidence, medical testimony, or case law in support of this theory.

may be true and if so, the delay was incredibly unfortunate, but Frison does not

provide any reason to think that this failure of communication could reasonably be

attributed to Wexford, rather than to the prison, Dr. Trevino’s office, or some other

third party. As explained above, Frison has not met the burden to put forward

concrete evidence that would allow a reasonable jury to conclude that Wexford

“direct[ly] cause[d]” his injury.

CONCLUSION

Wexford’s motion for summary judgment is granted. This case is dismissed

with prejudice. Final judgment will enter. The Clerk of the Court is directed to

close this case.

Date: September 30, 2021 /s/ Martha M. Pacold