McVay v. Obaisi

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

Gregory A. McVay (N-13510), )

)

Plaintiff, )

) Case No. 18 CV 6244

v. )

) Hon. Nancy L. Maldonado

Ghaliah Obaisi, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Gregory A. McVay, now a prisoner at Hill Correctional Center, brings this civil rights

action, 42 U.S.C. § 1983, alleging inadequate treatment for a right knee injury while he was

confined at Stateville Correctional Center. Now before the Court is the summary judgment motion

of Defendants Wexford Health Sources, Inc. (“Wexford”), and Ghaliah Obaisi, as Independent

Executor of the Estate of Saleh Obaisi, M.D. (“Dr. Obaisi”). Defendants argue that: (1) Dr. Obaisi

was not deliberately indifferent to Plaintiff’s knee injury; (2) Plaintiff has not demonstrated that

he was injured due to a policy or widespread practice of Wexford; and (3) Plaintiff is barred from

recovering punitive damages from Dr. Obaisi’s estate. Plaintiff, who is proceeding pro se, has

responded to the motion, and Defendants have replied. For the reasons stated, Defendants’ motion

is granted.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

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) (internal quotation marks omitted).

Local Rule 56.1(a)(2) requires the moving party to provide a statement of material facts that

complies with Local Rule 56.1(d). 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.”

LR 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); LR 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.”

LR 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).

Because Plaintiff is proceeding pro se, Defendants served him with a Notice to

Unrepresented Litigants Opposing Summary Judgment, as required by Local Rule 56.2. (Dkt.

139.)1 Plaintiff responded by filing a response to Defendants’ statement of facts (Dkt. 143), a

statement of additional material facts (Dkt. 144), a memorandum opposing the motion (Dkt. 145),

and an “affidavit” (Dkt. 146).2 Defendants then responded to Plaintiff’s statement of additional

material facts. (Dkt. 154.)

1 In subsequent citations to the record, referenced page numbers are taken from the CM/ECF header.

2 As discussed below, the “affidavit” is not notarized and does not comport with the signature and date

requirements of 28 U.S.C. § 1746 to be considered a declaration under that statute.

Where Plaintiff has not properly responded to a certain fact or has admitted it, the Court

will accept it as true to the extent supported by the record. See Lamz, 321 F.3d at 683 (7th Cir.

2003). Certain of Plaintiff’s factual assertions do not conform to the Local Rules in that he does

not include the evidentiary material supporting his statements of fact.3 See LR 56.1(a)(2), (b)(3),

(d)(3). Nonetheless, while the Court may demand strict compliance with Local Rule 56.1, see

Stevo v. Frasor, 662 F.3d 880, 886–87 (7th Cir. 2011), it will generously construe the facts

identified by Plaintiff to the extent they are supported by the record. See Gray v. Hardy, 826 F.3d

1000, 1005 (7th Cir. 2016) (courts may construe pro se submissions leniently). The Court,

however, will not look beyond the cited material. See Johnson v. Cambridge Indus., Inc., 325 F.3d

892, 898 (7th Cir. 2003) (“[D]istrict courts . . . are not required to scour every inch of the record

for evidence that is potentially relevant to the summary judgment motion before them.”).

The Court also is 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.

II. Relevant Facts

Preliminarily, Defendants have cited an expert report by Dr. Chadwick C. Prodromos, an

orthopedic surgeon, in support of certain factual contentions. (See Dkt. 137-4.) Plaintiff correctly

points out (see Pl.’s Resp. to Defs.’ SOF, Dkt. 143 ¶ 13) that the report is not accompanied by a

supporting affidavit verifying its authenticity, and thus cannot be considered on summary

3 In particular, and as discussed below, Plaintiff cites certain deposition testimony that he has not provided

to the Court, and at times refers to an “Exhibit 2,” which appears to be a reference to his medical records filed as an

exhibit to Defendants’ motion for summary judgment. (See Dkt. 137-2.)

judgment. See Scott v. Edinburg, 346 F.3d 752, 759–60 (7th Cir. 2003) (finding expert report

introduced without authenticating affidavit was inadmissible and could not be considered on

summary judgment); see also Neal v. Indianapolis Fire Dep’t, No. 1:20-cv-02921, 2022 WL

2106143, at *1 (S.D. Ind. June 10, 2022) (“Unauthenticated evidence is inadmissible and may not

be considered in evaluating a motion for summary judgment.”); Wooten v. Taking Care of Our

Seniors, Inc., No. 1:17-cv-05570, 2022 WL 1663417, at *3–4 (N.D. Ill. May 25, 2022)

(unauthenticated expert report could not be considered on summary judgment and could not be

considered a declaration under 28 U.S.C. § 1746 because it did not substantially follow prescribed

form and was not signed under penalty of perjury). For these reasons, the Court will not consider

the unauthenticated expert report by Dr. Prodromos in setting forth the relevant facts or ruling on

this motion.

Plaintiff, Gregory McVay, was at all relevant times a prisoner in the custody of the Illinois

Department of Corrections, housed at Stateville Correctional Center. (Defs.’ SOF, Dkt. 137 ¶¶ 1–

2.) Plaintiff has no medical training. (Id. ¶ 3.) Defendant Wexford Health Sources, Inc., is a

private corporation that has contracted with the State of Illinois to provide medical treatment to

prisoners. (Id. ¶ 4.) The late Dr. Saleh Obaisi was at all relevant times employed as the onsite

medical director for Stateville Correctional Center. (Id. ¶ 5.)4

In approximately July of 2015, Plaintiff began to complain of knee pain following an injury

he sustained while playing handball. (Id. ¶ 6.) Plaintiff did not complain to medical staff when

the injury initially occurred, but instead ran his knee under hot and cold water in his cell. (Id. ¶ 7.)

4 Because Dr. Obaisi is deceased, he is sued through the estate in his individual capacity. (See Pl.’s 2d Am.

Compl., Dkt. 18 ¶ 2.)

Plaintiff initially did not think the injury warranted immediate medical treatment. (See Pl.’s Resp.

to Defs.’ SOF, Dkt. 143 ¶ 7.)

On Aug. 26, 2015, Plaintiff had an annual physical at Stateville, at which point he notified

Physician’s Assistant LaTanya Williams (“P.A. Williams”) that he had injured his right knee. (See

Pl.’s SOAF, Dkt. 144 ¶¶ 1–2.) P.A. Williams ordered a knee sleeve for Plaintiff. (Id. ¶ 3.)

On Jan. 6, 2016, Plaintiff presented at nurse sick call with complaints of right knee pain.

(Defs.’ SOF, Dkt. 137 ¶ 8; see also Pl.’s SOAF, Dkt. 144 ¶ 4.) Plaintiff described the pain as

constant and throbbing. (Defs.’ SOF, Dkt. 137 ¶ 8.) The pain was rated as a “six” on a scale of

one to 10. (Id.) The medical records from this January 6, 2016, visit state that the injury occurred

on January 3, 2016, because of “sports,” but also note that Plaintiff had complained of a similar

injury three months prior. (Id. ¶ 9; Dkt. 137-2 at 1.) The nurse observed that there was no swelling

of the right knee and no loss of function. (Id.) It was recommended that Plaintiff receive an x-

ray. (Id.) Plaintiff returned to nurse sick call on Jan. 26, 2016, again complaining of knee pain

and inquiring about the results of his x-ray. (See Pl.’s SOAF, Dkt. 144 ¶ 6.)

On Jan. 29, 2016, Plaintiff saw P.A. Williams with complaints of chronic right knee pain.

(See Defs.’ SOF, Dkt. 137 ¶ 10; see also Pl.’s SOAF, Dkt. 144 ¶ 7.) At this time, Plaintiff stated

that his knee pain began in August 2015. (Defs.’ SOF, Dkt. 137 ¶ 10.) Plaintiff reiterated that he

plays handball but stated that he had been “babying” the knee and that lateral movement bothered

him during the activity. (Id.) P.A. Williams discussed the x-ray results with Plaintiff, continued

his medications, and referred him to Dr. Obaisi for further evaluation. (Id. ¶ 11.)

At this appointment, Plaintiff asked P.A. Williams for an MRI. (See Pl.’s SOAF, Dkt. 144

¶ 8.) The record reflects, however, that P.A. Williams did not have the authority to order an MRI.

(See Defs.’ Resp. to Pl.’s SOAF, Dkt. 154 ¶ 8.) P.A. Williams testified that while she did not

know “verbatim” Wexford’s policies related to referrals, the medical director (Dr. Obaisi) could

have referred Plaintiff for an MRI at any time his evaluation of Plaintiff indicated that such a

referral was needed. (See Pl.’s SOAF, Dkt. 144 ¶ 17; Williams Dep., Dkt. 137-3 at 43:8–45:24.)

On Feb. 11, 2016, Plaintiff was seen by Dr. Obaisi for the first time regarding his knee.

(Defs.’ SOF, Dkt. 137 ¶ 12; see Pl.’s Resp to Defs.’ SOF, Dkt. 143 ¶ 12.) At this time, Plaintiff

complained of right knee pain after playing handball and indicated that he had pain on exertion.

(Defs.’ SOF ¶ 12; Pl.’s Resp to Defs.’ SOF ¶ 12.) Dr. Obaisi diagnosed Plaintiff with a knee sprain

and scheduled him for a steroid injection to the medial collateral ligament. (Defs.’ SOF ¶ 12; Pl.’s

Resp to Defs.’ SOF ¶ 12; see Dkt. 137-2 at 4.)

According to Plaintiff, he told Dr. Obaisi at this initial visit that he felt “tearing” in his knee

when the injury occurred and requested an MRI. (See Pl.’s SOAF, Dkt. 144 ¶¶ 9–10.) Plaintiff

contends that Dr. Obaisi told him they would try a cortisone injection first because an MRI had to

be approved by other people, and it would not be approved unless they tried other methods first.

(Id. ¶ 11.)5 On Feb. 17, 2016, Plaintiff received an injection of 40 mg of Depo-Medrol to the right

knee.6 (Defs.’ SOF, Dkt. 137 ¶ 13.)

On May 11, 2016, Plaintiff was seen at nurse sick call for complaints of pain in his right

knee. (See id. ¶ 14; Pl.’s Resp. to Defs.’ SOF, Dkt. 143 ¶ 14.) The nurse observed Plaintiff’s gait,

5 Plaintiff has submitted an “affidavit” in support of these statements that is not notarized and which is more

in the nature of a declaration under 28 U.S.C. § 1746. (See Dkt. 146 at 1–7.) The declaration, however, does not

comport with the requirements of that statute, most importantly because it is not signed. The Court will consider these

statements, however, because they are supported by Plaintiff’s deposition testimony. (See Pl.’s Dep., Dkt. 137-1 at

66:22–67:6, 138:15–139:6.)

6 Contrary to Plaintiff’s assertion (Dkt. 143 ¶ 13), the fact that Plaintiff received this injection and use of

Depo-Medrol are adequately supported without the expert report of Dr. Prodromos. (See Dkt. 137-2 at 5; Pl.’s Dep.,

Dkt. 137-1 at 45:22–24, 46:1–8; Williams Dep., Dkt. 137-3 at 28:10–21.) Depo-Medrol is used to treat inflammation

and relieve swelling. See Fed. R. Evid. 201(b)(2); Drugs and Supplements: Methylprednisolone (Injection Route),

Mayo Clinic (Feb. 1, 2023), https://www.mayoclinic.org/drugs-supplements/methylprednisolone-injection-

route/description/drg-20075216; Methylprednisolone: Mechanism of Action, Merck Manual Professional Version,

https://www.merckmanuals.com/professional/SearchResults?query=%22depo-medrol%22&page=1 (last visited

March 24, 2023).

which she noted was steady. (Defs.’ SOF ¶ 14; Pl.’s Resp. to Defs.’ SOF ¶ 14.) Plaintiff could

walk without assistance, had a full range of motion, and had no swelling, although the nurse did

note some tenderness on physical examination. (Defs.’ SOF ¶ 14; Pl.’s Resp. to Defs.’ SOF ¶ 14.)

Although the medical records do not reflect this, Plaintiff contends that he told the nurse at this

time that his knee was getting worse. (Pl.’s SOAF, Dkt. 144 ¶ 12; see Pl.’s Dep., Dkt. 137-1 at

48:2–24.)

Plaintiff was next seen by P.A. Williams on May 13, 2016. (See Defs.’ SOF, Dkt. 137

¶ 15.) He complained of recurrent pain in his right knee. (Id.) Plaintiff also stated that he had not

been compliant with taking Naproxen, which had been prescribed to Plaintiff by P.A. Williams in

January 2016. (Id.) Plaintiff stated that the steroid injection “reduce[d] the pain a little bit” and

requested another one. (See Defs.’ SOF ¶ 16; Pl.’s Resp. to Defs.’ SOF ¶ 16.) Plaintiff stated that

he had been playing handball because it was his only form of exercise. (Id.)

P.A. Williams observed that Plaintiff’s gait was within normal limits but his knee was

tender to the touch. (See Defs.’ SOF ¶ 17.) P.A. Williams prescribed Mobic and referred Plaintiff

for another visit with Dr. Obaisi. (Id.; see Pl.’s Resp. to Defs.’ SOF ¶ 17; Williams Dep., Dkt.

137-3 at 37:17–24.)

On May 23, 2016, Dr. Obaisi saw Plaintiff for a follow-up visit from P.A. Williams’

referral. (Defs.’ SOF ¶ 18.) Plaintiff advised Dr. Obaisi that the pain in his right knee was back.

(Id.) Dr. Obaisi performed an examination, at which point he diagnosed Plaintiff with bursitis and

tendonitis. (Id.) Dr. Obaisi ordered Plaintiff a knee sleeve and Plaintiff received another Depo-

Medrol injection.7 (Id.)

7 While Plaintiff correctly states that Dr. Obaisi’s notes are difficult to read, particularly as to the type of

injection received, P.A. Williams describes this as a Depo-Medrol and Lidocaine injection. (See Williams Dep., Dkt.

137-3 at 42:4–8.)

Plaintiff contends that he again asked Dr. Obaisi for an MRI at this evaluation, but Dr.

Obaisi told him that the injury was a sprain and no MRI was needed. (See Pl.’s SOAF, Dkt. 144

¶ 14; see Pl.’s Dep., Dkt. 137-1 at 140:6–16.) He further contends that Dr. Obaisi told him that he

would set a follow-up appointment for six months out, although the medical records do not reflect

this. (Pl.’s SOAF, Dkt. 144 ¶ 15; see Pl.’s Dep., Dkt. 137-1 at 64:11–17.)8

On April 18, 2017, Plaintiff was seen at nurse sick call complaining of right knee pain.

(Defs.’ SOF, Dkt. 137 ¶ 20.) He requested another steroid injection. (Id.) A nurse performed a

physical examination and noted that there was no crepitus9 and no limitation on range of motion.

(Id.) The nurse noted mild swelling, but also that Plaintiff walked with a steady gait and without

assistance. (Id.)

P.A. Williams saw Plaintiff two days later, on April 20, 2017. (Id. ¶ 21.) Plaintiff

complained that the pain in his right knee recently returned. (Id.) Plaintiff stated that the steroid

shot wore off, but it “worked great.” (Id.) On physical examination, P.A. Williams noted no

swelling and no acute findings. (Id.) She diagnosed Plaintiff with recurrent right knee pain and

referred him to see Dr. Obaisi. (Id.)

Plaintiff saw Dr. Obaisi on May 4, 2017. (Id. ¶ 22.) Dr. Obaisi did not note any acute

findings and assessed Plaintiff with a tender right knee. (Id.) He scheduled Plaintiff for another

steroid injection. (Id.) On May 9, 2017, Plaintiff received the Depo-Medrol injection from Dr.

Obaisi. (Id. ¶ 23.) Dr. Obaisi also ordered knee sleeves for both of Plaintiff’s knees. (Id.) Plaintiff

8 Plaintiff testified that at some point in October or November of either 2016 or 2017 (he initially testified it

was 2017 and then corrected his testimony to 2016), he stopped a nurse on the gallery concerning his knee and told

her that Dr. Obaisi had said he would bring Plaintiff back for a follow-up in six months. The nurse found no notation

in the file, but stated that she left a note for Dr. Obaisi. Plaintiff did not know if Dr. Obaisi read that note. (See Pl.’s

SOAF, Dkt. 144 ¶ 22; Pl.’s Dep., Dkt. No. 137-1 at 72:24–73:18.)

9 Crepitus is a cracking or clicking sound in a joint that can be associated with various conditions, including

osteoarthritis. See Alexandra Villa-Forte, Joint Noises, Merck Manual: Consumer Version (Feb. 2023),

https://www.merckmanuals.com/home/bone,-joint,-and-muscle-disorders/symptoms-of-musculoskeletal-

disorders/joint-noises.

contends that he again asked Dr. Obaisi to order an MRI during the May 4, 2017, visit, and during

the May 9, 2017, appointment for the steroid injection. (See Pl.’s SOAF, Dkt. 144 ¶¶ 18–21.) As

of May 4, 2017, P.A. Williams would have considered the knee injury to be a chronic condition.

(Id. ¶ 19; see Defs.’ Resp. to Pl.’s SOAF, Dkt. 154 ¶ 19.)

On Nov. 7, 2017, Plaintiff was seen at nurse sick call for complaints of right knee pain.

(Defs.’ SOF, Dkt. 137 ¶ 24.) Plaintiff stated that his injury occurred two years ago and the pain

had been present for two years. (Id.) Plaintiff stated that activity precipitates the pain and

“cortisone injections” alleviate it. (Id.) On physical examination, the nurse did not notice bruising,

redness, swelling, or tenderness. (Id.) Plaintiff had a full range of motion. (Id.)

On Nov. 15, 2017, Plaintiff was seen by P.A. Williams as a referral from sick call. (Id. ¶

25.) Plaintiff complained that it was painful to walk up stairs and that the pain in his knee was

intermittent. (Id.) After physical examination, P.A. Williams noted that Plaintiff was not wearing

his knee support, noted crepitus when touched, and observed that Plaintiff had good range of

motion and strength. (Id.) P.A. Williams ordered an additional x-ray of the right knee and referred

Plaintiff to physical therapy and to Dr. Obaisi. (Id.)

Plaintiff had the right knee x-ray on Nov. 17, 2017. (Id. ¶ 26.) An “X-Ray Requisition”

form indicates that the knee had minimal wear-and-tear spurring of the patella and otherwise

appeared normal. (See Dkt. 137-2 at 60.)

On Dec. 11, 2017, Plaintiff again saw Dr. Obaisi, complaining of swelling in his right knee.

(See Defs.’ SOF, Dkt. 137 ¶ 28.) Dr. Obaisi put in for a collegial review to discuss referring

Plaintiff for an orthopedic evaluation.10 (Id.; see Dkt. 137-2 at 45 (“Medical Special Services

10 “Wexford’s collegial review board is a board of doctors who review and approve medical requests.” White

v. Woods, 48 F.4th 853, 857 n.1 (7th Cir. 2022). The policy “requires Wexford’s corporate office to preapprove offsite

care.” Id. (quoting Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 222–23 (7th Cir. 2021)).

Referral and Report”).) At that time, Dr. Obaisi prescribed a right knee sleeve and a low gallery

permit. (Defs.’ SOF, Dkt. 137 ¶ 28; see Dkt. 137-2 at 72.)

On Dec. 19, 2017, Wexford approved the referral for an orthopedic evaluation. (Defs.’

SOF, Dkt. 137 ¶ 29; see Pl.’s SOAF, Dkt. 144 ¶ 24.) Plaintiff, pointing to the attached medical

records, states that Dr. Obaisi diagnosed him on that date with a “meniscus tear.” (See Pl.’s SOAF,

Dkt. 144 ¶ 26.) The attached record is a page from a “Medical Special Services Referral and

Report.” (Dkt. 137-2 at 46.) It was signed by Dr. Obaisi and states, “dx-R patella spur, meniscus

tear.” (See id.; see also Williams Dep., Dkt. 137-3 at 75:22–76:15.)

On Dec. 22, 2017, Plaintiff was seen by a physical therapist but did not want to participate

in physical therapy until he was evaluated by a specialist, although Plaintiff characterizes this as a

request rather than an outright refusal to participate in physical therapy. (Defs.’ SOF, Dkt. 137

¶ 30; see Pl.’s Resp. to Defs.’ SOF, Dkt. 144 ¶ 30.) Dr. Obaisi passed away on Dec. 23, 2017.

(See Williams Dep., Dkt. 137-3 at 64:4–6.)

On Jan. 15, 2018, Plaintiff was seen by Dr. Bodner at Midwest Orthopedic Institute, who

requested an MRI of Plaintiff’s right knee. (Defs.’ SOF, Dkt. 137 ¶ 31.) At the request of Dr.

Bodner, Dr. Obaisi’s referral for Plaintiff to receive that MRI was approved by Wexford. (Id.

¶ 32.) After a delay, that MRI was completed on Feb. 5, 2018, and showed a medial meniscal tear.

(Id. ¶ 33; see Pl.’s SOAF, Dkt. 144 ¶¶ 28–29.) Specifically, the MRI report stated that Plaintiff

had an inferior oblique medial meniscal tear in the posterior horn. (Defs.’ SOF, Dkt. 137 ¶ 33.)

There was no displaced fragment, and the medial meniscal root was intact. (Id.) The report also

stated that the ACL and PCL ligaments were intact. (Id.)

On Feb. 21, 2018, Plaintiff saw Dr. Bodner for a follow-up appointment. (Id. ¶ 34; see

Dkt. 137-2 at 50.) Dr. Bodner noted a degenerative type of tear in the medial meniscus with a

“very tight knee.” (Defs.’ SOF, Dkt. 137 ¶ 34.) Dr. Bodner also stated that it appeared that

Plaintiff had a partial ACL tear that the radiologist did not catch. Dr. Bodner then discussed with

Plaintiff his recommendation that Plaintiff avoid an ACL reconstruction and recommended an

arthroscopic surgery.11 (Id.; see Dkt. 137-2 at 50.)

On March 22, 2018, Plaintiff had a right knee partial meniscectomy with chondral shaving

of the medial femoral condyle. (Defs.’ SOF, Dkt. 137 ¶ 35.) The preoperative diagnosis was a

right knee with a medial meniscal tear with possible ACL degenerative sprain. (Id.) However,

the post-operative diagnosis indicated that the ACL was intact and that Plaintiff had a “posterior

horn tear, complex horizontal cleavage type medial meniscus.” (Id.; see Dkt. 137-2 at 87–89.)

On direct examination, Dr. Bodner found that Plaintiff had “horizontal delamination and

degeneration of the posterior horn.” (Id. ¶ 36.) He found there was “no significant tear of the

lateral meniscus and no loose bodies, and the articular surface was intact.” (Id.; see Dkt. 137-2 at

87–88.)

Following the surgery, Plaintiff stated that he still felt as he did before the surgery and his

knee was in “bad shape.” (Id. ¶ 37; see Pl.’s Dep., Dkt. 137-1 at 88:21–89:9.) Plaintiff attributes

this to a partial ACL tear based on Dr. Bodner’s initial diagnosis, although as noted above, Dr.

Bodner found the ACL was intact during surgery. (Defs.’ SOF, Dkt. 137 ¶ 37; see Pl.’s Dep., Dkt.

137-1 at 88:21–89:24.)

On March 30, 2018, Plaintiff saw Dr. Okezie for a postoperative follow-up and advised

Dr. Okezie that his knee felt unstable. (Pl.’s SOAF, Dkt. 144 ¶ 33.) Dr. Okezie noted at that time

11 Plaintiff initially disputes this description of his follow-up appointment with Dr. Bodner (see Pl.’s Resp.

to Defs.’ SOF, Dkt. 143 ¶ 34), but this description is consistent with Plaintiff’s testimony as to what Dr. Bodner told

him (see Pl.’s Dep., Dkt. 137-1 at 87:1–88:16) and his own Statement of Additional Facts (see Dkt. 144 ¶ 31).

that the “MRI done by Ortho showed partial tear of ACL in R knee.”12 (Id. ¶ 34.) Based on his

unsigned affidavit, Plaintiff contends that on that same date, Dr. Funk, Wexford’s Regional

Medical Director, was present, reviewed Plaintiff’s medical records, and informed him, “We do

nothing for ACL tears.” (Id. ¶ 35.) As noted above, the affidavit is not notarized and does not

comport with 28 U.S.C. § 1746. Defendants point out that Plaintiff’s medical records do not reflect

that Dr. Funk was present at this appointment. (See Defs.’ Resp. to Pl.’s SOAF, Dkt. 154 ¶ 35.)

Plaintiff contends that in accordance with Wexford guidelines, Dr. Obaisi should have

referred him for collegial review after six weeks of the onset of his injury. (Pl.’s SOAF, Dkt. 144

¶ 36.) But while Plaintiff cites to the deposition of Dr. Neil Fisher, who testified on behalf of

Wexford, he does not provide the cited portion of the deposition concerning this testimony. He

also cites portions of Dr. Fisher’s testimony concerning the collegial review process and asserts

that Dr. Obaisi could have scheduled Plaintiff for specialized care without a collegial review, but

did not attach the relevant pages from Dr. Fisher’s deposition, so the Court cannot consider these

facts. (See id. ¶¶ 37–38.)

DISCUSSION

I. Summary Judgment Standard

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 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 Gupta v. Melloh, 19 F.4th 990, 997 (7th Cir. 2021). Summary judgment is warranted

“against a party who fails to make a showing sufficient to establish the existence of an element

12 This is apparently a reference to the Feb. 5, 2018, MRI (completed prior to Plaintiff’s surgery in which Dr.

Bodner found the ACL intact), as the record does not contain a reference to any additional MRI results.

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 parties seeking summary judgment bear the initial burden of showing the grounds for

their motion. Id. at 323. Once they have 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 non-moving party and

draw all reasonable inferences in favor of that party. See Eaton v. J.H. Findorff & Son, Inc., 1 F.4th

508, 511 (7th Cir. 2021). A court’s role is not to “weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986).

II. Legal Standard

The Eighth Amendment prohibits cruel and unusual punishment, protecting inmates from

the unnecessary and wanton infliction of pain, including “grossly inadequate medical care.” Pyles

v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 103–04 (1976)).

“The burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment,

and that burden is a heavy one.” Id. at 408–09 (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).

To prevail on a medical deliberate indifference claim under the Eighth Amendment, a

plaintiff must demonstrate that he suffers from an objectively serious medical condition. Id. at

409 (citing Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)). Second, a plaintiff must show

that the defendant prison treater knew of the condition and the risk it posed, but disregarded that

risk. Id. This state-of-mind requirement is examined subjectively, meaning the defendant must

know of facts from which he could infer a substantial risk of serious harm, and he must actually

draw that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Petties v. Carter, 836 F.3d

722, 728 (7th Cir. 2016). While a prisoner need not show that he was “literally ignored,” he must

show that the defendant’s response was “so plainly inappropriate as to permit the inference that

the defendant[] intentionally or recklessly disregarded his needs.” Hayes v. Snyder, 546 F.3d 516,

524 (7th Cir. 2008). This requires a showing of something more than negligence or medical

malpractice. Pyles, 771 F.3d at 409.

“Assessment of the subjective prong is more difficult in cases alleging inadequate care as

opposed to a lack of care.” Munson v. Ahmed, No. 18-cv-2216-DWD, 2022 WL 747444, at *8

(S.D. Ill. Mar. 11, 2022) (citing Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th

Cir. 2016)). “[W]ithout more, a mistake in professional judgment cannot be deliberate

indifference.” Whiting, 839 F.3d at 662 (observing that “[a] doctor who claims to have exercised

professional judgment is effectively asserting that he lacked a sufficiently culpable mental state,

and if no reasonable jury could discredit that claim, the doctor is entitled to summary judgment”)

(citation omitted).

A jury may infer deliberate indifference, however, if a treatment decision is “so far afield

of accepted professional standards as to raise the inference that it was not actually based on a

medical judgment.” Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 241 (7th Cir. 2021)

(quoting Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006)). But an inmate is not entitled to

specific care of his choice, and a “disagreement over a course of treatment does not establish a

constitutional violation.” Grant v. Heidorn, 802 F. App’x 200, 205 (7th Cir. 2020) (unpublished);

see Pyles, 771 F.3d at 409 (“Disagreement between a prisoner and his doctor, or even between two

medical professionals, about the proper course of treatment generally is insufficient, by itself, to

establish an Eighth Amendment violation.”). Finally, even if a plaintiff can show deliberate

indifference he also must show that the defendant’s actions caused the delay in treatment, and that

the delay exacerbated his injury or unnecessarily prolonged his pain. Dean, 18 F.4th at 242.

In regard to Wexford, the liability of a private corporation acting under color of state law

is evaluated under the standard that applies to municipalities. Id. at 235 (citing Iskander v. Vill.

of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). “Municipalities are not vicariously liable for

the constitutional torts of their employees or agents.” Id. Rather, a municipality is liable under

§ 1983 only for its own constitutional violations. Id.

To establish such a violation under this standard, a plaintiff must show that he was deprived

of a federal right. Id. (citing First Midwest Bank ex rel. LaPorta v. City of Chi., 988 F.3d 978, 987

(7th Cir. 2021)). Beyond that, he must link the deprivation to a policy or custom of the entity,

meaning “(1) an express policy that causes a constitutional deprivation when enforced, (2) a

widespread practice that is so permanent and well-settled that it constitutes a custom or practice;

or (3) an allegation that the constitutional injury was caused by a person with final policymaking

authority.” Id. In sum, the plaintiff must bring forth evidence that the entity’s actions caused him

to suffer a deprivation of his rights, and that the entity took the action “with conscious disregard

for the known or obvious risk of the deprivation.” Id. at 236.

III. Analysis

First, as to Dr. Obaisi, Plaintiff contends that the medical director knew that Plaintiff

experienced a tearing sensation in his knee as of their first visit based on Plaintiff’s report of his

symptoms, and persisted in a course of treatment he knew was ineffective. (See Pl.’s Mem. in

Resp. to Defs.’ Mot. for Summ. J., Dkt. 145 at 6–10.) He further contends that Dr. Obaisi “fail[ed]

to document” the diagnosis of a meniscus tear until he sought approval from Wexford for an MRI,

and questions whether Dr. Obaisi “kn[e]w from the onset” that Plaintiff had a more serious injury

than a sprain, although he does not point to any evidence in the record supporting such an

inference. (See id. at 11.)

Defendants argue that the record does not support an inference of deliberate indifference

by Dr. Obaisi. They argue that between January 2016 and March 2018, Plaintiff was seen by

various medical professionals for treatment of his right knee pain more than 20 times. Dr. Obaisi

himself treated Plaintiff six times, employing steroid injections, knee supports, a low gallery

permit, x-rays, a referral for physical therapy, and ultimately a referral to Dr. Bodner and a referral

for an MRI. (See Defs.’ Mem. in Supp. of Mot. for Summ. J., Dkt. 136 at 7–9.) Defendants

contend that Plaintiff’s mere disagreement with Dr. Obaisi’s course of treatment does not create

an issue of fact, that an inmate is not entitled to demand specific care, and that the totality of

treatment provided to Plaintiff does not support a finding of deliberate indifference. (Id. at 4–11.)

The Court finds that Defendants’ arguments are well-taken.

As an initial matter, the parties do not dispute that Plaintiff’s knee injury was an objectively

serious medical condition, and the Court finds that it was. See, e.g., Gaston v. Ghosh, 498 F. App’x

629, 632 (7th Cir. 2012) (unpublished) (knee injury that caused severe pain and was recognized

by treaters as requiring further evaluation and treatment was a serious medical condition for the

purposes of an Eighth Amendment claim).

In considering the adequacy of Dr. Obaisi’s care, the Court must look at the totality of his

treatment of Plaintiff. Petties, 836 F.3d at 728–29. Plaintiff has not brought forth any evidence

that Dr. Obaisi’s treatment decisions were “so far afield of accepted professional standards as to

raise the inference that [they were] not actually based on a medical judgment.” Dean, 18 F.4th at

241. Plaintiff points to his self-report of a tearing sensation during his first visit with Dr. Obaisi

as a reason why Dr. Obaisi should have immediately ordered an MRI and/or referred him to a

specialist. But Plaintiff admittedly has no medical training, and his unsupported belief that he

should have received different care does not raise an issue of fact. See Bishop v. Wexford

Healthcare, No. 21-3014-CSB, 2022 WL 16626814, at *4 (C.D. Ill. Aug. 29, 2022) (plaintiff’s

“uneducated belief” that he should have received MRI earlier was “of little consequence”) (citing

Walker v. Zunker, 30 F. App’x 625, 628 (7th Cir. 2022) (unpublished) (“[A] prisoner’s self-serving

opinion of the quality of treatment is insufficient to raise a genuine issue of material fact.”)).

Plaintiff further contends that the fact that he received some medical treatment does not

shield Defendants from liability because the care he received was blatantly inappropriate. (See

Pl.’s Mem. in Resp. to Defs.’ Mot. for Summ. J., Dkt. 145 at 8.) In support of this, he cites Perez

v. Fenoglio, 792 F.3d 768 (7th Cir. 2015), in which the Seventh Circuit held that a prisoner who

suffered a torn ligament, an open dislocation of his thumb, and a “gaping wound” in his hand stated

a claim against a prison physician because he “alleg[ed] with specificity a number of troubling

delays in his treatment.” Perez, 792 F.3d at 774, 778. These included: a 24-hour wait to see a

doctor in the first instance, a further wait of four days to see a specialist (at which time it was too

late to suture the wound), and a 10-month delay from the time of his injury until surgery. See id.

at 778. The treating physician in Perez also allegedly ignored recommendations from the specialist

and made a sarcastic comment that an Ace bandage would substitute for a splint, which indicated

that the physician was not exercising his medical judgment in determining treatment. Id. at 778–

79.

Perez stands for the proposition that prison treaters’ provision of some continuing care

does not scuttle a claim for deliberate indifference. Id. at 777. The appeals court elaborated:

If all the Eighth Amendment required was that prison officials provide some

“immediate and ongoing attention,” they could shield themselves from liability

(and save considerable resources) by shuttling sick or injured inmates to

perfunctory medical appointments wherein no meaningful treatment is dispensed.

Needless to say, the responsibilities imposed by the Constitution are not so easily

avoided.

Id. Plaintiff likens his case to Perez because, he contends, he waited more than two years to see a

specialist and experienced considerable delays before he “received meaningful treatment in the

form of surgery.” (See Pl.’s Mem. in Resp. to Defs.’ Mot. for Summ. J., Dkt. 145 at 8.)

Perez is distinguishable from the instant case for a number of reasons, including that it was

decided at the pleading stage rather than with the benefit of a fuller record on summary judgment,

that it involved an acute condition (an open wound requiring sutures and an open dislocation), and

that the treating physician was alleged to have ignored the recommendations of a specialist. In

this case, Plaintiff was by his own account suffering from a chronic condition, and Dr. Obaisi died

prior to Plaintiff’s treatment by Dr. Bodner, so there are necessarily no allegations that Dr. Obaisi

refused to follow any of the specialist’s recommendations.

The instant case is more similar to Grant v. Heidorn, 802 F. App’x 200 (7th Cir. 2020)

(unpublished), in which a state prisoner who injured his knee playing basketball sued three primary

care doctors at his prison for refusing to order an MRI or orthopedic consultation for his left knee,

despite his consistent complaints of pain. The prisoner, who ultimately received knee-replacement

surgery, contended that the prison physicians were deliberately indifferent by continuing an

ineffective course of treatment for years. Grant, 802 F. App’x at 201.

In that case, the first treater, Dr. Heidorn, began treating the plaintiff for knee pain in June

2009. Id. At that point, the plaintiff requested an MRI and an orthopedic consult, and told Dr.

Heidorn of the suspected meniscal tear and that the injury had been bothering him since 1999. Id.

Dr. Heidorn observed that the knee was stable with no effusion, diagnosed chronic knee pain, and

ordered an x-ray, nonsteroidal anti-inflammatory drugs (NSAIDs), and a knee sleeve. Id.

After a follow-up x-ray in June 2009 showed mild degenerative changes to the knee, Dr.

Heidorn met with the plaintiff and diagnosed him with moderately advanced degenerative joint

disease. Id. He recommended “ice, a knee sleeve, NSAIDs, and glucosamine supplements.” Id.

At that point, the plaintiff did not complain of knee pain again until January 2010, when he

requested and received a “no kneel” order. Id. at 201–02.

A subsequent x-ray in March 2010 showed no significant changes. Id. at 202. Plaintiff’s

medical records showed “no further complaints of knee pain until May 2011 when he requested

more ice.” Id. Another knee x-ray taken in July 2011 “again showed no significant progression

of degenerative joint disease.” Id. Dr. Heidorn did not request an MRI because he believed the x-

rays provided a baseline to evaluate the progression of the disease, and because the x-ray results

did not warrant it. Id. Dr. Heidorn did, however, order a physical therapy evaluation and

appointments. Id.

Throughout five years, the defendant doctor provided various types of conservative

treatment, including a low-bunk permit, in-cell meals, ice, medication, and physical therapy. Id.

Years later, in October 2016, after conservative treatment by two other prison doctors, an MRI

showed several degenerative knee conditions. Id. at 204. An orthopedic specialist ultimately

diagnosed osteoarthritis and an “incidental” meniscal tear in the knee. Id. Plaintiff ultimately had

a knee replacement surgery. Id.

In affirming the grant of summary judgment for Dr. Heidorn and two other treating

physicians, the Seventh Circuit observed that a decision “to persist with ineffective treatment and

ignore a patient’s repeated complaints of unresolved pain” can raise a question of fact as to

deliberate indifference. Id. at 204. Further, “[i]nexplicable delay” that unnecessarily prolongs an

inmate’s suffering can amount to deliberate indifference. Id.

But in holding that summary judgment was nonetheless appropriate, the Seventh Circuit

observed that the prisoner plaintiff had brought forth no evidence that the prison physicians’

decisions were based on something other than their professional judgment or were “blatantly

inappropriate.” Id. at 205. Further, there was no evidence that the treaters had misdiagnosed the

prisoner’s condition, and even if they had, “failing to correctly diagnose a condition is evidence of

negligence, not deliberate indifference.” Id. (citing Cesal v. Moats, 851 F.3d 714, 724 (7th Cir.

2017)). The appeals court further pointed out that the crux of the plaintiff’s complaint was that he

wanted an orthopedic consultation and an MRI much sooner than he received them. Id. The court

observed, however, that “[a]n MRI is simply a diagnostic tool, and the decision to [forgo]

diagnostic tests is a “classic example of a matter for medical judgment.”’ Id. (quoting Pyles, 771

F.3d at 411); see also Lloyd v. Moats, 721 F. App’x 490, 494 (7th Cir. 2017) (unpublished) (“[A]

delay in ordering tests must be evaluated in light of the entire record to determine if it evinces

deliberate indifference . . . .”). Further, even if the plaintiff’s treaters had failed to choose the best

course of treatment, that did not amount to deliberate indifference. Id.

Similar considerations warrant summary judgment in this case. Plaintiff has not brought

forth evidence that Dr. Obaisi’s treatment decisions were based on something other than his

professional judgment. He contends that Dr. Obaisi rejected his request for an MRI because it had

to be approved by other people (apparently a reference to the collegial review board) and they

would not do so unless he tried other methods first. But notably, even by Plaintiff’s account, Dr.

Obaisi said an MRI was not needed because his injury was a sprain. Even if Dr. Obaisi had

considered Wexford’s alleged reluctance to approve an MRI without trying other treatment

options, this does not indicate that he knowingly chose to pursue an ineffective course of treatment.

See Munson v. Ahmed, No. 18-cv-2216-DWD, 2022 WL 747444, at *10 (S.D. Ill. Mar. 11, 2022)

(even if administrative and cost concerns played a part in denial of prisoner’s requests for MRI,

that did not show deliberate indifference where record otherwise indicated that treating physician

relied on his medical judgment in choosing other treatment); see also Johnson v. Doughty, 433

F.3d 1001, 1013 (7th Cir. 2006) (“The cost of treatment alternatives is a factor in determining what

constitutes adequate, minimum-level medical care, but medical personnel cannot simply resort to

an easier course of treatment that they know is ineffective.”) (citation omitted). Further, even if

Dr. Obaisi initially misdiagnosed Plaintiff’s condition, such a misdiagnosis would be evidence of

negligence, not deliberate indifference.

Plaintiff paints a picture of nearly three years of continuous suffering during which Dr.

Obaisi refused to provide adequate treatment and likens his case to those in which prison treaters

have continued to pursue an ineffective course of treatment. The record reflects, however, that

Plaintiff at times went long stretches without seeking medical attention for his injured knee. For

example, after receiving the first steroid injection on Feb. 17, 2016, Plaintiff did not seek treatment

of the knee again until May 11, 2016. After the May 23, 2016, steroid injection, Plaintiff did not

return to nurse sick call with reported knee pain until April 18, 2017, nearly 11 months later.

Plaintiff faults Dr. Obaisi for failing to set up a follow-up appointment in six months after that

steroid injection, but the record is clear that Plaintiff understood the process to obtain medical

treatment and was able to use that process to request to go to nurse sick call if he was experiencing

pain. (See, e.g., Pl.’s Dep., Dkt. 137-1 at 24:4–25:21; 47:7–48:4.) After the final steroid shot, on

May 9, 2017, Plaintiff did not seek additional treatment until Nov. 7, 2017.

Additionally, Plaintiff reported on at least two occasions that the steroid injections to his

knee had helped his pain, at one point telling P.A. Williams during an April 20, 2017, appointment

that the steroid shot had “worked great.” This indicates that the conservative treatment provided

by Dr. Obaisi afforded Plaintiff at least some relief and was not completely ineffective, as Plaintiff

asserts. Cf. Bailey v. Wexford Health Ind. LLC., No. 2:19-cv-00082-JMS-DLP, 2021 WL 598292,

at *9 (S.D. Ind. Feb. 16, 2021) (treating physician was not obligated to base treatment decisions

on prisoner’s statement that he had a torn muscle and needed an MRI, but was obligated to consider

the amount of pain reported “and the fact that his conservative treatment measures were ineffective

across the board”). The fact that Plaintiff continued to experience some pain does not indicate that

Dr. Obaisi was deliberately indifferent. See Leiser v. Hoffman, No. 20-2908, 2021 WL 3028147,

*3 (7th Cir. July 19, 2021) (unpublished) (“[D]octors are not deliberately indifferent when they

are unable to eliminate completely a patient’s pain.”) (citing Snipes v. DeTella, 95 F.3d 586, 592

(7th Cir. 1996)). And as late as Nov. 7, 2017, about a month before Dr. Obaisi referred Plaintiff

for an orthopedic consultation, an examination at nurse sick call showed that Plaintiff did not have

bruising, redness, or swelling, and had a full range of motion.

The Court sets forth these facts not to minimize Plaintiff’s pain, but to demonstrate that the

treatment provided to Plaintiff did provide some relief, and the need for treatment by a specialist

was not blatantly obvious, as Plaintiff contends. In sum, Plaintiff has not brought forth any

evidence that Dr. Obaisi’s treatment decisions were such a significant departure from professional

standards as to raise a question of fact as to whether he was actually exercising his professional

judgment.

Further, Defendants are correct that Plaintiff has not presented evidence that any delay in

referring him to an orthopedic specialist caused him harm. See Langston v. Peters, 100 F.3d 1235,

1240–41 (7th Cir. 1996) (“[A]n inmate who complains that delay in medical treatment rose to a

constitutional violation must place verifying medical evidence in the record to establish the

detrimental effect of delay in medical treatment to succeed.”) (citations omitted). Plaintiff has not

brought forth any evidence that an earlier visit to an orthopedic surgeon would have alleviated his

knee pain. In fact, he testified that he still felt the same way he did before the surgery. In the

absence of any medical evidence showing otherwise, no reasonable jury could conclude that any

delay in referring Plaintiff to a specialist prolonged Plaintiff’s pain. See Brown v. Kelley, No. 19-

CV-1761-bhl, 2022 WL 376236, at *5 (E.D. Wis. Feb. 8, 2022) (no evidence of causation where

prisoner was left in same position of “having to manage chronic, severe knee pain” after MRI

diagnosed source of pain).

Because Plaintiff has not raised a question of fact as to Dr. Obaisi’s liability, the Court

need not consider whether punitive damages are available against his estate. Summary judgment

is granted in favor of Dr. Obaisi’s estate.

Next, as to Wexford, Plaintiff argues that Dr. Obaisi was an official with “final

policymaking authority” who caused his injury. Plaintiff, however, has not brought forth evidence

that Dr. Obaisi had final policymaking authority for Wexford as to any particular issue. This

analysis is distinct from whether Dr. Obaisi had control over Plaintiff’s treatment decisions,

including whether to refer him to a specialist or for an MRI. See Whiting v. Wexford Health

Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016) (medical director had final say as to prisoner’s

treatment plan, but that was not enough to show that he was final policymaker for purposes of

Monell liability); Von Ryburn v. Obaisi, No. 14 CV 4308, 2022 WL 1444309, at *14 (N.D. Ill.

May 6, 2022) (collecting cases finding that prison medical directors did not qualify as final

policymakers because they were expected to follow Wexford’s policies and procedures); see also

Pyles v. Shearing, No. 3:13-CV-770, 2019 WL 4307307, at *12 (S.D. Ill. Aug. 21, 2019), report

and recommendation adopted, No. 3:13-CV-770, 2019 WL 4305496 (S.D. Ill. Sept. 11, 2019)

(fact that medical director had final say on whether to refer prisoner for outside treatment did not

make him final policymaker for Monell purposes). Further, even if Dr. Obaisi was a final

policymaker, Plaintiff has not brought forth evidence raising a question of fact as to his deliberate

indifference, so any Monell claim that hinges on his individual liability necessarily fails. Whiting,

839 F.3d at 664.

Plaintiff also claims that Wexford had an “unofficial, widespread custom or practice” of

delaying MRI scans. (See Pl.’s Mem. in Resp. to Defs.’ Mot. for Summ. J., Dkt. 145 at 15.) But

Plaintiff points only to his own experience in which he states that he was denied requested MRIs

on five occasions (once by P.A. Williams, who did not have authority to order an MRI). This is

insufficient to show a widespread custom or practice because “what is needed is evidence that

there is a true municipal policy at issue, not a random event.” Hildreth v. Butler, 960 F.3d 420,

426–27 (7th Cir. 2020) (citations omitted) (finding that three instances of prescription delays over

nineteen months involving one inmate did not qualify as widespread unconstitutional practice);

see Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (evidence of four incidents

experienced by plaintiff alone did not show widespread unconstitutional practice); Brady v.

Wexford Health Sources, Inc., No. 3:17-CV-883-MAB, 2021 WL 4262430, at *18 (S.D. Ill. Sept.

20, 2021) (eight instances over about four years in which prescription refills were delayed were

“not enough to foster a genuine issue of material fact”). Similarly, in this case, Plaintiff has not

presented evidence of a widespread practice of denying or delaying MRI scans based on his own

experience.

In short, Plaintiff has not shown a constitutional problem with his care, nor has he shown

any evidence that he was injured due to an institutional policy. In such circumstances, there is no

municipal liability. See Johnson v. Prentice, 29 F.4th 895, 905 (7th Cir. 2022) (dismissing Monell

claim that “suffer[ed] from two deficiencies: there is no proof of an underlying constitutional

violation by any individual Wexford defendant nor any evidence that an institutional policy caused

such a violation”); see also Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013)

(holding it was unnecessary to determine Wexford’s policy on MRI scans because plaintiff failed

to establish constitutional problem with his treatment and did not suffer actionable injury from

policy attributed to Wexford). For these reasons, summary judgment will be granted in favor of

Wexford.

Final judgment will be entered in favor of Defendants. If Plaintiff wishes to appeal, he

must file a notice of appeal with this Court within 30 days of the entry of judgment. See Fed. R.

App. P. 4(a)(1)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee

regardless of the appeal’s outcome. See Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir.

1998). If the appeal is found to be non-meritorious, Plaintiff could be assessed a “strike” under

28 U.S.C. § 1915(g). If a prisoner accumulates three “strikes” because three federal cases or

appeals have been dismissed as frivolous or malicious, or for failure to state a claim, the prisoner

may not file suit in federal court without pre-paying the filing fee unless he is in imminent danger

of serious physical injury. 28 U.S.C. § 1915(g). If Plaintiff seeks leave to proceed in forma

pauperis on appeal, he must file a motion for leave to proceed in forma pauperis in this Court

stating the issues he intends to present on appeal. See Fed. R. App. P. 24(a)(1).13

13 Plaintiff need not bring a motion to reconsider this Court’s ruling to preserve his appellate rights. However,

if Plaintiff wishes the Court to reconsider its judgment, he 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).

CONCLUSION

Defendants’ motion for summary judgment (Dkt. 135) is granted. The Clerk is directed to

enter final judgment for Defendants and against Plaintiff. This case is closed.

DATE: 3/27/23 | y 4 / f,

Nancy L. Maldonado

United States District Judge

26