Conway v. Trummel

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

GREGORY CONWAY, )

)

Plaintiff, )

)

vs. ) Case No. 3:17-CV-110-MAB

)

WEXFORD HEALTH SOURCES, INC., )

CHRISTINE BROWN, and )

LOUIS SHICKER, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the motions for summary judgment

filed by Defendants Wexford Health Sources, Inc., Louis Shicker—the Illinois

Department of Corrections’ Medical Director, and Christine Brown—the Healthcare Unit

Administrator at Pinckneyville Correctional Center (Docs. 125, 135), Wexford’s motion to

strike (Doc. 140), and Director Shicker and HCUA Brown’s motion to join Wexford’s

motion to strike (Doc. 146). For the reasons explained below, the motions for summary

judgment are granted, which in turn makes the motion to strike and the motion to join

moot.

BACKGROUND

In March 2017, Plaintiff filed a pro se amended complaint pursuant to 42 U.S.C. §

1983 for deliberate indifference to his serious medical needs (Doc. 8). More specifically,

Plaintiff alleged that Dr. Allan Brummel delayed providing him with “medically

prescribed” eyeglasses for over four months despite his repeated requests and his

complaints that he was suffering from migraine headaches and blurred vision (Doc. 8,

Doc. 10). He further alleged that Wexford, Director Shicker, and HCUA Brown espoused

or carried out a policy, custom, or practice of denying necessary medical care to inmates

in an effort to reduce costs (Doc. 8, Doc. 10). Following a threshold review of the

complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on an Eighth

Amendment claim for deliberate indifference against Dr. Brummel, Wexford, Director

Shicker, and HCUA Brown (Doc. 10).

Plaintiff and Dr. Brummel reached a resolution in January 2019 (Doc. 116). At the

direction of the Court, Plaintiff sought leave to file an amended complaint that eliminated

Dr. Brummel as a Defendant in this matter (Doc. 117; Doc. 122). Before that motion was

fully briefed, Wexford filed its motion for summary judgment on March 29, 2019 (Doc.

125). Director Shicker and HCUA Brown then filed their motion for summary judgment

on April 29, 2019 (Doc. 135). While the summary judgment briefing was still ongoing, the

Court granted in part Plaintiff’s motion for leave to amend, allowing him to amend his

complaint to eliminate Dr. Brummel as a Defendant but not allowing him to change any

of the allegations against Wexford, Director Shicker, or HCUA Brown (Doc. 138). Plaintiff

filed his second amended complaint on May 1, 2019 (Doc. 139).

The parties then finished briefing the motions for summary judgment, and

Wexford also filed a motion to strike various parts of Plaintiff’s response brief (Doc. 140).

In particular, Wexford asked to strike Plaintiff’s Exhibit C, which is a June 2017 article

from The Atlantic magazine and a May 2013 article from Prison Legal News, because

these articles were not produced or disclosed throughout the course of discovery (Doc.

140). Wexford also claims that Plaintiff’s Response cites to and relies upon testimony and

records related to another case, Lippert v. Baldwin. NDIL 10-4603, which is a class action

lawsuit against the IDOC regarding medical and dental care (Doc. 140). Wexford argues

that these materials are wholly irrelevant to this case and were not disclosed during

discovery and therefore constitute inadmissible hearsay and should be stricken (Doc.

140). Defendants Shicker and Brown then filed a motion asking to join Wexford’s motion

to strike (Doc. 146). Plaintiff opposes the motions for summary judgment, the motion to

strike, and the motion to join (Docs. 134, 137, 143, 147).

MOTIONS FOR SUMMARY JUDGMENT

The motions for summary judgment were filed and served prior to Plaintiff filing

the second amended complaint and therefore were technically directed at the claims

stated in the first amended complaint. However, because the claims against Defendants

Wexford, Shicker, and Brown remained substantively identical between the first and

second amended complaint, the Court construes the motions for summary judgment as

being directed to the claims stated in the second amended complaint.

FACTS

Plaintiff has been incarcerated in the IDOC since 2002 (Doc. 126-1, p. 14). He is

nearsighted, and it appears from the medical records that he has worn glasses since at

least 2010 (Doc. 126-1, p. 28; see Doc. 126-2, p. 55). None of the optometric records indicate

what Plaintiff’s uncorrected vision was (see Doc. 126-2, pp. 55, 56; Doc. 126-3, p. 82), but

they indicate that the prescription of his right bifocal was -0.25 sphere, -1.25 cyl, 015 axis,

add +1.50, and the prescription of his left bifocal was +0.00 sphere, -1.25 cyl, 175 axis,

add +1.50 (Doc. 126-2, p. 58).1

On April 13, 2015, while housed at Western Correctional Center, Plaintiff’s glasses

were taken from him (Doc. 126-1, pp. 23, 39–40, 81). He was seen by the optometrist at

Western, Dr. Ned Hubbard, on May 19, 2015 (Doc. 126-2, pp. 18, 55). Dr. Hubbard did

not order Plaintiff’s glasses and instead wrote in the medical records that Plaintiff was

“transferring very soon to next facility. Receiving facility need[s] to submit order for DOC

glasses upon arrival” (Doc. 126-2, p. 18; see also id. at p. 55). Two days later, Plaintiff was

transferred from Western to Pinckneyville Correctional Center without glasses (Doc. 126-

1, pp. 23, 40).

Upon his arrival at Pinckneyville, Plaintiff was screened for medical issues (Doc.

1 “Sphere” is the spherical correction and indicates how strong the lenses need to be to correct the patient’s

nearsightedness or farsightedness. A negative sign means the patient is nearsighted, while a plus sign

means the patient is farsighted. Generally speaking, the further away from zero the number on the

prescription, the worse the patient’s eyesight and the more vision correction (stronger prescription) the patient

needs. Powers up to -3.00 are considered mild nearsightedness. “Cyl” is the cylindrical correction, which is

used to identify an astigmatism. A perfect eye with no astigmatism has zero diopters. Most people have

between 0.5 to 0.75 diopters of astigmatism. People with a measurement of 1.5 or more typically need

contacts or glasses to have clear vision. “Axis” denotes the direction of an astigmatism. And “add” refers

to additional magnifying power applied to the bottom of multifocal lenses, like bifocals, to assist with

presbyopia, which is the inability to see close up that happens with age. In most cases, reading glass

prescriptions range from +1 to +2.5, in increments of +0.25. All information in this paragraph was taken

from the following sources:

(1) AM. ACAD. OF OPTHALMOLOGY, What Do Astigmatism Measurements Mean?,

https://www.aao.org/eye-health/diseases/what-do-astigmatism-measurements-mean (last

visited March 23, 2020);

(2) AM. REFRACTIVE SURGERY COUNSEL, News About Nearsightedness: Just What is Myopia,

https://americanrefractivesurgerycouncil.org/news-nearsightedness-just-myopia/ (last visited

March 23, 2020);

(3) HARVARD MEDICAL SCHOOL, Presbyopia, https://www.health.harvard.edu/a_to_z/presbyopia-a-to-z

(last visited March 23, 2020); and

(4) WEBMD, How to Read Your Eyeglass Prescription, https://www.webmd.com/eye-health/how-read-

eye-glass-prescription (last visited March 23, 2020).

126-1, pp. 40–41; see Doc. 126-2, pp. 19–20). According to Plaintiff, he told the nurse that

he had seen the eye doctor two days prior and asked whether he would receive his glasses

(Doc. 126-1, pp. 40–41). The medical records from the intake screening, however, do not

contain any mention of Plaintiff’s glasses (see Doc. 126-2, pp. 19–20).

Plaintiff was housed in segregation at Pinckneyville (Doc. 126-1, pp. 24, 25, 28, 37).

He testified that he was generally in his cell 24 hours a day, except when he was taken to

yard (which was an outdoor cage that he was in by himself) once or twice a week (Id. at

p. 25). He testified that, without his glasses, he could see everything in is cell—he could

see his cellmate and objects (Id. at pp. 28–29). He could still eat and drink without his

glasses (Id. at p. 146). He could still write without his glasses (Id. at p. 29). In fact, Plaintiff

testified that he wrote and submitted “a lot of request slips” asking for his glasses (Id. at

pp. 30, 31, 130).

The only thing he had difficulty doing without his glasses was reading (Doc. 126-

1, p. 29). This was especially problematic for Plaintiff because he was an avid reader and

spent most of the time in his cell reading (Id. at pp. 26, 31). Without his glasses, the words

were blurry so Plaintiff had to “put the book real close and squinch my eyes” in order to

read (Id. at p. 27). Straining his eyes to read gave him a headache (Id. at pp. 26, 29, 33–35,

119–20, 121, 122, 124, 130). If he put the book down and stopped reading, the pain “would

ease up a little bit” (Id. at p. 120). But if he continued reading, the pain would intensify

(Id.). Plaintiff would lie down and rest to get rid of the headache (Id. at p. 122).

Plaintiff saw Dr. Allan Brummel on August 25, 2015 and learned for the first time

that his glasses had not been ordered at Western (Doc. 126-1, pp. 41–42). Dr. Brummel

ordered the glasses. (Doc. 126-1, pp. 41–42; Doc. 126-2, p. 56). Plaintiff received his glasses

six weeks later on October 6, 2015. (Doc. 126-1, pp. 24, 43–45; Doc. 126-2, p. 57). Plaintiff

testified that once he received his glasses, he no longer had blurry vision and no longer

got headaches when he read (Doc. 126-1, pp. 130–131, 134).

DISCUSSION

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

CIV. P. 56(a). “Factual disputes are genuine only if there is sufficient evidence for a

reasonable jury to return a verdict in favor of the non-moving party on the evidence

presented, and they are material only if their resolution might change the suit’s outcome

under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013) (citation

and internal quotation marks omitted). In deciding a motion for summary judgment, the

court must view the evidence in the light most favorable to, and draw all reasonable

inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735

F.3d 962, 965 (7th Cir. 2013) (citation omitted).

The Eighth Amendment’s proscription against cruel and unusual punishment

imposes an obligation on states “to provide adequate medical care to incarcerated

individuals.” Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1072 (7th Cir. 2012) (citing

Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “Prison officials violate this proscription when

they act with deliberate indifference to the serious medical needs of an inmate.” Holloway,

700 F.3d at 1072 (citations omitted). To succeed on a claim for deliberate indifference, a

plaintiff must demonstrate that they suffered from an “objectively serious medical

condition” and that the defendant acted with a “sufficiently culpable state of mind,

meaning the official he official knew or was aware of—but then disregarded—a

substantial risk of harm to an inmate’s health.” Goodloe v. Sood, 947 F.3d 1026, 1030–31

(7th Cir. 2020) (citing Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)).

Defendants first argue they are entitled to summary judgment because Plaintiff

was not suffering from a serious medical need (Doc. 126; Doc. 136). The Court agrees.

“An objectively serious medical condition is one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would

perceive the need for a doctor's attention.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.

2010). Importantly, “[a] medical condition need not be life-threatening to be serious.” Id.

It can be a condition that “significantly affects an individual's daily activities” or a

condition that would result in further significant injury or chronic and substantial pain if

left untreated. Hayes v. Snyder, 546 F.3d 516, 522–23 (7th Cir. 2008). By contrast, “sniffles,

minor aches and pains, or a tiny scratch, or a mild headache or minor fatigue—the sorts

of ailments for which many people who are not in prison do not seek medical attention”

do not constitute serious medical conditions. Rodriguez v. Plymouth Ambulance Serv., 577

F.3d 816, 829 (7th Cir. 2009) (citations omitted).

The Seventh Circuit has stated that a “need for prescription glasses could

conceivably constitute a serious medical need.” Franklin v. McCaughtry, 110 Fed.Appx. 715,

721 (7th Cir. 2004) (emphasis added) (citing Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.

1996)). However, the glasses must be needed for something more than a “very slight

visual impairment.” Tormasi v. Hayman, 452 Fed. Appx. 203, 206 (3d Cir. 2011).

For instance, a serious medical need existed where an inmate’s vision was

“significantly blurred” without glasses, he experienced dizziness and imbalance, and he

frequently fell or bumped into objects, which resulted in injuries including a broken jaw.

Tormasi, 452 Fed. Appx. at 206. Another inmate sufficiently alleged a serious medical need

where he alleged that his glasses were necessary to ameliorate severe double vision and

loss of depth perception that had resulted from a prior head injury, and without his

glasses, he had headaches and his left eye shifted fully into the corner of the socket and

rendered it almost sightless. Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir. 1996). See also Li

v. Contra Costa Cty., No. 16-CV-02861-EMC, 2017 WL 4861487, at *9 (N.D. Cal. Oct. 24,

2017) (reasonable jury could find serious medical need existed where plaintiff's

uncorrected vision was 20/100 and defendants' expert opined that 20/30 to 20/80 vision

would be sufficient for daily living for a typical person); Benter v. Peck, 825 F.Supp. 1411,

1416–17 (S.D. Iowa 1993) (serious medical need existed where plaintiff’s uncorrected

vision was 20/400, which made him legally blind, and he could not work or function in

general prison population without glasses).

On the other hand, district courts in this Circuit and others have routinely held

that the need for reading glasses is not a serious medical need, even if reading without

glasses causes headaches. Brown v. Obaisi, No. 16 CV 10422, 2018 WL 4467098, at *7 (N.D.

Ill. Sept. 18, 2018) (“[C]ourts have held that a mere lack of prescription glasses is not

a serious medical need if the inmate is able to read or write to some extent—even when

doing so without glasses is suboptimal.”); Rodriguez v. D'Agostini, No. 2: 18-CV-0172 KJN

P, 2018 WL 1256766, at *3 (E.D. Cal. Mar. 12, 2018) (“The need for reading glasses does

not present a serious medical need.”); McIntosh v. Malueg, No. 09-C-1106, 2011 WL

3684777, at *6 (E.D. Wis. Aug. 23, 2011) (“The need for glasses, especially reading glasses,

is not per se a serious medical need.”); Canell v. Multnomah Cty., 141 F. Supp. 2d 1046,

1057 (D. Or. 2001) (“While severe eye injuries or legal blindness may constitute a serious

medical need, that is not the case with reading glasses.”).2

Here, Plaintiff was in segregation at Pinckneyville for approximately four and a

half months without any glasses. Plaintiff’s prescription indicates that he was very mildly

nearsighted in his right eye but needed no correction in his left eye, had a moderate

astigmatism in both eyes, and needed a mild amount of correction in order to read. See

supra pp, 3–4, n.1. This suggests his glasses were fairly low-powered and his vision issues

2 See also Bellah v. McGinnis, 42 F.3d 1388, 1994 WL 664926, at *1 (6th Cir. 1994) (holding moderate

nearsightedness did not constitute a serious medical need); Brown, 2018 WL 4467098, at *7 (finding

presbyopia was not a serious medical condition where inmate complained he could not read as well as he

should but he was still able to write grievances and there was no evidence of pain or physical harm); Starks

v. Powers, No. 02-cv-1252, 2006 WL 929359, at *5 (S.D. Ill. Apr. 10, 2016) (affirming jury’s verdict in favor of

defendants and concluding evidence was not sufficient for reasonable jury to find serious medical need

where plaintiff complained of headaches, tearing, and dizziness when he tried to read without glasses);

Salinas v. Hamilton, No. A-14-CA-1073-LY, 2014 WL 7405711, at *1 (W.D. Tex. Dec. 30, 2014) (concluding

plaintiff’s condition was “nothing more than common near-sightedness” and not a serious medical need

where plaintiff complained of difficulty seeing things in the distance and eye pain when he watched

television); Lavin v. Hulick, Case No. 09-cv-477-MJR, 2010 WL 2137250, *6 (S.D. Ill. May 27, 2010) (finding

inmate who was deprived of his glasses but did not complain of any physical injury failed to allege a serious

medical need; he was simply inconvenienced in that he was unable to read); Freshwater v. Brankle, No. 1:04-

CV-2-TS, 2005 WL 3159151, at *6 (N.D. Ind. Nov. 28, 2005) (finding no serious medical need where plaintiff

alleged he needed glasses to “alleviate headaches, blurred vision, and watery and burning eyes when

reading” but he could still function well enough to handwrite grievances); Swaissi v. Cotten, No. 3-01-CV-

1607-D, 2002 WL 492905, at *2 (N.D. Tex. Mar. 28, 2002) (dismissing claim as frivolous where plaintiff

alleged inability “to focus and to see short distances” without his glasses, which made reading, writing,

and watching television difficult, but he was still able to read and write well enough to file four lawsuits

and prepare pleadings in those suits); Canell, 141 F. Supp. 2d at 1057 (finding no serious medical need where

plaintiff complained he needed reading glasses and had headaches without them); Harris v. Murray, 761 F.

Supp. 409, 413 (E.D. Va. 1990) (holding plaintiff failed to state a claim for deliberate indifference, in part,

because need for reading glasses was not a serious medical need; while plaintiff was “inconvenienced”

without his glasses, it was not cruel and unusual punishment to deny him the glasses).

were not serious. Additionally, Plaintiff was repeatedly asked about his vision during his

deposition, and he made clear that the only thing he had trouble doing without his glasses

was reading. To be clear, he could still read without glasses, just not as easily as he could

with glasses, and reading without glasses gave him a headache. The headaches could be

alleviated, however, by simply lying down and resting his eyes. Plaintiff was

understandably frustrated by his impaired ability to read without glasses because he

enjoyed reading and there was not much else to do in segregation. However, his visual

impairment and his headaches are the type of minor condition that do not implicate

constitutional concerns, and no reasonable jury could conclude otherwise.

Because Plaintiff failed to marshal evidence sufficient to show he was suffering

from a serious medical need, he cannot succeed on his deliberate indifference claims and

Defendants are entitled to summary judgment. In light of this conclusion, the Court need

not address the second element of Plaintiff’s deliberate indifference claim: whether

Defendants acted with a sufficiently culpable state of mind. The Court also need not

address Wexford’s motion to strike (or Director Shicker and HCUA Brown’s motion to

join the motion to strike), which is aimed at evidence pertaining to the second element of

the deliberate indifference claim.

CONCLUSION

The motions for summary judgment filed by Defendants Wexford Health Sources,

Inc., Louis Shicker, and Christine Brown (Docs. 125, 135) are GRANTED. Plaintiff’s claim

against them is DISMISSED with prejudice and judgment will be entered in their favor.

Wexford’s motion to strike (Doc. 140), and Director Shicker and HCUA Brown’s motion

to join Wexford’s motion to strike (Doc. 146) are MOOT.

There being no claims or Defendants remaining in this action, the Clerk of Court

is DIRECTED to enter judgment and close this case on the Court’s docket.

IT IS SO ORDERED.

DATED: March 24, 2020

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge