Todd v. Wexford Health Care

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NATHANIEL TODD, )

Plaintiff,

v. Cause No. 3:17-cv-0359-GCS

VIPIN SHAH, MICHAEL SCOTT,

FRANCIS KAYIRA, ROBERT R. BLUM, )

DR. HUGHES LOCHARD, MIKE L. FISHER, )

WILLIAM HARRIS, and ANGEL RECTOR, □□

Defendants.!

MEMORANDUM and ORDER

SISON, Magistrate Judge:

INTRODUCTION AND BACKGROUND

Pending before the Court are motions for summary judgment filed by Defendants

(Doc. 144, 146). Plaintiff Nathaniel Todd opposes the motions (Docs. 149, 150). Based on

the record, the applicable law and the following, the Court DENIES the motions.

Todd brought this pro se action for deprivations of his constitutional rights

pursuant to 42 U.S.C. § 1983 (Doc. 1). On May 2, 2017, the Court entered a Memorandum

and Order granting Todd leave to proceed in forma pauperis and appointing counsel

Kaitlin Bridges to represent Todd in this matter (Doc. 21). On July 31, 2017, Todd, by

and through counsel, filed an Amended Complaint (Doc. 26). The Amended Complaint

1 On August 29, 2019, Todd filed a Stipulation of Dismissal of Defendant Lochard (Doc. 139).

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alleges that Defendants either refused to put him on an appropriate diabetic diet or

ordered that he be placed on such a diet, that plaintiff did not receive such a diet, and

that defendants failed to investigate or act regarding plaintiff’s diabetic diet. The

Amended Complaint contains the following claims:

Count 1 – Dr. Shah showed deliberate indifference to Todd’s serious medical need

(diabetes) in violation of the Eighth Amendment by, among other things, refusing to

order an appropriate diabetic diet for him;

Count 2 – Dr. Scott showed deliberate indifference to Todd’s serious medical need

(diabetes) in violation of the Eighth Amendment by, among other things, refusing to

order an appropriate diabetic diet for him;

Count 3 – Dr. Kayira showed deliberate indifference to Todd’s serious medical

need (diabetes) in violation of the Eighth Amendment by, among other things, refusing

to order an appropriate diabetic diet for him;

Count 4 – Mr. Blum showed deliberate indifference to Todd’s serious medical need

(diabetes) in violation of the Eighth Amendment by, among other things, refusing to

order an appropriate diabetic diet for him;

Count 5 – Nurse Rector showed deliberate indifference to Todd’s serious medical

need (diabetes) in violation of the Eighth Amendment by, among other things, refusing

to order an appropriate diabetic diet for him;

Count 6 – Nurse Shultz showed deliberate indifference to Todd’s serious medical

need (diabetes) in violation of the Eighth Amendment by, among other things, refusing

to order an appropriate diabetic diet for him;2

Count 7 – Nurse Hughes showed deliberate indifference to Todd’s serious medical

need (diabetes) in violation of the Eighth Amendment by, among other things, refusing

to order an appropriate diabetic diet for him;

2 On March 20, 2018, then Magistrate Judge Wilkerson granted Todd’s motion to dismiss without

prejudice as to Defendant Schultz (Doc. 82).

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Count 8 – Mr. Fisher showed deliberate indifference to Todd’s serious medical

need (diabetes) in violation of the Eighth Amendment by, among other things, refusing

to order an appropriate diabetic diet for him; and

Count 9 – Mr. Harris showed deliberate indifference to Todd’s serious medical need

(diabetes) in violation of the Eighth Amendment by, among other things, refusing to

order an appropriate diabetic diet for him.

Thereafter, the Court conducted its preliminary review of the Amended

Complaint pursuant to 28 U.S.C. § 1915A and found that all the claims contained in the

nine counts survived review (Doc. 29).

FACTS3

The following facts are taken from the record and presented in the light most

favorable to Todd, the non-moving party, and all reasonable inferences are drawn in his

favor. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

Todd is currently housed at Dixon Correctional Center (“Dixon”). The events

surrounding this case occurred while Todd was incarcerated at Pinckneyville

Correctional Center (“Pinckneyville”). In November 2014, Todd was transferred to

Pinckneyville. At the time he transferred to Pinckneyville, Todd weighed 180 pounds.

The Transfer Summary notes that Todd had the chronic condition of diabetes mellitus

and was taking Glipizide and Metformin twice a day.4

On March 18, 2015, Todd refused to have his hemoglobin A1C (“A1C”) labs

3 These facts are not disputed by the parties, unless noted.

4 Todd was diagnosed with diabetes on August 24, 2009.

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drawn. On April 28, 2015, Todd saw nurse practitioner Defendant Angel Rector. Rector

ordered Glucophage 1000mg twice a day, Glipizide 7.5mg twice a day, Lisinopril 2.5mg

daily, and a regular diet. Rector provided Todd with information regarding medical

compliance, foot care, and exercises. At this time, Todd weighed 160 lbs. Rector noted

that Todd refused his labs, therefore, she was unable to ascertain his diabetic control. She

further noted she would attempt to get his labs and she would reschedule him for the

diabetic clinic. The next day, Todd refused the lab draw.

Todd saw Defendant Dr. Vipin Shah on July 2, 2015. The medical records for this

date indicate that Todd was there for chronic knee, pelvic and back concerns. Dr. Shah

also noted Todd refused diabetic labs.

Rector saw Todd in the diabetic clinic on August 27, 2015, and his medical

compliance was poor. Rector continued Todd’s Glipizide and Glucophage prescriptions,

prescribed Lisinopril 2.5mg daily, and educated him on medication compliance and

exercise. At this visit, Todd weighed 172 lbs.

Next, Rector saw Todd for a follow-up visit on September 30, 2015. Rector noted

that Todd had poorly controlled diabetes. He was also not in compliance with his

medications. Rector further ordered labs, Accu-Cheks twice a day for a month, and a

follow-up in a month’s time.

On October 10, 2015, an LPN noted that Todd refused his morning (AM) and

evening (HS) for Glipizide and Lisinopril. Todd was referred to a medical provider to

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discuss his medication noncompliance.

Rector saw Todd on October 14, 2015. Rector educated Todd on the need to be

compliant with his medication, but noted that he was not receptive, and that his last two

A1C levels showed poor control. Rector revised the prescription order so that Todd could

keep the medications in his cell and take them on his own.

Thereafter on October 20, 2015, Todd saw Dr. Shah. At this visit, Todd requested

a special diet from Dr. Shah. Dr. Shah noted Todd was non-compliant with his

medications, refused his insulin, and that his diabetic sugar levels were poorly controlled.

Dr. Shah admitted Todd to the infirmary. At this time, Todd’s A1C levels were 9.4, and

Todd refused to take his medications. Dr. Shah testified that Todd was admitted to the

infirmary to try to control his diabetes and to find the right medicine. The infirmary

admissions note that Dr. Shah indicated a regular diet for Todd.

Dr. Shah saw Todd on October 22, 2015, and Todd was eating all the meals he was

provided. To monitor Todd’s blood sugar levels more closely, Dr. Shah ordered Accu-

Chek four times a day and requested it be covered with a sliding scale of insulin. Todd

denies that his Accu-Cheks were taken four times a day. Later that evening, Todd refused

to take any of the blood sugar medication ordered by Dr. Shah.

Due to his objections regarding the timing and the contents of the meals he

received, Todd refused to take his insulin as prescribed until 4:30 p.m. on October 23,

2015. That day, Todd told Dr. Shah that he wanted to leave the infirmary. Dr. Shah

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observed that Todd was uncooperative with his Accu-Cheks and had poor control of his

diabetes. As a result, Dr. Shah decided it was in Todd’s best interest to remain in the

infirmary.

Todd saw Dr. Shah again on October 26, 2015. Dr. Shah noted that Todd continued

to be uncooperative, was in no distress, and his blood sugar had increased. Dr. Shah

ordered a diabetic diet with the HS (evening) snacks, 2200 calories for six months.

Specifically, the diet type was “Low Concentrated Sweets/HS Snack”, and in the

comments field, Dr. Shah wrote “Diabetic diet – 2200 cal.” According to Dr. Shah, “Low

Concentrated Sweets” means “no sugar added food, like cake, cookies, sweets,” so the

inmates should not be receiving sweets and may instead receive an apple or something

similar. “HS snack” refers to Hours of Sleep snack or a nighttime snack.

Dr. Shah again examined Todd on October 29, 2015. Dr. Shah noted that Todd was

cooperative and that his Accu-Chek with insulin was okay. Even though Todd appeared

to be doing better, Dr. Shah kept him in the infirmary because Todd was not at the desired

level of stability. Later that day, Dr. Shah saw Todd and noted that Todd refused his

diabetic oral medications because Todd claimed the medications were not working. Todd

had an increased hemoglobin A1C level, and Dr. Shah placed him on 70/30 insulin in the

morning and evening for one month. Todd explained to Dr. Shah that he was afraid of

going on insulin. Because Todd had high blood sugar levels and refused oral medications,

Dr. Shah slowly started Todd on insulin to avoid a side effect of low blood sugar. Todd

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was discharged from the infirmary on November 2, 2015.

On December 4, 2015, Todd saw Dr. Shah in the diabetes chronic clinic. Dr. Shah

noted that Todd remained noncompliant with his medication. He discontinued the oral

medication, reduced the insulin, and ordered a recheck of Todd’s Accu-Chek, twice a

day. Dr. Shah educated Todd on medicine compliance and the renewal medications

process. He further advised Todd regarding foot care, the need to exercise, the signs and

symptoms of low and high blood sugar, possible long term complications, and the need

to stop smoking. Dr. Shah referred Todd to a diabetic specialist, Dr. Einhorn. Todd claims

that he never saw Dr. Einhorn or any diabetic specialist. At this time, Todd weighed 186

lbs.

On January 17, 2016, Dr. Shah saw Todd for the last time. At this time, Todd was

refusing insulin “off and on,” and would only take the insulin when he thought his blood

sugar was high.

On February 25, 2016, Todd saw Defendant Dr. Michael Scott for follow-up on his

Accu-Cheks and to discuss his chronic right knee pain. Dr. Scott noted that Todd had a

cantankerous attitude. Dr. Scott also determined that Todd’s right knee had chronic

degenerative deformity and no effusion, redness or crepitus was noted. Dr. Scott further

indicated that Todd’s Accu-Cheks were routinely elevated and greater than 250. Dr. Scott

prescribed NPH insulin 20 units to be taken twice a day for three months, ordered Accu-

Cheks twice daily for three months and to follow up with a doctor in two to three weeks.

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On April 25, 2016, Dr. Scott saw Todd in the diabetic clinic. At this time, Todd

weighed 183 lbs. Dr. Scott prescribed a regular diet and snack pack and educated Todd

on exercise.

On June 27, 2016, Todd saw Rector. During this visit, Rector evaluated and

diagnosed Todd with diabetic foot pain. She also ordered foot x-rays, diabetic shoes and

instructed Todd on exercise habits for diabetic control and to follow-up in 10 to 14 days

as needed. Additionally, Rector noted that Todd’s last A1C was 10.1.

On July 7, 2016, Todd followed up with Rector for his foot pain. Rector noted that

she was awaiting approval for the diabetic shoes. She also discussed the x-ray results

with Todd and scheduled a follow-up visit to occur at the next chronic clinic.

On August 17, 2016, Dr. Scott examined Todd during his diabetes chronic clinic.

At this time, Todd weighed 196, and his labs showed that his A1C was 10.9. Dr. Scott

noted noncompliance with medications, including a description that Todd occasionally

skips the morning dose. Dr. Scott continued Todd’s insulin and regular diet, ordered

indefinite HS snack bag, and educated Todd on foot care and exercise.

On October 13, 2016, Dr. Scott renewed Todd’s previous order for low

concentrated sweets/HS snack to be provided indefinitely. Specifically, the diet type was

“Low Concentrated Sweets/HS snack,” and the comments field read “Diabetes.”

Todd saw Dr. Scott in the diabetic chronic clinic on December 2, 2016. At that time,

Todd weighed 192 lbs.

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On January 25, 2017, Dr. Scott noted that the nursing staff reported Todd was

refusing Lisinopril and Mobic. Dr. Scott continued the Lisinopril because it was

prescribed by nephrology, but he discontinued the Mobic.

On May 27, 2017, Todd saw Defendant Dr. Francis Kayira and requested a diabetic

diet from Dr. Kayira. Dr. Kayira completed an examination. Todd informed Dr. Kayira

that he had been refusing insulin because he was not on a diabetic diet. Dr. Kayira

ordered an A1C test and educated Todd on the importance of taking his medication and

of allowing nurses to complete blood draws for his lab testing.

Thereafter, Todd saw nurse practitioner Defendant Robert Blum on June 13, 2017

for an increase in his blood sugar related to being a noncompliant diabetic. Todd’s A1C

was 10.7 from 11.5, and his medical record indicated that Todd was refusing medication

based on his diet. Blum explained to Todd the rationale for medication compliance. Todd

responded that he was going to continue to make his own decisions on insulin. Blum

increased Todd’s insulin and again explained the need for compliance. Blum also ordered

a follow-up in two weeks.

On June 30, 2017, Blum saw Todd, who showed no signs of distress. Todd also

refused Mobic and Motrin. Blum noted that Todd still had uncontrolled diabetes.

In August 2017, Todd saw Blum in the diabetic clinic. At this time, Todd weighed

197 lbs. Blum ordered for Todd insulin 70/30, a HS snack, and diabetic shoes. Blum also

educated Todd on foot care.

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On December 20, 2017, Todd saw Blum who noted that Todd was not compliant

with his diabetic medication. Blum discussed Todd’s diabetes and the disease process on

the body. According to the medical record, Todd stated he would not take his insulin if

he is not getting a certain diet. The medical record also indicates that Blum explained the

risk of uncontrolled diabetes and Todd responded, “that’s not my problem.” Todd

weighed 194 lbs. Blum did not have any further encounters with Todd after this date.

Defendant Mike Fisher was the dietary manager from the date Todd transferred

to Pinckneyville until Fisher’s retirement in 2016. Thereafter, Defendant William Harris

became the dietary manager at Pinckneyville. Neither Fisher nor Harris had the authority

to issue a special diet order. Instead, they relied on medical professionals to issue

appropriate medical diets. The responsibilities of the dietary manager included

scheduling, ordering food, making appropriate changes to menus, and overseeing the

diet menus, the religious menus and compliance for the same. The state dietician is

responsible for making the menus. Pinckneyville had a cook that would prepare the

diabetic meals without salt, butter or added sugar. Both Fisher and Harris would check

the system to see if any offenders had been ordered a special diet. Todd admits that he

never verbally spoke with Fisher or Harris about his diet.

A proper diet can decrease the severity and frequency of symptoms for diabetes.

If a person has poorly controlled diabetes, diet is one of the factors that is important in

trying to get them back on track. Dr. Kayira testified that an insulin-dependent diabetic

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should be on a low-sugar diet that includes a lot of pure proteins. Rector testified that the

Low Concentrated Sweets diet is separate from the HS snack diet.

An example of a meal that a typical inmate would be served is baked chicken,

mashed potatoes with gravy, green beans, white cake with icing, dinner roll and

condiments. A meal could also consist of a Sloppy Joe, hamburger bun, potato salad,

coleslaw, barbecue pinto beans, and a cinnamon roll. Snack packs generally consisted of

peanut butter, crackers and an apple. Fisher testified that there are typically no fresh

fruits or vegetables, but there are possibly canned vegetables.

For a period, Pinckneyville had a brunch program where only two meals were

being served a day. During this time, the morning snack pack was supposed to be

provided during the insulin medication lines, and the evening snack pack was supposed

to be provided by the officers and workers in the cell house.

Dr. Shah testified that according to Wexford Health’s Operations Policies and

Procedures, “Wexford Health will assist the Facility Administrator in ensuring that the

nutritional needs of the inmates are met.” Specifically, “Wexford personnel will order the

diet and observe that the diet has been carried out.”

There was an order for Todd to see Dr. Einhorn. Todd claims that he did not see

Dr. Einhorn. Todd also testified that he did not eat on weekends due to his religious

beliefs and, therefore, he would not take his medication as prescribed. Todd does not

have any training regarding the proper medications to be prescribed for diabetes. The

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medical Defendants contend that they educated Todd on the food and diet for diabetes.

Todd contends that they did not.

LEGAL STANDARDS

Federal Rule of Civil Procedure 56 governs motions for summary judgment.

Summary judgment is appropriate if the movant shows there is no genuine dispute as to

any material fact and that the movant is entitled to judgment as a matter of law. See

Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014)(citingFED. R. CIV. PROC.

56(a)). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of

material fact remains “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). Accord

Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014).

In assessing a summary judgment motion, the district court views the facts in the

light most favorable to, and draws all reasonable inferences in favor of, the nonmoving

party. See Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).

As the Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by

examining the evidence in the light reasonably most favorable to the non-moving party,

giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the

evidence in [his] favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542, 544 (7th Cir.

2014). The Court’s role at summary judgment is not to evaluate the weight of evidence,

to judge witness credibility, or to determine the truth of the matter. Instead, the Court is

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to determine whether a genuine issue of fact exists. See Nat’l Athletic Sportwear Inc. v.

Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

The Supreme Court has recognized that deliberate indifference to the serious

medical needs of prisoners may constitute cruel and unusual punishment under the

Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a claim for

deliberate indifference to a serious medical need, there are “two high hurdles, which

every inmate-plaintiff must clear.” Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d

587, 590 (7th Cir. 1999). First, the plaintiff must demonstrate he suffered from an

objectively serious medical condition. Id. at 591-592. Second, the plaintiff must establish

the individual prison officials were deliberately indifferent to that condition. Id.

The first consideration is whether the prisoner has an “objectively serious medical

condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). “A medical condition is

objectively serious if a physician has diagnosed it as requiring treatment, or the need for

treatment would be obvious to a layperson.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.

2014)(citations omitted). It is not necessary for such a medical condition to “be life-

threatening to be serious; rather, it could be a condition that would result in further

significant injury or unnecessary and wanton infliction of pain if not treated.” Gayton v.

McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828

(1994)(violating the Eighth Amendment requires “deliberate indifference to a substantial

risk of serious harm”)(internal quotation marks omitted)(emphasis added)).

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To show prison officials acted with deliberate indifference, a plaintiff must put

forth evidence that prison officials not only knew that the prisoner’s medical condition

posed a serious health risk, but they consciously disregarded that risk. See Holloway v.

Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). “This subjective standard

requires more than negligence and it approaches intentional wrongdoing.” Id. Accord

Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)(stating that “[d]eliberate indifference

is intentional or reckless conduct, not mere negligence.”); McGowan v. Hulick, 612 F.3d

636, 640 (7th Cir. 2010)(stating that “negligence, even gross negligence does not violate

the Constitution.”).

Assessing the subjective prong is more difficult in cases alleging inadequate health

care as opposed to lack of care. Without more, a “mistake in professional judgment

cannot be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658,

662 (7th Cir. 2016). The Seventh Circuit has explained:

By definition a treatment decision that is based on professional judgment cannot

evince deliberate indifference because professional judgment implies a choice of

what the defendant believed to be the best course of treatment. 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.

Id. (citing Zaya v. Sood, 836 F.3d 800, 805-806 (7th Cir. 2016)).

This is in contrast to a case “where evidence exists that the defendant [ ] knew

better than to make the medical decision[] that [he] did[.]” Whiting, 839 F.3d at 662

(quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016)(alterations in the original).

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However, a medical professional’s choice of an easier, less efficacious treatment can rise

to the level of violating the Eighth Amendment where the treatment is known to be

ineffective but is chosen anyway. See Berry, 604 F.3d at 441. The Eighth Amendment does

not require that prisoners receive “‘unqualified access to health care.’ Rather, they are

entitled only to “‘adequate medical care.’” Johnson v. Doughty, 433 F.3d 1001, 1013 (7th

Cir. 2006)(citations omitted).

ANALYSIS

Here, the parties do not dispute that Todd has a serious medical condition. Thus,

the Court need only address the second prong as to all Defendants.

Medical Provider Defendants

The medical provider Defendants argue that Todd cannot establish that they were

deliberately indifferent as they provided Todd medical treatment within medical

standards and ensured that Todd had all the tools to assist his own care for managing his

diabetes. Further, these Defendants argue that Todd continuously disregarded his health

(by ordering sweet snacks form the commissary) and consistently failed to comply with

medical treatment (refusing medications and refusing Accu-Cheks). Moreover, the

Defendants contend that they had no control over what Todd was served in the chow

hall, as meals and menus were developed by state employees, i.e., the State Dietician and

the Dietary Manager.

Todd, on the other hand, counters that the focus of this lawsuit is whether each of

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the medical provider Defendants inappropriately refused to order a therapeutic diet or

an appropriate diet and inappropriately failed to investigate or follow-up on a

therapeutic diet order that had been entered but was not being provided. Todd disputes

that any of the Defendants educated him on the need to have an appropriate diet. Todd

contends that the only way to get a modified tray is to have a therapeutic diet order and

only medical providers can order therapeutic diets. Further, Todd contends that he told

the medical provider Defendants about the lack of education and about him not receiving

a therapeutic diet.

Viewing the evidence in the light most favorable to Todd, the Court finds that

material issues of fact preclude summary judgment at this point in the litigation. The

medical provider Defendants contend that they worked diligently to provide Todd the

appropriate medical treatment for his diabetes, that they informed Todd that a

therapeutic diet order had been entered and that every time they examined or saw Todd,

the medical provider Defendants educated him on diet and healthy food choices

regarding his diabetes. Todd, on the other hand, testified that not once was he informed

of the therapeutic diet orders; that he did not receive the therapeutic diets (that he

received the same meals as general population, including sweets); that he did not receive

snack bags until more than six months after he started on insulin and at times these snack

bags were untimely; and that he was not educated on healthy food choices and that he

never saw a diabetic specialist. During this time frame, Todd’s weight fluctuated as did

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Todd’s diabetic symptoms despite the course of treatment ordered by the medical

provider Defendants.

A reasonable jury could conclude that Todd’s weight gain and out of control

diabetes was attributed to him not receiving a proper therapeutic diet. An inference can

be made from the record that the medical provider Defendants were aware that

therapeutic diets, in addition to the other treatment that they provided, were

necessary/important components in controlling Todd’s diabetes. It can also be inferred

that the medical provider Defendants were aware that therapeutic diets and education

regarding those diets were important. It can further be inferred that the medical provider

Defendants had a duty to ensure that Todd was, in fact, receiving the therapeutic diets as

ordered. Wexford Health’s Operations Policies and Procedures provide that it will assist

the Facility Administrator in ensuring that nutritional needs are met. Further, Dr. Shah

also testified that “Wexford personnel will order the diet and observe that the diet has

been carried out.” Todd, however, claims that he was not informed of any therapeutic

diets, he was not educated on such diets and that he did not receive any such diets on a

regular basis. Viewing the evidence in the light most favorable to Todd, as the Court

must, the Court finds that the jury must decide whether these medical provider

Defendants were deliberately indifferent to Todd regarding the issues surrounding the

diabetic diet orders, including ensuring that Todd was actually provided with the

therapeutic diet and educating him on the proper diet. Thus, the Court denies the motion

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for summary judgment as to the medical provider Defendants.

Fisher and Harris

Both Fisher and Harris contend they are entitled to summary judgment because

they, as non-medical professionals, were entitled to rely on the medical professionals to

order Todd an appropriate diet, if medically indicated. Fisher and Harris also contend

that Todd cannot show they were personally involved in any of the alleged conduct.

These Defendants contend that they do not have medical education or training as to

diabetes. Further, neither of these Defendants have the authority to order special diets

and that they relied on the medical professionals to issue appropriate diets. Lastly, Fisher

and Harris assert that they are entitled to qualified immunity. Todd contends that Fisher

and Harris did not follow the applicable diet orders of the medical providers.

Similarly, as with the medical provider Defendants, the Court finds that there are

questions of material fact that preclude summary judgment as to Fisher and Harris. Todd

testified that he never received a special diet tray and that he always received the same

meals as the other inmates in general population. Further, Todd testified that he was

unaware that a therapeutic diet had been ordered for him at any point. Similarly, Todd

testified that he only sometimes received snack bags. Moreover, there is conflicting

evidence whether Fisher and Harris were following and/or implementing the diet orders

entered. Both Fisher and Harris testified that they were responsible for making sure

inmates who had therapeutic diet orders entered were receiving those diets. Also, Todd

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claims that he sent 6-7 request slips to both Fisher and Harris regarding the diet and that

he never received a response. (Doc. 146-1, p. 98-103).

Obviously, Fisher and Harris can assert that the lack of a therapeutic diet was the

fault of the medical providers. By the same token, the medical providers could assert that

a therapeutic diet was ordered, but that Fisher and/or Harris ignored such orders.

Because both sets of defendants can credibly point the finger at each other, summary

judgment cannot be granted. See, e.g., Murray v. City of Chicago, 634 F.2d 365, 366 (7th Cir.

1980)(reversing district court’s grant of summary judgment and noting that in Section

1983 suit “defendants should not be permitted to ‘get off the hook’ by merely pointing

the finger at each other.”). Thus, the Court denies the motion for summary judgment as

to Fisher and Harris.

Finally, the Court finds that Defendants Fisher and Harris are not entitled to

qualified immunity. In 2014, it was clearly established that inmates had a right to a

medically appropriate diet, including those with diabetes. See Sellers v. Henman, 41 F.3d

1100, 1103 (7th Cir. 1994).

CONCLUSION

Accordingly, the Court DENIES Defendants’ motions for summary judgment

(Doc. 144, 146). The Court will set this matter via separate notice for telephonic conference

to discuss the possibility of a settlement conference and possible trial dates.

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Further, pursuant to the stipulation for dismissal of Dr. Hughes Lochard filed by

Todd on August 29, 2019 (Doc. 139), the Court DISMISSES without prejudice Defendant

Lochard at the close the of the case.

IT IS SO ORDERED. Digitally signed

Dated: April 20, 2020. 7 bygdge Sison

Aline ¢.. Dd. Date:

2020.04.20

12:06:19 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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