Veal v. Illinois Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARNELL VEAL, )

)

Plaintiff, )

)

vs. ) Case No. 3:18-CV-621-MAB

)

DAVID RAINS, PHILLIP B. MARTIN, )

VIPIN SHAH, MONICA CARRELL, )

and ZACHARY BEAN, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on the motion for summary judgment filed by

Defendant Vipin Shah (Doc. 82). For the reasons outlined below, the motion is granted.

BACKGROUND

In March 2018, Plaintiff Darnell Veal filed this action pursuant to 42 U.S.C. § 1983

alleging officials and medical providers at Robinson Correctional Center were

deliberately indifferent to a tumor on his back and his neck and back pain and/or

osteoarthritis (Doc. 1; Doc. 9). Following a threshold review of the complaint pursuant to

28 U.S.C. § 1915A, Plaintiff was permitted to proceed on Eighth Amendment claims

against Dr. Vipin Shah, Warden David Rains, Healthcare Unit Administrator Phil Martin,

correctional counselor Monica Carrell, and correctional officer Zachary Bean (Doc. 9).

On July 1, 2020, Dr. Shah filed a motion for summary judgment on the merits of

Plaintiff’s claim (Doc. 82; Doc. 83).1 Plaintiff filed his response on August 3, 2020 (Doc.

86).2 Dr. Shah did not file a reply.

FACTS

Plaintiff Darnell Veal was incarcerated in the Illinois Department of Corrections at

Robinson Correctional Center from 2015 to May 2018 (Doc. 83-1, pp. 39, 41–42). On April

29, 2016, Plaintiff went to nurse sick call and reported that he woke up from a nap with

pain in his back that radiated into his shoulder (Doc. 83-2, pp. 38–41; Doc. 83-3, pp. 9–10).

He reported his pain level was a nine out of ten and he experienced pain turning left or

right, laying down, sitting up, or standing. The nurse noted a “soft” lump on Plaintiff’s

upper left back measuring 7.5cm by 8.5cm (2.95in. by 3.35in.) (Doc. 83-3, pp. 9–10). She

called Dr. Vipin Shah and he instructed her to provide Plaintiff with 800mg of ibuprofen,

three times per day, a lower bunk permit, and a temporary lay-in permit (Id.).

Plaintiff went back to nurse sick call on May 7th complaining of pain from the

lipoma, which he rated as a nine out of 10 (Doc. 86, pp. 55–56). He said it hurt when he

tried to “lift, bend, or anything.” The nurse noted Plaintiff had a “softball size swollen

area” on his left upper back that was painful to touch. Like the first nurse, however, this

nurse noted there was no gait disturbance or change from sitting to standing—Plaintiff

1 None of the other four Defendants moved for summary judgment.

2 The Court notes that Plaintiff was granted leave to file a response brief that did not exceed 30 pages (Doc.

85). Plaintiff, however, ignored that page limit and filed a 44-page brief (Doc. 86, pp. 1–44). The Court,

however, opts not to strike the offending pages and will consider the entirety of Plaintiff’s brief.

did both with a straight back. The nurse contacted Dr. Shah, who said to provide Plaintiff

with 600mg of ibuprofen, three times per day.

Dr. Shah then saw Plaintiff two days later, on May 9th (Doc. 83-2, pp. 44–48; Doc.

83-3, p. 11). Plaintiff told Dr. Shah that his pain started on April 29th (see also Doc. 83-1,

p. 180). Dr. Shah noted that there was subcutaneous (meaning the layer of tissue just

under the skin) swelling on Plaintiff’s upper left back that measured about three inches

by two inches. He wrote that it was not tender to the touch and the surrounding tissue

was normal. Dr. Shah assessed that it was a lipoma. Dr. Shah testified that a lipoma is a

benign fatty tumor (Doc. 83-2, pp. 48–50).3 The vast majority of lipomas do not cause pain

and do not require any treatment (Id. at p. 51). Dr. Shah testified that he would

recommend a lipoma be surgically removed if it was impacting nerves or the patient’s

daily activities (like taking a shower, brushing their teeth, or walking around), or the

lipoma continued to grow (Id. at pp. 27–28, 61). It was Dr. Shah’s impression that because

Plaintiff’s lipoma was located in the subcutaneous tissue, it would not be pressing on any

nerves and was unlikely to cause pain (Id. at pp. 51–52). Dr. Shah also did not observe

any objective signs of significant pain or distress, such as trouble walking, sitting down,

or getting up; facial grimaces; elevated pulse; or elevated blood pressure (Id. at pp. 53,

3 According to the Mayo Clinic, a lipoma is a slow-growing, fatty lump that commonly occur on the back.

Lipoma, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/lipoma/symptoms-causes/syc-

20374470 (last visited March 27, 2021). A lipoma “usually is harmless,” “usually isn’t tender,” and “is rarely

a serious medical condition.” Id. However, it can be painful if it grows and presses on nearby nerves or

contains many blood vessels. Id. “Treatment generally isn’t necessary, but if the lipoma bothers [the

patient], is painful or growing, [the patient] may want to have it removed.” Id.

62). But because Plaintiff complained of pain, Dr. Shah prescribed 400 mg ibuprofen three

times per day, for 30 days, along with exercise and weight loss (Doc. 83-2, pp. 46, 53–54;

Doc. 83-3, p. 11).

On June 1st, Plaintiff went back to nurse sick call and reported pain from the

lipoma, which he rated as a seven out of ten (Doc. 86, p. 60). The nurse noted that Plaintiff

walked “slow and stiff” and moved “slow.” The nurse gave Plaintiff 200 mg of ibuprofen,

one to two times per day, for three days.

Dr. Shah saw Plaintiff on June 6th (Doc. 83-2, pp. 67–70; Doc. 83-3, p. 12). Dr. Shah

wrote that Plaintiff said he had the growth since 2009, which is different than what he

told Dr. Shah at the first appointment. Dr. Shah wrote that the lipoma measured three

inches by three inches, but also indicated the lipoma was the “same size.” He prescribed

400mg of ibuprofen, three times per day, for 30 days.

On July 18th, Plaintiff went to nurse sick call and complained of pain in his back

and left hand from arthritis, which he rated as a seven out of ten (Doc. 86, p. 63). The

nurse gave Plaintiff 200mg of ibuprofen, one to two times per day, for three days. The

nurse did not refer Plaintiff to see the doctor.

This scenario repeated a number of times over the course of the next year. Plaintiff

reported to nurse sick call and complained of arthritis pain on August 2 and November

20, 2016, March 1, 2017, March 4, and March 7 (Doc. 86, pp. 65–70). Each time, Plaintiff

rated his pain as a six, a seven, or an eight out of ten, and the nurse gave him a three-day

supply of ibuprofen or acetaminophen but did not refer him to see the doctor (Id.).

Plaintiff went back to nurse sick call on March 28, 2017, complaining about arthritis pain

and he told the nurse that ibuprofen did not help (Doc. 86, p. 71). Plaintiff then saw Dr.

Shah a week later on April 5th for his complaints of arthritis pain (Doc. 83-2, pp. 75–78;

Doc. 83-3, p. 13). Dr. Shah noted there was no chronic distress and Plaintiff’s vital signs

were normal. He prescribed Plaintiff 500mg of acetaminophen for 30 days.

Approximately three weeks later, on April 25th, Plaintiff went to nurse sick call

and complained of pain in his left shoulder from a “tumor”, which he rated as an eight

out of ten (Doc. 86, p. 74). This visit came almost exactly one year from the first visit at

which Plaintiff complained of pain from the lipoma (see Doc. 83-3, pp. 9–10). He told the

nurse, however, that he’d had the “tumor” for two years (Doc. 86, p. 74). He reported that

it hurt when he moved his left arm, and he also complained about pain in different areas

of his body from arthritis. The nurse noted that Plaintiff was taking more Tylenol per day

than was prescribed and he needed to take it as ordered. The nurse gave Plaintiff a three-

day supply of ibuprofen.

The Health Care Unit Administrator, Phil Martin, wrote a note in the medical

record dated April 28, 2017, indicating that he reviewed a grievance from Plaintiff

regarding left shoulder pain due to a “tumor” (Doc. 86, p. 75).4 Martin noted that because

Plaintiff complained of “renewed pain more frequently,” he would refer Plaintiff to the

doctor to evaluate the lipoma for size changes and to evaluate Plaintiff’s complaints of

pain.

4 It is not clear which grievance Martin was referencing or whether it is part of the record (see Doc. 83, Doc.

86).

Dr. Shah accordingly saw Plaintiff three days later on May 1st (Doc. 83-2, pp. 79–

82; Doc. 83-3, p. 14). Dr. Shah noted that the lipoma measured three inches by three inches

and had not changed in size. He once again prescribed Plaintiff 500mg of Tylenol, but

increased it to twice a day, and he wrote the prescription for six months. Dr. Shah also

noted that he “reassured” Plaintiff, which he testified meant that he “must have told him

that don’t worry it’s not a cancer.”

Plaintiff reported to nurse sick call on August 23rd, reporting additional painful

lumps in his abdomen, chest, shoulder, and thigh (Doc. 86, p. 78). He rated his pain as a

five out of ten. The nurse noted there were no obvious signs of discomfort, redness, or

warmth. The nurse noted that she could not see but could feel the lumps on the abdomen,

chest, and shoulder, however, the lump on the thigh could be seen and felt.

Dr. Shah saw Plaintiff the following day (Doc. 83-2, pp. 82–87; Doc. 83-3, pp. 15–

16). Dr. Shah examined Plaintiff and diagnosed the lumps as additional lipomas. Dr. Shah

put Plaintiff on a weight loss diet and recommended exercise. He also ordered a blood

test to check Plaintiff’s cholesterol and thyroid to see if those were the potential cause of

the additional lipomas. Plaintiff also complained that day about his arthritis. Dr. Shah

ordered an x-ray of Plaintiff’s right hand and left knee, which showed his right hand was

normal and showed minimal degenerative changes in his left knee (Doc. 83-3, p. 22; Doc.

86, p. 81). Dr. Shah diagnosed Plaintiff with “minimal degenerative arthritis.” He

continued Plaintiff on Tylenol but also added Mobic, which he testified was a “long-

acting, continuous pain relief” medication.5

The next time Dr. Shah saw Plaintiff was on November 27, 2017, when Plaintiff

was in the infirmary for another condition (Doc. 83-2, p. 89; Doc. 83-3, p. 18; Doc. 86, p.

86). Dr. Shah continued Plaintiff’s prescription for Mobic for another six months.

Dr. Shah saw Plaintiff again on December 4th and 7th for complaints related to

arthritis pain (Doc. 83-2, pp. 89–91; Doc. 83-3, pp. 19–20). Plaintiff’s prescription for

Tylenol was renewed, and Dr. Shah told him to take both the Tylenol and the Mobic.

Plaintiff had a follow-up visit for his arthritis on January 8, 2018 (Doc. 83-2, pp. 91–

92; Doc. 83-3, p. 21). Specifically, Plaintiff complained of pain in his knee, lower back, and

hip. He asked for stronger medication, and Dr. Shah increased the dosage of Mobic from

7.5mg to 15mg. This was the last time Dr. Shah saw Plaintiff before he was released on

parole in May 2018 (see Doc. 83-3; Doc. 86, pp. 53–89).

Plaintiff had the lipoma surgically removed in February 2019 (Doc. 83-1, p. 90).

Since the surgery, he has not experienced any pain in the area where the tumor was

located. Plaintiff also receives monthly injections for his arthritis and also has 800mg of

ibuprofen that he uses occasionally to help manage flare-ups (Doc. 83-1, p. 100).

5 Mobic (generic name meloxicam) is used to treat pain and inflammation from arthritis. It is a nonsteroidal

anti-inflammatory drug, like ibuprofen, but is considered a stronger medication than ibuprofen. It is

available only by prescription, while ibuprofen is available over the counter. Mobic is a long-acting

medicine that only needs to be given once a day, while ibuprofen in its usual form needs to be given

multiple times per day. Carmen Fookes, BPharm, Meloxicam vs. Ibuprofen, What’s the Difference?,

https://www.drugs.com/medical-answers/difference-between-meloxicam-ibuprofen-3504403/ (last

visited March 22, 2021)

DISCUSSION

Summary judgment is proper when the moving party “shows that there is no

genuine issue as to any material fact and the movant is 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’s role is not to determine the truth of the matter, and the court may

not “choose between competing inferences or balance the relative weight of conflicting

evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hansen v. Fincantieri

Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations omitted); Doe v. R.R. Donnelley

& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Instead, “it must view all the evidence in the

record in the light most favorable to the non-moving party and resolve all factual disputes

in favor of the non-moving party.” Hansen, 763 F.3d at 836.

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,”

namely deliberate indifference. Goodloe v. Sood, 947 F.3d 1026, 1030–31 (7th Cir. 2020)

(citing Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)).

Dr. Shah argues that Plaintiff’s lipoma and arthritis were not objectively serious

medical conditions (Doc. 83, pp. 13–15). The Court need not address that prong of the

analysis because even if the Court assumes that Plaintiff’s lipoma and arthritis presented

sufficiently serious medical conditions, the evidence when viewed in a light most

favorable to Plaintiff does not establish a genuine issue of fact as to whether Dr. Shah

acted with deliberate indifference.

For medical professionals, the deliberate indifference standard has been described

as the “professional judgment” standard. Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008).

Treatment decisions are “presumptively valid” and entitled to deference so long as they

are based on professional judgment—meaning they are fact-based with respect to the

particular inmate, the severity and stage of his condition, the likelihood and imminence

of further harm, and the efficacy of available treatments—and do not go against accepted

professional standards. Johnson v. Rimmer, 936 F.3d 695, 707 (7th Cir. 2019) (citation

omitted); Rasho v. Elyea, 856 F.3d 469, 476 (7th Cir. 2017); Roe v. Elyea, 631 F.3d 843, 859

(7th Cir. 2011). A medical professional may be held to have displayed deliberate

indifference if the treatment decision was “blatantly inappropriate” even to a layperson,

Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see also Petties v. Carter, 836 F.3d 722, 729

(7th Cir. 2016) (a jury can infer deliberate indifference when “a risk from a particular

course of medical treatment (or lack thereof) is obvious.”), or there is evidence that the

treatment decision was “such a substantial departure from accepted professional

judgment, practice, or standards, as to demonstrate that the person responsible actually

did not base the decision on such a judgment.” Petties, 836 F.3d at 729; see also Pyles, 771

F.3d at 409 (“A medical professional is entitled to deference in treatment decisions unless

‘no minimally competent professional would have so responded under those

circumstances’”) (citation omitted).

Plaintiff alleges that while he was incarcerated at Robinson Correctional Center

over the course of approximately two years, Dr. Shah was deliberately indifferent to his

lipoma and arthritis causing him severe and unnecessary pain and that he was not given

the medical treatment that he needed. Plaintiff began complaining about pain from a

lump on his back in late April 2016. Dr. Shah saw Plaintiff for the first time about the

lump in early May 2016. Dr. Shah determined the lump was a lipoma and he gave

Plaintiff a 30-day supply of ibuprofen. When Plaintiff came back approximately one

month later, Dr. Shah gave him another 30-day supply of ibuprofen. There is no

indication that Plaintiff ever told Dr. Shah the ibuprofen was ineffective (see Doc. 83-1;

Doc. 83-3; Doc. 86). Plaintiff did not complain about the lipoma again until April 25, 2017

when he reported to nurse sick call (see Doc. 86, pp. 22–23). He saw Dr. Shah six days

later, and Dr. Shah increased Plaintiff’s prescription for Tylenol to 500mg, twice a day,

for six months. In other words, the record demonstrates that Dr. Shah responded to

Plaintiff’s complaints about the lipoma on his upper back by examining it, diagnosing it,

monitoring its size over time, and prescribing pain medications to treat Plaintiff’s

subjective complaints of pain.

Plaintiff nevertheless claims that Dr. Shah was deliberately indifferent with respect

to the lipoma because the doctor never told Plaintiff his diagnosis or explained to him

that it was not cancerous, never removed the tumor, never conducted a biopsy or other

diagnostic test, and never referred him to see a specialist (Doc. 86, pp. 31–32; Doc. 83-1,

pp. 181–82). Instead, Dr. Shah persisted in a course of ineffective treatment in the form of

over-the-counter pain medication which did not relieve Plaintiff’s severe pain (Doc. 86,

pp. 31–32).

Plaintiff claims Dr. Shah only called the lump on his back a “tumor” and never

told him that it was a lipoma (Doc. 83-1, pp. 61–62). In fact, Plaintiff claims, the first time

he ever heard the lump called a lipoma was after his surgery to remove it in February

2019 (Id.). However, a counselor’s response to Plaintiff’s grievance dated April 29, 2016

indicates that Plaintiff was evaluated and treated “for a lipoma. Given pain medication

and education on issue” (Doc. 51-3, p. 23). Similarly, a counselor’s response to Plaintiff’s

grievance dated May 9, 2016, indicates he was “diagnosed w/ lipoma (benign fatty-like

tumor).” (Id. at p. 22). And Dr. Shah’s notes from the visit on May 1, 2017 regarding the

lipoma indicate that he “reassured” Plaintiff, which he testified meant that “must have

told him that don’t worry it’s not a cancer.” Thus the record demonstrates that Plaintiff

was, in fact, told multiple times that he had a lipoma and it was not cancerous. To the

extent that Plaintiff remained confused or unaware of the nature of the lump and the lack

of risk that it posed, that is certainly lamentable, but it in no way suggests that Dr. Shah

was deliberately indifferent to the lipoma.

Second, Dr. Shah testified that he did not see any clinical indication that diagnostic

testing, such as a biopsy or an ultrasound, was necessary (Doc. 83-2, pp. 57–61). “[T]he

decision to forgo diagnostic tests ‘is a classic example of a matter for medical judgment.’”

Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 107

(1976)). Plaintiff did not submit any evidence whatsoever from which a jury reasonably

could find that Dr. Shah’s exercise of medical judgment departed significantly from

accepted professional norms (see Doc. 86).

Dr. Shah also testified that he did not believe surgery was necessary because

Plaintiff’s lipoma was not growing or affecting his activities of daily living (Doc. 83-2, p.

61). Plaintiff disputes that the lipoma did not grow (Doc. 86, pp. 40–41). He points first to

his own unadorned assertion that between April 2016 and his release from Robinson

approximately two years later, the lipoma “increased. It grew.” (Doc. 83-1, pp. 180–181).

But Plaintiff did not explain the basis for his belief that the lipoma had grown. And the

Court presumes that he was not able to independently observe it or measure it given that

it was on his back. Plaintiff also points to the medical records as evidence that the lipoma

increased in size. The medical records show that the first measurement by a nurse in April

2016 was approximately three inches by three inches. Then in May 2016, Dr. Shah wrote

that it measured three inches by two inches. And in June 2016, Dr. Shah wrote that it

measured three inches by three inches. Dr. Shah initially testified that Plaintiff’s lipoma

“did not keep on growing (Doc. 83-2, p. 61). But later, when Plaintiff’s counsel said the

medical records showed the lipoma had grown by one inch between the second and third

measurements, Dr. Shah agreed (Id. at p. 69). Dr. Shah’s counsel followed up on this line

of questioning, and asked him to explain how the lipoma went from three by three inches,

to three by two inches, to three by three inches over the course of only two months (Id. at

pp. 98–99). Dr. Shah testified that the second measurement—the three by two

measurement—was “probably [a] misprint,” and he stated that he did not believe the size

of the lipoma changed between April and June 2016 (Id. at pp. 99–100). He later affirmed

that there was no material change in the size of the lipoma throughout the 21 months

(approx.) that he treated Plaintiff (Id. at p. 101). Simply put, the medical records indicate

that the lipoma was the same size in June 2016 as it was in April 2016 and there is no

competent evidence that it grew any larger before Plaintiff’s release in prison in May

2018.6 In looking at the evidence as a whole, no reasonable jury could conclude anything

other than the lipoma remained roughly the same size while Plaintiff was in prison.

Plaintiff also claims that the lipoma “caused him to experience significant

functional limitations to his daily activities” (Doc. 86, p. 64). But the evidence he cited to

does not support that claim. The medical records include vague notations that he self-

reported a limited range of motion due to pain from the lipoma, e.g., “limited range of

motion due to pain,” and “complained of pain with bending or lifting heavy” (Doc. 83-2,

p. 56; Doc. 86, pp. 54, 56). None of the nurses documented that they objectively tested and

observed functional limitations (see id.). Plaintiff testified that it was hard to lay down on

his back or on his left side (Doc. 83-1, p. 74). He also testified that he “had a problem with

6 Notably, none of Plaintiff’s post-prison medical records regarding his lipoma treatment were submitted

to the Court. It stands to reason that the surgeon who removed the lipoma, (see Doc. 83-1, p. 90), would

have noted the size of the lipoma somewhere in their records.

carrying weight,” namely lifting up very heavy pans of food at his job in dietary, but he

went on to say that the problem lifting was that he would “get a tingly feeling where [he]

couldn’t hold on to anything,” and that feeling was unrelated ,to and not caused by the

lipoma (Id. at pp. 74–75). He later testified that the tumor and his arthritis caused

limitations, “lifting, holding, and handling altogether” (Id. at pp. 191–92).7 All of this is

to say, there is simply nothing that indicates the lipoma in and of itself, and separate and

apart from the arthritis, significantly limited Plaintiff’s ability to perform basic functions

essential to everyday life such that surgery to remove it was plainly called for and the

decision not to recommend it was obviously wrong and “blatantly inappropriate.”

Plaintiff also did not submit any expert evidence that Dr. Shah’s decision not to

remove the lipoma was a substantial departure from accepted professional practice. And

the fact that a physician who examined Plaintiff after his release from prison decided to

remove the lipoma is not sufficient to conclude that Dr. Shah should have done so.

“[E]vidence that some medical professionals would have chosen a different course of

treatment is insufficient to make out a constitutional claim.” Petties v. Carter, 836 F.3d 722,

729 (7th Cir. 2016) (emphasis in original); see also Pyles, 771 F.3d at 409 (“Disagreement

between a prisoner and his doctor, or even between two medical professionals, about the

7 He testified that the tumor made it difficult to lift and hold heavy things because “the tumor had grown

into the tissue, the muscle. And when it grew into the muscle, that’s when it became a problem” (Doc. 83-

1, p. 192). Plaintiff, however, is not qualified to offer this type of medical evidence regarding the specific

nature and progression of his tumor, and he did not submit any competent medical evidence

demonstrating that what he said was true (see Doc. 86). Consequently, the Court will not consider this

statement by Plaintiff.

proper course of treatment generally is insufficient, by itself, to establish an Eighth

Amendment violation.”).

Finally, Dr. Shah also testified that he believed the over-the-counter pain reliever

he prescribed to Plaintiff was sufficient because after considering Plaintiff’s subjective

complaints and the lack of objective findings from physical exams, he did not believe that

Plaintiff’s pain was significant (Doc. 83-2, pp. 16–17, 61–62). The evidence thus establishes

that Dr. Shah’s decision regarding medication was based on his professional judgment

rather than “gratuitous cruelty.” Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (citation

omitted). His decision is entitled to deference unless Plaintiff puts forth evidence that “no

minimally competent person would have so responded under those circumstances,”

which he did not (see Doc. 86).

As for the arthritis pain, it is undisputed that the first time Plaintiff complained to

Dr. Shah was on April 5, 2017 (see Doc. 86, p. 10). Dr. Shah noted that Plaintiff was “not

with any chronic distress” and his vital signs were normal. He prescribed Plaintiff 500mg

of acetaminophen for 30 days. Approximately one month later, in May 2017, Dr. Shah

doubled Plaintiff’s dosage of Tylenol in response to his complaints about his lipoma (but

the pain medication obviously would have addressed his arthritis pain as well) and gave

him a six-month prescription. Dr. Shah saw Plaintiff again in August 2017. This time he

ordered x-rays of Plaintiff’s right hand and left knee. Based on the results, Dr. Shah

diagnosed Plaintiff with “minimal degenerative arthritis.” He continued Plaintiff on

Tylenol but also added Mobic. A couple months later he continued the prescription for

Mobic. And when Plaintiff asked for stronger medication, Dr. Shah doubled his dosage

of Mobic. The record thus demonstrates that Dr. Shah was responsive to Plaintiff’s

complaints of arthritis pain. He initially prescribed Tylenol based on his professional

assessment of Plaintiff’s medical history and the lack of objective indications of pain.

When Plaintiff’s complaints continued, Dr. Shah ordered diagnostic imaging to confirm

that Plaintiff was not suffering from anything other than normal, degenerative arthritis

caused by aging. The doctor also added in a stronger pain medication. He subsequently

doubled the dosage after Plaintiff said it was not strong enough.

Plaintiff nevertheless claims that Dr. Shah was deliberately indifferent because the

doctor never told Plaintiff what type of arthritis he had and did not prescribe strong

enough pain medication (Doc. 86). However, the record clearly demonstrates that

Plaintiff knew he had arthritis (see, e.g., Doc. 83-1, pp. 47–48; Doc. 86, pp. 63, 67, 74).

Furthermore, he testified that he was told at Robinson Correctional Center that he had

degenerative arthritis and he was also told “you’re just getting old and you’re getting

arthritis” (Doc. 83-1, pp. 49–50). Once again, to the extent that Plaintiff did not understand

what degenerative arthritis entailed, it is unfortunate, but it in no way suggests that Dr.

Shah was deliberately indifferent.

Furthermore, Dr. Shah’s decision to employ conservative measures to treat

Plaintiff’s pain with medication in a step-wise fashion was not blatantly inappropriate

and it is entitled to deference unless Plaintiff puts forth evidence that “no minimally

competent person would have so responded under those circumstances,” which he has

not (see Doc. 86).

Accordingly, Plaintiff has failed to demonstrate a material issue of fact as to

whether Dr. Shah was deliberately indifferent to his lipoma and/or arthritis, and Dr.

Shah is entitled to summary judgment.

CONCLUSION

The motion for summary judgment filed by Defendant Vipin Shah (Doc. 82) is

GRANTED. Dr. Shah is DISMISSED with prejudice as a Defendant in this case and

judgment will be entered in his favor at the close of the case.

This matter will proceed to trial on the following claims against the following

Defendants:

Count 1 – Martin, Rains, and Carrell were deliberately indifferent to

Plaintiff’s tumor in violation of the Eighth Amendment;

Count 2 – Rains, and Carrell were deliberately indifferent to Plaintiff’s back

pain and/or osteoarthritis in violation of the Eighth Amendment;

Count 3 – Bean was deliberately indifferent to Plaintiff’s request for medical

attention on a single occasion in violation of the Eighth Amendment.

A status conference to discuss the trial schedule and the utility of a settlement

conference will be set by a separate Order.

IT IS SO ORDERED.

DATED: March 29, 2021

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge