Lewis v. Stout

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SYLVESTER LEWIS, )

)

Plaintiff, )

)

vs. ) Case No. 3:18-CV-02209-MAB

)

ANDY STOUT, KEVIN KINK, AND DR. )

STEPHEN RITZ, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

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

Defendant Stephen Ritz (Doc. 87) and Defendants Andy Stout and Kevin Kink (Doc. 92).

Defendant Ritz and Plaintiff have each filed motions to seal documents that accompany

their briefing (Docs. 86 & 95). For the reasons explained below, the motions to seal (Doc.

86 & 95) are denied and the motions for summary judgment (Doc. 87 & 92) are granted.

BACKGROUND

Plaintiff Sylvester Lewis (“Plaintiff”) is an inmate under the care of the Illinois

Department of Corrections who filed this lawsuit pursuant to 42 U.S.C. § 1983 for alleged

violations of his constitutional rights (Doc. 1). Plaintiff alleges his cell was infested with

ants; medical personnel had to remove bugs from his ears on several occasions; and he

suffered from ear infections (Id.).

Following a preliminary review of Plaintiff’s Complaint under 28 U.S.C. § 1915A,

Plaintiff was permitted to proceed on an Eighth Amendment claim against Defendants

Stout and Kink for being deliberately indifferent to the conditions of his cell (Count 1)

and an Eighth Amendment claim against Defendant Ritz for being deliberately

indifferent to his serious medical needs (Count 2) (Doc. 14).

Defendants filed motions for summary judgment (Docs. 87 & 92), Plaintiff filed

motions in opposition (Docs. 97 & 99), and Defendants filed replies in support of their

motions (Docs. 101 & 102). Defendant Ritz and Plaintiff filed motions to seal certain

exhibits to their summary judgment briefing (Docs. 86 & 95).

MOTIONS TO SEAL

Motions to seal are disfavored. GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411,

419 (7th Cir. 2014). “Documents that affect the disposition of federal litigation are

presumptively open to public view, even if the litigants strongly prefer secrecy, unless a

statute, rule, or privilege justifies confidentiality.” In re Sprecht, 622 F.3d 697, 701 (7th Cir.

2010). The Seventh Circuit has emphasized “that litigation be conducted in public to the

maximum extent consistent with respecting trade secrets. . . and other facts that should

be held in confidence.” Hicklin Eng’g, L.c. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006),

abrogated on other grounds by Americold Realty Trust v. Conagra Foods, Inc., 57 U.S. 378 (2016).

Motions to seal parts of the record should be granted “only if there is good cause” for

doing so. Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th

Cir. 1999)

Defendant Ritz and Plaintiff have each moved to seal exhibits. Although the

motions are unopposed, they must still be scrutinized against the public’s presumptive

right of access to materials before the Court. See Citizens, 178 F.3d at 945 (“The judge is

the primary representative of the public interest in the judicial process and is duty-bound

therefore to review any request to seal the record (or part of it).”).

Defendant Ritz moves to seal an exhibit to his motion for summary judgment that

contains screenshots of Wexford Health Source’s, Inc.’s internal WexCare program (Doc.

86). Defendant Ritz argues the exhibit depicts a trade secret, as defined under the Illinois

Trade Secrets Act, 765 ILCS 1065/2(d) (the “Act”). The Act states that a trade secret is:

information, including but not limited to, technical or non-technical data, a

formula, pattern, compilation, program, device, method, [or]

technique…that is sufficiently secret to derive economic value, actual or

potential, from not being generally known to other persons who can obtain

economic value from its disclosure or use and is the subject of efforts that

are reasonable under the circumstances to maintain its secrecy or

confidentiality.

Id.

In analyzing whether an alleged trade secret meets these requirement, Illinois

courts look to the following factors: “(1) the extent to which the information is known

outside of the [movant’s] business; (2) the extent to which the information is known by

employees and others involved in the [movant’s] business; (3) the extent of measures

taken by the [movant] to guard the secrecy of the information; (4) the value of the

information to the [movant’s] business and to its competitors; (5) the amount of time,

effort and money expended by the [movant] in developing the information; and (6) the

ease or difficulty with which the information could be properly acquired or duplicated

by others.” Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 722 (7th Cir.

2003).

Here, the exhibit at issue equates to technical or non-technical data of Wexford’s

programs and methods for delivering healthcare. However, Defendant Ritz has not

sufficiently addressed the other factors the Court must weigh to determine whether the

exhibit constitutes a trade secret. For instance, Defendant Ritz argues that Wexford took

reasonable steps to prevent the exhibit’s disclosure by seeking a protective order in this

case. However, the protective order functions to maintain the secrecy of sensitive

materials produced during discovery and is not indicative of whether materials filed with

the Court can be shielded from public view. See Doc. 83. The Protective Order states that

the Court will make “an individualized determination of whether any such protected

document(s) or information can be filed under seal” (Id. at ¶ 12). See also Baxter Intern.,

Inc. v. Abbott Laboraties, 297 F.3d 544, 545 (7th Cir. 2002) (“Secrecy is fine at the discovery

stage, before the material enters the judicial record.”); Bond v. Utreras, 585 F.3d 1061, 1073

(7th Cir. 2009) (“While the public has a presumptive right to access discovery materials

that are filed with the court…the same is not true of materials produced during discovery

but not filed with the court.”).

Otherwise, Defendant Ritz has not stated how, in practice, Wexford maintains the

secrecy of its WexCare system; the extent to which the system is known outside of

Wexford’s business or to others involved in its business; the amount of resources

Wexford has expended to develop the system; or the ease or difficulty with which the

information could be properly acquired or duplicated. In fact, the WexCare system has

been explained in at least one Seventh Circuit opinion. Walker v. Wexford Health Sources,

Inc., 940 F.3d 954, 957 (7th Cir. 2019) (“If UM approved a patient for an offsite consultation

at UIC, the UM department would enter the information into Wexford's computer

program (“WexCare”), which triggered an electronic notice to the prison and UIC. Then,

the staff at IDOC and UIC would coordinate to schedule the inmate's appointment.”).

Defendant Ritz argues that competitors could use the information depicted in the

exhibit to elicit business away from Wexford by adapting and modifying Wexford’s

practices to attempt to create a “better” system (Doc. 86, p. 5-6). However, Defendant Ritz

does not explain with sufficient particularity what is depicted in the exhibit that subjects

Wexford to a potential harm. Instead, Defendant Ritz cites an Illinois circuit court case,

which found that Wexford guidelines were exempt from disclosure because it was “clear”

that Wexford had “gone to great time, and expense to develop their own specific

protocols in how to treat most ailments that may arise in the inmate population” (Doc.

86-2). The Illinois court recognized,

Providing health care to inmates in the Illinois Department of Corrections

presents unique challenges that do not exist outside the walls of the

penitentiary. These documents address how to provide health care to a

prison population while recognizing many factors including: the dangers

associated with violent inmates, the safety of the inmate, the safety of the

health provider, and the safety of the correctional staff. To release these

documents would cause [Wexford] competitive harm. In essence, it would

allow any business wishing to compete with [Wexford] to see [Wexford’s]

proprietary business plan.

(Id. at p. 3).

This Court does not doubt that Wexford has expended significant resources in

general in implementing its plan to provide inmate care within the IDOC. However, it is

not obvious how the specific exhibit at issue here amounts to a trade secret. A party

seeking to avoid disclosure must sufficiently explain how disclosure would cause harm

and why the predicted harm warrants secrecy. See Baxter, 297 F.3d at 547 (“Beyond

asserting that the document must be kept confidential because we say so…this contends

only that disclosure ‘could…harm Abbott’s competitive positions.’ How? Not explained.

Why is this sort of harm (whatever it may be) a legal justification for secrecy in litigation?

Not explained.”). Defendant Ritz has not established that good cause exists to seal the

exhibit, such that Wexford’s privacy interests outweigh the interests of the public in full

transparency of the judiciary. Accordingly, Defendant Ritz’s Motion to File Summary

Judgment Exhibits Under Seal (Doc. 86) is DENIED.

Plaintiff has also filed a motion to file a summary judgment exhibit under seal

(Doc. 95). Plaintiff notes that the protective order “states that a party wishing to file a

protected document shall file a motion to do so under seal,” the exhibit at issue “is a

protected document, in that it is stamped ‘confidential and subject to Protective Order,’”

and “plaintiff is thus compelled to seek leave to file the attached exhibit under seal” (Id.).

Plaintiff’s motion does not explain any basis for permitting the exhibit to be filed under

seat. “Motions that simply assert a conclusion without the required reasoning…have no

prospect of success.” Baxter, 297 F.3d at 548. Accordingly, Plaintiff’s Motion to File

Summary Judgment Exhibit Under Seal (Doc. 95) is DENIED.

SUMMARY JUDGMENT MOTIONS

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.

Undisputed Material Facts1

1 Plaintiff objects to Defendant Ritz’s statement of fact number 18 as speculative. The statement of fact

states, “Dr. Ahmed would have been aware he could re-present Lewis’s case to collegial, but he did not do

so.” This statement of fact is only supported by Defendant Ritz’s testimony of what he believes Dr. Ahmed

knew. “[E]vidence supporting a factual assertion must represent admissible evidence.” Judson Atkinson

Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008). Because Defendant Ritz’s

testimony is pure speculation, it is inadmissible and Plaintiff’s objection is sustained.

Plaintiff’s additional fact number 18 provides: “Plaintiff was told by staff at the Lawrence medical unit that

defendant Kink did not want plaintiff to contact defendant Kink” (Doc. 99, p. 5). This statement constitutes

hearsay, which is inadmissible on summary judgment to the same extent it would be inadmissible at trial.

Eisenstadt v. Centel Corp., 114 F.3d 738, 742 (7th Cir. 1997). Accordingly, it is not considered.

Also, Defendants Stout and Kink cite Plaintiff’s deposition testimony to support statements of fact numbers

four, five, and seven (See Doc. 92, p. 2). In response, Plaintiff attempts to dispute these facts by pointing to

Defendant Stout’s testimony that he does not recall certain events. However, a statement that one does not

recall is insufficient to create a genuine issue of material fact. Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056

(7th Cir. 2011). Accordingly, these facts are undisputed for purposes of summary judgment.

Further, Defendants Stout and Kink’s statement of fact number 31 states Plaintiff was disciplined for

fermenting fruit and/or “hooch” (Doc. 92, p. 5). Defendants cite to Exhibit G (Doc. 92-7) which is an

IDOC pest control contract—not Plaintiff’s disciplinary records. Regardless, the evidence appears to be

A. Living Conditions

Defendant Stout was a correctional officer employed at Lawrence, where Plaintiff

resided during times relevant to this lawsuit (Doc. 1, p. 1 & 9). Plaintiff testified that on

March 23, 2018, he informed Defendant Stout that he had problems with his cellmate and

requested a new cell (Doc. 92-2, p. 93, 95, & 96). That same day, Plaintiff was moved from

cell 24 of Lawrence’s 7 House to cell 14 (Doc. 92-2, p. 93 & 95).

When Plaintiff arrived at cell 14, there were ants on the floor (Doc. 92-2, p. 94).

Plaintiff testified that Defendant Stout ordered another inmate to clean cell 14 with bleach

before Plaintiff moved in, which temporarily removed the ants (Doc. 92-2, p. 94, & 96-98).

However, the ants soon returned (Id. at p. 98). At some point, Plaintiff told Defendant

Stout that the ants were back, but it is unclear as to when or on how many occasions he

alerted Defendant Stout.

Plaintiff initially testified the ants “start[e]d coming back out when I went to chow.

So I addressed it again [with Defendant Stout]” and “[h]e told me to stop crying like a

baby” because they were “not going to kill or hurt you” (Id. at p. 98). Later, Plaintiff

testified, “[W]hen I came off of chow and I told him about it again, he told me to stop

irrelevant because the parties agree that Plaintiff did not cause the ant infestation and Defendants do not

argue Plaintiff was found fermenting hooch in the cell at issue here. Accordingly, the statement of fact is

unsupported and irrelevant.

Also, Defendant Ritz moves to strike Plaintiff’s statement of additional facts numbers 55 through 64, which

relate to Plaintiff’s medical history following Defendant Ritz’s involvement with Plaintiff’s care. Defendant

Ritz argues the evidence does not relate to an issue of fact because Plaintiff’s only claim against Defendant

Ritz is that he vetoed a referral request. Evidence of Plaintiff’s subsequent diagnoses and treatments may

be relevant to whether Defendant Ritz’s delay in addressing or approving the ENT referral request caused

Plaintiff harm. See Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 964 (7th Cir. 2019). Thus, the Court

declines to strike the additional facts.

crying” (Id. at p. 102). Then, Plaintiff testified, “I told him…when I came off of

dayroom…I said, man, the ants came back out. He told me stop crying like a baby. They

ain’t nothing. They small ants. They are not going to hurt you” (Id. at p. 104). Later,

Plaintiff was asked, “After you had that conversation where you told CO Stout that the

ants were coming back, did you have other conversations with him about ants?” (Id. at p.

110). Plaintiff answered, “I told him that first time he didn’t do nothing about it. I went

to the lieutenant, and that was the last time I seen him” (Id.). Plaintiff was asked, “You

didn’t see Officer Stout after you told him that the ants were back?” (Id.). Plaintiff

responded, “Uh-uh,” which he confirmed was a “no” (Id.).

Plaintiff testified that when he talked to Defendant Stout, they could not see the

ants from where they were standing (Id. at p. 107). Plaintiff did not tell Defendant Stout

how many ants were in the cell but did say that there were “a lot” (Doc. 92-2, p. 108).

After speaking to Defendant Stout, Plaintiff talked to a non-party lieutenant, who

said he was going to give Plaintiff cleaning supplies (Id. at p. 103). However, Plaintiff did

not receive cleaning supplies and when he laid down for the evening, ants crawled over

his bed and in his ear (Id.). Plaintiff went to the Health Care Unit and medical personnel

removed ants from his ear (Id.). Before Plaintiff went to sleep, a lieutenant gave Plaintiff

bleach to clean his cell (Id. at p. 120). Ants crawled in Plaintiff’s ears again and he went

back to the Health Care Unit to have them removed (Id. at p. 103 & 121). A nurse

requested that Plaintiff be moved to a new cell and Plaintiff was relocated from cell 14 on

March 26, 2018, after being there for approximately three days (Doc. 92-2, p. 102) (Doc.

92-1, p. 2).

After Plaintiff filed this lawsuit, he had a conversation with Defendant Stout

during which Defendant Stout told Plaintiff it was not his job to make sure the cells were

clean or not infested and that he did his job by moving Plaintiff to cell 14 and having an

inmate clean cell 14 (Doc. 92-2, p. 138-39.

On March 26, 2018, Plaintiff submitted a grievance about “bugs” in his cell (Doc.

92-4, p. 39). The grievance states Plaintiff told a correctional officer about the bugs on

March 23, 2018, but the correctional officer said he could not do anything about the

situation (Id.). According to the grievance, on March 24, 2018, Plaintiff told a correctional

officer about the bugs and the officer told Plaintiff to stop crying (Id.). The grievance states

that on March 25, 2018, Plaintiff told Correctional Officer Hope about the bugs, who

responded he would try to move Plaintiff away from the cell (Id.). Plaintiff also told the

lieutenant assigned to the cell house about the bugs (Id.). The grievance also states that

Plaintiff had bugs in his ears, he told a correctional officer he needed medical attention,

the officer contacted the Health Care Unit for Plaintiff, and a lieutenant walked Plaintiff

to the Health Care Unit (Id. at p. 40). Plaintiff went back to the Health Care Unit on March

26, 2018 to have more bugs removed from his ears (Id.).

Defendant Kink reviewed the grievance on March 28, 2018 (Doc. 92-4, p. 26 & 45).

The grievance was deemed a non-emergency with the instruction that it should be re-

submitted in the normal manner (Id. at p. 26 & 41) (Doc. 92-5, p. 39). A grievance

counselor subsequently reviewed and responded to the grievance by stating Plaintiff was

moved to a different cell on March 26, 2018 and was seen in the Health Care Unit on

March 25, 2018 and March 26, 2018 (Doc. 92-5, p. 39).

On July 7, 2018, Plaintiff submitted a grievance about a black bug in his ear and he

sought a referral to an outside ear doctor (Doc. 92-5, p. 33-34). The grievance was received

on July 19, 2018 and Defendant Kink reviewed the grievance on July 20, 2018 and deemed

it a non-emergency (Id.) (Doc. 92-4, p. 28). The grievance was re-submitted and

subsequently reviewed by the grievance counselor (Doc. 92-5, p. 33).

Plaintiff testified that he wrote Defendant Kink a letter about the ants and

Defendant Kink wrote back that an exterminator visited Lawrence every two weeks (Doc.

92-2, p. 124). Plaintiff also spoke to Defendant Kink on one occasion (Id. at p. 132). Plaintiff

testified: “He told me he was going to look into the situation. He never sent nothing back

to me about anything. And I never heard nothing else from him” (Id.). Plaintiff further

testified, “He didn’t respond—he never got back to me. He got back to the nurses. And

they reached out to me calling me to health care…” (Id. at p. 135).

Defendant Kink testified that he would deem grievances a non-emergency when

the issue needed to be addressed but did not constitute a life-or-death emergency

situation (Doc. 92-4, p. 40). Defendant Kink testified he would generally call the Health

Care Unit and request the individual be seen if something could be quickly addressed,

even if he deemed the grievance a non-emergency (Id. at p. 29). When an emergency

grievance was submitted, it was referred to the Warden’s office for review by the Warden

or Assistant Warden, who would determine if the grievance should be deemed an

emergency or not (Id. at p. 15). Defendant Kink stated that when he received

correspondence about the presence of bugs, he would call the chief engineer to have

someone go check the allegations and/or follow up with the pest control company (Id. at

p. 17-18).

Lawrence contracted with a pest control agency and Defendant Kink testified the

agency was at Lawrence every month but would come out more often, as needed (Id. at

p. 18). However, another inmate submitted an affidavit that stated in the one-and-a-half

years prior to the filing of Plaintiff’s Complaint, an exterminator did not spray the cells

(Doc. 93-3, p. 2).

Defendant Stout testified that his general practice in the event of an insect

complaint would be to allow the individual to clean his cell by providing cleaning

supplies (Doc. 92-3, p. 5). Defendant Stout stated there were occasionally ants at

Lawrence, but the quantity was “no different than in your house” (Id.). However, Plaintiff

testified the volume of ants in his cell was equivalent to the size of half of an eight-and-

a-half by eleven-inch piece of paper (Doc. 92-2, p. 101-02). Also, Plaintiff testified three or

four moths would occasionally fly into the cell house and/or cells (Doc. 92-2, p. 116-17 &

129-30). Plaintiff generally alleges that Lawrence was “very infested with bugs and mice

and stuff” (Id. at p. 114). Another inmate submitted an affidavit that states rodents, ants,

moths, beetles, and crickets have been in the dining area, housing units, and in inmate’s

personal space at Lawrence (Doc. 99-4). Plaintiff concedes he never had mice, rats, or flies

in his cell (Doc. 92-2, p. 117).

Plaintiff testified there was nothing in his cell to attract ants (Doc. 92-2, p. 121). The

parties agree that Plaintiff did not cause the ant infestation.

B. Medical Treatment

From September 2014 to July 2020, Defendant Ritz was a corporate utilizations

management medical director servicing the Illinois Department of Corrections contract

with Wexford Health Sources, Inc. (Doc. 88-1, p. 14, 15, 19, & 20). Defendant Ritz’s office

is in Pittsburg, Pennsylvania and he has never been to Lawrence or treated Plaintiff in

person (Id. at p. 15 & 23).

On January 10, 2018, Plaintiff reported to sick call at Lawrence with complaints of

ear pain, which he stated was at a level of ten out of ten. The nurse detected cerumen (ear

wax) and prescribed acetaminophen and Debrox (ear drops for softening ear wax) (Doc.

88-1, p. 70-72).

On February 15, 2018, a doctor at Lawrence examined Plaintiff, who complained

his left ear infection had returned. Whiteish discharge was observed. Plaintiff’s diagnoses

included otitis externa and he was prescribed Nasacort, Cortisporin ear drops, and

Hydrocerin ear drops (Doc. 88-1, p. 72-74). Acute otitis media is an acute suppurative

(pus-producing) infectious process marked by the presence of infected middle ear fluid

and inflammation of the mucosa lining of the middle ear space (Id. at p. 26).

On March 7, 2018, Plaintiff reported to sick call at Lawrence with complaints of ear

pain and drainage. Nurse Practitioner Sara Stover saw Plaintiff and her objective findings

included erythema (reddening), swelling, and ear wax impaction. Plaintiff’s diagnosis

included otitis media and cerumen impaction. He was prescribed Ibuprofen and

Amoxicillin (an antibiotic) (Doc. 88-1, p. 76-78).

On March 21, 2018, Plaintiff had a follow-up visit with Nurse Practitioner Stover

for otitis media. Plaintiff’s subjective complaints included continued ear pain, fullness in

the ears, and noise in the ears. Earwax impaction and fluid in the ears was observed.

Plaintiff was diagnosed with serous otitis. Plaintiff was prescribed Ibuprofen, Nasacort,

Claritin, Benadryl, and Debrox ear drops (Doc. 88-1, p. 78-79). Defendant Ritz did not

recall seeing this medical record prior to his deposition (Id. at p. 78).

On March 25, 2018, Plaintiff reported to sick call at Lawrence with ear pain at a

level eight out of ten with green drainage. His ear canals were observed to be red and

slightly swollen. (Doc. 88-1, p. 74-75). Defendant Ritz testified he did not recall seeing this

medical record prior to his deposition (Id. at p. 75).

On March 26, 2018, Plaintiff reported to the medical unit at Lawrence with reports

of ants in his ears. The nurse noted the presence of ants in both ears and flushed them

with warm water (Doc. 88-1, p. 80-81).

Plaintiff sometimes put tissues in his ears to prevent insects from crawling into his

ears (Doc. 97-3, p. 2).

On April 19, 2018, Nurse Practitioner Stover saw Plaintiff and noted that both ears

had erythema and swelling with dried drainage in the right ear. She diagnosed Plaintiff

with complicated otitis media and prescribed him a new antibiotic, Ceftriaxone, to be

administered by intramuscular injection, and ear drops (Doc. 88-1, p. 83-84).

On May 3, 2018, Plaintiff saw Nurse Practitioner Stover at a follow-up

appointment for otitis media. Plaintiff reported drainage and tenderness. It was noted

that both ears were tender and the left ear had mild erythema (Doc. 88-1, p. 84-85).

On May 10, 2018, Plaintiff’s right ear was flushed (Id. at p. 85).

On May 11, 2018, Plaintiff presented to Nurse Practitioner Stover at Lawrence’s

medical unit and she noted Plaintiff had a cloudy tympanic membrane (ear drum) and

mild erythema in the right ear (Doc. 88-1, p. 86-87).

On May 17, 2018, a nurse at Lawrence treated Plaintiff because he reported the

Claritin was not working (Doc. 88-1, p. 87).

On May 21, 2018, Nurse Practitioner Stover saw Plaintiff and noted erythema in

the right ear, cloudy tympanic membrane, and tenderness (Doc. 88-1, p. 88).

On May 25, 2018, Plaintiff reported to the Lawrence medical unit with a black bug,

on inch long and a quarter inch wide, which he said came from his right ear (Doc. 88-1,

p. 89).

On June 19, 2018, Plaintiff was treated at Lawrence’s medical unit, where he was

found to have large amounts of ear wax and a slightly swollen and red right ear (Doc. 88-

1, p. 90).

On June 22, 2018, Nurse Practitioner Stover treated Plaintiff and removed a bug

from his ear using ear wash. She prescribed Plaintiff Ibuprofen and the antibiotic

Augmentin (Doc. 88-1, p. 90).

On June 28, 2018, Nurse Practitioner Stover treated Plaintiff and observed mild

erythema in both ears. She diagnosed Plaintiff with otitis media (Doc. 88-1, p. 91).

On July 15, 2018, a nurse at Lawrence treated Plaintiff, who complained of ear pain

at a level of eight out of ten. Ear wax and slight swelling of the right ear was noted (Doc.

97-2, p. 18).

On July 17, 2018, Nurse Practitioner Stover treated Plaintiff, who reported both of

his ears were hurting but the right hurt more than the left. Right ear redness and swelling

and left ear redness was noted. Nurse Practitioner Stover stated Plaintiff had been treated

with at least six different antibiotics over the past six months (Doc. 88-1, p. 93-94). She

submitted a non-urgent request for consultation with an otolaryngologist (“ENT”)

regarding Plaintiff’s history of ear infections (Doc. 88-2, p. 2). An ENT is a physician

specializing in the treatment of the ear, nose, and throat (Doc. 88-1, p. 25).

When there is a request for an outside medical referral, Wexford addresses the

request through a process known as a collegial review (Doc. 95-1). The collegial process

serves two primary functions: review of outside referral requests and to allow Illinois

correctional clinicians resources to discuss their medical cases with other providers (Doc.

88-1, p. 50-51).

On July 19, 2018, Defendant Ritz reviewed the non-urgent request for ENT referral

and asked Lawrence to provide Plaintiff’s current exam findings, what antibiotics

Plaintiff had been treated with, and whether any of those antibiotics were for direct

observation therapy (“DOT”) (Doc. 88-1, p. 101).2 Defendant Ritz did not approve the

ENT request (see Doc. 89-1, p. 4). The Wexford document prepared for the collegial review

process states:

7-19-18 Received request for ENT eval r/t a 38 y/o male who had multiple

ear infections since March and has been treated with oral and IM antibiotics

2 DOT means an inmate goes to the medical line to receive his medications and is used to ensure adherence

to a medication treatment regime (Doc. 88-1, p. 101-2). Knowing whether a full medication course was

completed is especially important with antibiotics to evaluate their efficacy (Id.). Defendant Ritz testified,

“assuming that the antibiotics here would not have made it to DOT, that would not have violated any rule

or policy or regulation from Wexford” (Id.at p. 102).

as well as ear drops. He has a long history of complicated ear infections and

hearing loss is a risk factor if the ear infections continue this frequently.

Reviewed by Dr. Ritz and ATP’d to re-present with the current exam

findings, what antibiotics he has been treated with and if the antibiotics

were DOT.

(Doc. 89-1, p. 4).

Defendant Ritz’s July 19, 2018 directive denying an ENT referral did not occur in

the context of a collegial, as there was no collegial call on that date (Doc. 88-1, p. 106-07).

Wexford maintains written Utilization Management Guidelines that specify

procedures for collegial review. Those procedures state, in part:

2. Prior to the scheduled weekly Collegial Review the consult coordinator

is to obtain the medical records for that day’s Collegial Review. A list of

cases to be discussed should be forwarded to the Wexford Health

Utilization Management Department (UM Department) no later than 24

hours prior to the Collegial Review along with all supporting

documentation including, but not limited to ECG’s, labs, previous studies

and procedures, prior consultation notes, etc. Each Referral Request form

should clearly list specific service being requested (e.g., consultation visit

for recommendations, radiological test, surgical procedure). The

submission of the request occurs at the point where all of the appropriate

documentation has been gathered and presented at the UM Medical

Director, usually the day of the collegial review. This allows for complete

knowledge and background of the case and prevents unnecessary delay

due to insufficient information.

(Doc. 95-1).

Dr. Faiyez Ahmed was the medical director or the acting medical director of

Lawrence during the relevant time (Doc. 88-1, p. 109). On July 26, 2018, Dr. Ahmed re-

presented Plaintiff’s case to Defendant Ritz in collegial review but Plaintiff had not been

re-evaluated on-site and his medications had not been ordered DOT (Doc. 88-2, p. 5-6)

(Doc. 89-1, p. 4). Defendant Ritz and Dr. Ahmed agreed to the alternative treatment plan

(“ATP”) to re-evaluate Plaintiff and re-present Plaintiff to collegial the following week

(Id.).

On August 1, 2018, Plaintiff presented to the medical unit at Lawrence with

complaints of ear pain. An LPN examined Plaintiff and noted that his right tympanic

membrane was red and shiny and the right ear was swollen (Doc. 88-1, p. 110-11).

On August 2, 2018, the request that Plaintiff be evaluated by an ENT was re-

presented at a collegial. As of August 2, 2018, Plaintiff had not been re-evaluated by Dr.

Ahmed, so the matter was to be presented at a later collegial (Doc. 88-1, p. 112-13).

On August 3, 2018, Dr. Ahmed examined Plaintiff, who reported his ears were

hurting. According to Dr. Ahmed’s report, Plaintiff’s tympanic members were clear with

low light reflection, his nasal mucosa were pale and boggy with mucoid discharge, and

he had marked tenderness of both sides of his temporomandibular joint (“TMJ”). Dr.

Ahmed diagnosed Plaintiff with bilateral TMJ symptoms secondary to buxism (teeth

grinding), allergic rhinitis, and eustachian tube dysfunction. Dr. Ahmed prescribed

Plaintiff Ibuprofen, recommended he not grind his teeth, stay calm, avoid anger and

stress, and return to the clinic in four weeks (Doc. 88-2, p. 8-9). Plaintiff testified that Dr.

Ahmed told Plaintiff that Plaintiff had TMJ from grinding his teeth (Doc. 97-3, p. 3-4 &

6). Plaintiff denies that he grinded his teeth (Id.). Plaintiff testified he was never diagnosed

with TMJ prior to Dr. Ahmed’s August 3, 2018 diagnosis (Id. at p. 6).

According to an UpToDate article, a TMJ diagnosis is based primarily upon

clinical history and physical exam findings (Doc. 88-1, p. 37 & 40). The article states that

relevant factors include facial pain; jaw symptoms; ear symptoms; pain in the head, neck,

shoulder, and upper back; a history of previous TMJ surgery or trauma; a history of

arthritis; history of habits such as pencil biting, gum chewing, or clenching, gritting, or

grinding the teeth; hobbies or occupational factors; teeth grinding; depression and

anxiety; and sleep quality.3 The article further provides that a physical examination to

detect TMJ may include: asking the patient to open/close hi/her mouth to observe any

jaw deviation or protrusion and to check for teeth alignment; measuring the distance

between the incisal edges of the upper and lower teeth when the patient’s mouth is

opened as wide as possible; palpitation of muscles of mastication to check for tenderness

and joint crepitus (clicking or crunching); instructing the patient to bite down to check

for pain; evaluation for bruxism; assessment of upper body and neck posture; and

assessment of the muscles of the neck and shoulders. However, Defendant Ritz testified

the article “does not apply to all patients and all context[s] and all situations. Every

patient and their situation is different and it needs to be individually reviewed” (Doc. 88-

1, p. 31).

Defendant Ritz testified he did not know if there was evidence of the factors

identified in the article in Plaintiff’s medical records, “But I would stipulate I have not

reviewed his entire medical record” (Doc. 88-1, p. 41-42).

3 Plaintiff’s statement of additional facts cites the article as “Ex. 3 to Ritz Depo.” (Doc. 97, p. 4, ¶ 7 & 9), but

the record before the Court does not contain the cited article. However, Defendant Ritz admits that

Plaintiff’s statement of additional facts accurately quotes the article (Doc. 100, p. 2-3). Further, Defendant

Ritz’s deposition transcript contains the recitation of relevant portions of the article and he stated he is

familiar with the source of the article (See Doc. 88-1, p. 26, 39-40, 42-43, & 45). Because Defendant Ritz does

not dispute the contents of the cited portions of the article and the article is not dispositive to the outcome

of the case, the Court will consider the evidence.

TMJ would not result in whiteish discharge, swelling, erythema, green drainage,

or red or swollen ear canals and is not associated with ear wax impaction and fluid in the

ears (Doc. 88-1, p. 73, 75, 77, & 79). However, Defendant Ritz testified the marked

tenderness of Plaintiff’s TMJ was an important clinical factor in diagnosing Plaintiff’s TMJ

dysfunction (Doc. 88-1, p. 124). Dr. Ahmed’s notes from the August 3, 2018 examination

do not reflect that he performed the following diagnostic steps to detect TMJ: examination

of teeth to detect bruxism; measuring distance between upper and lower teeth;

palpitation of muscles of mastication; checking for pain when biting; assessment of neck

and shoulder posture and muscles; or checking for jaw deviation or teeth protrusion (see

Doc. 97-2, p. 25-26). However, Defendant Ritz testified, “[A]s is often the case, just

because something is not documented in a record doesn’t mean that it wasn’t done” (Doc.

88-1, p. 121).

On August 6, 2018, Plaintiff presented to Lawrence’s medical unit with ear pain

(Doc. 97-2, p. 27).

On August 9, 2018, Plaintiff’ case returned to collegial. Dr. Ahmed told Defendant

Ritz that Plaintiff had a TMJ problem and had no current need for an ENT. Defendant

Ritz advised Lawrence that it could re-present Plaintiff’s case to collegial as need (“PRN”)

(Doc. 88-2, p. 10). The August 9, 2018 decision to withdraw the ENT request was based

on on-site medical director Dr. Ahmed’s recommendations and findings (Doc. 88-1, p.

118, 119, & 161). Defendant Ritz testified the findings appeared to be clinically

appropriate (Id. at p. 119).

After August 9, 2018, Lawrence did not re-present Plaintiff’s case to Defendant

Ritz (Doc. 88-1, p. 160-61).

Defendant Ritz testified that he does not direct the decision of on-site clinical staff

because on-site clinic staff, such as Dr. Ahmed, are the ones examining the patients in

person (Doc. 88-1, p. 162).

On August 15, 2018, Plaintiff presented to Lawrence’s medical unit with ear pain

and the objective findings included the right ear being full of wax (Doc. 88-1, p. 127-28).

On August 16, 2018, Nurse Practitioner Stover examined Plaintiff and noted his let

ear was red. Plaintiff complained of left ear pain (Doc. 97-2, p. 29).

On August 29, 2018, Plaintiff received an x-ray of his TM joint. The x-ray report

notes that open and closed mouth views were not performed and that while cross-

sectional imaging is a more sensitive means of detecting TMJ, it was not done (Doc. 88-1,

p. 130-31) (Doc. 97-2, p. 30).

On October 12, 2018, Plaintiff presented to Lawrence’s medical unit with

complaints of ear pain and mild right ear hearing loss (Doc. 88-1, p. 132).

On October 22, 2018, Nurse Practitioner Stover treated Plaintiff and noted right ear

erythema and diagnosed Plaintiff with otitis media (Doc. 88-1, p. 132-33).

On November 7, 2018, Nurse Practitioner Stover treated Plaintiff to follow-up with

his ear pain and diagnosed Plaintiff with otitis media (Doc. 88-1, p. 133-34).

Plaintiff as transferred from Lawrence to Pontiac and was seen at the Pontiac

medical unit on July 13, 2019. Objective findings included inflammation and outward

bulging of the right eardrum. Plaintiff was diagnosed with otitis media (Doc 88-1, p. 134-

35).

On September 6, 2019, Plaintiff was seen at the Pontiac medical unit with a report

of ear pain at an eight out of ten. Plaintiff’s ear drum was gray and the hearing screen

reflected abnormal findings (Doc. 88-1, p. 136-37).

As a result of a settlement in a prior class action litigation known as the Holmes

settlement, inmates with abnormal onsite hearing screenings were referred to an outside

audiologist (Doc. 88-1, p. 139-40). Plaintiff was sent to Steinwart Audiology for an off-site

hearing examination. The exam reflected Plaintiff’s ear drums were cloudy and scarred.

Plaintiff was detected as having moderate to severe hearing loss in both ears. It was

recommended that Plaintiff receive hearing aids for both ears. The findings in the hearing

exam were consistent with hearing loss. Plaintiff has sustained permanent hearing loss

and utilizes hearing aids in both ears. (Doc. 88-1, p. 141-43).

On June 9, 2015, Defendant Ritz approved an orthopedic evaluation off-site for

Plaintiff’s fractured left index finger (Doc. 89-1, p. 11). On January 21, 2016, Defendant

Ritz approved an off-site cataract evaluation for Plaintiff. He also approved an off-site

orthopedic follow-up at UIC for Plaintiff’s fractured finger (Id. at p. 9-10). On July 12,

2016, Defendant Ritz approved an off-site orthopedic follow-up appointment for

Plaintiff’s fractured finger (Id. at p. 8). On February 14, 2017, Defendant Ritz approved

another off-site orthopedic follow-up appointment for Plaintiff’s finger (Id. at p. 7). On

August 31, 2017, Defendant Ritz approved Plaintiff for an off-site optometry evaluation

on referral request from Dr. Ahmed related to Plaintiff’s reports of photophobia and

trouble seeing (Id. at p. 6).4 On September 20, 2019, Defendant Ritz approved Plaintiff to

see an off-site audiologist after an on-site hearing screening returned abnormal results

(Id. at p. 3 & 11).

Analysis

The Constitution does not mandate comfortable prisons, but it mandates humane

ones. Thomas v. Blackard, 2 F.4th 716, 729 (7th Cir. 2021) (internal citations and quotations

omitted). “By prohibiting cruel and unusual punishment, the Eighth Amendment

imposes duties on prison officials to provide humane conditions of confinement and

ensure that inmates receive adequate food, clothing, shelter, and medical care.” Id. Prison

officials who fail to uphold these duties violate the Eighth Amendment “upon exhibiting

deliberate indifference to a substantial risk of serious harm to an inmate.” Id.

Deliberate indifference includes “both an objective and subjective component.” Id.

An inmate who challenges his conditions of confinement “must first show that the

conditions were sufficiently serious as an objective matter, meaning that they denied the

inmate the minimal civilized measure of life’s necessities, creating an excessive risk to the

inmate’s health and safety.” Id. (internal alterations omitted). “Second, in covering the

subjective component of the inquiry, the inmate must prove that prison officials acted

with deliberate indifference—that they knew of and disregarded this excessive risk of

harm to the inmate.” Id.

A. Defendants Stout and Kink

4 Authorization was cancelled later due to Plaintiff being examined on-site (Doc. 89-1, p. 7).

Plaintiff alleges Defendants Stout and Kink were deliberately indifferent to his

living conditions when he was placed in an ant-infested cell from March 23, 2018 to March

26, 2018. Also, Plaintiff states there were mice, rats, beetles, moths, crickets and flies in

various areas of the prison.

The Seventh Circuit has recognized that prolonged pest infestations in an inmate’s

living environment can amount to a constitutional violation. See Sain v. Woods, 512 F.3d

886, 894 (7th Cir. 2008). When assessing conditions of confinement claims, courts should

consider the length and severity of the condition, see Sain; whether pests came in contact

with the plaintiff, bit the plaintiff, or caused the plaintiff physical or psychological harm,

see Smith v. Dart, 803, F.3d 304, 312 (7th Cir. 2015); and whether the plaintiff had the ability

to address the conditions himself, see Dixon v. Godinez, 114 F.3d 640, 644 (7th Cir. 1997)

(considering whether an inmate had alternative means to protect himself from the cold).

For example, in Sain, the Seventh Circuit granted summary judgment in favor of a

prison where an inmate alleged he saw “several” cockroaches and was bitten twice

throughout his six-year confinement, because while “certainly unpleasant,” the

conditions of confinement were not objectively serious enough to establish a

constitutional violation. Id. Further, an exterminator treated the prison every six weeks

or so and additionally on request. Id. In Bentz v. Hardy, 638 F. App’x 535, 537 (7th Cir.

2016), the Seventh Circuit found an inmate’s claim withstood summary judgment where

for six months, “the cell was so infested with cockroaches and earwigs that, despite [the

plaintiff] killing nearly 50 a day, the insects continued to crawl on him at night, keeping

him awake.” In Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996), the Seventh Circuit

reversed the dismissal of an Eighth Amendment claim where the plaintiff alleged that for

sixteen months, cockroaches were “everywhere,” “crawling on his body,” along with

mice, and “constantly awaken[ing]” him and causing the environment to be unsanitary.

In White v. Monohan, 326 F. App’x 385, 387 (7th Cir. 2009), the Court found a prisoner

stated a claim where he alleged that for “over five years, the bugs, roaches, spiders,

wasps, and bees had bitten and stung him so often as to leave multiple scars, wounds,

and sores, causing him internal injuries.” (internal quotations and alterations omitted).

However, the Court pointed out that it was a “close case.” Id.

Here, Plaintiff testified there were ants in the cell that he lived in for approximately

three days, from March 23, 2018 to March 26, 2018. The volume of the ants was equivalent

to the size of half of an eight-and-a-half by eleven-inch piece of paper. The ants crawled

in Plaintiff’s ears at night and he had to seek medical attention to have them removed on

two occasions. Plaintiff had a history of ear infections during this time and ultimately

sustained permanent hearing loss. Also, Plaintiff testified four moths flew in his cell.

Another IDOC inmate submitted an affidavit that states there were mice, rats, beetles,

and crickets around living areas at Lawrence. Plaintiff concedes he never encountered

mice, rats, or flies in his cell.

The facts of this case present unpleasant but not unconstitutional living conditions.

Plaintiff has not adduced any evidence that he encountered any pest other than ants and

moths during the relevant times. The affidavit that states vermin and other pests

occupied Lawrence’s living areas is not evidence that Plaintiff was personally subjected

to these conditions. See Harris v. Baldwin, 2018 WL 2389739, at *5 (S.D. Ill. May 25, 2018)

(dismissing deliberate indifference claim because the plaintiff alleged “that prisoners

must take cold showers, but never allege[d] that he himself has taken a cold shower or

suffered a harm as a result.”).

Otherwise, Plaintiff was in an ant-infested cell and saw four moths over the course

of approximately three days. This is far less than the periods of time where courts have

recognized objectively serious living conditions. See Antonelli, 81 F.3d at 1431 (sixteen-

months); White, 326 F. App’x at 387 (five years); Bentz, 638 F. App’x at 537 (six months).

Although the ants crawled on Plaintiff and in his ears, during the three days Plaintiff was

in the cell, the cell was bleached to remove the ants right before Plaintiff moved in, soon

after a lieutenant gave Plaintiff cleaning supplies to remove the ants, Plaintiff received

prompt medical care to remove the ants from his ears, and Plaintiff was moved away

from the cell. See Osborne v. Meisner, 2018 WL 1953926, at *7 (E.D. Wis. Apr. 25, 2018)

(granting summary judgment in favor of defendants where the plaintiff argued he was

bitten by bugs in his cell for one and a half weeks); Jones v. Dittman, 2020 WL 224341, at

*3 (W.D. Wis. Jan. 15, 2020) (dismissing Eighth Amendment claim where the plaintiff

alleged he was bitten by bugs for a week and received medical care for the bites but the

conditions only lasted for seven days, which was “much shorter than those recognized

by the Court of Appeals”).

But even if Plaintiff’s living conditions were inhumane, no reasonable jury could

find Defendants Stout or Kink were deliberately indifferent. When Plaintiff arrived at cell

14, there were ants on the floor. Plaintiff testified that Defendant Stout ordered another

inmate to clean the cell with bleach before Plaintiff moved in, which temporarily removed

the ants. At some point, Plaintiff told Defendant Stout there were still “a lot” of ants in

his cell but Defendant Stout could not see Plaintiff’s cell from where the conversation

took place. Defendant Stout told Plaintiff to stop crying like a baby. Plaintiff told

Defendant Stout about the ants on one other occasion.

This evidence is insufficient to raise a genuine question that Defendant Stout was

deliberately indifferent. When Defendant Stout first became aware of the presence of ants

in Plaintiff’s cell, he reasonably responded by ordering another inmate to bleach the cell.

This does not constitute deliberate indifference. “[P]rison officials who actually knew of

a substantial risk to inmate health or safety are free from liability if they responded

reasonably to the risk, even if the harm ultimately was not averted, because in that case

it cannot be said that they were deliberately indifferent.” Peate v. McCann, 294 F.3d 879,

882 (7th Cir. 2002).

Plaintiff’s descriptions of his other interactions with Defendant Stout do not raise

an inference that Defendant Stout knew about unconstitutional conditions. Plaintiff bears

the burden of demonstrating that his communications, in their contents and manners of

transmission, gave Defendant Stout sufficient notice to alert him to an excessive risk to

Plaintiff’s health or safety. Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996). Plaintiff told

Defendant Stout there were “a lot” of ants his cell and he told Defendant Stout about the

ants “again” at a later time. The Court simply cannot conclude that these vague

communications put Defendant Stout on notice that Plaintiff was living in

unconstitutional conditions. Further, although Defendant Stout told Plaintiff to “stop

crying like a baby,” “rudeness does not violate the Eighth Amendment.” Harris v. Horney,

948 F.2d 1292 (Table) (7th Cir. 1991).

Plaintiff’s evidence against Defendant Kink is similarly deficient. Defendant Kink

reviewed two of Plaintiff’s grievances on March 28, 2018 and July 20, 2018. At this point,

Plaintiff had already been moved from cell 14 and Defendant Kink deemed the

grievances non-emergencies. Because Plaintiff had already moved cells, Defendant Kink

could not have believed that the conditions posed an excessive risk to Plaintiff’s health

or safety or done anything to remedy the situation. See White v. McAdory, 2011 WL

1238908, at *11 (C.D. Ill. March 30, 2011) (“Plaintiff admits that he did not write any of the

letters or grievances until after he was out of [Special Management Unit], and had already

received toilet paper. There is insufficient evidence for a rational jury to find that

defendants were aware that Plaintiff was subjected to inhumane conditions in the Special

Management Unit during the time he alleges it was occurring, and when they could have

done something about it.”); Weaver v. Martija, 2020 WL 1304873, at *10 (N.D. Ill. March

19, 2020) (“It is not clear what, if any, additional corrective action [the defendants] could

have taken as the relief [the plaintiff] requested in this grievance had already been

granted.”); Overturf v. Wexford Health Sources, 2020 WL 6826805, at *9 (S.D. Ill Nov. 20,

2020) (“[B]y the time Defendant…responded to Plaintiff’s grievance in January, he

already had his medication refill. Accordingly, Defendant…is entitled to summary

judgment.”).

Also, Plaintiff testified he wrote Defendant Kink a letter about the ants and

Defendant Kink wrote back that an exterminator visited Lawrence every two weeks.

There is a dispute of fact as to whether an exterminator ever visited Lawrence during the

relevant period, but Plaintiff does not argue or cite evidence that Defendant Kink knew

there was no exterminator visiting the facility. Also, Plaintiff stated he spoke to

Defendant Kink on another occasion.

Plaintiff does not provide any additional details about the timing or contents of

his communications with Defendant Kink. Without more, no rational jury could find the

communications alerted Defendant Kink that Plaintiff was living in inhumane

conditions. Even when viewing the light most favorable to Plaintiff, Plaintiff has not

raised a genuine dispute of material fact that Defendants Stout or Kink were deliberately

indifferent. Thus, Defendants Stout and Kink are entitled to summary judgment. Because

Defendants Stout and Kink did not violate Plaintiff’s constitutional rights, the Court need

not address their qualified immunity argument.

B. Defendant Ritz

Defendant Ritz concedes that Plaintiff’s complaints concerning his ears

represented a serious medical need. However, Defendant Ritz argues there is no evidence

he exhibited deliberate indifference because: he approved Plaintiff for off-site

appointments on several occasions for other conditions; his decision to request more

information before addressing the ENT referral request was a reasonable exercise of

medical judgment; and he was entitled to rely on the opinion of Plaintiff’s examining

physician, Dr. Ahmed.

When considering whether a medical professional was deliberately indifferent, the

Court must give deference to a medical professional’s judgment regarding a treatment

decision unless “no minimally competent professional would have so responded under

those circumstances.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). Stated differently, the

plaintiff must show the decision was “such a substantial departure from accepted

professional judgment, practice, or standards as to demonstrate the person responsible

did not base the decision on such judgment.” Id. Negligent conduct is not enough to

establish deliberate indifference—rather, the conduct must approach “a total unconcern

for the prisoner’s welfare in the face of serious risks.” Rosario v. Brawn, 670 F.3d 816, 821-

22 (7th Cir. 2012).

Defendant Ritz first argues that because he approved Plaintiff for off-site

treatment on other occasions, he must not have been deliberately indifferent to Plaintiff’s

health on this occasion. However, “even where a plaintiff has previously received good

care, mistreatment for a short time might…be evidence of a culpable state of mind

regarding deliberate indifference.” Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999).

Defendant Ritz’s argument misses the mark.

Next, Defendant Ritz argues that deferring the ENT referral request until he

received additional information and until Plaintiff was re-evaluated was a sound exercise

of Defendant Ritz’s medical judgment. “A prison physician is not required to authorize

a visit to a specialist in order to render constitutionally acceptable medical care. Like other

medical decisions, the choice whether to refer a prisoner to a specialist involves the

exercise of medical discretion, and so refusal to refer supports a claim of deliberate

indifference only if that choice is blatantly inappropriate.” Pyles v. Fahim, 771 F.3d 403,

411 (7th Cir. 2014) (internal citations and quotations omitted). “[I]f the need for

specialized expertise either was known by the treating physicians or would have been

obvious to a lay person, then the obdurate refusal to engage specialists permits an

inference that a medical provider deliberately indifferent to the inmate’s condition.” Id.

at 412.

Defendant Ritz first became involved in the care of Plaintiff’s ear condition on July

19, 2018, when he reviewed NP Stover’s ENT referral request as part of the collegial

review process.5 It appears a collegial review was not actually held but Defendant Ritz

did review the request. The document prepared in response to the referral request states:

“38 y/o male who had multiple ear infections since March and has been treated with oral

and IM antibiotics as well as ear drops. He has a long history of complicated ear infections

and hearing loss is a risk factor if the ear infections continue this frequently. Reviewed by

Dr. Ritz…” (Doc. 89-1, p. 3).

A collegial review does not involve an examination of an inmate but consists of a

review of an inmate’s relevant medical records. According to Wexford’s guidelines,

collegial reviews require all “supporting documentation” to be submitted to Defendant

Ritz, including “ECG’s, lab, previous studies and procedures, prior consultation notes,

etc.” (Doc. 95-1). Although Defendant Ritz testified he could not specifically recall which

documents he reviewed pertaining to Plaintiff, he stated he would “typically review” the

5 In Plaintiff’s motion in opposition to Defendant Ritz’s summary judgment motion, he points out criticism

of Wexford’s collegial process, in reference to the Lippert reports (Doc. 97, p. 12). The Lippert reports were

expert reports from another case that critique Wexford’s medical care, including the use of the collegial

review process. Defendant Ritz contests the relevancy and admissibility of Plaintiff’s arguments (Doc. 101,

p. 1-2). The Court agrees that general criticism of the collegial process is not relevant to whether Defendant

Ritz acted deliberately indifferent in these specific circumstances. Plaintiff has not brought a Monell claim

against Wexford and, thus, its practices and policies are not under scrutiny.

“relevant history, exam findings, perhaps MARs, which are medication administration

records reflecting what medications have been used and when. Imaging reports, if

available. Hospital records, these types of things” (Doc. 88-1, p. 51-52). Plaintiff’s medical

records from the six months before the collegial reviews contain findings that included

ear wax impaction, whiteish discharge, green drainage, and swelling and reddening of

the ears; diagnoses of otitis externa and complicated otitis media; and prescriptions for

six different antibiotics.

Although a question of fact exists as to exactly what records Defendant Ritz

reviewed, it is undisputed that Defendant Ritz believed the records were incomplete

because they did not contain Plaintiff’s current exam findings, specify the antibiotics

Plaintiff had been treated with, or state whether the antibiotics were DOT. Thus,

Defendant Ritz deferred making a decision on the ENT referral request until Plaintiff

could be re-examined and until Defendant Ritz received more information concerning

Plaintiff’s antibiotics treatments. When Plaintiff’s case was presented to Defendant Ritz

again through the collegial process on July 26 and August 2, 2018, Plaintiff had still not

undergone an examination. Thus, Defendant Ritz deferred making a decision again.

Because Defendant Ritz did not have complete information, his decision to defer

the ENT referral request does not demonstrate deliberate indifference. The decision was

occasioned by the need for more information, which does not exhibit a disregard for

Plaintiff’s condition. See Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 965 (7th Cir.

2019) (“Dr. Obaisi made a reasonable medical judgment to delay referring Walker until

he had more information so that he could make a more informed referral request to

UM.”); Saterfield v. Smith, 2021 WL 1192698, at *7 (S.D. Ill. March 30, 2021) (“In light of the

fact that Defendant Smith did not have complete information, the denial of this MRI

referral does not demonstrate deliberate indifference.”); Robinson v. Lamb, 2022 WL

1306267, at *12 (S.D. Ill. May 2, 2022) (“The Court finds that Dr. Ritz’s denial of the ENT

referral request in March 2016 was clearly not evidence of deliberate indifference. Dr. Ritz

sought additional information prior to approving the request, and no additional

information was received.”); Smith v. Butler, 2021 WL 5217723, at *9 (S.D. Ill. Sept. 7, 2021)

(“As this chain of events clearly shows, Dr. Ritz did not deny Dr.

Trost's requests regarding Plaintiff. He simply requested additional information before

giving the final approval, which is a reasonable position to take.”).

However, Plaintiff points out that Wexford’s policies do not require antibiotics to

be administered DOT. Plaintiff suggests that Defendant Ritz should have approved the

ENT referral regardless of how Plaintiff’s antibiotics were administered. “[M]ere

disagreement with a doctor’s medical judgment” does not amount to deliberate

indifference. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016)

(internal citations, alterations, and quotations omitted). A prisoner’s dissatisfaction with

a medical professional’s treatment cannot support a deliberate indifference claim unless

there is evidence the defendant “knew better than to make the medical decision” he

made. Id. at 662-63. Sufficient evidence to support this inference may include “the

obviousness of the risk from a particular course of treatment, the defendant’s persistence

in a course of treatment known to be ineffective, or proof that the defendant’s treatment

decision departed so radically from accepted professional judgment, practice, or

standards that a jury may reasonably infer that the decision was not based on professional

judgment.” Id. at 663 (internal citations and quotations omitted).

There is no inference that Defendant Ritz “knew better” than to request more

information on the administration of Plaintiff’s antibiotics before addressing the ENT

referral request. Defendant Ritz testified that knowing whether a full medication course

was completed is especially important with antibiotics to evaluate their efficacy (Doc. 88-

1, p. 102-03). Plaintiff does not identify a medical standard Defendant Ritz violated by

requesting more information, no expert testified that Defendant Ritz’s decision was a

substantial departure from accepted medical judgment, and the decision was not so

obviously wrong that a layperson could draw the inference. While Wexford’s policies do

not require antibiotics to be administered DOT, those policies do not supersede

Defendant Ritz’s independent medical judgment. Further, the record does not suggest

that Defendant Ritz persisted in a course of treatment that was ineffective because he

testified he could not determine the efficacy of Plaintiff’s antibiotic treatment without

more information. Plaintiff’s mere disagreement with Defendant Ritz’s decision to

request additional information concerning the antibiotics treatment is insufficient to

demonstrate deliberate indifference. See Latham v. Mitcheff, 651 Fed. App’x 523, 525 (7th

Cir. 2016) (finding a prison doctor was not deliberately indifferent for requiring the

plaintiff to switch to DOT before introducing a medication suggested by a cardiologist).

Defendant Ritz’s relevant involvement with Plaintiff’s medical treatment

concluded on August 9, 2018, when Plaintiff’ case returned to collegial. During collegial,

Dr. Ahmed told Defendant Ritz that Plaintiff had a TMJ problem and had no current need

for an ENT. The referral request was withdrawn based on Dr. Ahmed’s diagnosis, which

Defendant Ritz testified was “clinically appropriate” (Doc. 88-1, p. 119). Defendant Ritz

advised Lawrence that it could re-present Plaintiff’s case to collegial as needed.

Unfortunately, Plaintiff was later diagnosed with hearing loss.

Defendant Ritz contends he was not deliberately indifferent because he “must”

rely on Dr. Ahmed’s recommendations, as the on-site physician. Defendant Ritz does not

cite any evidence to support this contention. He only testified that “in most cases” he

does not oppose the recommendations and findings of the on-site physicians because

they are “the ones who are managing the patients” (Doc. 88-1, p. 119). Thus, the relevant

question is whether Defendant Ritz agreement to withdraw the ENT referral request was

so far afield from accepted professional judgment, practice, or standards as to

demonstrate a near total unconcern for Plaintiff’s welfare.

When viewing the record in the light most favorable to Plaintiff, the Court assumes

that Defendant Ritz reviewed Plaintiff’s medical records as part of the collegial process.

Defendant Ritz does not recall what documents he actually reviewed, but Wexford’s

policies and Defendant Ritz’s practice indicate that he would have reviewed all of the

relevant records during collegial review. A reasonable jury could certainly find from the

circumstantial evidence that Plaintiff’s medical records were relevant to the collegial

review and reviewed by Defendant Ritz. Those medical records include objective

findings of whiteish discharge from the left ears, red and swollen ear canals, ear wax

impaction, the presence of ants in both ears, dried drainage, tenderness, and a cloudy ear

drum.

Defendant Ritz agreed that TMJ would not result in whiteish discharge, red or

swollen ear canals, drainage, or ear wax impaction. However, he testified Dr. Ahmed’s

diagnosis was “clinically sound” (Doc. 88-1, p. 119). Dr. Ahmed noted marked tenderness

of Plaintiff’s TMJ when rendering the diagnosis. Defendant Ritz testified:

Now, one of the things I would note is that probably one of the most

important things, from my clinical experience, is documented in Dr.

Ahmed’s note here, and that’s marked tenderness of the bilateral

temporomandibular joint. And that’s a very important documented

finding, and most likely reflects why he made the diagnosis that he did.

(Doc. 88-1, p. 124).

Nothing in this record raises an inference that Defendant Ritz was deliberately

indifferent. Defendant Ritz never examined Plaintiff and was limited to reviewing

Plaintiff’s records. Although those records contained objective findings inconsistent with

TMJ, they also contain “one of the most important” findings in diagnosing TMJ—

tenderness of the temporomandibular joint. And while Plaintiff now denies experiencing

any tenderness, Defendant Ritz did not have this information or the benefit of conducting

his own examination at the relevant times. Instead, Defendant Ritz relied on the

recommendation and diagnosis of Dr. Ahmed, who actually examined Plaintiff. Plaintiff

argues Dr. Ahmed’s examination was deficient and that the records do not document a

proper physical examination to determine TMJ. But even if the TMJ diagnosis was faulty,

the Seventh Circuit has repeatedly held that without more, the misdiagnosis of a medical

condition does not constitute deliberate indifference. Williams v. Guzman, 346 Fed. App’x

102, 106 (7th Cir. 2009); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). At most, the

record suggests negligence or malpractice. However, “[d]eliberate indifference requires

more than evidence of negligence or medical malpractice.” Cesal v. Moats, 851 F.3d 714,

724 (7th Cir. 2017).

Further, the fact that Plaintiff was subsequently diagnosed with hearing loss is

only relevant if Plaintiff can establish Defendant Ritz was deliberately indifferent.

Crawford v. OBaisi, 2019 WL 7020497, at *5 (N.D. Ill. Dec. 20, 2019). “Once a plaintiff

demonstrates deliberate indifference, he must also demonstrate causation in order to

prevail.” Id. (citing Grayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). When a plaintiff

alleges the defendant delayed medical treatment, the Seventh Circuit requires the

plaintiff to present “verifying medical evidence” that the delay and not the underlying

condition caused some harm. Id. (quoting Walker v. Wexford, 940 F.3d 954, 964 (7th Cir.

2019). Here, the Court need not reach the causation issue because the record does not

support that Defendant Ritz was deliberately indifferent. Nonetheless, Plaintiff has not

provided the necessary “verifying medical evidence” that Defendant Ritz’s delay in

treatment caused him additional harm.

Finally, Plaintiff cites several cases in support of his arguments, which are

distinguishable from the circumstances here. In McDonald v. Obaisi, 2021 WL 3910754

(N.D. Ill. Sept. 1, 2021), the plaintiff’s examining physician, the defendant, completed an

urgent MRI referral form, waited three months to present the case for collegial review,

determined during collegial that an alternative treatment plan should be developed

instead, and waited to sign off on the treatment plan until five months later. Id. at *2. The

treatment plan was never developed, the defendant waited another two years to revive

the MRI request, and he waited an additional month to present the case to collegial. Id. at

*3. The plaintiff was approved for and received an MRI but the defendant did not review

the results until two months after they were made available. Id. at *4. The district court

denied the defendant’s summary judgment motion because of the inexplicable delays

that raised triable questions as to whether he exercised any professional judgment at all.

Id. at *9.

In Von Ryburn v. Obaisi, 2020 WL 3868715 (N.D. Ill. July 9, 2020), vacated in part on

other grounds by Von Ryburn v. Obaisi, 2022 WL 1444309 (N.D. Ill. May 6, 2022), the

defendant physician treated the plaintiff on-site and acknowledged the plaintiff needed

referrals to outside specialists on at least four occasions. The defendant referred the

plaintiff to specialists three times but cancelled each of the referrals for various reasons,

including the plaintiff had already seen a specialist within the past years, the plaintiff was

previously non-compliant with a specialist, and the clinic the plaintiff was referred to

would not accept inmates. Id. at *8, *9, and *11. The defendant also failed to follow the

recommendations of a specialist that the plaintiff did see. Id. at *8. Each side’s experts

agreed the defendant did not exercise medical judgment when he failed to follow the

recommendations of the specialist, Id. at *8, and the defendant’s own expert testified the

defendant should have referred the plaintiff to a specialist, Id. at *11. The district court

denied the defendant’s summary judgment motion. See Id.

In Southard v. Wexford Medical, 2019 WL 3330237 (S.D. Ill. June 6, 2019), report and

recommendation adopted in part and rejected in part by Southard v. Wexford Medical, 2019

WL 3322364 (S.D. Ill. July 24, 2019), the district court denied summary judgment for an

on-site physician who treated the plaintiff for five weeks before approving an ENT

referral. During this time, the plaintiff repeatedly reported difficulty breathing and stated

the treatment was not relieving his symptoms. Id. at *5. The court concluded that a jury

could find the defendant persisted in a course of treatment that was ineffective, which

could demonstrate deliberate indifference. Id.

In Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010), the Seventh Circuit reversed

summary judgment in favor of a prison doctor where there was evidence the doctor

knowingly adhered to an easier method to treat the plaintiff’s tooth pain that she knew

was ineffective. The doctor had not identified an effective pain medication and could not

explain the plaintiff’s pain, “yet she rejected the obvious alternative of referring” him to

a dentist. Id. at 441. There was evidence the doctor would not refer the plaintiff to a dentist

unless and until he presented a “dental emergency” or infection. Id.

In Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008), the Seventh Circuit reversed

summary judgment in favor of a medical professional who refused to authorize a referral

to a specialist or prescription-strength pain medication because he ignored

recommendations from other doctors, testified that no pain experienced by any prisoner

ever warranted prescription-strength painkillers, there was evidence the defendant

revoked other minimal treatments after learning about complaints from the plaintiff

about his care, and the defendant testified he would not refer a prisoner to a specialist

without knowing the cause of the alleged pain.

In Jones v. Simek, 194 F.3d 485 (7th Cir. 1999), the Seventh Circuit reversed

summary judgment in favor of the defendant physician where the defendant told the

plaintiff he had suffered nerve damage and promised an appointment with a neurologist

but waited six months to actually refer the plaintiff. During this delay, the defendant

refused to prescribe the plaintiff pain medication and treated him with “hostility.” Id. at

488.

These cases are distinguishable from Plaintiff’s case for a multitude of reasons.

First, Berry, Hayes, Greeno, Jones, and McDonald did not analyze the collegial review

process at all. The defendants in those cases were involved in examining the plaintiffs on-

site and were not limited to record reviews like Defendant Ritz. And although the courts

in Von Ryburn and Southard addressed the collegial review process, it was in the context

of Monell claims, which are not alleged here.

Further, in the cases cited by Plaintiff, there were inexplicable delays that raised

questions about whether the defendants were even exercising medical judgment. Here,

Defendant Ritz explained that he delayed addressing the referral request because he

needed additional information, which is undisputedly an exercise of medical judgment.

Also, in the cases cited by Plaintiff, the evidence suggested the defendants either persisted

with courses of treatment they knew were ineffective or delayed referrals they knew were

necessary. As explained above, Defendant Ritz did not have enough information to

determine the efficacy of Plaintiff’s treatments without a complete record and there is no

evidence he ever acknowledged that an ENT referral was necessary before deferring or

withdrawing the referral request. Also, in Greeno, Von Ryburn, and Hayes, the defendants

refused to refer the plaintiffs to outside physicians for reasons that were blatantly wrong,

such as waiting until the plaintiff showed signs of an emergency or infection, because the

source of the plaintiff’s pain was unidentified, or because the plaintiff had been

noncompliant with another specialist. Here, Defendant Ritz’s conduct was not obviously

unsound—he deferred the referral request to receive additional information and then

withdrew the request at Dr. Ahmed’s recommendation. Further, in Hayes and Jones, the

evidence suggested the defendant refused to refer the plaintiff to a specialist out of

retaliation and hostility. There is no evidence here that Defendant Ritz deferred the

referral request or withdrew the request out of an improper motive.

In sum, there is no evidence Defendant Ritz was deliberately indifferent to

Plaintiff’s medical condition. Defendant Ritz exercised his medical judgment when he

requested additional information before addressing the ENT referral request. Then,

Defendant Ritz withdrew the request at the recommendation and diagnosis of the

physician who was treating Plaintiff in-person. Defendant Ritz’s conduct does not raise

any inference that he had a total unconcern for Plaintiff’s welfare. Accordingly,

Defendant Ritz is entitled to summary judgment.

CONCLUSION

For the reasons explained above, the Motion to File Summary Judgment Exhibits

Under Seal filed by Defendant Stephen Ritz (Doc. 86) is DENIED. The Motion to File

Summary Judgment Exhibit Under Seal filed by Plaintiff (Doc. 95) is DENIED. The Clerk

of Court is DIRECTED to unseal Documents 89-1 and 95-1. The Motion for Summary

Judgment filed by Defendant Stephen Ritz (Doc. 87) is GRANTED. The Motion for

Summary Judgment filed by Defendant Kevin Kink and Andy Stout (Doc. 92) is

GRANTED. Plaintiff’s claims against Defendants are DISMISSED with prejudice. The

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

IT IS SO ORDERED.

DATED: June 16, 2022

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge