Vilayhong v. Santos

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MANITH VILAYHONG, )

)

Plaintiff, )

)

vs. ) Case No. 3:19-CV-00748-MAB

)

VENERIO SANTOS, ET AL., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on the motions, and supporting memoranda, for

summary judgment filed by Defendants Venerio Santos and Wexford Health Sources,

Inc. (Docs. 141, 142) and Defendants Steve Meeks and Lana Nalewajka (Docs. 160, 161).

Defendants Wexford and Santos also filed a motion to seal documents that accompany

their briefing (Doc. 139) as well as a motion to strike related to their motion to seal (Doc.

155). For the reasons set forth below, the motion to seal is DENIED; the motion to strike

is similarly DENIED; and the motion for summary judgment filed by Santos and

Wexford is DENIED IN PART and GRANTED IN PART. The motion for summary

judgment filed by Meeks and Nalewajka is GRANTED.

BACKGROUND

Plaintiff filed his pro se complaint on July 11, 2019, pursuant to 42 U.S.C. § 1983,

alleging that certain prison employees acted with deliberate indifference to his serious

medical needs in violation of the Eighth Amendment while incarcerated at Centralia

Correctional Center (“Centralia”) (Docs. 1, 15).

Plaintiff was appointed counsel on January 17, 2020 (Docs. 88, 89). Plaintiff’s

appointed counsel filed the amended, governing complaint on June 3, 2020 (Doc. 99).

Plaintiff asserts Eighth Amendment claims against Defendants Santos, Nalewajka, and

Meeks for their deliberate indifference to his serious medical need, as Plaintiff claims they

allowed him to unnecessarily suffer and experience prolonged pain and discomfort

related to his ear pressure, distorted hearing, vertigo, tinnitus, and infection (Doc. 99, pp.

5-8). Plaintiff also advanced a claim against Wexford (the corporate entity), claiming

Wexford’s policies, practices, or procedures caused or contributed to his injuries and

prolonged his pain (Doc. 99, pp. 7-8).

On October 12, 2021, Santos and Wexford filed a motion to seal exhibits

accompanying their motion for summary judgment (Doc. 139). Santos and Wexford have

also filed a motion to strike (Doc. 155), detailing that one of Plaintiff’s exhibits attached

to his response to the motion for summary judgment should be stricken as it should have

been filed under seal. On January 18, 2022, Defendants Meeks and Nalewajka filed their

motion, and supporting memorandum, for summary judgment (Docs. 160, 161).

MOTION TO SEAL

“Secrecy in judicial proceedings is disfavored.” GEA Grp. 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 Specht, 622 F.3d

697, 701 (7th Cir. 2010). See also Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir.

2002) (“In civil litigation only trade secrets, information covered by a recognized privilege

(such as the attorney-client privilege), and information required by statute to be

maintained in confidence (such as the name of a minor victim of a sexual assault), is

entitled to be kept secret . . . .”). 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)

Santos and Wexford seek to have seven exhibits sealed. Although Plaintiff never

filed a response to the motion, Plaintiff voiced opposition to Defendants’ request at a

motion hearing. Even so, any request to seal must 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).”). The

seven exhibits Defendants seek to file under seal are as follows:

1. Exhibit E—Screenshots of Wexford Health Sources, Inc.’s internal

“WexCare” program showing the internal operations of Wexford

Health Sources, Inc. utilization management;

2. Exhibit H—Wexford Health Sources Inc.’s internal Otolaryngology

Guidelines;

3. Exhibit I—Wexford Health Sources, Inc.’s Internal Utilization

Management Guidelines;

4. Exhibit J—Excerpts from FRCP 30(b)(6) witness Dr. Neil Fischer’s

deposition discussing Exhibits E, H, and I;

5. Exhibit K—Wexford Health Sources, Inc.’s internal ATP log for Plaintiff;

6. Exhibit L—Wexford Health Sources, Inc.’s September 2019 Monthly

Outpatient Report Referral for ENT; and

7. Exhibit M—Excerpts from FRCP 30(b)(6) witness Mr. Nickloas Little’s

deposition discussing financial reporting and costs.

(Doc. 143, pp. 1-2).

Santos and Wexford did not initially make specific arguments for each of these

exhibits as to why they should be filed under seal. Instead, they made blanket arguments

that the instant request to seal was so analogous to another case within this district, that

the Court should seal the seven exhibits at issue. However, in reviewing the motion to

seal and the summary judgment briefing, the Court noticed that many of the documents

Defendants sought to keep secret were openly discussed and analyzed in the unredacted

summary judgment briefing (See Docs. 142, 144). Accordingly the Court ordered

supplemental briefing on this subject. In the supplemental brief, Defendants argue the

exhibits depict trade secrets, 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, Wexford describes Exhibits E, K, and L as technical or non-technical data of

Wexford’s programs and methods for delivering healthcare (See Doc. 103, p. 4). Exhibits

H and I are internal guidelines and Exhibits J and M are deposition excerpts discussing

the exhibits Wexford seeks to seal. But ultimately, Defendants briefing does not

sufficiently address the many factors the Court must weigh to determine whether the

exhibits at issue constitute trade secrets. For instance, Defendants argue that Wexford

took reasonable steps to prevent disclosure of these exhibits by seeking a protective order

in this case (Doc. 146, pp. 4-6). 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. 118). 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., 297 F.3d at 545 (“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.”).

Nor have Defendants stated how, in practice, Wexford maintains the secrecy of its

WexCare system and internal guidelines; the extent to which this type of information 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 and its internal guidelines; or the

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

In fact, the WexCare system, specifically, 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.”). And certainly this is not the first time an internal

Wexford policy or procedure regarding treatment has made its way into a court record.

See e.g., Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 521 (7th Cir. 2019) (“Wexford's

own Medical Policy and Procedures on the Repair of Abdominal Wall/Inguinal Hernias

(introduced into evidence by Wilson)”). Moreover, the Wexford guidelines and policies

they want to keep secret are openly discussed within Defendant’s unsealed summary

judgment briefing (See e.g., Doc. 142, p. 20). Defendants advance arguments in support of

summary judgment in reliance on these guidelines and the requirements contained

within the guidelines (See e.g., Doc. 142, p. 31).

Defendants argue that competitors could use the information depicted in the

exhibits to elicit business away from Wexford by adapting and modifying its practices to

attempt to create a “better” system (Doc. 146, pp. 5-6). However, Defendants do not

explain with sufficient particularity what is depicted in the exhibits that subjects it to a

potential harm. Instead, Defendants cite 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. 146-1).

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 exhibits amount 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.”). Defendants have not established that good cause exists to seal the exhibits,

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

transparency of the judiciary. Accordingly, Defendants’ Motion to File Summary

Judgment Exhibits Under Seal (Doc. 139) is DENIED. The Clerk of Court will be

DIRECTED to UNSEAL Doc. 143. In light of this decision, Defendants’ motion to strike

(Doc. 155) is DENIED.

MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper “if the movant 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). The moving party always bears the initial responsibility of showing that it

is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). The manner in which this

showing can be made depends upon which party will bear the burden of proof on the

challenged claim(s) at trial. Celotex, 477 U.S. at 331 (Brennan, J., dissenting). In cases such

as this one, where the burden of proof at trial rests on the plaintiff, the defendant can

make its initial showing on summary judgment in one of two ways. Id.; see Hummel v. St.

Joseph Cty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th Cir. 2016); Modrowski, 712 F.3d at 1168.

First, the defendant can show that there is an absence of evidence—meaning a complete

failure of proof—supporting an essential element of the plaintiff’s claim. Celotex, 477 U.S.

at 331; Hummel, 817 F.3d at 1016. Second, the defendant can present affirmative evidence

that negates an essential element of the plaintiff’s claim. Celotex, 477 U.S. at 331; Hummel,

817 F.3d at 1016.

If the movant fails to carry its initial responsibility, the motion should be denied.

Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 415 (7th Cir. 2019). On the other hand,

if the movant does carry its initial responsibility, the burden shifts to the non-moving

party to “inform the trial judge of the reasons, legal or factual, why summary judgment

should not be entered.” Wrolstad v. Cuna Mut. Ins. Soc'y, 911 F.3d 450, 455 (7th Cir. 2018)

(citation omitted). The non-moving party cannot rely on allegations in the pleadings but

rather must come forward with evidentiary materials that set forth “specific facts

showing that there is a genuine issue for trial” on all essential elements of his case. Celotex,

477 U.S. at 324; Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010); Lewis v. CITGO

Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009); see also FED. R. CIV. P. 56(c)(1). “Where

the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no ‘genuine issue for trial.’” Armato v. Grounds, 766 F.3d 713, 719

(7th Cir. 2014) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). In deciding a motion for summary judgment, the court “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 v. Fincantieri Marine Grp.,

LLC, 763 F.3d 832, 836 (7th Cir. 2014).

FACTUAL BACKGROUND

At all relevant times, Plaintiff was (and is still) a resident of Centralia Correctional

Center (Doc. 99, p. 1). Venerio Santos was a medical doctor employed by Wexford Health

Sources, Inc. as the Medical Director at Centralia (Doc. 99, p. 1). Wexford was (and still

is) the State of Illinois’ contracted medical provider for Centralia (Doc. 99, p. 2).

Steve Meeks was the medical director for the IDOC between November 2016 and

March 2020 (Doc. 173, p. 1). Meeks did not provide any direct medical care to Plaintiff

(Doc. 173, p. 1). Lana Nalewajka was the Health Care Unit Administrator (HCUA) at

Centralia between May 1, 2018 and August 24, 2021 (Doc. 173, p. 2). Nalewajka did not

provide any direct medical care to Plaintiff (Doc. 173 p. 2).

A. Medical Care Provided to Plaintiff1

On January 16, 2019, Plaintiff presented to nursing sick call requesting a hearing

exam (Doc. 157, p. 1). He testified that throughout January 2019, he experienced

excruciating ear pain (Doc. 152-3, pp. 14-15). Plaintiff requested a hearing test during this

visit, but the nurse was unable to locate the audiogram and protocol to perform the exam

(Doc. 152-2, p. 10).

On January 17, 2019, Plaintiff presented to the nursing sick call complaining of

dizziness, vertigo, and nausea. His blood pressure was elevated. He had no signs or

symptoms of an ear infection, and his ears were not reddened. The nurse placed him on

the doctor’s list for an evaluation of his vertigo and elevated blood pressure (Doc. 142-1,

pp. 1-3). Plaintiff wrote a January 24, 2019 grievance complaining about the delay in his

visit with a doctor and claiming he has a chronic ear condition which causes hearing loss

and pain in his right ear, diagnosed in 2014 (Doc. 14-1, p. 12). He explained that he

experiences constant ringing in his ears and when the pressure builds up, he has earaches,

his ears itch, and he gets dizzy and nauseous (Doc. 14-1, p. 12).

1 The Court notes that the parties submitted extensive briefing on the undisputed factual allegations in this

case. Defendants Santos and Wexford filed a 38-page memorandum in support of their motion for

summary judgment, 22-pages of which were just factual allegations (Doc. 142, pp. 1-22). Plaintiff filed a 55-

page response just to the factual allegations (Doc. 153). The Local Rules outline that “motions/briefs and

responses shall be no longer than 20 double-spaced typewritten pages in 12-point font.” See U.S. District

Court Southern District of Illinois, LOCAL RULES, available at

https://www.ilsd.uscourts.gov/Forms/2021LocalRules.pdf (last visited September 6, 2022). The Local

Rules outline that this page limit applies unless the presiding judge has entered an order modifying the

limits in a particular case, which did not happen here. Nevertheless, the Court will consider the

submissions in their entirety (rather than striking the submissions and ordering re-briefing), but both

parties are reminded to comply with this Local Rule, and all Local Rules, in future matters.

Santos first examined Plaintiff’s ears on January 31, 2019, and determined he had

impacted cerumen (ear wax) in his right ear (Doc. 142-1, p. 4; Doc. 142-2, pp. 22-23). Santos

also recorded that Plaintiff says he experiences vertigo, tinnitus, and pressure, at times

(Doc. 142-1, p. 4). Plaintiff was prescribed a Debrox protocol during this visit for impacted

ear wax (Doc. 142-2, pp. 23). A Debrox protocol means that Plaintiff had to put drops in

his affected ear to soften the impacted wax, wait a period of time (5-7 days), and then see

a nurse to flush the softened wax out from his ear (Doc. 142-2, p. 23).

On February 5, 2019, Plaintiff’s right ear was flushed out as part of the Debrox

protocol, and he was scheduled for a follow-up appointment with Santos (Doc. 142-1, p.

5). The next day, on February 6, Santos saw Plaintiff follow-up appointment, and Santos

noted the right ear was “resolved” (Doc. 142-1, p. 6; 142-2, pp. 23-24). However, Plaintiff

says this is not so and that the issues with his ear were not resolved.2 He says that at this

February 6, 2019 visit, his symptoms were “horrible” and he was experiencing vertigo,

“a lot of pain,” and his ears felt “sticky” (Doc. 152-3, p. 18).

Plaintiff returned to nursing sick call on February 9, 2019 complaining of right ear

pressure and ringing in both of his ears (Doc. 142-1, p. 7). Plaintiff’s outpatient progress

notes detail that he has “chronic unresolved ear pressure and tinnitus” dating back to

2014 (Doc. 142-1, p. 7). The nurse noted that Plaintiff’s external ear had a “normal

appearance” with no drainage, and he was given Ibuprofen (Doc. 142-1, p. 7). But the

nurse also noted that Plaintiff had a slightly red throat and ringing in both of his ears

2 Plaintiff wrote a letter to the Administrative Review Board, as part of an appeal for his grievance

numbered E-19-1-125, in which he discusses the diagnosis of his rare ear condition and the continued pain

he is experiencing (Doc. 14-1, pp. 16-17).

(Doc. 142-1, p. 7). He was also told to do blood pressure checks for one week and was put

on the list to see a doctor (Doc. 142-1, p. 7).

Plaintiff saw Santos on February 11, 2019, who determined that Plaintiff once again

had impacted ear wax in his ear and an Eustachian tube dysfunction due to Plaintiff’s

complaint of tinnitus and pressure in his ears. Santos ordered another Debrox protocol

(Doc. 142-1, p. 8; 142-2, p. 24). Plaintiff returned to nursing sick call on February 17, 2019

to have the wax in his left ear flushed out. The next day, on February 18, 20219, Defendant

Santos again examined Plaintiff’s ear. His ear was intact with no more wax, but he still

had some Eustachian tube congestion, so Santos recommended the Valsalva maneuver

to alleviate pressure in Plaintiff’s ears (Doc. 142-1, p. 10; 142-2, p. 24-25).

Plaintiff did not return to the healthcare unit until about a month later on March

14, 2019 for right ear pain. Defendant Santos felt the Eustachian tube dysfunction was

persistent and wanted to rule out the presence of an infection, so he prescribed an

antibiotic, Augmentin, for ten days (Doc. 142-1, pp. 11 ; 142-2, p. 26). On March 27, 2019

(three days after completing the 10-day Augmentin regimen), Plaintiff returned to

nursing sick call reporting pain in his right ear with draining ear wax and hearing loss.

The nurse prescribed pain medication and put him on the doctor’s visit list (Doc. 142-1,

p. 14). Plaintiff saw Santos on Mach 29, 2019 and Santos determined that Plaintiff had

acute otitis externa after observing some white-ish discharge in Plaintiff’s ear. Santos

noted that Plaintiff’s ear drum was “intact.” He ordered a culture and sensitivity test to

identify the infectious process and find the antibiotic that would properly address the

issue. Santos also prescribed Plaintiff Cortisporin ear drops (Doc. 142-1, pp. 15; 142-2, p.

28).3 This March 29 culture and sensitivity test returned positive for many

pseudomonades aeruginosa bacteria and rare staphylococcus bacteria.

On April 1, 2019, Plaintiff presented to nursing sick call complaining of ear

pressure in his right ear. The nurse referred Plaintiff to the doctor line and prescribed him

pain medication and the previously-ordered ear drops (Doc. 142-1, p. 18). In the

outpatient progress notes, the nurse indicated that she observed a “perforation” (Doc.

142-1, p. 18).

On April 4, 2019, Santos saw Plaintiff and diagnosed him with swelling of the

tympanic membrane and white-ish ear discharged caused by the pseudomonas infection.

He prescribed Levaquin and Ciprofloxacin for one month (Doc. 142-1, pp. 19-20; 142-2, p.

32). Santos testified that Plaintiff had this ear infection for approximately one week as of

March 29, 2019 (Doc. 142-2, p. 33).

On April 26, 2019, Plaintiff returned to nursing sick call, complaining of an ear

infection, and that the ear drops bothered him. The nurse observed possible oral thrush.

She prescribed Ibuprofen and put Plaintiff on the doctor visit list (Doc. 142-1, p. 20). On

April 29, 2019, Santos saw Plaintiff and diagnosed him with candidiasis (oral thrush) and

chronic otitis media (inner ear infection) because Plaintiff reported recurrent otitis media

in his history. Santos prescribed Nystatin mouthwash for the candidiasis (Doc. 142-1, p.

21; 142-2, p. 36-37).

3 In an April 2019 letter to the ARB grieving medical issues, Plaintiff claims Santos pierced his ear drum at

the March 29 visit (Doc. 14-1, p. 51). Indeed, on April 1, 2019, the nurse who saw Plaintiff at sick call

observed a “perforation” in Plaintiff’s ear.

Santos saw Plaintiff again on May 6, 2019 for chronic otitis media. He observed

that Plaintiff’s left ear was within defined limits (WDL). Plaintiff’s right-sided tympanic

membrane was dull, but had no swelling, reddening, or exudate, and Santos marked it

was improving (Doc. 142-1, p. 23). Defendant Santos prescribed another month of

Ciprofloxacin ear drops. Id.4

On June 1, 2019, Santos saw Plaintiff, who complained of ear pain and throat

congestion, but his right tympanic membrane was grossly intact and he had no ear

drainage. Santos concluded that Plaintiff’s ear infection was continuing to improve, and

he recommended Plaintiff continue the Ciprofloxacin ear drops. He also prescribed

Claritin (Loratadine) (Doc. 142-1, pp. 25-26; 142-2, p. 41). On June 26, 2019, Plaintiff wrote

a grievance in which he explained that Defendant Santos informed him his treatment was

completed because the infection was “gone” during his June 1, 2019 visit, but that Plaintiff

was still experiencing extreme pain, dizziness, and drainage from his ears, as well as wax

build up (Doc. 14-1, pp. 73-74).

Also on June 26, 2019, Plaintiff presented to nursing sick call complaining of pain

in both ears. The outpatient progress notes indicated that the nurse observed a small

amount of wax in his ears, while he reported “constant” and “chronic” pain. He stated

he did not want to see the doctor and did not want ear drops; rather he wanted Motrin,

which was prescribed (Doc. 142-1, p. 28). But Plaintiff says the nurse misconstrued his

words during this visit and that he did not say he didn’t want to see the doctor (Doc. 152-

4 Again here, Plaintiff says this is not the whole story. He contends that more happened at this visit,

including that Plaintiff continued to experience ear pain and wanted Defendant Santos to run another ear

culture before prescribing additional antibiotics (Doc. 153, p. 7).

3, pp. 38-39). Prior to this visit, around the beginning of June, plaintiff testified that he

asked to see a specialist for his ear issues (Doc. 152-3, p. 37).

On July 5, 2019, Plaintiff returned to nursing sick call complaining of bilateral ear

pain. The nurse observed yellow-white pus in both ears and put Plaintiff on the list to see

the doctor (Doc. 142-1, p. 29). On July 28, 2019, Plaintiff saw Dr. Percy Myers, who noted

that he has been on oral antibiotics and topical ear drops for more than thirty days. He

previously had an ear culture, and the medications were given in accordance with the

culture results (Doc. 142-1, p. 30). Dr. Myers noted that Plaintiff had thrush on his tongue

and bilateral whiteish flakes in his ear canals (doc. 142-1, pp. 30-32). Dr. Myers

determined that plaintiff’s ear infections were resistant to treatment, so he ordered a new

ear culture, entered a referral to collegial review proposing an ENT appointment,

prescribed antifungal medications (Fluconazole/Diflucan and Nystatin), scheduled

Plaintiff to return to the clinic in one week to review the culture, and prescribed Plaintiff

Tylenol (Docs. 142-1, pp. 30-32; 142-2, pp. 42-44). While Dr. Myers determined that

Plaintiff’s issues were resistant to treatment, Santos disagreed and said he observed some

improvement while Plaintiff was on antibiotics (Doc. 142-2, pp. 44-45).

On July 15, 2019, Santos attended a collegial call with Dr. Stephen Ritz to review

Dr. Myers’ July 8 request for an ENT referral.5 The results of the July 8 culture and

sensitivity test were not available at the July 15 meeting. So Santos and Ritz agreed to an

5 The collegial review process prospectively discusses inmate medical care consults that are planned to go

off-site, discusses consultations for specialty services, specialty procedures, or specialty studies (Doc. 153,

p. 30). It’s a process by which the two physicians may discuss alternative tests or treatments to perform

on the patient before referral to the outside specialist or from which the outside specialist might benefit

from before seeing the patient(Doc. 143-4, pp. 7-9).

alternative treatment plan (ATP) to wait for the culture and sensitivity results and

provide updated exam findings once Plaintiff’s antibiotic course because he had

developed a resistance to the Ciprofloxacin (Doc. 142-1, p. 36; 142-2, p. 49).

The July 8, 2019 ear culture results showed few pseudomonades aeruginosa and

many candida parapsilosis in Plaintiff’s left ear. It showed moderate candida parapsilosis

in Plaintiff’s right ear (Doc. 142-1, p. 37). On July 23, 2019, Dr. Ritz and Santos issued a

further ATP wherein they decided to admit Plaintiff to the infirmary and provide him IV

Ceftazidime (Fortaz) (Doc. 153, p. 11). On July 25, 2019, Plaintiff admitted to the infirmary

for five (5) days of IV Ceftazidime (Fortaz) to treat his chronic otitis media. He was

discharged on July 30, 2019 with a recommendation for follow-up in one week (Doc. 153,

p. 11).

On August 2, 2019, Plaintiff filed a motion for preliminary injunction that

requested to have an appointment with an Ear, Nose, and Throat (ENT) doctor to

determine “the full extent and severity of [his] medical condition” (Doc. 173, p. 3).

Plaintiff filed grievance E-19-8-27 on or around August 6, 2019 (Doc. 173, p. 3). Defendant

Nalewajka reviewed Plaintiff’s medical records, spoke with the Assistant Warden of

Programs, forwarded his grievance to the IDOC ADA Team for their recommendation,

and forwarded the grievance to Defendant Meeks’ office on approximately August 12,

2019 (Doc. 173, p. 3).

On August 6, 2019, Plaintiff returned to Santos’ call line. Santos identified

impacted ear wax in Plaintiff’s ears and again recommended the Debrox protocol to

soften and flush the wax. Prior to this visit, Nalewajka had informed Plaintiff that he

would receive another ear culture at this visit (Doc. 34-1, p. 1). Plaintiff told Santos that

he was still experiencing pain, nausea, and dizziness (Doc. 34-1, pp. 1-4).

On August 12, 2019, Santos filled out an internal Wexford Memorandum, in which

he indicated he filed an appeal on “8/12/19” at “7:30pm” (Doc. 142-1, p. 36). Santos

testified that he filed this appeal to Dr. Ritz in order to get an ENT referral for Plaintiff

while he was carrying out the ATP (Doc. 142-2, p. 67).

On August 13, 2019, Plaintiff again returned to Santos complaining of

“excruciating” ear pain, dizziness, and because he felt “sick” (Doc. 34-1, p. 8). Plaintiff

explained that he used an ear wax removal drops and “a lot of pus and fungus foamed

out” of his ears (Doc. 34-1, p. 8). Santos examined his left ear and found his tympanic

membrane was intact, with no swelling, no reddening, and some soft, white ear wax. He

cleaned Plaintiff’s ear canal; it had no drainage. He prescribed Motrin for the pain and

told him to return if he experienced infection or drainage (Doc. 142-1, p. 53). According

to Plaintiff, Defendant Santos relayed that there was nothing to culture and the infections

were under control (Doc. 34-1, p. 8).

One week later, on August 19, 2019, Santos and Ritz had a collegial call and agreed

to monitor Plaintiff’s condition and place him on a course of VoSol (Doc. 153, p. 13). The

same day, Plaintiff presented to nursing sick call complaining of pain in his ears. The

nurse observed a moderate amount of white pus in his left ear and a small amount of wax

in his right ear. She referred him to the doctor call line (Doc. 142-1, p. 55).

Santos saw Plaintiff the next day, on August 20, 2019. He observed wax in his ear

canal and provided him VoSol ear drops, which is an acetic acid ear medication intended

to dry out the ear canal (Doc. 142-1, p. 56). Plaintiff says that he again informed Santos

about his excruciating ear pain, vertigo, distorted hearing, and a feeling of liquid in his

ears (Doc. 34-1, p. 9).

Plaintiff returned to Santos on August 27, 2019 and Santos continued his VoSol

medication (Doc. 142-1, p. 57). Plaintiff contends that he told Santos that his ears still hurt

and that he had white “crust” in his ears (Doc. 152-7, p. 22). Plaintiff further contends that

Santos told him the infections were under control. Id.

On September 3, 2019, the Court granted a motion for preliminary injunction and

ordered Defendants to schedule an appointment with an ENT specialist to take place

within 14 days of the date of the Order (Doc. 38, p. 3).6 On September 6, 2019, Santos

examined Plaintiff and directed Plaintiff to discontinue to the VoSol and took a third

culture of Plaintiff’s left ear (Doc. 142-1, p. 58).7 The culture and sensitivity results

returned that Plaintiff’s left ear had no yeast or fungal elements and now only a few

candida parapsilosis (Doc. 142-1, p. 59).

On September 13, 2019, Plaintiff presented to nursing sick call complaining of both

ears hurting and white drainage from both ears. The nurse observed “yeast type”

drainage and referred Plaintiff to Santos (Doc. 142-1, p. 60). The same day, September 13,

Santos ordered Plaintiff placed in the infirmary to monitor his vital signs, continue his

6 Defendant filed a notice with the Court on September 16 (Doc. 42), outlining the efforts it had made to

comply with the Court’s injunction and that the earliest possible appointment secured for Plaintiff with an

ENT specialist was September 30, 2019.

7 Plaintiff contends that this statement only explains a “portion of what happened at the 09.06.19 visit” with

Defendant Santos. Plaintiff then cites to a series of exhibits, but does not explain what portions of the

exhibits, exactly, the Court should consider (Doc. 153, p. 14).

medications, and provide him Motrin while awaiting the results of his September 6

culture and sensitivity test (Doc. 142-1, p. 61-77). On September 16, 2019, Santos

prescribed Plaintiff a prescription for the anti-fungal medication Fluconazole (Diflucan)

(Doc. 142-1, p. 69).

On September 29, 2019, Plaintiff reported to a nurse that the “fungus is coming out

of my ears. I feel better” (Doc. 142-1, p. 74). On September 30, 2019, Plaintiff attended an

appointment with ENT Dr. Nathan Joos (Doc. 142-3, pp. 2-3) pursuant to the Court’s

Injunction. Dr. Joos debrided leftover inflammatory cerumen from Plaintiff’s ear canals

and noted his eardrums were normal and without signs of infection (Doc. 142-3, p. 2). Dr.

Joos opined Plaintiff’s external auditory canal looked in fairly good condition with

minimal inflammation, he saw no middle ear pathology, and his bilateral otitis externa

was improving (Doc. 153, p. 16). Dr. Joos performed rough hearing tests, the Weber test

and the Rinne test, and Plaintiff’s hearing was normal (Doc. 153, p. 16).

Dr. Joos did not provide any antibiotics because he saw nothing suggesting

bacteria was driving Plaintiff’s medical condition (Doc. 153, p. 16). Dr. Joos completed

the “Report of Referral” form and noted Plaintiff had resolving otitis externa and reports

of Eustachian tube dysfunction. Dr. Joos recommended Plaintiff continue the Diflucan,

add Lotrimin drops, add Fluticasone, and call for a follow-up appointment if his

symptoms persisted (Doc. 142-1, p. 79). Specifically, Dr. Joos noted that Plaintiff “could

be reevaluated in a couple of weeks if the facility prefer” (Doc. 161-4, p. 3).8

8 Defendants ultimately had to be enjoined a second time after taking the position that Dr. Joos’

recommendation was to follow up in “six to eight weeks” if Plaintiff’s symptoms persisted (See Docs. 58,

62). Dr. Joos’s notes, however, very clearly say a “couple of weeks.” (Doc. 58-3, p. 3, Doc. 62, p. 5).

On October 1, 2019, Plaintiff discharged from the infirmary with a

recommendation to follow up in ten days (Doc. 142-1, p. 77). But on October 16, 2019,

Plaintiff presented to nurse sick call, again reporting bilateral ear pain, drainage, and

some hearing loss (Doc. 142-1, p. 82).

On October 17, 2019, Santos says he examined Plaintiff and noted drainage and

pain in his ears. Santos observed white-yellowish flaky wax in Plaintiff’s ears and used a

Q-tip dipped in saline to clean it. He ordered Plaintiff to continue his medications, added

a Naprosyn medication, and scheduled him for a one week follow-up (Doc. 142-1, p. 83)

(Santos’ notes from this interaction are illegible). Plaintiff says that more happened

during this visit. When Santos cleaned Plaintiff’s ears (twice) with a Q-tip, Plaintiff says

he observed dark red blood on the Q-tip (Doc. 152-2. P. 65). This visit prompted Plaintiff

to file a grievance dated October 20, 2019 (grievance number 19-10-79) in which he

complains of continued ear pain and worries that he may develop more serious infections

because of Santos treatment (Doc. 152-2, pp. 65-66).

One week later, on October 24, 2019, Santos saw Plaintiff who reported on and off

pain. Santos examined Plaintiff’s ears and saw nothing abnormal, including no swelling,

no tenderness, no bulging of his tympanic membranes, no reddening, and no signs of

infection (Doc. 142-1, p. 84). Plaintiff says that at this visit, Santos became “irate” and

accused him of lying in his October 20, 2019 grievance in which he said he saw blood on

the Q-tip (Doc. 55, p. 3). According to Plaintiff, Santos “screamed” at him and “started

slamming the cabinet door and throwing things in his office,” which was noted in

Plaintiff’s October 25, 2019 grievance (grievance number 19-10-103) (Doc. 152-2, pp. 67-

68). Nalewajka responded to this grievance and indicates that she sent it to Meeks’ office

on or around November 1, 2019, but the grievance does not indicate whether it was

actually sent or received by Meeks or his office. Id. Meeks testified that, to the best of his

recollection, Dr. Conway was responsible for responding to appeals at the time of this

grievance, but this changed over time (Doc. 161-1, pp. 20-21).

Also on October 24, 2019, Plaintiff filed another motion seeking injunctive relief

(Doc. 55). Plaintiff’s motion for injunctive relief was prompted by his interaction with

Santos on October 17 and 24. He claimed that at the October 17 visit with Santos, he

requested a follow up visit with Dr. Joos to address his ongoing symptoms, Santos denied

his request and told Plaintiff he just had excessive ear wax (Docs. 55, 62). On October 24,

Plaintiff says he again requested a follow up with Dr. Joos because of ongoing symptoms

and that Santos, as outlined above, became furious with him (Id.). Ultimately, the Court

enjoined Defendants a second time, ordering Defendants to arrange for a follow up visit

for Plaintiff with Dr. Joos, consistent with the instructions that had been given (Doc. 62).9

On November 4, 2019, Plaintiff returned to nursing sick call complaining of

bilateral hearing loss. The nurse observed patches of white wax in his ears and referred

him to the doctor’s call line (Doc. 142-1, p. 85). Also on November 4, Lamenta Conway,

IDOC Assistant Medical Director, in response to the forwarded grievances, told

9 In granting a second request for injunctive relief, the Court expressed its concern over the allegations

made by Plaintiff and its own review of the medical records (See Doc. 62, p. 5). At that time, the Court also

observed that Plaintiff had seen Santos twice since his visit with Dr. Joos and rated his pain as a 7 or 8 out

of 10 and that Santos responded the same way each time: by probing Plaintiff’s ears with Q-tips and

ordering more ibuprofen (Docs. 62, 58-2, pp. 5-8).

Nalewajka that Plaintiff should return to the ENT doctor since his complaints continued

(Doc. 173, p. 5). Santos then completed a referral for Plaintiff to return to ENT Dr. Joos

pursuant to Dr. Conway’s instruction (Doc. 153, p. 19). The Court’s second injunction was

issued three days later, ordering Defendant arrange for a follow up visit with Dr. Joos

within 21 days (Doc. 62). On November 9, 2019, Plaintiff saw a physician (not Dr. Santos)

who prescribed him two weeks of Naprosyn for pain, ten days of Augmentin, ten days

of Cortisporin ear drops, and recommended he follow up with Santos (Doc. 153, p. 19).

On November 15, 2019, Plaintiff presented to Nurse Practitioner (NP) Jaela

Flowers, with Dr Joos’ office. Dr. Joos was not available until January 2020, and the Court

clarified its Order, noting that Defendants can comply with the Injunction by securing a

visit with NP Flowers (Doc. 65). He reported burning in his ears radiating down his

throat, with occasional hoarseness, odynophagia, heartburn, and nasal congestion (Doc.

153, p. 19). NP Flowers performed a flexible laryngoscopy and diagnosed him with

laryngopharyngeal reflux (LPR) with referred otalgia (pain in the ear), and rhinitis.

Plaintiff’s eardrums were functioning appropriately, and he had no fluid in the middle

ear space; his ear canals were clear of infection.

NP Flowers started Plaintiff on Omeprazole and a Medrol Dosepak, as well as

recommending he continue his rhinitis medication (Doc. 153, p. 19). Plaintiff also received

a tympanogram evaluation, which is a test of pressure on the eardrum, and received an

essentially perfect result (Doc. 153, pp. 19-20). NP Flowers recommended medications

and to follow up with Dr. Joos in six (6) weeks if needed (Doc. 153, p. 20).

On February 3, 2020, Plaintiff returned to Dr. Joos and reported he still had some

itching and ear pain bilaterally and mild discomfort. He had no active drainage and no

facial swelling, and occasional lightheadedness without vertigo. Dr. Joos cleaned

Plaintiff’s ears, saw no effusion or infection, and diagnosed him with psoriatic ear canals.

He recommended Fluconazole eardrops every 2-3 days when necessary and to follow up

in 3 or 4 months to repeat debridement/cerumen removal (Doc. 153, p. 21).

On February 6, 2020, Plaintiff saw Dr. Reynal Caldwell for a follow-up from his

February 3, 2020 ENT (Doc. 153, p. 21). On February 19, 2020, he saw Dr. Percy Myers on

follow-up from Dr. Caldwell, and Dr. Myers noted he needed the collegial submission to

return to Dr. Joos in 3-4 months (Doc. 153, p. 21).

On March 8, 2020, Plaintiff presented to nursing sick call complaining of ear pain

for one day, and he received pain medication (Doc. 153, p. 22). On March 13, 2020, he

returned to nursing sick call complaining of ear pain and green-yellow drainage (but

noting his ear drops were green too). Plaintiff also complained of excruciating pain in his

ears and difficulty hearing (Doc. 142-1, p. 96). He had bilateral ear redness. The nurse put

Plaintiff on the doctor call list and noted he was requesting a hearing screen (Doc. 142-1,

p. 96).

On March 23, 2020, Dr. Santos performed a lockdown review of Plaintiff’s chronic

otitis media and ordered him to continue his ear drops and follow-up in two weeks (Doc.

153, p. 22). On March 25, 2020, Plaintiff again attended nursing sick call, reporting ear

pain. His ears appeared within normal limits (WNL) to the nurse. He requested Naprosyn

pain medication (Doc. 153, p. 22). Also on March 25, 2020, Plaintiff saw Santos who

concurred with the nurse’s observations, in that Plaintiff did not have reddening,

discharge, or tenderness (Doc. 142-1, p. 99).

On July 1, 2020, Plaintiff saw Dr. Joos, who noted the degree of ear discomfort

Plaintiff was reporting was above and beyond a notable cerumen impaction, but after

Plaintiff’s ears were cleaned, the pain resolved. Plaintiff had no infection, and Dr. Joos

noted his psoriatic ear canals appeared much better. He recommended occasional steroid

drops, more frequent Debrox protocol, and a CT scan of the temporal bone without

contrast to rule out any other middle ear pathology or associated temporal bone

pathology (Doc. 153, p. 24). On July 17, 2020, Plaintiff received a CT of his internal

auditory canals (IAC) which was normal and negative for any abnormalities (Doc. 153,

p. 24).

As of his March 31, 2021 deposition, Plaintiff reported he felt “a lot” better and

could hear “a lot” better. Occasionally his ears will hurt or his hearing muffled, but it is

“nothing like it was” (Doc. 153, p. 25). As of his March 31, 2021 deposition, Plaintiff does

not take pain medication, but he uses Nasacort, DermOtic oil, and Debrox ear drops (Doc.

153, p. 25). He had received the Debrox protocol Dr. Joos recommended on July 1, 2020

and was no longer experiencing side effects from the medications he took to resolve his

ear infections (Doc. 153, p. 25). Plaintiff also noted that he believed his ear infections

resolved in October of 2019 but he continued to experience pain into June of 2020 from

the treatments for these infections (Doc. 153, p. 25). Plaintiff saw Dr. Joos again on July 1,

2020 (Doc. 173, p. 6).

B. The Treatment of Ear Conditions Generally

Otitis externa is an inflammatory condition or infection of the ear canals outside

of the eardrum which can present with a few days of ear discomfort, drainage from the

ear, and some muffled hearing (Doc. 153, p. 25). A traditional treatment course for otitis

externa would be treatment with medicated ear drops for up to fourteen days and have

the patient contact the physician in two to three weeks (Doc. 153, p.26). If otitis externa

symptoms persist for greater than three weeks, the next step would be to perform another

examination, possibly clean the ears, and consider adding an oral antibiotic or culturing

the ear (Doc. 153, p. 26). Otitis media occurs when the small space behind the eardrum

fills with fluid (Doc. 153, p. 26). A traditional otitis media complaint presents with

discomfort, muffled hearing, and fever. It is treated with pain medications (Ibuprofen,

Tylenol) and oral antibiotics (Doc. 153, p. 26). If otitis media persists, the next step would

be to determine if the fluid in the ear was purulent or not. If not purulent (e.g. “leftover

fluid or mucus material”) the course would be lots of waiting with maybe rhinitis

therapy. If the fluid was purulent, the next step would be broader spectrum antibiotics

(Doc. 153, p. 26).

Eustachian tube dysfunction is typically driven by inflammation through the nose

and may be treated with medications for allergies and rhinitis such as Flonase and

Claritin (Doc. 153, p. 26). In 8-9 out of 10 cases, the first treatment modality for an otitis

externa complaint is ear drops and antibiotics and to proceed with an ear culture to

determine if there is something unusual about the cause of the infection (Doc. 153, p. 27).

Common antibiotics to try in the first round include Ciprofloxacin (Doc. 153, p. 27). If the

antibiotic drops do not clear the infection, the next step might be to try culturing the ear.

Drainage from the ears does not always equate to an infection (Doc. 153, p. 27).

Debrox drops are hydrogen peroxide-based drop to help alleviate routine wax

build-up (Doc. 153, p. 27). Pseudomonas is the most common agent for otitis externa

infections (Doc. 153, p. 28). Occasionally pseudomonas bacteria can become resistant and

require the use of IV antibiotics to treat (Doc. 153, p. 28). Staphylococcus bacteria is

another common bacteria in ear, nose, and throat infections (Doc. 153, p. 28). Candida

parapsilosis is a yeast infection and would be treated with VoSol, Lotrimin, and

Fluconazole. Oral thrush is a possible side effect or expected risk factor from using any

oral antibiotic. The Valsalva maneuver is a way to relieve pressure in the Eustachian tubes

(Doc. 153, p. 28). Psoriatic ear canals can create more wax volume and allow for

opportunistic infections, and the condition (psoriatic ear canals) can be difficult to predict

because it waxes and wanes in severity (Doc. 153, p. 28). Psoriatic ear canals can be a

chronic condition which waxes and wanes over a period of years (Doc. 153, p. 29).

C. IDOC officials Involvement

In working as the HCUA and addressing Plaintiff’s grievances, Nalewajka

emailed various people, including Susan Walker, Mary Klein, and Dr. Conway, in her

attempts to forward Plaintiff’s concerns to the State Medical Director’s Office (Doc. 176,

p. 1).10 Nalewajka testified that she emailed who she believed to be Dr. Meeks’

10 Nalewajka is not a licensed physician and cannot diagnose a patient’s condition,

prescribe a particular line of treatment, or independently order referrals, or testing (Doc.

164, p. 29; 43-44; 173, p.3). She testified that during the grievance process, she can direct

administrative assistant, Thomas White, requesting Plaintiff’s condition and complaints

be evaluated on June 7, 2019, but that he did not respond (Doc. 176, p. 3). Thomas White

was addressed or copied in several emails discussing Plaintiff’s condition, grievances,

and complaints from Defendant Nalewajka on June, 7, July 1, August, 9, 20, and October

3, 9, and 22 10 (Doc. 176, p. 1). There are only two e-mails from Nalewajka that actually

CC’ed Dr. Meeks. The first occurred on August 19, 2019, notifying the recipients that she

has a call with the Attorney General’s office regarding Plaintiff’s case and that he was

sent to collegial again that day requesting an ENT follow-up, but an ATP was developed

instead (Doc. 173-1, p. 15). The second occurred on August 20, 2019, as a follow up to the

previous email promising the most recent documentation (Doc. 173, p. 15).

Grievance E-19-1-125 was appealed to State Medical Director on February 6, 2019;

Grievance 19-4-117 was appealed to State Medical Director on May 28, 2019; Grievance

19-4-122 was appealed to State Medical Director on May 28, 2019; Grievance E-19-4-125

was appealed to State Medical Director on May 28, 2019; and Grievance 19-7-18 was

appealed to State Medical Director on May 28, 2019 (Doc. 176, p. 1). Grievance E-19-6-103

was forwarded by defendant Nalewajka to the Medical Director’s Office on or around

July 2, 2019 (Doc. 176, p. 3). However, Meeks testified that during this time frame, to the

best of his recollection, Dr. Conway was responsible for responding to appeals (Doc. 161-

a doctor to re-evaluate a patient or re-evaluate the medicine prescribed to a patient (Doc.

164, pp. 43-44).

1, pp. 20-21). Indeed, it was Dr. Conway (not Meeks) who reviewed certain grievances

and indicated to Nalewajka that Plaintiff should return to the ENT (Doc. 173, p. 5).

DISCUSSION

The Eighth Amendment’s proscription against cruel and unusual punishment

creates an obligation for prison officials to provide inmates with adequate medical care.

Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825,

832, (1994)). Evaluating whether the Eighth Amendment has been violated involves a

two-prong analysis. The court first looks at whether the plaintiff suffered from an

objectively serious medical condition and, second, whether the “prison officials acted

with a sufficiently culpable state of mind,” namely deliberate indifference. E.g., Holloway

v. Delaware Cty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). In applying this test, the court

“look[s] at the totality of an inmate’s medical care when considering whether that care

evidences deliberate indifference to serious medical needs.” Petties v. Carter, 836 F.3d 722,

728–29 (7th Cir. 2016).

In order to prevail on a claim for deliberate indifference to a serious medical need,

there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex rel.

Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must

demonstrate he suffered from an objectively serious medical condition. Id. at 591-92.

Second, the plaintiff must establish the individual prison officials were deliberately

indifferent to that condition. Id.

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

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

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

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

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

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

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

A. Dr. Santos

Santos argues that he provided consistent care to Plaintiff, and that he was not

deliberately indifferent to Plaintiff in his medical treatment of him. Plaintiff disagrees,

and argues that Santos did not take his ear infections, pressure, and pain seriously, and

through his care and treatment, delayed Plaintiff’s referral to a specialist (Doc. 154, pp. 4-

6). Ultimately, Plaintiff argues it took 8-9 months for him to see a specialist for his ear

pain and pressure, and only after Court intervention on two occasions.

Santos concedes that Plaintiff has a complicated infectious disease process in his

ears. In other words, Plaintiff has an objectively serious medical condition. Accordingly,

the Court’s analysis focuses on the second prong and whether Defendant Santos has the

requisite subjective intent. A prison official exhibits deliberate indifference when they

know of a serious risk to the prisoner’s health but they consciously disregard that risk.

Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012) (citation omitted).

“The standard is a subjective one: The defendant must know facts from which he could

infer that a substantial risk of serious harm exists and he must actually draw the

inference.” Rasho v. Elyea, 856 F.3d 469, 476 (7th Cir. 2017) (quoting Zaya v. Sood, 836 F.3d

800, 804 (7th Cir. 2016)). The deliberate indifference standard “requires more than

negligence and it approaches intentional wrongdoing.” Holloway, 700 F.3d at 1073. It is

“essentially a criminal recklessness standard, that is, ignoring a known risk.” McGee v.

Adams, 721 F.3d 474, 481 (7th Cir. 2013) (citation omitted).

In the context of medical professionals, the deliberate indifference standard has

been described as the “professional judgment standard.” Sain v. Wood, 512 F.3d 886, 895

(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, 836 F.3d at 729

(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.

Generally speaking, Plaintiff’s claim against Santos focuses on two general

theories. The first is that Santos ignored Plaintiff’s pain and complaints, and persisted in

an ineffective treatment regimen instead. The second is that there was an inexplicable

delay of 8-9 months in Plaintiff’s referral to an ENT, and this is indicative of deliberate

indifference.

The Court must first note that there are a numerous factual disputes surrounding

the care and treatment Plaintiff received by Dr. Santos. For example, on February 6, 2019

when Plaintiff returned to Santos after having his ear flushed as part of the Debrox

protocol, Santos noted in Plaintiff’s medical records that the right ear was “resolved”

(Doc. 142-1, p. 6; 142-2, pp. 23-24). However, Plaintiff says this is not accurate and that he

reported ear pain, pressure, hearing loss and vertigo, he had tinnitus and that his ears felt

sticky (Doc. 152-3; Doc. 153, p. 34). Plaintiff says the Debrox did not help with his pain

and that Santos simply told him they were finished.

Another example is Plaintiff’s March 29 visit with Santos. At this visit, Santos

noted that Plaintiff’s ear drum was intact, ordered a culture and sensitivity test, and

prescribed Plaintiff Cortisporin ear drops. However, Plaintiff says that when Santos

swabbed his ear, he felt severe pain and pressure as a result of Santos piercing his ear

drum. Indeed, when Plaintiff visited a nurse on April 1, 2019, the nurse noted a

perforation in Plaintiff’s ear (Doc. 142-1, p. 18). And another example is at Plaintiff’s

October 17, 2019 visit, Santos says he observed white-yellowish flaky wax in Plaintiff’s

ears and used a Q-tip dipped in saline to clean it. However, Plaintiff says that when

Santos cleaned his ears, he observed dark red blood on the Q-tip. Santos, of course, makes

no mention of this. These examples of factual disputes concern the care and treatment

provided to Plaintiff by Santos, which is one of the key issues in this case. Accordingly,

these disputes must be resolved by a jury and are itself a basis to deny summary

judgment.

But in addressing the arguments advanced in the briefs, the Court cannot say that

no reasonable juror could find in favor of Plaintiff on his claim against Santos. While

Santos ultimately characterizes Plaintiff’s position as a mere disagreement with the

course of treatment, it is equally plausible that a reasonable jury could look at the record

and conclude that Santos persisted in a course of treatment over a period of many months

that was obviously ineffective. Indeed, when Plaintiff saw Dr. Meyers (in other words,

not Santos), on July 28, 2019, it was Dr. Meyers who determined that Plaintiff’s ear

infections were resistant to treatment. It was Dr. Meyers, who at that time, ordered a new

ear culture, entered a referral to collegial review proposing an ENT appointment,

prescribed antifungal medications (Fluconazole/Diflucan and Nystatin), and scheduled

Plaintiff to return to the clinic in one week to review the culture, and prescribed Plaintiff

Tylenol (Docs. 142-1, pp. 30-32; 142-2, pp. 42-44).11 Based on the record, as a whole, the

Court cannot say that no reasonable juror could find in favor of the Plaintiff.

The second issue is the lengthy delay in the referral to an ENT. A plaintiff must

provide evidence, either direct or circumstantial, to prove deliberate

indifference. Petties, 836 F.3d at 728. Direct evidence is rarely forthcoming, so “[m]ost

cases turn on circumstantial evidence.” Id. To show that a delay in providing treatment

is actionable under the Eighth Amendment, a plaintiff must provide “independent

evidence that the delay exacerbate the injury or unnecessarily prolonged pain.” Id. at 730-

11 Indeed, it was Dr. Santos who prescribed a repeat of the Debrox protocol in February 2019 and then again

later on in the treatment, as well as repeats of ear drops, thus persisting in this course of treatment rather

than considering alternatives.

31 (citing Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007)) (delay actionable where

medical records showed it unnecessarily prolonged plaintiff's pain and high blood

pressure); Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004) (hours of needless suffering can

constitute harm).

Based on the record as a whole, a reasonable juror could conclude that the lengthy

delay unnecessarily prolonged Plaintiff’s pain and/or exacerbated his injury. In fact, the

Court had to enjoin Defendant not once, but twice as a result of Santos’ treatment of

Plaintiff. And during the many months that Plaintiff was treating with Santos, he was

constantly and consistently reporting ear pain and significant discomfort. It is certainly

plausible, based on the record as a whole and viewing all inferences in light of the

Plaintiff, that a reasonable jury could find for the Plaintiff. Accordingly, summary

judgment with respect to Santos must be denied.

B. Lana Nalewajka and Steve Meeks

In Eighth Amendment claims arising from a prisoner’s medical care, a non-

medical prison official is entitled to summary judgment when he reasonably responds to

an inmate’s complaint or grievance by ensuring the inmate has been evaluated by a

physician and received medical care for the complained of condition. Johnson v. Doughty.

433 F.3d 1001, 1010-12 (7th Cir. 2006). Plaintiff says that Nalewajka and Meeks were

deliberately indifferent to his serious medical needs because they interfered and/or

delayed his treatment, which prolonged his pain and discomfort.

First, as for Nalewajka, the evidence shows that she attempted to address

Plaintiff’s medical concerns and issues in her responses to his grievances and by

contacting the State Medical Director’s Office. In fact, Plaintiff concedes that Nalewajka

e-mailed various people, including Dr. Conway in her attempts to relay Plaintiff’s

concerns to the State Medical Director’s Office (Doc. 173, ¶ 25). Nalewajka personally

contacted the Medical Director’s Office on June 7, 2019, requesting that Plaintiff’s

condition and complaints be evaluated and she was told that her request would be

submitted for review (Doc. 173, ¶ 26). And Nalewajka sent a multitude of e-mails to the

State Medical Director’s Office discussing Plaintiff’s condition, grievances, and

complaints, which included Thomas White, the Medical Director’s administrative

assistant. Indeed, Nalewajka e-mailed Dr. Meeks, directly, on August 19, 2019 discussing

Plaintiff’s appeals and its elevation to the Attorney General’s office and followed up the

next day. Nalewajka is not a licensed physician and she is not able to diagnose anybody,

prescribe medications, order referrals or testing, or make a determination as to whether

treatment is medically necessary (Doc. 173, p. 2-3).

When viewing the record as a whole, and drawing all reasonable inferences in

favor of the Plaintiff, the evidence suggests that Nalewajka did all she could do for

Plaintiff under the circumstances. No reasonable juror could conclude that Nalewajka

was deliberately indifferent to Plaintiff in the limited role that she plays here. See Johnson,

433 F.3d at 1010, referencing Greeno, 414 F.3d at 656 (“Perhaps it would be a different

matter if [the non-medical prison official] had ignored [the plaintiff's] complaints entirely,

but we can see no deliberate indifference given that he investigated the complaints and

referred them to the medical providers who could be expected to address [the plaintiff's]

concerns.”).

As for Defendant Meeks, he argues he was never personally aware of Plaintiff’s

complaints and, therefore, could not have the requisite mindset for Plaintiff to sustain an

Eighth Amendment claim against him. Plaintiff contends that Defendant Meeks was

made aware of the issues with Plaintiff’s care when he appealed grievances and through

emails with Defendant Nalejwaka. There are certainly e-mails in the record showing that

Nalewajka e-mailed Meeks’s Office (See Doc. 173-1). But Nalewajka’s August 9, 2019, e-

mail to Meeks’s assistant, Thomas White, recognizes that Meeks or someone within

Meeks’s office, may be looking into this (Doc. 173-1,p. 3). In other words, this does not

provide the certainty that Plaintiff needs to establish Meeks’s mindset. Moreover, Meeks

testified that during the time frame at issue, he was not personally responding to prisoner

appeals; rather, a deputy medical director responded to the appeals (Doc. 161-1, pp. 32-

35). Furthermore, grievances and appeals were different, and “it would have been highly

unusual for [Defendant Meeks] to have received a grievance just as part of the normal

course of the way things ran” (Doc. 161-1, p. 34). And in fact it was Dr. Conway (not

Meeks) who reviewed certain grievances and communicated to Nalewajka that Plaintiff

should return to an ENT (Doc. 173, p. 5).

Plaintiff argues that because Defendant Meeks, prior to August 2019, ruled on

appeals, he created a “triable issue” that must go to the jury (Doc. 172, pp. 6-8). But there

is nothing in the record to indicate that Meeks, himself, had knowledge of Plaintiff’s

issues and possessed the requisite mindset to sustain a deliberate indifference claim.

Indeed, the only two e-mails in the record that directly CC’ed Meeks are August 19 and

20, 2019 and the content of these two e-mails is not sufficient to establish liability.12 As

such, Defendant Meeks is also entitled to summary judgment.

C. Wexford Health Sources, Inc.

A private corporation acting under the color of state law, like Wexford, can be held

liable under § 1983 for constitutional violations based on the Monell theory of municipal

liability. Glisson v. Indiana Dep't of Corr., 849 F.3d 372, 378–79 (7th Cir. 2017) (en banc). The

corporation cannot be held liable simply because it employed the alleged wrongdoer, Est.

of Perry v. Wenzel, 872 F.3d 439, 460 (7th Cir. 2017); rather, “a plaintiff must show that his

constitutional injury was caused by the corporation’s own actions. Pyles v. Fahim, 771 F.3d

403, 409–10 (7th Cir. 2014) (quoting Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir. 2010)).

This requires a plaintiff to demonstrate that “the ‘moving force’ behind his constitutional

injury” was an express policy adopted and promulgated by the corporation, an informal

but widespread and well-settled practice or custom, or a decision by an official of the

corporation with final policymaking authority. Dixon v. Cnty. of Cook, 819 F.3d 343, 348

(7th Cir. 2016) (citing City of Canton v. Harris, 489 U.S. 378, 379 (1989)); Glisson, 849 F.3d at

379.

The Monell claim advanced by Plaintiff seems to be, at best, an afterthought. The

allegations against Wexford in the Amended Complaint are extremely broad and really

are just a couple of generalities (See Doc. 99, ¶ 37-39). Nor does Plaintiff squarely address

12 The Court also notes that Meeks never met or evaluated Plaintiff. He was not on site at Centralia

Correctional Center to personally observe Plaintiff and his symptoms, so what, exactly Plaintiff thinks

Meeks should have done is unclear. And to the extent Plaintiff seeks to hold Meeks accountable because he

testified that the “buck stops with him”, there is no respondeat superior in § 1983 actions. Monell v. New York

City Dep’t of Social Services, 436 U.S. 658, 692 (1978).

Wexford’s arguments for summary judgment on the Monell claim in the response in

opposition.13 As best the Court can tell, Plaintiff is attempting to advance a claim against

Wexford that is rooted in the collegial review process, which Plaintiff says is purposefully

designed to facilitate inadequate treatment of prisoners. Plaintiff argues that since the

collegial review process always has the option to reject an outside referral and instead

propose an alternative treatment plan it allows for, and possibly encourages, doctors to

continue ineffective treatment (Doc. 154, p. 6).

As a general matter, the Seventh Circuit has made clear that “[t]he collegial review

process is not unconstitutional on its face.” Howell v. Wexford Health Sources, Inc., 987 F.3d

647, 651 (7th Cir. 2021). Thus, in order to maintain a Monell claim predicated on a “facially

lawful policy” like collegial review, a plaintiff must show that the process was

unconstitutional, as applied to him, which requires the plaintiff to prove “a prior pattern

of similar constitutional violations resulting from the policy.” Dean v. Wexford Health

Sources, Inc., 18 F.4th 214, 236 (7th Cir. 2021).

Here, Plaintiff has failed to offer any evidence or make any argument of a prior

pattern of similar constitutional violations and thus Plaintiff cannot establish both the

requisite fault on the part of Wexford corporate and the causal connection between the

policy and the constitutional deprivation. See City of Okla. City v. Tuttle, 471 U.S. 808, 824

(1985) (plurality); Dean, 18 F. 4th at 236-37.14 Indeed, the Seventh Circuit has “repeatedly

13 In examining the cases cited by Plaintiff in the argument section of his response in opposition, the Court

did not come across a single case that analyzed, illustrated, or discussed Monell liability. In short, Plaintiff

did not offer the Court any authority to support his position and stave off summary judgment on this claim.

14 There are limited exceptions to this rule and in some rare cases, a plaintiff could still present a viable

Monell claim if he showed his situation was the type that prison medical providers were almost certain to

rejected Monell claims that rest on the plaintiff's individualized experience without

evidence of other constitutional violations.” Dean, 18 F.4th at 240. The only substantive

proof Plaintiff has offered here relates to the delays in care that he himself experienced

and thus he cannot maintain a pattern and practice claim or a claim predicated on a

patently obvious risk of such violations. Id. (“While we are sympathetic

to [plaintiff’s] experience, his only substantive proof relates to the delays in care that he

himself experienced. He has not proven a pattern of similar constitutional violations or a

patently obvious risk of such violations.”).

Accordingly, Wexford is entitled to summary judgment on Plaintiff’s Monell claim.

CONCLUSION

For the above stated reasons, the motion to seal (Doc. 139) is DENIED. The Clerk

of Court is DIRECTED to UNSEAL Doc. 143, which are the exhibits Wexford sought

leave to file under seal. The motion to strike (Doc. 155) is likewise DENIED.

The motion for summary judgment filed by Defendants Venerio Santos and

Wexford Health Sources, Inc. is DENIED IN PART and GRANTED IN PART. It is

DENIED with respect to Santos and it is GRANTED with respect to Wexford. The claim

against Wexford is DISMISSED with prejudice.

encounter and involved “a risk of constitutional violations . . . so high and [a] need for training so obvious”

that the failure to act could “reflect deliberate indifference and allow an inference of institutional

culpability.” J.K.J. v. Polk Cnty., 960 F.3d 367, 380-82 (7th Cir. 2020), cert. denied 141 S. Ct. 1125 (2021). But

Plaintiff made no argument and provided no evidence that his situation fell into this “narrow range of

circumstances.” Id. at 380.

The motion for summary judgment filed by Steve Meeks and Lana Nalewajka

(Doc. 160) is GRANTED. The claims against Meeks and Nalewajka are DISMISSED

with prejudice.

The Clerk of Court will enter judgment accordingly at the close of this case.

This case will proceed to trial on Plaintiff’s claim against Defendant Santos. The

Court will set this case for a status conference by separate notice to discuss the referral of

this case for a settlement conference and trial scheduling.

IT IS SO ORDERED.

DATED: September 20, 2022

/s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge