Bush v. Shah

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

VONDELL BUSH, )

)

Plaintiff, )

)

vs. ) Case No. 3:22-cv-00522-GCS

)

VIPIN K. SHAH, )

)

Defendant. )

)

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Pending before the Court is Defendant’s Motion for Summary Judgment. (Doc.

61). Defendant Vipin Shah (“Shah”) filed the Motion along with a Memorandum in

Support on January 8, 2024. (Doc. 61, 62). Plaintiff Vondell Bush filed a Memorandum in

Response to Defendant’s Motion for Summary Judgment on March 11, 2024. (Doc. 77).

For the reasons delineated below, Defendant’s Motion for Summary Judgment (Doc. 61)

is GRANTED.

PROCEDURAL BACKGROUND

Plaintiff, an inmate of the Illinois Department of Corrections (“IDOC”), housed at

Western Illinois Correctional Center (“Western”) brings this action pursuant to 42 U.S.C.

§1983 for deprivations of his constitutional rights while he was at Lawrence Correctional

Center. (Doc. 1). Plaintiff alleges that medical staff were deliberately indifferent in

diagnosing and treating his torn anterior cruciate ligament (“ACL”), in violation of the

Eighth Amendment. Plaintiff seeks monetary damages.

On May 16, 2022, the Court conducted its preliminary review of Plaintiff’s

complaint pursuant to 28 U.S.C. § 1915A. (Doc. 8). Based on the allegations in Plaintiff’s

Complaint, the Court designated the following count:

Count 1: Eighth Amendment deliberate indifference claim against Dr.

Shah, Rob Jeffreys, and John Doe Warden/CAO at Lawrence for failing to

properly diagnose and treat Bush’s torn ACL.

Id. at p. 6. However, the Court determined that Plaintiff’s Complaint against Jeffreys and

the John Doe Warden/CAO failed to state a viable claim, as Plaintiff only alleged that

these individuals denied his grievances. Id. at p. 3. Accordingly, Plaintiff’s claim was only

permitted to proceed against Defendant Shah. Id. at p. 4.

Pursuant to the Initial Scheduling Order, Defendant was directed to file his

Dispositive Motion on the Issue of Exhaustion Administrative Remedies by October 19,

2022. (Doc. 16). Defendant Shah failed to do so, and the Court entered a Merits Based

Scheduling Order on November 21, 2022, which included a dispositive motion deadline

of October 23, 2023. (Doc. 28).

FACTUAL BACKGROUND

On January 6, 2020, Plaintiff was first seen for complaints of knee pain at a Nurse

Sick Call while housed at Lawrence. (Doc. 62, Exh. 1, p. 4). Plaintiff communicated to the

LPN that his knee injury had occurred years ago while playing sports. Id. The only range

of motion restriction noted by the LPN was Plaintiff’s ability to pivot. Id. Otherwise, the

LPN did not find any indications of swelling or discoloration of the skin. Id. To address

Plaintiff’s pain, the LPN proscribed Plaintiff 200 mg of Ibuprofen to be taken one to two

tablets at a time, three times a day, as needed. Id. The LPN also referred Plaintiff to be

seen by a doctor. Id.

Plaintiff first saw non-party, Dr. Lynn Pittman, regarding complaints of left knee

pain on January 29, 2020. (Doc. 62, Exh. 1, p. 5). Plaintiff self-reported to Dr. Pittman that

he had a torn ACL in his left knee. Id. (“Inmate states he has a torn L ACL . . .”). Plaintiff

claims that Dr. Pittman not only assessed his abdomen following an inguinal hernia

repair at this appointment, but also that she performed a “drawer test” exam of his left

knee. Id.; see also (Doc. 77, p. 2). Dr. Pittman noted that Plaintiff needed a follow-up

appointment for referred pelvic pain, for an x-ray then MRI on his left knee, and for his

labs to be re-checked. Id. In her treatment plan, Pittman only ordered an x-ray of

Plaintiff’s knee and did not order an MRI. Id.

On January 31, 2020, Plaintiff’s left knee was x-rayed. (Doc. 62, Exh. 1, p. 6). On

February 4, 2020, Dr. S. Chandrasekar reviewed Plaintiff’s x-ray and reported the

following findings: “Ligamentous injury is difficult to diagnose on radiographs,

however, there is no evidence of a Segond fracture. There are no secondary signs of ACL

tear such as deepening of the lateral condylar sulcus. No significant degenerative change

identified. No acute fracture or dislocation. Anatomic patellar position. No knee joint

effusion.” (Doc. 62, Exh. 1, p. 11).

Defendant Shah first saw Plaintiff on February 17, 2020. (Doc. 62, Exh. 1, p. 7).

However, this appointment concerned Plaintiff’s prior abdominal surgery that he had

received on September 29, 2019. Id. The medical records do not indicate that Plaintiff’s

ACL was discussed.

On April 9, 2020, Plaintiff was once again seen by non-party Dr. Pittman (Doc. 62,

Exh. 1, p. 8). Dr. Pittman indicated that Plaintiff had a left ACL tear from 2006 and that

no surgery was performed prior to his incarceration. (Doc. 62, Exh. 1, p. 8). She also noted

that Plaintiff “uses [an] ACE Wrap” for his left knee. Id. She also wrote “[r]equest MRI

approval to grade tear” in the subjective/objective assessment section of her encounter

note with Plaintiff. Id. In the treatment plan section of the note, Dr. Pittman prescribed

Plaintiff with 800 mg of Ibuprofen to Plaintiff for six months. Id.

On November 10, 2020, Defendant Dr. Shah first saw Plaintiff for his complaints

of a torn ACL. (Doc. 62, Exh. 1, p. 9). Plaintiff reported to Dr. Shah that he had first injured

his knee in 2006, but he had reinjured it playing basketball in 2013. (Doc. 77, p. 3). During

the appointment, Shah claims that he observed Plaintiff’s range of motion when walking,

standing, and sitting into and standing up from a chair. (Doc. 62, Exh. 3, p. 5). Shah

reports that he found that Plaintiff did not have any limited range of motion or indicia of

pain during movement. Id. Shah also claims that he tested the mobility of Plaintiff’s knee

by moving his lower leg to determine if tendons in the knee were properly restraining its

mobility. Id. Shah reportedly found no excessive mobility of the knee. Id. Based on the

exam and Plaintiff’s January 31, 2020, x-ray, Shah determined that there was no medical

need for an MRI or low bunk permit. Id.

Plaintiff claims the November 10, 2020, exam went differently. (Doc. 77, p. 8).

Plaintiff concedes that Defendant Shah questioned him about how his knee injury

occurred, where he had the injury previously treated, and why he did not have surgery

on his knee before he was incarcerated. Id. at p. 7. However, Plaintiff asserts that Dr. Shah

did not perform the physical exam of his knee as described and merely touched his knee

while he was seated. Id. at p. 8. He also claims that Shah failed to “heed the prior

physician’s [Dr. Pittman’s] exam results.” Id. Plaintiff did not return to health care to see

Shah again because he found his care to be “upsetting and unprofessional.” Id. at p. 8.

On or around June 21, 2021, Plaintiff was transferred from Lawrence to Robinson

Correctional Center (“Robinson”) and was no longer under Defendant Shah’s care. (Doc.

62, Exh. 1, p. 10). On July 19, 2021, Plaintiff was examined by non-defendant Dr. David

Poor. (Doc. 77, p. 24). Plaintiff claims that Dr. Poor performed a drawer test of his knee

as Dr. Pittman did back at Lawrence. Id. Upon exam, Dr. Poor provided Plaintiff with a

low bunk permit for one year. Id. at p. 22. Written in the bottom left corner of the Special

Needs permit is “L[eft] ACL tear, mobility, falls.” Id. On July 22, 2021, Plaintiff was

authorized to receive an MRI for his left knee. Id. at p. 23. On November 17, 2021, Dr.

Poor had a follow-up appointment with Plaintiff to discuss the results of his MRI. Id. at

p. 25. Plaintiff was ultimately referred to an orthopedic surgeon for surgical repair of his

ACL and was also provided with 400 mg of Ibuprofen for three months to address his

pain. Id.

LEGAL STANDARDS

Summary judgment is proper when the pleadings and affidavits “show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. PROC. 56(c); Oates v. Discovery Zone, 116 F.3d

1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The

movant bears the burden of establishing the absence of a genuine issue as to any material

fact and entitlement to judgment as a matter of law. See Santaella v. Metropolitan Life Ins.

Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). This Court must

consider the entire record, drawing reasonable inferences and resolving factual disputes

in favor of the non-movant. See Regensburger v. China Adoption Consultants, Ltd., 138 F.3d

1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

See also Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009) (stating that “we are not

required to draw every conceivable inference from the record . . . we draw only

reasonable inferences”) (internal citations omitted). Summary judgment is also

appropriate if a plaintiff cannot make a showing of an essential element of his claim. See

Celotex, 477 U.S. at 322. While the Court may not “weigh evidence or engage in

factfinding[,]” it must determine if a genuine issue remains for trial. Lewis v. City of

Chicago, 496 F.3d 645, 651 (7th Cir. 2007).

In response to a motion for summary judgment, the non-movant may not simply

rest on the allegations in his pleadings; rather, he must show through specific evidence

that an issue of fact remains on matters for which he bears the burden of proof at trial.

See Walker v. Shansky, 28 F.3d 666, 670–671 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex,

477 U.S. at 324). No issue remains for trial “unless there is sufficient evidence favoring

the non-moving party for a jury to return a verdict for that party . . . if the evidence is

merely colorable, or is not sufficiently probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249–250 (citations omitted). Accord Starzenski v. City of Elkhart, 87

F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In

other words, “inferences relying on mere speculation or conjecture will not suffice.” Trade

Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (internal citation

omitted). See also Anderson, 477 U.S. at 252 (finding that “[t]he mere existence of a scintilla

of evidence in support of the [non-movant's] position will be insufficient; there must be

evidence on which the jury could reasonably find for the [non-movant]”). Instead, the

non-moving party must present “definite, competent evidence to rebut the [summary

judgment] motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000)

(internal citation omitted).

DISCUSSION

Defendant Shah argues that he exercised his own professional judgment when he

declined to order an MRI of Plaintiff’s left knee or to provide Plaintiff with a lower bunk

permit in response to his allegations that he suffered from an ACL tear in his left knee.

Moreover, Defendant argues that he was not obligated to follow the treatment plan

developed by Dr. Pittman for Plaintiff’s knee pain as he is a qualified medical professional

who made determinations about Plaintiff’s care for identifiable medical reasons. (Doc. 62,

p. 9). Plaintiff contests Defendant’s position. (Doc. 77). Plaintiff asserts that Defendant

Shah’s care amounts to deliberate indifference because he failed to conduct a thorough

physical examination of his knee or order further diagnostic tests to show that his

complaints were justified. Id. at p. 8 (citing McKenna v. Wright, 386 F.3d 432, 437 (2nd Cir.

2004)). Because reasonable medical minds may have disagreed, given the evidence of

Plaintiff’s presenting condition, the Court cannot find that Defendant Shah acted with

deliberate indifference while treating Plaintiff’s knee.

To prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff

must prove that he suffered from an objectively serious medical condition and that prison

officials were deliberately indifferent to that condition. See, e.g., Whiting v. Wexford Health

Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016). Here, Defendant Shah does not dispute that

Plaintiff’s alleged ACL tear was an objectively serious medical condition. See (Doc. 62, p.

9-13). Rather, Defendant’s arguments are focused on whether his treatment plan was an

appropriate exercise of professional judgment. Therefore, the only question the Court

will consider is whether the evidence, when viewed in the light most favorable to

Plaintiff, establishes an issue of fact as to whether Defendant Shah acted with deliberate

indifference.

“A prison official is deliberately indifferent only if he ‘knows of and disregards

and excessive risk to inmate health or safety.’” Whiting, 839 F.3d at 662 (quoting Farmer

v. Brennan, 511 U.S. 825, 837 (1994)). The inquiry is subjective and requires that the official

“must know of facts from which he could infer that a substantial risk of serious harm

exists, and he must actually draw the inference.’” Id. (citing Farmer, 511 U.S. at 837).

Deliberate indifference “requires more than negligence and it approaches intentional

wrongdoing.” Holloway v. Delaware County Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). See

also Greeno v. Daley, 414 F.3d 645, 653 (7th Cir 2005) (stating that “neither medical

malpractice nor a mere disagreement with a doctor’s medical judgment amounts to

deliberate indifference.”).

When assessing claims of deliberate indifference against a medical professional,

the “professional judgment standard” applies. Collignon v. Milwaukee County, 163 F.3d

982, 989 (7th Cir. 1998); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). Under this

standard, a medical professional is entitled to deference in treatment decisions unless no

minimally competent professional would have so responded under the circumstances.

See Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011); Sain v. Wood, 512 F.3d 886, 894-895 (7th

Cir. 2008). A medical professional may only be held to have displayed deliberate

indifference if “the decision by the professional is such a substantial departure from

accepted professional judgment, practice or standards as to demonstrate that the person

responsible did not base the decision on such judgment.” Sain, 512, F.3d at 895. The

decision must be such a departure from established practice and judgment as to

demonstrate “a complete abandonment of medical judgment.” Norfleet v. Webster, 439

F.3d 392, 396 (7th Cir. 2006).

Here, Dr. Shah clearly acted within the bounds of acceptable professional

judgment when caring for Plaintiff. Although Bush’s physical exam may not have been

as comprehensive as he would have liked, Plaintiff concedes that Dr. Shah did examine

his knee and asked him several questions about his symptoms. (Doc. 77, p. 8). Shah also

reviewed the January 31, 2020, x-ray of Plaintiff’s knee. Shah explained the results of the

x-ray report prepared by Dr. S. Chandrasekar, which showed no signs of an ACL tear in

Plaintiff’s left knee. Simply because Dr. Shah chose to act more conservatively based on

the medical evidence available to him, than perhaps Dr. Pittman would have had she

continued to provide Plaintiff care, does not mean that Shah exhibited deliberate

indifference. Rather, Shah developed an alternative treatment plan based on his

knowledge, skills, experience, and training, and he determined that there was no medical

need for an MRI or low bunk permit at that time.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment (Doc 61). The Court FINDS in favor of Defendant Vipin Shah and against

Plaintiff Vondell Bush. Further, the Clerk of Court is DIRECTED to enter judgment and

close the case.

In an abundance of caution, and noting Plaintiff's pro se status, the Court advises

Plaintiff as follows. Plaintiff has two means of contesting this order: (1) he may request

this Court review this order; or (2) he may appeal the order to the Seventh Circuit Court

of Appeals.

If Plaintiff chooses to request this Court to review this order, he should file a

motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).

Plaintiff must file the motion within twenty-eight (28) days of the entry of judgment; the

deadline cannot be extended. See FED. R. CIV. PROC. 59(e); 6(b)(2). The motion must also

comply with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the

Court should reconsider the judgment. See Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir.

2010); Talano v. Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757, 760 (7th Cir.

2001). See also Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (stating

that a party must establish either manifest error of law or fact, or that newly discovered

evidence precluded entry of judgment to prevail on a Rule 59(e) motion) (citation and

internal quotation marks omitted).

So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-

day clock for filing a notice of appeal will be tolled. See FED. R. APP. PROC. 4(a)(4). The

clock will start anew once the undersigned rules on the Rule 59(e) motion. See FED. R.

APP. PROC. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). However, if the Rule 59(e) motion is filed outside

the 28-day deadline or “completely devoid of substance,” the motion will not toll the time

for filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v.

CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–

820 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by

Plaintiff showing excusable neglect or good cause.

Alternatively, if Plaintiff chooses to go straight to the Seventh Circuit, he must file

a notice of appeal from the entry of judgment or order appealed from within 30 days. See

FED. R. APP. PROC. 4(a)(1)(A) (emphasis added). The deadline can be extended for a short

time only if Plaintiff files a motion showing excusable neglect or good cause for missing

the deadline and asking for an extension of time. See FED. R. APP. PROC. 4(a)(5)(A), (C).

See also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining the good cause and

excusable neglect standards); Abuelyaman v. Illinois State University, 667 F.3d 800, 807 (7th

Cir. 2011) (explaining the excusable neglect standard).

Plaintiff may appeal to the Seventh Circuit by filing a notice of appeal in this Court.

See FED. R. APP. PROC. 3(a). The current cost of filing an appeal with the Seventh Circuit

is $605.00. The filing fee is due at the time the notice of appeal is filed. See FED. R. APP.

PROC. 3(e). If Plaintiff cannot afford to pay the entire filing fee up front, he must file a

motion for leave to appeal in forma pauperis (“IFP motion”). See FED. R. APP. PROC. 24(a)(1).

The IFP motion must set forth the issues Plaintiff plans to present on appeal. See FED. R.

APP. PROC. 24(a)(1)(C). If Plaintiff is allowed to proceed IFP on appeal, he will be assessed

an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). He will then be required to make

monthly payments until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

IT IS SO ORDERED.

DATED: September 13, 2024. Digitally signed by

- . Judge Sison

Addin 2 Seed Ll 904,09.13

14:12:23 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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