The opinion
IN THE UNITED STATESa DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
FREDERICK WARREN, #B58882 )
)
Plaintiff, )
) Case No. 20-cv-784-RJD
v. )
)
LYNNE PITTMAN and ROBERT LYNCH, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff, incarcerated within the Illinois Department of Corrections (“IDOC”) at Lawrence
Correctional Center (“Lawrence), filed this lawsuit pro se and in forma pauperis pursuant to 42
U.S.C. §1983. The Court recruited counsel for him, and his case currently proceeds against
Defendants Pittman and Lynch (both doctors) for allegedly violating his Eighth Amendment rights
in 2019-2020 by treating his left shoulder pain with deliberate indifference.
This matter comes before the Court on Defendants’ Motions for Summary Judgment.
Docs. 115, 116, 118, and 119. Plaintiff filed Responses (Docs. 121 and 122) and Defendants filed
Replies (Docs. 124 and 12). As explained further, Defendants’ Motions are GRANTED.
Material Facts
In May 2017, Plaintiff underwent surgery on his left arm that involved “left open biceps
tenodesis, glenohumeral debridement, and rotator cuff evaluation.” Doc. 116-1, p. 43; Doc. 122,
¶5. Plaintiff was in county jail at the time. Doc. 116-1, p. 41. Prior to the surgery, he was
informed that sutures or anchors would be used during surgery. Doc. 122, ¶6. Following
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surgery, he had increased pain in his left shoulder and bicep. Doc. 116-1, p. 45. He transferred
to Lawrence in May 2019. Doc. 116-1, p. 53.
Dr. Pittman was the Medical Director at Lawrence from February 2019-July 2020; she was
employed by Wexford Health Sources, Inc. (“Wexford”). Doc. 116-4, ¶2. Plaintiff first saw Dr.
Pittman on July 10, 2019. Doc. 116-3, p. 39. Plaintiff told her that he had left shoulder pain for
11 years following an injury from lifting weights. Doc. 121, ¶10. Dr. Pittman ordered Tramadol
pain medication for eight weeks and for Plaintiff to return to the health care unit in four weeks.
Id. She also ordered an x-ray, which showed “moderate arthritis in the shoulder” and a “metallic
foreign body over the proximate left arm which appears to be in the soft tissue, not in the bone. Its
significance is unclear.” Doc. 121, ¶11; Doc. 116-3, p. 24. On August 22, 2019, Dr. Pittman
ordered another x-ray of Plaintiff’s left shoulder. Doc. 121, ¶14. The radiologist noted the
previously identified foreign object and no significant changes. Doc. 121, ¶16.
On August 28, 2019, Dr. Pittman told Plaintiff that there was something moving in his left
shoulder and biceps and he needed surgery. Doc. 116-1, pp. 74, 75. Dr. Pittman’s notes indicate
that she requested and received approval from Wexford for Plaintiff to see a general surgeon for
“removal of surg. clip” and “eval + removal of foreign body left axilla.” Doc. 121, ¶16.
Plaintiff testified that Dr. Pittman further told him that his previous surgeon “left something inside
you, which is not supposed to be in there.” Doc. 116-1, p. 81. At her deposition, Dr. Pittman
testified that the decision to remove an object is a surgical decision that she could not make because
she is not a surgeon. Doc. 121-2, p. 13. On September 18, 2019, Dr. Pittman ordered Tylenol
#3 and Robaxin for Plaintiff. Doc. 116-3, p. 45; Doc. 121, ¶17.
Plaintiff saw Dr. Lynch on September 30, 2019. Doc. 121, ¶18. Plaintiff recalls that his
visit with Dr. Lynch lasted “no more than 30 seconds.” Doc. 116-1, p. 79. Plaintiff testified
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that he told Dr. Lynch that he was “suing another doctor for messing [Plaintiff’s shoulder] up” and
Dr. Lynch said “turn around” and provided no treatment or examination to him. Doc. 116-1, p.
80. In his consultation note, Dr. Lynch wrote:
Unable to locate a point of pain/tenderness. No x-rays or reports
available. Impression: unsure if general surgery would be able to
help… it is unlikely that a surgical clip left over from rotator cuff
surgery would be causing his symptoms. Suggest orthopedic
evaluation.
Doc. 116-3, p. 6; Doc. 122, ¶35. Dr. Lynch has never been employed or contracted with the
IDOC, Wexford, or Lawrence. He “saw any person who for any reason walked into” the surgical
clinic at Lawrence Memorial Hospital, which is where he saw Plaintiff. Doc. 122, pp. 4-5. Dr.
Lynch was not employed by Lawrence Memorial Hospital; he contracted with a locums company
that paid him directly for his work. Id., p. 5.
Plaintiff saw Dr. Pittman five days later. Plaintiff complained of left upper arm pain. Dr.
Pittman ordered additional x-rays, prescribed Mobic, and changed the times that Plaintiff received
Tylenol #3 from 4:00 am and 9:00 pm to 11:00 am and 9:00 pm. Doc. 116-4, ¶16; Doc. 121, ¶19.
The x-ray report stated that foreign body was “not significantly changed.” Doc. 116-3, p. 25.
Plaintiff returned to Dr. Pittman on November 13, 2019. Doc. 121, ¶22. She ordered x-
rays to be taken in three weeks to determine if the foreign object migrated. Id. She also
prescribed Lidocaine, an anesthetic cream. Id. Dr. Pittman noted that there was a “palpable
nodule prox. Bicep -sub [cutaneous].” Id.; Doc. 116-3, p. 50. X-rays completed on December
3, 2019, showed “little change.” Doc. 121, ¶23. Plaintiff saw Dr. Pittman on January 3, 2020.
She ordered additional x-rays to determine if the object migrated and ordered a thirty-day
prescription of Tylenol #3 and a three-month prescription of Robaxin. Doc. 121, ¶24. X-rays
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taken on January 8, 2020, showed that the object “is again seen in the soft tissues…unchanged in
position.” Doc. 116-3, p. 27.
On February 21, 2020, Dr. Pittman submitted a request to Wexford for Plaintiff to see an
orthopedic surgeon. Doc. 121, ¶26. She renewed Plaintiff’s prescription for Tylenol #3 for three
months and prescribed Neurontin for six months. Id.; Doc. 116-3, p. 102. Five days later,
Wexford approved the referral to an orthopedic surgeon. Doc. 121, ¶26. Dr. Pittman was not
involved with scheduling (or attempting to schedule) Plaintiff to see an orthopedic surgeon, but
she stated in her affidavit that she was generally aware that the COVID-19 pandemic caused delays
in scheduling offsite visits. Doc. 116-4, ¶25.
Dr. Pittman saw Plaintiff on April 14, 2020. Doc. 121, ¶27. Plaintiff reported that his
pain medication did not “last through the day”, so she increased his Tylenol #3 prescription and
also prescribed a blood pressure medication to “treat increased blood pressure caused by pain.”
Id. Dr. Pittman saw Plaintiff again on May 19, 2020 and prescribed a trial of the nerve pain
medication Pamelor. Doc. 116-3, p. 103; Doc. 121, ¶28. She discontinued Plaintiff’s Tylenol
#3 prescription. Id. This was Dr. Pittman’s last visit with Plaintiff. Doc. 121, ¶29. She
stopped working as Medical Director at Lawrence on or around July 20, 2020. Doc. 116-4, ¶2.
In October 2020, Plaintiff met virtually with an orthopedic surgeon. Doc. 121, ¶34. The
visit lasted five minutes. Id. The surgeon reviewed Plaintiff’s x-rays (the record does not
indicate which ones) and stated in his report that his diagnosis was “impingement syndrome of left
shoulder” and he did not recommend surgery. Id.
In December 2021, Plaintiff underwent an MRI of his shoulder. Doc. 122, ¶73. He was
evaluated by an orthopedic surgeon, Dr. James Liu, in April 2022. Doc. 122, ¶75. Dr. Liu stated
in his note that Plaintiff “will need an anatomic total shoulder arthroplasty”, but he should not
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undergo shoulder surgery while incarcerated due to the “high” risks of “infection, dislocation, and
noncompliance with a complex rehab protocol.” Doc. 122, ¶77.
Plaintiff currently experiences pain in his left shoulder and bicep. Doc. 116-1, p. 20.
He rates the pain as a “10” on a score of 1-10. Doc. 116-1, p. 20. Since 2019, he has been
taking Gabapentin, 1200 milligrams three times daily. Doc. 116-1, p. 22. The Gabapentin
lessens his pain to a score of “7” or “8.” Doc. 116-1, p. 21.
Summary Judgment Standard
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-
Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In considering a summary judgment motion, the district court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Discussion
The Eighth Amendment “‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones.” Brown v. Osmundson, 38 F. 4th 545, 559-60 (7th Cir. 2022) (internal
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citations omitted). To succeed on his deliberate indifference claims, Plaintiff must “provide
evidence, either direct or circumstantial” that shows (1) “he had an objectively serious medical
need” (2) “which [the defendant] “[knew] of and disregard[ded] a substantial risk of harm.” Id.
at 550. Negligence or even recklessness does not constitute deliberate indifference; the defendant
must have shown “something approaching a total unconcern for the prisoner’s welfare in the face
of serious risks.” Id.
Dr. Pittman
For purposes of summary judgment, Dr. Pittman concedes that Plaintiff’s shoulder pain
was a serious medical need. She contends that no genuine issue of material fact exists regarding
whether she disregarded a substantial risk of harm to Plaintiff. The Court agrees.
The record reflects that for approximately one year, Dr. Pittman saw Plaintiff on a regular
basis. Plaintiff argues that during that time, the jury could infer she was “persist[ing] in a course
of treatment known to be ineffective.” Id. at 730 (quoting Walker v. Peters, 233 F.3d 494, 449
(7th Cir. 2000)). To the contrary, the undisputed evidence shows that Dr. Pittman tried a variety
of medications and dosages, and adjusted Plaintiff’s administration times. The Eighth
Amendment required Dr. Pittman to take “reasonable measures” to alleviate Plaintiff’s pain; she
was not required to keep him pain free. Arce v. Wexford Health Sources, Inc., 75 F. 4th 673, 681
(7th Cir. 2023) (internal citations and quotations omitted).
Moreover, medication was not the only intervention Dr. Pittman ordered; she also
requested and received approval from Wexford for Plaintiff to be seen by a general surgeon and
orthopedic surgeon. Plaintiff faults Dr. Pittman’s decisions regarding the specialist referrals. A
physician may exhibit deliberate indifference if he makes a treatment decision that “is so far afield
of accepted professional standards as to raise the inference that it was not actually based on a
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medical judgment.” Arnett v. Webster, 658 F.3d, 751 (7th Cir. 2011) (quoting Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). First, Plaintiff argues that once he returned to
Lawrence with the note from Dr. Lynch that showed Dr. Lynch had no x-rays to review and
recommended an orthopedic consultation, Dr. Pittman should have provided Dr. Lynch with the
x-rays and/or reports of the x-rays.
Plaintiff also argues that Dr. Pittman should have sent him back to see Dr. Lynch for an
“appropriate” evaluation and removal of the surgical clip. Plaintiff insists that Dr. Pittman should
have ensured he undergo clip removal surgery because of the forms she completed for Wexford
approval of Dr. Lynch’s consultation that stated “collegial approved removal of surg. Clip per GS”
and “Sched gen surg eval + removal of foreign body left axilla.” From these statements, Plaintiff
contends, the jury could infer that Dr. Pittman “knew” he needed surgical removal of the object in
the films. This argument ignores Dr. Pittman’s undisputed testimony: the decision to remove an
object from Plaintiff’s shoulder was a “surgical” decision and she is not a surgeon. Even if she
believed that Plaintiff needed a clip removed from his shoulder, and even if Wexford approved the
surgery, she could not order another physician to do so.
Instead of sending x-rays to Dr. Lynch and sending Plaintiff back to see Dr. Lynch to have
the clip removed, Dr. Pittman requested and received approval for Plaintiff to see an orthopedic
surgeon. No reasonable jury could infer this decision was not based on medical judgment,
especially considering Dr. Lynch suggested it. See Donald v. Wexford Health Sources, Inc., 982
F.3d 451, 462-63 (7th Cir. 2020).
Plaintiff also contends that Dr. Pittman delayed the orthopedic evaluation. Dr. Pittman
requested and received approval for the orthopedic evaluation nearly six months after Dr. Lynch
suggested it. Deliberate indifference may be inferred if a prisoner’s treatment is delayed “for non-
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medical reasons, thereby exacerbating his pain and suffering.” Id. (internal citations and
quotations omitted). It is unclear why Dr. Pittman waited six months to refer Plaintiff to the
orthopedic specialist; multiple rounds of x-rays were performed during that time so that she could
determine whether the object was moving, but the record is silent as to whether she delayed the
referral specifically for that reason. Regardless, no evidence indicates that Plaintiff’s pain and
suffering were exacerbated because of the six-month delay. Two orthopedic surgeons have
subsequently recommended no surgery for Plaintiff while he is in prison. Nothing before the
Court suggests that an earlier appointment with the orthopedic surgeon would have decreased or
alleviated Plaintiff’s pain.
Overall, Dr. Pittman is entitled to summary judgment. No reasonable jury could find that
she treated Plaintiff with deliberate indifference.
Dr. Lynch
The undisputed evidence shows that Dr. Lynch was not a state actor and has no liability
in this case under §1983. As the Seventh Circuit has explained,
[w]hether a medical provider is a state actor is a functional inquiry,
focusing on the relationship between the state, the medical provider,
and the prisoner….[a] business like Wexford that contracts to
provider medical care to prisoners undertakes “freely, and for
consideration, responsibility for a specific portion of the state’s
overall [constitutional] obligation to provide medical care for
incarcerated persons,”….and thus acts under color of state law for
purposes of §1983. On the other hand, we have held that medical
providers who have “only an incident or transitory relationship”
with the penal system generally are not considered state actors.”
Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 797-98 (7th Cir. 2014). Nothing in the
record suggests Dr. Lynch accepted any responsibility for Illinois’ Constitutional obligation to
provide medical care to any inmate, including Plaintiff. He had no contractual relationship with
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IDOC or Wexford. He had no direct relationship to Plaintiff, as Plaintiff spent less than 30
seconds with him and Dr. Lynch then “had nothing more to do with [Plaintiff].” Id. at 798.
Summary judgment shall therefore be granted in favor of Dr. Lynch.
Conclusion
Defendants’ Motions for Summary Judgment (Doc. 115 and 118) are GRANTED. All
other pending motions are DENIED AS MOOT. All pending deadlines and court setting are
VACATED. Plaintiff’s claims are DISMISSED WITH PREJUDICE. The Clerk of Court is
directed to enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 19, 2024
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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