Brand
v.
Afuwape

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOISJul 24, 2018
Case No. 3:16-cv-161-NJR-DGW (S.D. Ill. Jul. 24, 2018)

Case No. 3:16-cv-161-NJR-DGW

07-24-2018

OLSEN BRAND, Plaintiff, v. DR. EMMANUEL AFUWAPE, MARY KLEIN, SETH TOWNSEND, and JACY FULK, Defendants.


REPORT AND RECOMMENDATION

WILKERSON, Magistrate Judge :

This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Summary Judgment filed by Emmanuel Afuwape (Doc. 50). For the reasons set forth below, it is RECOMMENDED the motion be GRANTED, and the Court adopt the following findings of fact and conclusions of law.

PRELIMINARY MATTERS

While the burden is on the moving party to show entitlement to summary judgment, Federal Rule of Civil Procedure 56(c)-(e), requires the non-moving party to properly address another party's assertion of fact. If a party fails to address any such assertion, the Court may consider the facts undisputed and can grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show the movant is so entitled. FED. R. CIV. P. 56(e)(2)-(3).

Here, a copy of the Motion for Summary Judgment was sent to Brand at the address on file with the Court (Doc. 50, p. 4). Included with the motion sent to Brand was a Federal Rule of Civil Procedure 56 Notice of Motion (Doc. 52), which contains a warning that failure to respond to the motion or address facts asserted in the motion could result in the Court considering those facts undisputed, and may form the basis for granting summary judgment. Plaintiff did not file a response to the pending motions. Thus, the Court finds the facts asserted in the Motion for Summary Judgment undisputed.

FINDINGS OF FACT

On February 12, 2016, while incarcerated at Vandalia Correctional Center, Plaintiff Olsen Brand filed the pending action claiming violations of his Eighth Amendment rights due to Defendants deliberate indifference to his serious medical needs, and violations of his Fourteenth Amendment rights due to Defendants' failure to adequately address his grievances (Doc. 15, p. 1). The original complaint was dismissed without prejudice for failure to state a claim upon which relief could be granted (Doc. 6). Brand was given leave to file an Amended Complaint, which he did on April 8, 2016 (Doc. 12). Brand was released from prison the following month (Doc. 14).

The Court conducted a preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A, and Brand was allowed to proceed on the following claims:

Count 1: Eighth Amendment claim against Klien, Afuwape, Townsend and Fulk for deliberate indifference to Brand's asthma and COPD;
Count 3:
First Amendment retaliation claim against Klien for placing Brand in segregation as a result of his medical grievances.


(Doc. 15, p. 14).

The undisputed facts are that Brand was arrested and sent to the Cook County Jail in early October, 2015 (Doc. 51-3, 27:2-4). He spent one to two days in the Cook County Jail and then was transferred to Stateville Correctional Center on October 14, 2015 (Doc. 51-3, 27:12-14). Prior to his arrest, Brand had an Asthma inhaler in his possession. The inhaler was taken away in the County Jail (Doc. 51-3, 27:17).

On October 14, 2015, Plaintiff was transferred from Stateville to Vandalia Correctional Center (Doc. 51-3, 27:7-11). Although the transfer summary sheet contained notations that Brand complained of asthma and COPD, he was not listed as taking any medications for those conditions at the time of transfer (Doc. 51-2, ¶ 4).

Two weeks later, Brand was seen in the Asthma Chronic Clinic (Doc. 51-2, ¶ 6). At that appointment, Brand explained to medical staff that he had an Albuterol inhaler "on the street" but had not had an asthma attack in a "long time" (Doc. 51-2, ¶ 6). The nurse conducted a peak flow meter test (used to measure how well air moves out of the lungs) and while Brand's tests were a little low, his pulse oxygenation was at 99%, a normal reading (Doc. 51-2, ¶ 6). Dr. Afuwape conducted a physical examination and diagnosed Plaintiff with hypertension (high blood pressure), diabetes and asymptomatic asthma (Doc. 51-2, ¶ 6). Plaintiff was told he did not need an inhaler at that time but should request nurse sick call if his asthma became symptomatic (Doc. 51-2, ¶ 6).

Plaintiff was next seen by a nurse on November 5, 2015, for complaints of back pain (Doc. 51-2, ¶ 7). Though Brand says he told the nurse he needed an asthma inhaler, he admits that he did not see Dr. Afuwape on that date (Doc. 51-3, 70:4-71:24). Brand did see Dr. Afuwape on November 10th and November 13th, but again admitted in deposition he did not tell Afuwape he needed an inhaler on those dates (Doc. 51-3, 72:14-73:5; Doc. 51-3,74:20-76:5).

On December 25, 2015 Brand was seen by the nurse for complaints of shortness of breath (Doc. 51-2, ¶ 11). Because his peak flow results were low, the nurse called Dr. Afuwape who immediately ordered an albuterol breathing treatment (Doc. 51-2, ¶ 11). After the treatment, Brand's symptoms started stabilizing (Doc. 51-2, ¶ 11). Dr. Afuwape called the nurse back and ordered a Xopenex inhaler (a bronchodilator used to treat asthma-which can be used as a rescue inhaler to treat immediate asthma symptoms) (Doc. 51-2, ¶ 11). It is undisputed this was the first asthma attack Brand had while at Vandalia (Doc. 51-3, 85:15-22).

Dr. Afuwape saw Brand three days later to follow up (Doc. 51-2, ¶ 12). Since Brand's asthma was now symptomatic, Dr. Afuwape prescribed a Xopenex inhaler (rescue inhaler) and an Alvesco inhaler (steroid inhaler used to prevent asthma attacks and treat COPD), both to be used twice a day (Doc. 51-2, ¶ 11).

On January 11, 2016, Dr. Afuwape saw Plaintiff in the Asthma Clinic (Doc. 51-2, ¶ 13). Brand's peak flow readings and pulse oxygenation level were normal (Doc. 51-2, ¶ 13). Dr. Afuwape confirmed Brand's Asthma and COPD diagnosis, and since he was already on two inhalers, did not order any additional prescriptions (Doc. 51-2, ¶ 13). Dr. Afuwape did not see Brand for any Asthma or COPD related complaints after January 11, 2016 (Doc. 51-2, ¶ 13).

LEGAL STANDARDS

Summary judgment is proper only if the moving party can demonstrate 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any doubt as to the existence of a genuine issue of fact must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004).

A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Carett, 477 U.S. 317, 323 (1986). A party asserting that a fact is genuinely disputed must support that assertion by citing to particular materials in the record or by showing that the materials in the record do not establish the absence of a genuine dispute. Fed. R. Civ. P. 56. If the non-moving party does not show evidence exists that would reasonably allow a fact-finder to decide in their favor on a material issue, the court must enter summary judgment against them. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

The Seventh Circuit has stated summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

CONCLUSIONS OF LAW

The Supreme Court has recognized that deliberate indifference to the serious medical needs of prisoners may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on a claim for deliberate indifference to a serious medical need, however, 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. Here, Afuwape has raised no argument that Brand's asthma and COPD do not qualify as a serious medical condition. Thus, the Court finds that issue conceded.

The second element a plaintiff must establish is that the individual was deliberately indifferent to that medical condition. Id. Disagreement between a prisoner and his doctor, or even between two medical professionals, about the proper course of treatment is generally insufficient, by itself, to establish deliberate indifference. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). In other words, federal courts will not interfere with a doctor's decision to pursue a particular course of treatment unless that decision represents so significant a departure from accepted professional standards or practices that it calls into question whether the doctor was actually exercising professional judgment. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).

Here, the undisputed evidence shows that Dr. Afuwape was not deliberately indifferent in his medical treatment. Brand's primary complaint appears to be that Dr. Afuwape should have provided him with an inhaler when he was seen at the asthma clinic on October 28, 2015. Given that Brand admits he had not had an asthma attack for a "long time," was not on any asthma medication when he was transferred to Vandalia, and was not exhibiting any signs of difficulty breathing (Doc. 51-2, ¶¶ 4,6), no reasonable jury could find Dr. Afuwape's failure to prescribe an inhaler on October 28, 2015 was a significant departure from accepted professional standards.

Two-and-a-half months later, when Brand suffered an asthma attack, Dr. Afuwape responded by immediately ordering a breathing treatment which helped relieve Brand's symptoms (Doc. 5-2, ¶ 11). After he started stabilizing, Dr. Afuwape ordered a rescue inhaler for Brand's continued use (Doc. 5-2, ¶ 11). Rather than exhibiting indifference to Brand's medical condition, the only evidence before the Court is that Dr. Afuwape responded quickly and effectively to Brand's emergency situation. Further, it is clear from the record that Dr. Afuwape saw Brand a few days after his asthma attack, and since his asthma was now symptomatic, prescribed another rescue inhaler and a steroid inhaler (Doc. 5-2, ¶ 12). Thus, there is no evidence upon which a reasonable jury could find Dr. Afuwape's actions during and immediately after Brand's December 25th asthma attack was deliberately indifferent.

While Brand disagrees with Dr. Afuwape's treatment decisions, such disagreement is not sufficient to prove deliberate indifference. Greeno, 414 F.3d at 653. Thus, the Court finds Brand has failed to make a sufficient showing that Dr. Afuwape was deliberately indifferent to his serious medical condition or that there are any material issues of fact in dispute. As such, Dr. Afuwape is entitled to summary judgment in his favor.

RECOMMENDATIONS

For the foregoing reasons, it is RECOMMENDED the Motion for Summary Judgment (Doc. 50) be GRANTED, and that the Court adopt the preceding findings of fact and conclusions of law.

NOTICE REGARDING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service. Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).

You are not to file an appeal as to the Report and Recommendation. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation of the U.S. Magistrate Judge. DATED: July 24, 2018

/s/


DONALD G. WILKERSON


United States Magistrate Judge