Gallo v. Sood

651 F. App'x 529
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 1, 2016
DocketNo. 15-1904
StatusPublished
Cited by3 cases

This text of 651 F. App'x 529 (Gallo v. Sood) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallo v. Sood, 651 F. App'x 529 (7th Cir. 2016).

Opinion

ORDER

Carl Gallo, an Illinois prisoner, appeals the grant of summary judgment against him in this suit under 42 U.S.C, § 1983 asserting that medical staff at Hill Correctional Center were deliberately indifferent in treating his ulcerative colitis (an inflammatory bowel disease affecting the lining of the colon and rectum) and lipomas (benign fatty tumors that form under the skin). At issue is whether a prison doctor and his staff deliberately withheld a particular medication for colitis and disregarded a serious health risk by not surgically removing Gallo’s lipomas. We affirm.

Gallo’s operative complaint asserted claims against 19 defendants concerning treatment for seven different medical conditions. Among his claims were allegations that, upon arrival at Hill in May 2011, a .physician’s assistant, Amy John, denied him Asacol1 to treat his colitis even though he told her that it had been prescribed for him in the past by a gastroen-terologist. Gallo further alleged that he was denied this medication throughout the rest of 2011 by Dr. Kul Sood, a prison doctor, and Lorna Pitcher Stokes, a nurse, both of who continued to push alternative treatments that were ineffective. Finally, he alleged that Dr. Sood had refused to remove his numerous, painful lipomas.

The district court screened the complaint under 28 U.S.C. § 1915A and dismissed Gallo’s claims against most of the 19 defendants, including John, for failure to state a claim. The court concluded that Gallo failed to state a claim against John because his allegations — that, despite putting him under 23-hour observation in response to his reported symptoms, she discontinued or would not renew previous medications — amounted to a mere difference of opinion between physician and patient over proper treatment. The court, however, allowed Gallo to proceed on his claims that (1) Dr. Sood and Pitcher Stokes were deliberately indifferent to his ulcerative colitis condition — Pitcher Stokes for refusing to schedule appointments for his repeated complaints of abdominal pain and bloody stools, and Dr. Sood for continuing with an ineffective course of treatment — and (2) Dr. Sood acted with deliberate indifference toward his lipomas by refusing to remove them surgically.

Discovery ensued, and Gallo obtained evidence of what he perceived as deliber[532]*532ate indifference on the part of Dr. Sood and Pitcher Stokes toward his colitis condition. In July 2011, only a couple months after arriving at Hill, Gallo refused a drug called Bentyl (a muscle-relaxing drug for, the stomach and intestines used to treat colitis symptoms) that Dr. Sood had prescribed after first seeing him the previous month. Gallo said that the drug was ineffective and caused abdominal pain. Up until that point, his colitis was contained, with no “flare-ups” — which can cause stomach pain, diarrhea, and bloody stools. His previous prescription for Asacol — a drug that Gallo favored — had lapsed two months before his transfer to Hill.

Gallo’s colitis started to flare up toward the end of October. He saw Pitcher Stokes on the 20th and, he says, told her that he had been having bloody stools (her treatment notes, however, reflect that he complained only of heartburn, indigestion, and loose stools). He also asked to see Dr. Sood over concerns that an asthma medication that he had been prescribed, theo-phylline, was aggravating his colitis — a possibility, he said, that two other nurses had confirmed. But Pitcher Stokes told him that this medication could not be causing the problems he reported and refused to refer him to Dr. Sood, and she instead gave him Maalox and reduced his Metamucil prescription. At another appointment with Pitcher Stokes the following week, this time for back and neck pain, Gallo did not mention any abdominal problems.

In November, the signs of a colitis flareup became more pronounced. On November 7, Gallo saw Dr. Sood about abdominal pains he had suffered over the past four days. Dr. Sood prescribed Bentyl for three days and then renewed theophylline for Gallo’s asthma, despite Gallo’s protestations that this medication aggravated his colitis. Over' the following week, Gallo submitted sick-call requests complaining that he was experiencing excruciating pain in his “lower chest and back kidney area” and blood in his stool. Pitcher Stokes saw Gallo on November 17, and he told her that he had been having bloody stools for two weeks. Lab tests and a 23-hour observation were conducted over the following days and confirmed his report, and Gallo asked specifically for Asacol and a Rowasa enema.2

After the tests and observation confirmed the bloody stools, Dr. Sood stopped Gallo’s Metamucil prescription, because of its laxative effects, and prescribed Imodium for five days. At an appointment with Gallo a few days later, on November 28, he concluded that the flare-up was mild based on the observations that he and the other staff had recorded. He prescribed antibiotics Cipro and Flagyl to address any infectious component of the flare-up and said he would see Gallo again in 30 days.

• Over the following month, however, Gallo’s condition did not improve. In a sick-call request on December 8 and grievance on December 19, he again asked for Rowa-sa and Asacol. When Gallo saw Dr. Sood on December 22, he reported still experiencing many bowel movements daily with abdominal pain and weakness. Dr. Sood concluded that Gallo’s flare-up was acute and this time prescribed Asacol as well as Imodium.

Regarding the lipomas, Gallo testified that he has approximately 75 lipomas on his torso, legs, and arms, of which around 50 produce pain similar to that of a bruise; he reported that they are sore and painful [533]*533on contact. Dr. Sood saw Gallo about his lipomas but concluded that these posed no substantial risk of serious harm and did not need to be removed. He prescribed Tylenol for pain.

The defendants moved for summary judgment, which the district court granted. Regarding Gallo’s claim that Dr. Sood was deliberately indifferent to his colitis, the court explained that Gallo produced no evidence to dispute Sood’s affidavit that he properly assessed Gallo’s condition and prescribed a reasonable course of treatment. With regard to Gallo’s assertion that he was wrongfully withheld Asacol until months after arriving at the prison, the court said that Gallo was not receiving Asacol when he left his prior prison, and “a couple of month delay in restarting this medication” did not constitute deliberate indifference. As for Gallo’s claim against Pitcher Stokes, the court concluded that he put “nothing in the record, other than his own self-serving assertions” to suggest that she refused to refer him to the doctor; that she responded in untimely fashion to his complaints of abdominal pain, colitis flare-ups, or bloody stools; and that she did not revise his medication. Finally, regarding Gallo’s complaints about the treatment he received for his lipomas, the court concluded that his request for surgery was merely a preference for a different course of treatment and thus not actionable under the Eighth Amendment.

On appeal Gallo challenges the district court’s grant of summary judgment against his claim that Dr. Sood acted with deliberate indifference by withholding Asa-col for eight months. A jury, he argues, could infer that Dr.

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Bluebook (online)
651 F. App'x 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallo-v-sood-ca7-2016.