Plummer v. Wexford Health Sources, Inc.

609 F. App'x 861
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 22, 2015
DocketNo. 14-3314
StatusPublished
Cited by31 cases

This text of 609 F. App'x 861 (Plummer v. Wexford Health Sources, Inc.) 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
Plummer v. Wexford Health Sources, Inc., 609 F. App'x 861 (7th Cir. 2015).

Opinion

ORDER

Contrell Plummer, an Illinois prisoner, has suffered from asthma since he was a child. In prison he also experienced back and abdominal pain, constipation, and an irritated throat. In this suit under 42 U.S.C. § 1983, Plummer principally claims that Wexford Health Sources and two company physicians, Magid Fahim and Fe Fuentes, violated the Eighth Amendment through deliberate indifference to these ailments. Plummer also claims that these defendants withheld medical care in retaliation for naming them in grievances. The district court granted summary judgment for the defendants, and we affirm that decision.

Plummer filed this action in August 2011, complaining about events in 2010. The pertinent facts are not in dispute, and we recount them in the light .most favorable to Plummer, as the opponent of summary judgment. See Dewitt v. Corizon, Inc., 760 F.3d 654, 655-56 (7th Cir.2014).

Plummer was housed at Menard Correctional Center for a number of years until he was transferred in late 2013. During 2010 he was treated at least 25 times by the medical staff, including the [862]*862defendant physicians. That year Plum-mer’s doctors prescribed a variety of asthma drugs, including corticosteroids and bronchodilators, to both prevent and stop asthma attacks. These medications mostly were administered using an inhaler (for aerosols) or nebulizer (to create a breathable mist from solutions). A pulmonologist who later examined Plummer in 2012 after he filed this lawsuit recommended two of the same drugs prescribed by the defendants. Fifteen X-rays were taken of Plummer’s chest, abdomen, back, pelvis, and neck between May 2009 and September 2012. All were normal except for a few signs of constipation. The results of an ultrasound from late 2009 also had been normal. Doctors treated Plummer’s constipation with laxatives, a fiber supplement, and antacids. The medical staff also gave Plummer ibuprofen and acetaminophen for his pain. For his irritated throat — an X-ray had ruled out his fear of cancer — Plummer was instructed to gargle salt water.

At summary judgment the defendants argued that Plummer’s disagreement with their course of treatment is not evidence of deliberate indifference. The defendants submitted Plummer’s medical records, and in affidavits the two doctors recount their treatment of his asthma and their investigation of his other complaints. Both doctors explain that Plummer’s asthma medications cause constipation, which likely was the source of his abdominal and back pain. In response Plummer criticized his treatment for his asthma and constipation as ineffective and insisted that he should have seen the pulmonologist sooner.

As the district court noted, however, Plummer did not aver that his complaints had been ignored, nor did he dispute the doctors’ accounts of the treatment provided. The defendants had not persisted with ineffective treatment, the court reasoned, but instead had monitored his ailments and tried medications that the pulmonologist later would endorse as appropriate. Plummer had shown some improvement, the court noted, and a jury could not reasonably find that his conditions were ignored. Moreover, the court added, the undisputed evidence establishes that the defendants had continued treating Plum-mer even after he named them in grievances, which defeats his claim of retaliation.

On appeal Plummer points to no evidence creating a triable issue of fact about the doctors’ treatment. See Fed.R.Civ.P. 56(c), (e); Knight v. Wiseman, 590 F.3d 458, 463-64 (7th Cir.2009). He asserts that he has been in continuous pain since 2007 without a diagnosis, receives no pain medication, was not given the aerosol asthma medication he wanted, and has been prescribed the same medications for his abdominal and back pain, which have no effect. But the source of Plummer’s pain was diagnosed and he was getting pain medication, so these accusations simply reinforce the defendants’ contention that Plummer disagrees with their conclusions and treatment, which cannot sustain a claim of deliberate indifference. See McGowan v. Hulick, 612 F.3d 636, 641 (7th Cir.2010); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006).

In response to Plummer’s complaints of abdominal and back pain and difficulty breathing, the doctors ordered multiple tests and tried a variety of treatments. And though continuing to pursue an ineffective treatment might sometimes evidence deliberate indifference, see Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.2010), Plummer offered no evidence suggesting that the defendants failed to exercise medical judgment or responded inappropriately to his ailments, see Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.2008); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.2006). Plummer has suffered from [863]*863asthma for more than 42 years, and corticosteroids, which he was prescribed, are the most effective long-term treatment option. See Asthma Care Quick Reference, Nat’l Inst, of Health, https://www.nMbi. nih.gov/health-pro/guidelines/current/ asthma-guidelines/quick-reference (last updated June 2012). But these drugs also can cause throat irritation. See Asthma Medications: Knoiv Your Options, Mayo Clinic (Sept. 20, 2012), http://www. mayoclinic.orgMisc.ses-conditions/asthma/ in-depth/asthma-medications/art-20045557. And one of the classes of bron-chodilators that Plummer was prescribed can cause constipation. See Side Effects of Bronchodilator Medicines, Nat’l Health Serv., http://www.nhs.uk/Conditions/ Bronchodilatordrugs/Pages/Side-effects. aspx Qast reviewed May 19, 2014). A jury could not reasonably find that the defendants disregarded Plummer’s need for medical care, not for his asthma or.for the side effects of his medications for that condition.

This outcome is not changed by what Plummer characterizes as a delay in sending him to the pulmonologist. Nothing in the record suggests that Plummer needed a pulmonologist to treat his asthma or a specialist to treat his other conditions. In fact, when he saw the pulmonologist for his asthma in 2012, the pulmonologist recommended the same course of treatment as the prison doctors, showing that the treatment was within the bounds of professional judgment. See Pyles v. Fahim, 771 F.3d 403, 411-12 (7th Cir.2014).

Plummer’s argument that Wexford’s cost-saving policies contributed to the doctors’ deliberate indifference also fails, because Drs. Fahim and Fuentes were not deliberately indifferent to Plummer’s medical needs. See Pyles, 771 F.3d at 412; Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir.2013).

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Bluebook (online)
609 F. App'x 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plummer-v-wexford-health-sources-inc-ca7-2015.