Henderson v. Fries et al
Filing
67
OPINION AND ORDER GRANTING 57 Joint Motion for Summary Judgment by Dfts C ce, C/O, Ellen M Chamar, C Chase, John/Jane Does, Ken Fries, PE #C935; DENYING AS MOOT 61 Joint Motion for Entry of Judgment by Defendants C ce, C/O, Ellen M Chamar, C Chase, John/Jane Does, Ken Fries, PE #C935; DENYING AS MOOT 63 Motion to Dismiss with Prejudice by Pla Willie Henderson. Clerk to enter judgment in favor of Dfts and against Pla. Signed by Judge Theresa L Springmann on 6/3/2011. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
WILLIE HENDERSON,
)
)
Plaintiff,
)
)
v.
)
)
KEN FRIES, ALLEN COUNTY SHERIFF, )
et al.,
)
)
Defendants.
)
CAUSE NO. 1:09-CV-268-TLS
OPINION AND ORDER
This matter is before the Court on a Joint Motion for Summary Judgment [ECF No. 57],
filed by the Defendants on January 31, 2011; a Joint Request for Entry of Judgment [ECF No.
61], filed by the Defendants on April 12; and a Motion to Dismiss with Prejudice [ECF No. 63],
filed by the Plaintiff on May 4.
BACKGROUND
The Plaintiff, Willie Henderson, filed a Complaint [ECF No. 1] on September 23, 2009.
The Complaint was signed by his attorneys, Christopher C. Myers and Ilene M. Smith, who filed
their Appearance [ECF No. 3] on the Plaintiff’s behalf. Along with the Complaint and counsels’
Appearance, the Plaintiff filed an Affidavit of Indigence (in Forma Pauperis) [ECF No. 2] in
which the Plaintiff declared under penalty of perjury that he is unable to pay the costs of these
proceedings. The Affidavit also stated that the Plaintiff was incarcerated, that he was
unemployed, that the only money he had received in the last twelve months was pay in prison,
that he had no cash, checking account, or savings account, and that he owned no tangible or
intangible property. The Court granted the Plaintiff’s application to proceed in forma pauperis.
On October 28, the Defendants filed an Answer [ECF No. 11]. On November 13, Attorney
Myers filed a Certification [ECF No. 15] stating that he had disclosed to his client the anticipated
fees and expenses that are likely to be incurred during each phase of these proceedings through
final disposition.
On March 9, 2010, the Plaintiff filed a First Amended Complaint [ECF No. 23], which
was signed by counsel. In his Amended Complaint, the Plaintiff, a prisoner at the Allen County
Jail, alleges that the Defendants violated his federally protected rights under the Eighth and
Fourteenth Amendments to the Constitution of the United States when they denied him adequate
medical care during the period of August 2008 to November 2008. More specifically, he alleges
that the Defendants violated his rights through the following:
[T]hey performed actions and/or assisted in depriving the Plaintiff of adequate
medical care for his serious health condition, i.e., prevented the Plaintiff from
receiving follow-up care with an orthopedic surgeon and withheld the necessary
follow-up orthopedic care because Plaintiff was indigent and could not provide
$336.50 up front for his follow-up orthopedic appointments, and declined to
schedule such orthopedic appointments for him because he could not come up
with the funds, because he was indigent, thus depriving Plaintiff of necessary
medical care for his serious medical needs.
(ECF No. 23 at 2.) Apparently, the Plaintiff’s left hand/wrist was fractured during his attempt to
evade arrest on September 15, 2008. After the incident, the police took the Plaintiff to a local
hospital to receive medical care prior to being booked into the jail. At the hospital, he was
diagnosed with the fracture, and his wrist was splinted. A care provider at the hospital instructed
him to follow-up with an orthopedic surgeon, and he asked the jail to arrange follow-up care
with an orthopedic surgeon and place a cast on his wrist. His claims are brought pursuant to 42
U.S.C. § 1983, and he seeks compensatory damages, punitive damages, attorney’s fees, and
costs. Answers [ECF No. 29 & 42] were filed by Defendants on April 6 and August 24. On
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September 17, Defendant Linda Richards was dismissed pursuant to a Joint Stipulation to
Dismiss [ECF No. 44]. On October 4, 2010, the discovery period ended.
On October 25, the Court conducted a telephonic status conference with counsel, and the
dispositive motions deadline was set for January 31, 2011. On January 31, the Defendants filed a
Joint Motion for Summary Judgment [ECF No. 57], which was accompanied by approximately
180 pages of evidentiary materials in support of their Motion. The Defendants also filed a 24page Joint Brief in Support [ECF 58] and a 13-page Joint Statement of Material Facts [ECF No.
58-1]. In their Motion for Summary Judgment, the Defendants thoroughly addressed relevant
facts, which they supported with citations to particular parts of their evidentiary submissions,
and argued points and authorities in support of their Motion. On February 28, the date on which
the Plaintiff’s response was due, the Plaintiff filed a Motion for Extension of Time [ECF No. 59]
requesting thirty additional days (up to and including March 30) to respond because Plaintiff’s
counsel were busy with travel, preparing pleadings, and performing other tasks in a number of
other cases. The Court granted the Plaintiff’s Motion extending the response deadline, but the
Plaintiff never filed a response to the Defendants’ Motion for Summary Judgment. On April 12,
the Defendants filed a Joint Request for Entry of Judgment [ECF No. 61], highlighting that the
Plaintiff failed to respond to their Joint Motion for Summary Judgment and requesting that the
Court enter summary judgment for the Defendants and against the Plaintiff and award them
costs. On April 28, the Plaintiff filed a Report [ECF No. 28], stating that counsel had made some
recommendations to the Plaintiff, were awaiting his response, and anticipated filing a motion to
dismiss the case.
On May 4, the Plaintiff filed a Motion to Dismiss with Prejudice [ECF No. 63], asking
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that the Court dismiss the Plaintiff’s claims against the Defendants and stating the view of
Plaintiff’s counsel that the Plaintiff’s Motion rendered the Defendants’ Motion for Summary
Judgment moot. On May 10, the Defendants filed an Objection [ECF No. 64], requesting the
entry of judgment in their favor and seeking to ensure that the Defendants are determined to be
the prevailing parties in this case. They also renewed their request that judgment be entered in
their favor based upon their pending Motions and claimed that they are entitled to file a bill of
costs to recover attorney fees, litigation expenses, and expert witness fees. On May 17, the
Plaintiff filed a Reply [ECF No. 65], explaining that the Plaintiff disagrees that fees and costs
should be awarded but that the Plaintiff did not condition his Motion to Dismiss with Prejudice
on the Defendants’ waiving any right to seek fees and costs. In the Plaintiff’s Reply, counsel for
the Plaintiff also highlighted problems and difficulties counsel encountered in obtaining the
Plaintiff’s cooperation (including the Plaintiff’s failure to authorize and provide funds to hire an
expert witness) and in communicating with the Plaintiff. Plaintiff’s counsel also noted that there
was miscommunication between the Plaintiff’s two attorneys. In the Reply, Plaintiff’s counsel
explained that the Plaintiff had authorized them to settle the case for whatever could be
recovered and that, after the Plaintiff and one of the Defendants were deposed in the fall of 2010,
Plaintiff’s counsel recommended that the parties resolve their dispute with a mutual walk-away
agreement. The Plaintiff’s Reply also stated that Plaintiff’s counsel filed a motion to withdraw
that was later withdrawn, but the Court’s record does not reflect that any such motion was filed.
On May 20, the Court conducted a telephonic status conference to discuss the pending
Motions and to inquire about the procedural posture of this case. The Court also took the
pending Motions under advisement.
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SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure provide that a court shall grant a motion for
summary judgment “if the movant shows 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). A genuine issue
of material fact exists when “‘there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.’” AA Sales & Assocs. v. Coni-Seal, Inc., 550 F.3d 605,
608–09 (7th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A
court’s role on summary judgment is not to weigh the evidence, make credibility determinations,
or decide which inferences to draw from the facts, but instead to determine whether there is a
genuine issue of triable fact. Anderson, 477 U.S. at 255; Washington v. Haupert, 481 F.3d 543,
550 (7th Cir. 2007); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A court in ruling on a
summary judgment motion construes all facts in the light most favorable to the nonmoving party
and draws all reasonable inferences in that party’s favor. AA Sales & Assocs., 550 F.3d at 609. A
party opposing a properly supported summary judgment motion may not rest on bare pleadings
alone, but must use the evidentiary tools listed in Rule 56 to designate specific material facts
showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 598 (7th Cir. 2000); N.D. Ind. L.R. 56.1(b).
Thus, the nonmovant must “marshal and present the court with the evidence she contends will
prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
UNDISPUTED FACTS
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The Defendants have come forward with admissible evidence showing the following
facts, and the Plaintiff has not disputed these facts. See Fed. R. Civ. P. 56(e)(2) & (3) (“If a party
. . . fails to properly address another party’s assertion of fact as required by Rule 56(c), the court
may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if
the motion and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.”).
On September 15, 2008, the Plaintiff was arrested at his girlfriend’s residence for a
parole violation. Before officers could apprehend him, the Plaintiff fled out the back window of
the residence and, in the process, fell on the concrete outside the window. The Plaintiff sustained
an injury to his left hand as a result of the fall. Prior to being taken to the Allen County
Confinement Facility (the jail), the Plaintiff was transported to St. Joseph Hospital. An X-ray
revealed a closed oblique fracture to the fifth metacarpal shaft of his left hand. Jeffrey A.
Yablong, M.D., the emergency room physician, applied a hand ulnar gutter splint to the
Plaintiff’s left hand. The splint had the appearance of a cast, and it became stiff after the
application of water. Dr. Yablong prescribed Vicodin and recommended that the Plaintiff follow
up in the orthopedic clinic at the hospital.
On September 16, at around 1:30 a.m., the Plaintiff arrived at the jail. A health appraisal
was conducted as part of the intake process. During the health appraisal, the Plaintiff disclosed
that he fractured his left hand prior to the arrest, had been seen at St. Joseph Hospital, and was
prescribed Vicodin. The Plaintiff was given one Vicodin for his pain during the intake process.
As noted during the health appraisal, the Plaintiff had diabetes and hypertension, for which he
had not be taking his medications on a regular basis for a year prior to his arrest. The plan was to
6
monitor these conditions and request orders for the Plaintiff’s prescriptions from a health clinic
that serves indigent patients. The Plaintiff authorized jail nursing personnel to obtain the doctor’s
orders for his prescriptions, and he was placed on a restricted medical diet for his diabetic
condition.
On September 18, a nurse’s note indicated that the Plaintiff’s splint had fallen off his
hand. Nurse Amanda Ross contacted St. Joseph Hospital and was advised that the Plaintiff had a
fractured left hand and that the splint should be re-applied with an ACE bandage wrap over it.
Circulation checks were already in place, and a note was made that the splint was not to be
removed again. Nurse Ross also noted that a “[f]ollow up with ortho already in place.”
(Henderson Dep. 48; Ex. D at 53.) On September 24, St. Joseph Hospital sent a fax to the jail
regarding the service request for the Plaintiff to have an appointment in the Orthopaedic Center
and X-ray. St. Joseph Hospital informed the jail that the cost would be $336.50, payable before
service would be rendered. On September 25, the Plaintiff was notified of the upfront cost
required by the hospital and asked to advise when he had the funds in his account. The Plaintiff
knew that the hospital required payment for the requested medical services and that this was not
a requirement imposed by the jail.
Linda Richards, a certified physician’s assistant, saw the Plaintiff in the jail on October 2
for his complaints of left hand pain.1 Richards noted the history of a “boxer’s” fracture, which is
also known as a fracture of the fifth metacarpal. Richards examined the Plaintiff’s left hand
finding that his fingers were warm and pink (showing good circulation of blood to the distal
1
Linda Richards worked for Emergency Medicine of Indiana (EMI), the physician group that
provided medical services to the inmates during the Plaintiff’s period of incarceration at the jail. EMI
provided physicians and physician assistants to staff the sick call visits.
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extremity/his fingers) and the signs of healing. The Plaintiff was able to wiggle his fingers well,
and he had two plus (2+) radial pulse, which is a normal pulse for the radial artery. These
findings indicated good blood supply to the fractured area. During the October 2 visit, Richards
removed the splint to examine the Plaintiff’s left hand for pressure marks, “which is a luxury you
have when something’s in a splint, that you don’t have when it’s in a cast.” (Richards Dep. 19.)
The splint was placed back on his left hand and wrapped with a new ACE bandage in order “[t]o
maintain immobility of the fractured area . . . and promote bone healing.” (Richards Dep. 21.)
Richards described the splint on the Plaintiff’s hand as a volar splint, which is made of Orthoglass and (after contact with water) hardens over a period of time becoming a half cast. Based
upon her examination and her training and experience, Richards was satisfied that the Plaintiff’s
fracture was healing as expected. The treatment plan was to offer him Ibuprofen, 800 milligrams,
twice a day, which doubled the recommended dosage on over-the-counter bottles.
Richards saw the Plaintiff next on October 7 because of his complaint of a bloody penile
discharge. The Plaintiff also expressed concern that he was no longer receiving daily sugar and
blood pressure checks. As a result of her examination, Richards ordered a urinalysis and reinstituted daily checks of blood pressure and weekly checks of blood sugar “to keep his mind at
ease that his diabetes and hypertension were under control.” (Richards Dep. 27.) During this sick
call visit, the Plaintiff did not complain about pain or discomfort related to his fracture.
Following receipt of the urinalysis results, Richards had the Plaintiff return to sick call the next
day because the urinalysis findings indicated an infection. Richards examined him again on
October 10, and he was treated with Rocephin, 500 milligrams intramuscularly, and Zithromax,
one gram orally. The Plaintiff continued to have blood pressure and sugar checks, and Richards
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reviewed the readings, which were within normal limits.
On October 18, the Plaintiff requested to be seen at sick call for an evaluation of his
hand. Richards saw him on that same day to evaluate his hand. Her examination revealed that he
was able to move his fingers well, that his nail beds were pink, that his hand was warm, and that
there was no skin breakdown. Richards told him that he could remove the splint twice a day for
skin care and range of motion. Richards testified that most fractures heal in four to six weeks,
and it had been four weeks since his hand was fractured, so it was appropriate to let him remove
his splint “to get a little strength in the muscles and ligaments, to start practicing moving the
fingers better, and moving the joints above and below the fracture, that would help him heal.”
(Richards Dep. 34.)
Richards did not order the Plaintiff to return to the hospital as a result of his hand
fracture. However, if he had displayed signs or symptoms indicating further treatment was
necessary, she would have sent him back to the hospital emergency department where he could
be seen by an orthopedic doctor. Based upon her observations, Richards did not believe the
Plaintiff needed to be seen by an orthopedic doctor. She examined his hand for symptoms each
time he was evaluated for his hand, and he did not exhibit any symptoms necessitating a referral
to an orthopedic doctor. In Richards’s view, “[h]is exams were normal.” (Richards Dep. 45.)
On October 28, Richards again evaluated the Plaintiff and his need for the splint. Five
weeks had passed since the Plaintiff sustained the fracture, and he exhibited good range of
motion and good circulation in, sensation to, and movement of his left hand. Richards allowed
him to remove the splint at night for the next couple of weeks and then to discontinue use of the
splint. Richards recommended that he increase his range of motion exercises and do them on a
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daily basis. At no time after October 28 did the Plaintiff request to be seen at sick call.
On November 6, the Plaintiff was released from the jail and transported to Plainfield
Correctional Facility. On November 11, Michael Person, M.D., at the Plainfield Correctional
Facility saw the Defendant regarding his high blood pressure and diabetes. Dr. Person ordered an
X-ray of the Plaintiff’s left hand and applied a cast, but he did not order any medication.
Additionally, Dr. Person did not perform any surgery on his left hand. The Plaintiff never saw an
orthopedic doctor while at Plainfield Correctional Facility or after being released from prison.
Dr. Niles Schwartz, a board certified orthopedic surgeon, reviewed the medical records
from St. Joseph Hospital, the jail, and the Plainfield Correctional Facility, considered the
standard of care provided by nursing and physician assistant staff at the Allen County Jail, and
expressed the following medical opinion:
As my summary states and based upon the records I reviewed, the
responses of the Allen County Jail to Mr. Henderson’s requests for an
appointment at the St. Joseph Orthopaedic Clinic were appropriate. . . . There was
no reason for the jail staff to consider his requests for an appointment at the St.
Joseph Orthopaedic Clinic as an emergency.
In my medical opinion, the medical treatment provided for the treatment
of Mr. Henderson’s metacarpal fracture met the standard of care, and there was no
delay in rendering any treatment. It is common practice to treat minimally
displaced metacarpal shaft fractures, such as Mr. Henderson’s, using a splint and
not a cast. Based on my review of the medical records, it is my opinion that the
jail staff were not deliberately indifferent to Mr. Henderson’s medical care,
including the treatment of the metacarpal fracture.
(Schwartz Aff. ¶¶ 5 & 6.) Dr. Schwartz’s summary, which was based on reasonable medical
certainty, also stated:
[T]he medical treatment of Mr. Henderson’s metacarpal fracture has met the
standard of care. Furthermore, it is my opinion that there is no evidence of
deliberate indifference to Mr. Henderson’s hand fracture care.
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With regards to the standard of care, it is common practice to treat
minimally displaced distal metacarpal shaft fractures using a splint and not a cast.
...
...
The fact that Mr. Henderson was treated by a physician’s assistant and not
an orthopedic surgeon also meets the standard of care in this case. Many
minimally displaced fractures are treated by primary or family practice doctors or
physician’s assistants or physician’s extenders including nurse practitioners. It is
common in my particular practice for my physician’s assistant to evaluate and
treat an injury such as this until it heals.
It is my opinion that Mr. Henderson’s hand fracture was not treated with
deliberate indifference. He was treated and evaluated in the St. Joseph Emergency
Room on September 16th by Dr. Yablong. Attempts were made to have him seen
at the Orthopedic Clinic only per Dr. Yablong’s request. Treatment was then
rendered in a reasonable fashion by Linda Richards, the physician’s assistant, for
emergency medicine, until the patient was transferred to the Plainfield
Correctional Facility.
(Schwartz Aff. ¶ 4; Ex. B.)
The Allen County Jail and Lock Up Standard Operating Procedures on Health Services
provide: “Matters of medical, mental health and dental judgment [are] the sole province of the
responsible physician, psychiatrist and dentist providing health care services in the Allen County
Jail/Lock Up.” (Jail Standard Operating Procedures concerning Health Services (“Policy”), SOP
No. J-02, p. 1 of 1, produced in response to Plaintiff’s Second Set of Interrogatories, Answer to
Interrogatory No. 1(d), ECF No. 57-8.) The policy also provides that the jail will employ or
contract with physicians to conduct physical examinations and sick call and employ nursing
personnel to assist with sick call. Nursing personnel are to initiate treatment only upon the
written or verbal orders of a licensed physician or his/her designee.
In accordance with Indiana law, an inmate may be required to pay for ongoing, nonemergency medical treatment for a pre-existing condition that he has requested be provided from
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a private physician or facility. The Allen County Sheriff’s Department provides medical care for
inmates as ordered by the jail health providers, physician assistants, and physicians. These
medical professionals may decide that medical treatment outside of the jail is necessary on an
individual basis. When a jail physician or physician assistant orders medical treatment, inmates
are not required to have funds in their inmate accounts to cover the costs of such medical
treatments. However, if the jail physician or physician assistant does not order a particular
medical treatment requested by an inmate, then the inmate may be required to pay for ongoing,
non-emergency medical treatment for a pre-existing condition to be rendered by an outside
facility. Matters of medical judgment are the sole province of the physician or physician assistant
providing the medical care to the inmate, and this physician or physician assistant determines the
treatment the inmate is to receive on a case-by-case basis.
In his Answers to the Plaintiff’s Second Set of Interrogatories, Sheriff Kenneth C. Fries
spoke regarding the nursing and medical care provided to the Plaintiff at the jail. Regarding the
policy or custom in place with respect to an inmate’s right to receive medical care even though
the inmate is indigent and without funds to pay for medical services, the sheriff testified:
Mr. Henderson was required to pay for the medical treatments only if they
were not ordered by the jail health care providers (physician assistants and
physicians). Had the jail physician and/or physician assistant ordered these
treatments, Mr. Henderson would not have been required to have funds in his
inmate account to cover the costs. In accordance with Indiana law, an inmate may
be required to pay for ongoing, non-emergency medical treatment for a preexisting condition he requests to be provided from a private physician or facility.
The Allen County Sheriff’s Department provides medical care as ordered by the
jail healthcare providers, physician assistants and physicians, and these medical
professionals may decide “outside of jail” medical treatment is necessary on an
individual basis.
Matters of medical judgment are the sole province of the responsible
physician and/or physician assistant providing health care to the inmate. The
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responsible physician and/or physician assistant providing health care to the
inmate determines the treatment of an inmate on a case-by-case basis.
(Sheriff Fries Interrog. Answer No. 6, ECF No. 57-8.)
Defendant Pamela Thornton, R.N., the Director of Health Services, has provided the
following explanation as to why the Plaintiff was not allowed to see a physician for his
hand/wrist from September 16 through November 6, 2008:
Matters of medical judgment are the sole province of the responsible physician or
physician assistant providing healthcare services in the Allen County Jail.
Nursing personnel initiate treatment only upon the written or verbal orders of
these healthcare professionals. The nursing staff relies upon the professional
judgment of qualified medical professionals such as physicians and physician
assistants.
(Nurse Thornton Interrog. Answer No. 5, ECF No. 57-9.)
The Plaintiff wrote several grievances while incarcerated at the jail. Ellen Chamar, a parttime nurse at the jail, answered one grievance, advising the Plaintiff of St. Joseph Hospital’s
requirement that he must pay up-front for the medical services requested. The Plaintiff has not
disclosed any evidence of wrongdoing by Defendant Ellen Chamar or Defendants Mary Jane
Collins, LPN (identified in the caption as “C/OP.E. #071”), C. ***CE (P.E. #277) (identified as
C. Chase), P.E. #C935, or unidentified Allen County Jail staff (John/Jane Does). Nurse Thornton
answered the three other grievances, and the Plaintiff’s grievances were his only interaction with
Nurse Thornton. The Plaintiff has asserted that Nurse Thornton prevented him from seeing an
orthopedic physician while incarcerated at the jail, but he has come forward with no evidence in
support of that assertion. With each grievance Nurse Thornton received, she deferred to the
physician’s assistant regarding the Plaintiff’s medical care, and she responded by promptly
sending him to the physician’s assistant in sick call. The Plaintiff has admitted that he never
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talked to Sheriff Fries, never sent him a grievance, and never had any contact with the Sheriff
while he was incarcerated at the jail.
DISCUSSION
The Defendants have moved for the entry of summary judgment in their favor on the
Plaintiff’s Eighth and Fourteenth Amendment claims, and the Plaintiff has not opposed the
Defendants’ request. The Plaintiff contends that the Defendants’ Joint Motion for Summary
Judgment is rendered moot by the Plaintiff’s filing of his Motion to Dismiss with Prejudice. The
Defendants have objected to the Plaintiff’s Motion and have renewed their request that the Court
enter judgment in their favor. Under Federal Rule of Civil Procedure 41, the Plaintiff can
voluntarily dismiss his action this late in the proceeding only by court order and only “on terms
that the court considers proper.” Fed. R. Civ. P. 41(a)(2). “Motions for voluntary dismissal are
committed to the district court’s discretion, but it is an abuse of discretion for the district court to
permit the voluntary dismissal of an action where the defendant would suffer plain legal
prejudice as a result.” Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 927 (7th Cir. 2007).
In this case, dismissal under Rule 41(a)(2) could only be with prejudice, and that is what the
Plaintiff requests in his Motion. However, the Plaintiff’s Motion was filed only after discovery
was completed and after the Defendants prepared and filed a Joint Motion for Summary
Judgment (together with a supporting Brief and evidentiary materials) and a Joint Request for
Entry of Judgment. Considering the procedural background of this case and the evidentiary
record and legal issues before the Court, the Court determines that the best course of action that
ensures that the Defendants suffer no legal prejudice is to rule on the Defendants’ unopposed
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Joint Motion for Summary Judgment and order the entry of judgment in favor of the Defendants.
A prisoner may pursue an action under 42 U.S.C. § 1983 against a person who violates
the prisoner’s Eight Amendment rights while acting under the color of state law.2 Berry v.
Peterman, 604 F.3d 435, 439 (7th Cir. 2010). One Eighth Amendment protection is a prisoner’s
right to adequate medical care, and the Eighth Amendment test focuses on whether the defendant
was deliberately indifferent to the plaintiff’s serious medical needs. Estelle v. Gamble, 429 U.S.
97, 104–05 (1976).
To succeed on an Eighth Amendment cruel and unusual punishment claim for deliberate
indifference to medical needs, a plaintiff must “show (1) that he suffered from an objectively
serious medical condition; and (2) that the individual defendant was deliberately indifferent to
2
The Defendants analyze the Plaintiff’s claim under the deliberate indifference standard under
the Eighth and Fourteenth Amendments. The Eighth Amendment ban on “cruel and unusual
punishments” applies to convicted persons, but the Due Process Clause of the Fourteenth Amendment
provides protection to pretrial detainees. See Minix v. Canarecci, 597 F.3d 824, 830–31 (7th Cir. 2010).
In their analysis, the Defendants treat the Plaintiff as a prisoner under the Eighth Amendment. The
Plaintiff’s status is questionable because he was arrested and detained for a parole violation, and authority
is divergent as to whether his status is as a prisoner under the Eighth Amendment or a pretrial detainee
under the Fourteenth Amendment. See Paith v. County of Wash., 394 Fed. Appx. 858, 860 n.2 (citing City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983), and Boring v. Kozakiewicz, 833 F.2d 468, 472
(3d Cir. 1987)) (treating plaintiff incarcerated pursuant to a parole violation detainer as a pretrial detainee
under the Due Process Clause of the Fourteenth Amendment); Flores v. Mesenbourg, 116 F.3d 483 (9th
Cir. 1997) (treating plaintiff confined as a result of a parole violation as a prisoner under the Eighth
Amendment); Cook v. Faulkner, 77 F.3d 478 (5th Cir. 1996) (per curiam) (citing Rankin v. Klevenhagen,
5 F.3d 103, 106 (5th Cir. 1993) (noting Rankin’s suggestion that the Eighth Amendment would apply to
plaintiff who was on parole from an earlier conviction and sentence, observing that Rankin did not require
a conclusive determination of the issue, and concluding that the court need not determine which standard
is applicable to a pretrial detainee arrested while on parole); Tittle v. Jefferson County Comm’n, 10 F.3d
1535, 1539 n.3 (11th Cir. 1994) (noting that plaintiff was being held pending a hearing for an alleged
violation of parole but declining to determine whether he had pretrial detainee or prisoner status). The
Court need not resolve this question because “the recognized standard of protection afforded to both
convicted prisoners and pretrial detainees under the Eighth and Fourteenth Amendments” is the same.
Palmer v. Marion County, 327 F.3d 588, 593 (7th Cir. 2003); see also Minix, 597 F.3d at 831 (stating that
courts “apply the same legal standards to deliberate indifference claims brought under either the Eighth or
Fourteenth Amendment”). Although the Court need not (and does not) precisely determine the Plaintiff’s
status, the Court will frame its discussion here as the Defendants do in Eighth Amendment terms.
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that condition.” Berry, 604 F.3d at 440. For the objective element, a court considers whether a
medical condition is serious. Id. A medical condition is serious if it “is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would perceive the need for a doctor’s attention.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005). With the subjective element, a court considers what a defendant knows about a plaintiff’s
condition “and whether the course of treatment was so far afield as to allow a jury to infer
deliberate indifference.” Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008); see also
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (“[A]n official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.”) (quotation marks and citations omitted). Conduct is deliberately
indifferent “when the official has acted in an intentional or criminally reckless manner, i.e., the
defendant must have known that the plaintiff was at serious risk of being harmed and decided not
to do anything to prevent that harm from occurring even though he could have easily done so.”
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quotation marks and citations omitted).
“Deliberate indifference requires a showing of more than mere or gross negligence, but less than
purposeful infliction of harm.” Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). For a
medical professional to be held liable for deliberate indifference to an inmate’s medical needs,
he or she must make a decision that represents “such a substantial departure from accepted
professional judgment, practice, or standards, as to demonstrate that the person responsible
actually did not base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th
Cir. 2008) (quotation marks and citations omitted). When considering whether care provided to
an inmate evidences deliberate indifference to his serious medical needs, a court does not look to
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incidents in isolation, but considers the totality of his medical care. Walker v. Peters, 233 F.3d
494, 501 (7th Cir. 2000); Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997).
The record before the Court, even when viewed in a light most favorable to the Plaintiff,
does not establish that the Defendants were deliberately indifferent to the Plaintiff’s medical
needs. The Plaintiff’s left hand was fractured during his attempt to evade arrest. He received
medical care (including a splint) at a hospital before he was transported to and processed into the
jail. He was seen by nursing staff and at sick call by a physician’s assistant for various
complaints including some related to his hand, and he received follow-up care on multiple
occasions from a physician’s assistant at the jail to ensure that the Plaintiff’s fracture was
healing. Based upon her examination and care for the Plaintiff, the physician’s assistant
determined that further treatment of the Plaintiff’s left hand at the hospital was not necessary and
that the Plaintiff did not need to be seen by an orthopedic doctor. The Plaintiff also received
medication for pain. The evidence before the Court shows that jail medical personnel were
responsive to his complaints, that the Plaintiff received reasonable and adequate medical care
while incarcerated at the jail, and that the care provided was within the standard of care.
Additionally, when a prisoner “‘is under the care of medical experts . . . a non-medical
prison official will generally be justified in believing that the prison is in capable hands.’”
Greeno, 414 F.3d at 656 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).
Consequently, when Defendants Chamar and Thornton relied on the expertise of the medical
providers to deny the Plaintiff’s grievances, they were not deliberately indifferent to the
Plaintiff’s medical needs.
The doctrine of respondeat superior, under which a supervisor may be held liable for an
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employee’s actions, does not apply to § 1983 actions, and thus to be held individually liable, a
defendant must be personally responsible for the deprivation of a constitutional right. Sanville v.
McCaughtry, 266 F.2d 724, 740 (7th Cir. 2001). There is no evidence that Defendant Fries had
any direct, personal involvement in any alleged denial of medical care or that any alleged
violations of the Plaintiff’s constitutional rights occurred at Defendant Fries’s direction or with
his knowledge and consent. Furthermore, there is no evidence that Defendant Fries had a
widespread practice, policy, or custom of ignoring the serious health needs of inmates, either by
refusing to allow medical care or interfering with medical care.
Although the Plaintiff may have wanted an orthopedic physician to see his hand, nothing
in the record suggests that he needed to be seen by a specialist. The Seventh Circuit has
instructed that the Eighth Amendment does not require that prison doctors treat prisoners in the
exact manner they demand, Jackson, 541 F.3d at 697–98, or that prisoners receive “unqualified
access to health care,” only “adequate medical care,” Johnson v. Doughty, 433 F.3d 1001, 1013
(7th Cir. 2006) (quotation marks and citations omitted). Additionally, the court has stated that
the Eighth Amendment does not confer a right to demand either a particular type of medical
treatment or a certain specialist. Kendrik v. Frank, 310 F. App’x 34, 38 (7th Cir. 2009) (citing
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)).
Simply put, there is no evidence before the Court showing that any of the Defendants
were deliberately indifferent to the Plaintiff’s medical needs and thereby violated his rights or
that the Plaintiff suffered an actual injury or detrimental effect as a result of his treatment at the
jail or any delay in providing medical treatment. Because no reasonable jury could conclude that
the Defendants’ actions amounted to deliberate indifference to a serious medical need, the
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Defendants are entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Defendants’ Joint Motion for
Summary Judgment [ECF No. 57] and DENIES AS MOOT the Defendants’ Joint Request for
Entry of Judgment [ECF No. 61] and the Plaintiff’s Motion to Dismiss with Prejudice [ECF No.
63]. The Court ORDERS the Clerk of this Court to enter of judgment in favor of the Defendants
and against the Plaintiff.
SO ORDERED on June 3, 2011.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
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