Alspach v. Hunter et al
Filing
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OPINION AND ORDER GRANTING 21 MOTION for Summary Judgment filed by Miami County Jail Nurse Betsy Worden. The Clerk is DIRECTED to enter judgment in favor of the defendant Betsy Worden. Signed by Judge Joseph S Van Bokkelen on 8/15/11. (jcp)
United States District Court
Northern District of Indiana
LARRY ALSPACH,
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Plaintiff,
vs.
NURSE BETSEY WORDEN,
Defendant.
Civil Action No. 1:10-CV-421 JVB
OPINION AND ORDER
Larry Alspach, a pro se plaintiff, was granted leave to proceed on a claim that Betsy
Worden (“Nurse Worden”), a nurse at the Miami County Jail, was deliberately indifferent to his
medical needs after he suffered a stroke on October 4, 2010, when she instructed correctional
staff to place him in isolation rather than take him to a hospital. (See DE 4.) Nurse Worden
moves for summary judgment. (DE 21.)
As an initial matter, Nurse Worden originally filed her motion under FED. R. CIV. P.
12(b)(6), but because she relied on documents outside the pleadings, the court converted it into
a motion for summary judgment. (DE 23.) In addition to seeking summary judgment on the
merits, Nurse Worden also argues that dismissal is appropriate because Alspach failed to
adequately plead that he exhausted his administrative remedies. (DE 22 at 6-8.) The court is
cognizant that the threshold issue of exhaustion should normally be resolved before the merits.
See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Here, the court finds the defendant’s
exhaustion argument unavailing. Because Nurse Worden’s argument is based solely on the
complaint rather than on any outside evidence, a RULE 12(b)(6) standard would apply.
Accepting the allegations in Alspach’s complaint as true, he claims that jail officials thwarted
his attempts to file a grievance, which would excuse his failure to exhaust. Kaba v. Stepp, 458
F.3d 678, 684 (7th Cir. 2006); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). The failure
to exhaust is an affirmative defense on which the defendant bears the burden of proof, and based
solely on the complaint Nurse Worden has failed to carry her burden. Dole, 438 F.3d at 809.
Therefore, the court turns to the merits.
Summary judgment must be granted when “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 “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). To determine whether a genuine issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). However, a party opposing
a properly supported summary judgment motion may not rely merely on allegations or denials in
its own pleading, but rather 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).
To establish liability under the Eighth Amendment, a prisoner must show: (1) he had an
objectively serious medical need; and (2) an official acted with deliberate indifference to his
health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is “serious” if it
is one that “a physician has diagnosed 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). 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
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occurring even though he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478
(7th Cir. 2005) (internal quotation marks omitted). 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).
Here, the record shows that Nurse Worden is a registered nurse employed by Health
Professional Limited. (DE 22, Worden Aff. ¶ 2.) She is currently assigned to the Miami County
Jail, and was also working at the jail in October 2010. (Id. ¶¶ 2-3.) However, she has submitted
evidence showing that she was not working at the jail on October 4, 2010, the date of Alspach’s
alleged stroke; instead she was out of state attending a conference from October 4, 2010, until
October 6, 2010. (Id. ¶ 5, Ex. A.) She attests that during this period she had no contact with the
jail and did not provide any medical advice or other direction to any jail employees regarding an
inmate’s medical care. (Id. ¶ 6.) She further attests that upon her return to work on October 7,
2010, she saw Alspach at the jail medical facility. (Id. ¶ 8.) According to the medical records, he
informed her that he thought he suffered a stroke on October 4, 2010. (Id., Ex. B.) He described
the symptoms as pain in the center of his chest, spotty vision, dizziness, and tingling. (Id.) He
reported that these symptoms lasted approximately an hour and a half, after which time he felt
better, and stated that he was not currently experiencing any problems. (Id.) Nurse Worden took
his vital signs and examined him, finding the examination to be normal.1 (Id.)
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The medical records indicate that Nurse Worden took blood samples from Alspach and sent them for
laboratory testing, but it appears this was related to another health condition. (DE 22, Worden Aff. ¶ 5, Ex. B.) The
records before the court do not reflect what, if anything, the testing revealed. (See id.)
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Despite having been given proper notice of the motion and an extension of time to
respond, Alspach has not filed a response or come forward with evidence to dispute Nurse
Worden’s version of events. (See DE 24, 33.) Accordingly, the undisputed facts show that
Nurse Worden was not working on the date Alspach claims to have suffered a stroke, or the two
days following that. The record further shows that Nurse Worden did not give any medical
advice to correctional staff during that time frame. (DE 22, Worden Aff. ¶ 5, Ex. A.) Alspach
has failed to show that Nurse Worden was deliberately indifferent to his medical needs, since
there is no evidence she even had knowledge of his health problems until three days after the
alleged stroke, let alone made any decisions about his care. See Jackson, 541 F.3d at 697;
Farnham, 394 F.3d at 478. By the time she saw him on October 7, 2010, he reported to her that
he was no longer experiencing any medical problems, and her examination of him was normal.
(DE 22, Worden Aff. ¶ 5, Ex. B.) Based on the record, Alspach has failed to establish an Eighth
Amendment violation by Nurse Worden.
For these reasons, the motion for summary judgment (DE 21) is GRANTED, and the
clerk is DIRECTED to enter judgment in favor of the defendant Betsy Worden.
SO ORDERED on August 15, 2011.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division
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