Myers v. Allen County Sheriff et al

Filing 73

OPINION AND ORDER: GRANTING IN PART AND DENYING IN PART both 55 MOTION for Summary Judgment by Dfts Adam, Girardot, Hupp, Runyon and 57 MOTION for Summary Judgment by Dfts Dillion, Gladieux, Goble, Runyon, Wiley; DENYING AS MOOT both 65 MOTI ON Strike portions of Affidavit of Jeffrey Myers by Dfts Adam, Girardot, Hupp, Runyon and 67 RULE 56 MOTION to Strike 61 Response to Motion, Affidavit of Pla by Dfts Dillion, Gladieux, Goble, Runyon, Merissa Runyon, Wiley. The Clerk shall TERMINAT E all defendants with the exception of Nurse Hupp, Officer Wiley, and Officer Dillon. Because claims still remain in this case, the court withholds entry of final judgment. The parties are ORDERED to file a joint status report regarding their willingness to engage in a settlement conference before a Magistrate Judge by 10/3/2017. A trial date will be set under separate order. Signed by Senior Judge James T Moody on 9/19/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JEFFREY D. MYERS,

)
)
Plaintiff,
)
)
v.
)
)
ALLEN COUNTY SHERIFF DAVID J.
)
GLADIEUX, NURSE STEPHANIE HUPP,
)
NURSE LAURA KENNY, OFFICER GREG )
GOBLE, OFFICER ______ WILEY, OFFICER )
______ RUNYON, NURSE REGINA ADAM, )
NURSE MERISSA RUNYON, AND
)
OFFICER YEAETHA DILLON,
)
)
Defendants.
)

No. 1:15 CV 2

OPINION and ORDER
I.

BACKGROUND
Plaintiff is a brittle insulin dependent diabetic. Plaintiff was incarcerated at the

Allen County Jail on more than one occasion in 2013, and this lawsuit stems from his
complaints regarding the monitoring and treatment of his diabetes during those periods
of incarceration.
Plaintiff takes two types of insulin each day: Humulin R (“HR”), a fast-acting
insulin, and Humulin N (“HN”), which works more slowly. Plaintiff’s physician, Dr. H
Stephen Beyer, submitted an prescription to the jail regarding plaintiff’s insulin
regimen. That regimen consisted of 15-25 units of HR, with a notation stating “[patient]
can decide,” and 35 units of HN, twice daily, with no notation regarding the patient’s
ability to use his own discretion. (DE # 55-5 at 5.) However, the treatment logs

maintained by the jail indicate that plaintiff was often dosed with HN according to his
own request, even if the requested dose did not match Dr. Beyer’s prescription. (DE #
62-2 at 1-4.)
Plaintiff claims that, throughout his incarceration generally, the jail’s nursing
staff denied him the food trays necessary to managing his diabetes. He also alleges that
on July 1, 2013, he was denied glucose testing for six hours, despite repeated requests
and reports of low blood sugar to the staff. He claims this denial was perpetrated by
“the jail nurse,” but he does not state the identity of that nurse. (DE # 62 at 2.) He also
claims that during a separate incarceration period, on September 8, 2013, a specific
nurse, Nurse Hupp, gave him 35 units of HN, despite the fact that plaintiff requested 20
units. Plaintiff alleges that Nurse Hupp was distracted by guards, with whom she was
chatting and flirting, when she made this error at around 8 p.m. that evening. The
parties do not dispute that around 2:30 a.m., plaintiff’s blood sugar plummeted.
Plaintiff claims he tried to call for help that night, and that two officers, Officers Dillon
and Wiley, ignored his pleas for assistance. According to plaintiff, Officer Dillon also
stated that he would “get around to it.” (DE # 61 at 7.) It appears undisputed that
plaintiff was treated with glucose tablets and food at 3:00 a.m.
Plaintiff further alleges that Officer Dillon continued to ignore his requests for
assistance with respect to his blood sugar levels on September 18 and 23, 2013. Also,
plaintiff alleges that another guard named Officer Runyon interrupted a medical
examination on September 23, 2013, by peppering him with questions and comments

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relating to his condition, such as: “Eat more,” “Giving food away?”, “Exercising too
much?”, “Too much insulin, cut back,” “Myers, you’re killing me. I’m gonna [sic] leave
you down here in a cell.” (DE # 61-5.)
Plaintiff eventually sued the Sheriff of Allen County, along with a number of
officers and nurses, alleging negligence and violations of the Eighth Amendment under
42 U.S.C. § 1983. (DE # 31.) Plaintiff later dismissed all “medical malpractice
tort/negligence claims” against the nurses. (DE # 47.) The nurses filed a motion for
summary judgment, seeking judgment on all claims against them. (DE # 55.) The
officers, including the Sheriff of Allen County, did the same. (DE # 57.) Each group of
defendants filed a Rule 56 motion to strike. (DE ## 65, 67.) All of the motions are fully
briefed, and ready for ruling.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after

adequate time for discovery, against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In responding to a motion for summary judgment, the non-moving party must
identify specific facts establishing that there is a genuine issue of fact for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595
(7th Cir. 2003). In doing so, the non-moving party cannot rest on the pleadings alone,
but must present fresh proof in support of its position. Anderson, 477 U.S. at 248;

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Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A dispute about a material
fact is genuine only “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for
the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372,
380 (2007).
The court’s role in deciding a summary judgment motion is not to evaluate the
truth of the matter, but instead to determine whether there is a genuine issue of triable
fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th
Cir. 1994). In viewing the facts presented on a motion for summary judgment, a court
must construe all facts in a light most favorable to the non-moving party and draw all
legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom
Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). Importantly, the court is “not required to
draw every conceivable inference from the record [in favor of the non-movant]-only
those inferences that are reasonable.” Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236
(7th Cir. 1991) (emphasis added).
III.

DISCUSSION
A.

Nurse’s Motion for Summary Judgment (DE # 55)

All that remains of plaintiff’s claims against the nurses is his constitutional claim
under Section 1983. Plaintiff’s allegations boil down to four types of allegedly
unconstitutional mistreatment by the nurses: (1) denial of the food trays necessary to
manage his diabetes; (2) denial of glucose for six hours while being kept in a holding

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cell on July 1, 2013; (3) Nurse Hupp’s administration of 35 units of HN to plaintiff on
September 8, 2013, when plaintiff had requested 20 units; and (4) denial of treatment in
the early morning hours of September 9, 2013, when plaintiff claims he was calling for
help during an episode of diabetic shock. As for the first, second, and fourth allegations,
plaintiff has failed to identify any particular nurse who wronged him (and the fourth
allegation appears to be directed primarily at the officers). In his briefing and affidavit,
he uses phrases like “the jail nurse” and “nursing staff” with respect to these
allegations, but plaintiff cannot move forward to the trial phase based on allegations
against unidentified individuals. Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007).
What is left is plaintiff’s allegation regarding Nurse Hupp’s administration of 35
units of HN on September 8, 2013, which is really the heart of plaintiff’s action. This
claim sounds in the Eighth Amendment, which “safeguards the prisoner against a lack
of medical care that ‘may result in pain and suffering which no one suggests would
serve any penological purpose.’” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
828 (7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials like
Nurse Hupp violate the Constitution if they are deliberately indifferent to prisoners’
serious medical needs. Estelle, 429 U.S. at 104. Accordingly, a claim based on deficient
medical care must demonstrate two elements: (1) an objectively serious medical
condition; and (2) an official’s deliberate indifference to that condition. See Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir. 2006); see also Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011).

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The parties do not appear to dispute that plaintiff suffered from a serious
medical condition, so the court’s focus is on whether Nurse Hupp acted with deliberate
indifference. Deliberate indifference is a subjective standard. Johnson, 444 F.3d at 585. To
demonstrate deliberate indifference, a plaintiff must show that the defendant “acted
with a sufficiently culpable state of mind,” something akin to recklessness. Id. A prison
official acts with a sufficiently culpable state of mind when he knows of a substantial
risk of harm to an inmate and either acts or fails to act in disregard of that risk. Roe, 631
F.3d at 857. Deliberate indifference “is more than negligence and approaches intentional
wrongdoing.” Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998). Notably,
“[d]eliberate indifference is not medical malpractice; the Eighth Amendment does not
codify common law torts.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
A prison official must have actual, and not merely constructive, knowledge of
the risk in order to be held liable under the deliberate indifference standard;
specifically, she must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and she must also draw that inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). However, although this inquiry focuses on
an official’s subjective knowledge, a prisoner need not present direct evidence of the
official’s state of mind. Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence. Gevas v. McLaughlin, 798 F.3d 475, 480
(7th Cir. 2015)

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The court is only required to make reasonable inferences from the evidence, not
unreasonable ones. Lee, 928 F.2d at 236. In this case, the court finds that plaintiff’s own
deposition and affidavit testimony regarding Nurse Hupp’s actions of flirting and
joking with guards during the administration of his insulin on September 8, 2013, is
sufficient circumstantial evidence from which a reasonable inference of deliberate
indifference may be drawn – but just barely. At trial, plaintiff will have a significant
problem of proof with respect to Nurse Hupp’s state of mind. But that matter is for the
jury to address, not this court. It is enough, at this point, that plaintiff has offered
enough evidence to create a question of fact. Accordingly, summary judgment cannot
be granted in Nurse Hupp’s favor.
B.

Officers’ Motion for Summary Judgment (DE # 57)

Plaintiff makes no serious argument that Officer Runyon’s questions and
comments on September 23, 2013, regarding plaintiff’s condition constituted an
actionable wrong, and rightly so. The court cannot discern any actionable claim, either.
Further, the “evidence” plaintiff cites regarding this incident is his own complaint,
which is not evidence at all. Brenner v. Greenberg, No. 08 C 826, 2010 WL 4719694, at *3
(N.D. Ill. Nov. 15, 2010). The same problem plagues plaintiff’s claim that Officers Dillon
and Wiley ignored requests for assistance on September 18 and 23, 2013, and that
Officers Dillon and Wiley were negligent. (DE # 61 at 10.) Plaintiff cannot rely on his
own complaint as evidence of wrongdoing by Officers Dillon and Wiley, so the officers
are entitled to summary judgment on these claims. Plaintiff also admitted that he has no

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evidence to support any claim against the Sheriff (DE # 61 at 10), so summary judgment
is appropriate on all claims against the Sheriff, as well.
What remains of plaintiff’s claims against the officers is his contention that
between 2:30 a.m. and 3:00 a.m. on September 9, 2013, Officers Wiley and Dillon
ignored his pleas for help, during which time plaintiff experienced dangerously low
blood sugar. The court finds that plaintiff has sufficiently pointed to facts which could
lead a jury to infer that the thirty-minute delay in his treatment could have
unnecessarily prolonged and exacerbated his suffering and his injury. This is enough to
survive summary judgment. Gayton v. McCoy, 593 F.3d 610, 625 (7th Cir. 2010). Further,
though Officers Wiley and Dillon “vehemently dispute” that they ignored plaintiff
between 2:30 a.m. and 3:00 a.m. (DE # 68 at 5), this assertion merely highlights the
existence of a question of fact regarding plaintiff’s claim.
IV.

CONCLUSION
For the reasons set forth above, the summary judgment motion of defendants

Nurse Stephanie Hupp, Nurse Laura Kenny, Nurse Regina Adam, and Nurse Merissa
Runyon is GRANTED, in part, and DENIED, in part. (DE # 55.) The summary
judgment motion of defendants Allen County Sheriff David J. Gladieux, Officer Greg
Goble, Officer Wiley, Officer Runyon, and Officer Yeaetha Dillon is GRANTED, in part,
and DENIED, in part. (DE # 57.) The motions to strike are DENIED as moot, as
resolution of the matters contained therein are not necessary to deciding the underlying

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motions for summary judgment. (DE ## 65, 67.) The Clerk shall TERMINATE all
defendants with the exception of Nurse Hupp, Officer Wiley, and Officer Dillon.
The only claims left in this case are: (1) the Section 1983 claim against Nurse
Hupp for the administration of 35 units of HN on September 8, 2013; and (2) the Section
1983 claim against Officers Wiley and Dillon for allegedly ignoring his pleas for
assistance with regard to his diabetic condition between 2:30 a.m. and 3:00 a.m. on
September 9, 2013. Because claims still remain in this case, the court withholds entry of
final judgment.
The parties are ORDERED to file a joint status report regarding their willingness
to engage in a settlement conference before a Magistrate Judge by October 3, 2017. A
trial date will be set under separate order.

SO ORDERED.
Date: September 19, 2017
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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