Johnson v. Mitcheff et al

Filing 37

AMENDED OPINION AND ORDER granting 22 Motion for Partial Summary Judgment. Mr Johnson's amended complaint remains at issue on his claim of improper or inadequate medical care and pain medication relating to the treatment of his broken jaw. Signed by Judge Robert L Miller, Jr on 5/22/2014. (dk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES E. JOHNSON,
Plaintiff
vs.
MICHAEL A. MITCHEFF,
Defendant

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CAUSE NO. 3:13-CV-223 RLM

AMENDED OPINION AND ORDER
James Johnson, who was initially proceeding pro se but now has counsel,
brought suit under 42 U.S.C. § 1983 against Michael A. Mitcheff, regional medical
director for the Indiana Department of Correction (“IDOC”), alleging that Dr.
Mitcheff denied him adequate medical care in violation of the Eighth Amendment
to the United States Constitution. Dr. Mitcheff has moved for summary judgment
on Mr. Johnson’s claims relating to his degenerative disc diagnosis, see Amd.
Compl., ¶ 3, and the lack of a follow-up on his April 25, 2012 X-ray, see Amd.
Compl., ¶ 4, based on Mr. Johnson’s failure to exhaust his administrative
remedies on those two claims. The court concludes that Dr. Mitcheff’s motion
must be granted.

FACTS

Mr. Johnson alleges in his amended complaint that in March 2011, while
in IDOC custody, he went to an outside hospital to be seen about his broken jaw,
which Mr. Johnson says wasn’t healing “as fast as it should have.” Amd. Compl.,
¶ 1. Mr. Johnson says the oral surgeon who examined him recommended that he
be referred to a neurologist, but he was never seen by a neurology specialist. Mr.
Johnson next alleges that in May 2011, X-rays revealed that he suffers from
degenerative disc disease. He says he was referred for further evaluation and
treatment, but no such services were provided and his “degenerative vertabraes
were not cared for.” Amd. Compl., ¶ 3. Mr. Johnson lastly alleges that he was
diagnosed with abdominal and lower back problems in April 2012 and further
evaluation and treatment were recommended, but nothing was done in connection
with those diagnoses. Mr. Johnson concludes that Dr. Mitcheff didn’t take any of
the other doctors’ recommendations into consideration, automatically denied
“anything that was costly,” and failed to provide proper medical treatment.
Dr. Mitcheff has moved for partial summary judgment on Mr. Johnson’s
claims related to his disc (amd. compl., ¶ 3) and abdominal (amd. compl., ¶ 4)
issues because Mr. Johnson didn’t timely exhaust his administrative remedies.
In response, Mr. Johnson concedes that the claims contained in paragraphs 3 and
4 of his amended complaint are no longer in contention, see Resp., at 2, but he
disputes Dr. Mitcheff’s conclusion that the only claim on which he should be
allowed to proceed is that he wasn’t referred to a neurologist about his jaw. Mr.
Johnson says paragraphs 5-7 of his amended complaint set forth separate claims
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relating to the denial of adequate pain management and pain medication by Dr.
Mitcheff. Mr. Johnson maintains he properly exhausted his administrative
remedies on those claims and so should be allowed to proceed on his denial of
adequate pain management and pain medication claims.
Based on Mr. Johnson’s withdrawal of some of his clams, Dr. Mitcheff is
entitled to judgment on the claims in paragraphs 3 and 4 relating to Mr.
Johnson’s spinal and abdominal conditions, leaving for the court’s determination
the question of whether Mr. Johnson has set forth independent claims in
paragraphs 5-7 of the amended complaint and, if so, whether he exhausted his
administrative remedies on those claims.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, depositions,
answers to the interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine
issue of material fact exists whenever “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether a genuine issue of
material fact exists, “the evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 477
U.S. at 255; Weigle v. SPX Corp., 729 F.3d 724, 730 (7th Cir. 2013). The existence
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of an alleged factual dispute, by itself, will not defeat a summary judgment
motion; “instead, the nonmovant must present definite, competent evidence in
rebuttal,” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012),
and “must affirmatively demonstrate, by specific factual allegations, that there is
a

genuine

issue

of

material

fact

that

requires

trial.”

Hemsworth

v.

Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); see also FED. R. CIV. P.
56(e)(2). “[S]ummary judgment is ‘not a dress rehearsal or practice run; it is the
put up or shut up moment in a lawsuit, when a party must show what evidence
it has that would convince a trier of fact to accept its version of events.” Steen v.
Myers, 486 F.3d 1017, 1022 (7th Cir. 2007)(quoting Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

DISCUSSION
Grievances Submitted by Mr. Johnson
Dr.

Mitcheff

submitted

the

affidavit

of

April

Valdez,

grievance

officer/specialist at the Miami Correctional Facility, who reports that during the
period January 2011 through December 2012, Mr. Johnson submitted three
grievances – two in 2011 while at the Miami Correctional Facility and one in 2012
at the Indiana State Prison. Deft. Exh. 1, ¶¶ 12-15. The grievances relevant to this
action are No. 66283 and No. 64868, submitted initially and on appeal by Mr.
Johnson at the Miami Correctional Facility. See Deft. Exh. 1, Attachments C & D.

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In June 2011, Mr. Johnson submitted Grievance No. 66283 challenging the
treatment he received for his broken jaw – he complained about the pain during
his treatment, the denial of a neurology referral, and the offering of alternative
pain medication that Mr. Johnson disagreed with and refused to take. See Deft.
Exh. 1, Attachment C. Mr. Johnson’s July 2011 grievance, No. 67868, repeats his
complaints about the medical treatment he was getting for his jaw – his renewed
claims that proper pain medications weren’t being provided to him, which resulted
in his continuing pain, and that he needed to be treated by a specialist. See Deft.
Exh. 1, Attachment D.

Claims of the Amended Complaint
Dr. Mitcheff maintains Mr. Johnson’s amended complaint doesn’t include
separate claims for the denial of pain management and/or pain medication.
According to Dr. Mitcheff, the language of paragraphs 5-7 makes clear that Mr.
Johnson’s claims of inadequate pain management and medication aren’t separate
claims but, instead, relate to the claims found in paragraphs 2-4. According to Dr.
Mitcheff, because Mr. Johnson has withdrawn his claims in paragraphs 3 and 4,
any claims he might have with respect to the lack of pain management and
medication are related to, and must be limited to, the issue of his broken jaw.
Mr. Johnson says that paragraphs 6 and 7, when read together and in
conjunction with his Grievance and Grievance Appeal forms, confirm that he has
asserted a separate claim for denial of adequate medical care through the denial
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of adequate pain management medication. Mr. Johnson asserts that the
combination of his allegations in paragraphs 2, 6, and 7 reflect that his claim
relating to the denial of adequate medical care goes beyond the issue of his broken
jaw to include his complaint that he wasn’t referred to a neurology specialist. He
concludes that three claims remain: the refusal to allow him to be seen by a
neurologist, the denial of adequate pain management care, and the denial of
adequate pain medication.
The court can’t agree with Mr. Johnson’s assessment of his claims. The
relevant paragraphs of his amended complaint read as follows:
1. On 3/15/2011 I saw J. O’Neill, DDS, regarding my recent
broken jaw. This happened at Wishard Memorial Hospital. My jaw
was not healing as fast as it should have.
2. On 4/12/2011 I was referred to neurology for further
assistance regarding my jaw. . . . I never saw a neurology specialist
as a result.
*
*
*
5. As a result of the above stated paragraphs, I was denied
adequate medical care at those times. Thus, resulting in cruel
punishment towards myself.
6. All claims result in being denied proper medical care by
Michael Mitcheff, who works for Corizon. My pain was not treated
with adequate medical care. Mr. Mitcheff always denies what doctors
recommend if it involves some sort of pain medication. The defendant
is liable for misconduct alleged.
7. These claims are related due to the fact in the end Mr.
Mitcheff is the person who denies my pain management medication.
It doesn’t matter which prison I was at due to Mr. Mitcheff always
had final decision making for Corizon Medical Services.
8. Mr. Mitcheff and Corizon Medical Services are liable for
misconduct alleged. None of the enclosed doctors’ recommendations
were taken into consideration. Mr. Mitcheff just automatically denies
anything that was costly.
9. All the above claims are true and correct. They’re all related
due to Mr. Mitcheff’s denials of proper medical treatment. The result
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of Mr. Mitcheff’s decisions are continual physical pain ongoing and
untreated.
Mr. Johnson specifically states in paragraphs 5-7 that his claims of inadequate
medical care and pain medication relate to the claims presented earlier in the
complaint, i.e., the care (or lack of care) he received for his broken jaw (¶¶ 1-2),
rather than presenting a new and separate claim for the denial of adequate
medical care and pain medication.
Mr. Johnson has presented nothing that would change the court’s earlier
findings that his claims of inadequate pain management and medication relate to
the care he did or did not receive for his broken jaw. See Op. and Ord. (May 13,
2013), at 3:
Mr. Johnson alleges that he has medical conditions that have been
diagnosed by doctors, and that he suffers ongoing pain as a result of
these conditions. . . . On the second prong, [Mr. Johnson] alleges that
Dr. Mitcheff has refused to approve further treatment for these
conditions despite the recommendations of medical professionals and
has refused to provide medication to alleviate his pain.
The question of whether Mr. Johnson exhausted his administrative remedies
relating to separate issues of inadequate medical care and pain medication need
not be resolved.

CONCLUSION
Based on the foregoing, the court GRANTS Dr. Mitcheff's motion for partial
summary judgment [docket # 22]. Mr. Johnson’s amended complaint remains at

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issue on his claim of improper or inadequate medical care and pain medication
relating to the treatment of his broken jaw.
SO ORDERED.
ENTERED:

May 22, 2014
/s/ Robert L. Miller, Jr.
Judge, United States District Court

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