Johnson v. Mitcheff et al

Filing 82

OPINION AND ORDER GRANTING 77 MOTION for Summary Judgment by Defendant Michael A Mitcheff. The Final Pretrial Conference set for 8/15/2016 and the Jury Trial set for 9/6/2016 are VACATED. Clerk DIRECTED to enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 7/7/16. (cer)

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

OPINION and ORDER
James Johnson, an inmate in the Indiana Department of Correction, alleges
in his second amended complaint, filed pursuant to 42 U.S.C. § 1983, that
defendant Michael Mitcheff, in his individual capacity as the DOC’s Regional
Medical Director for Correctional Medical Services, Inc., denied him adequate
medical care and was deliberately indifferent to his serious medical needs in
violation of his right to be free from cruel and unusual punishment under the
Eighth Amendment to the United States Constitution. Dr. Mitcheff has moved for
summary judgment on Mr. Johnson’s claims, Mr. Johnson has filed his response,
and Dr. Mitcheff his reply. For the reasons that follow, the court grants the
defendant’s motion.

BACKGROUND
Mr. Johnson’s medical issues relate to the broken jaw he suffered at the
hands of another inmate in December 2010. At that time, Mr. Johnson was
housed at the Miami Correctional Center where he was admitted to the facility’s
infirmary and prescribed medication and a liquid diet. Mr. Johnson was seen by
a doctor and a dentist, and, a few days later, by an oral surgeon, who performed
surgery and stabilized Mr. Johnson’s jaw with wires. Over the next few weeks, Mr.
Johnson had follow-up appointments with the dentist and the oral surgeon and
was prescribed medication for his pain. In mid-January 2011, Mr. Johnson’s
mandibular wires were removed by the oral surgeon.
Mr. Johnson says that since the removal of those wires, he has suffered
severe, ongoing pain in his jaw. He says that despite his frequent complaints to
DOC personnel about his pain, the medications provided to him have been
ineffective in controlling his pain. Mr. Johnson claims that over the years Dr.
Mitcheff rejected numerous requests by medical and/or dental personnel that Mr.
Johnson be prescribed different or higher doses of medications, leaving him with
inadequately managed pain. Mr. Johnson contends Dr. Mitcheff’s actions amount
to deliberate indifference to his serious medical needs and violate the Eighth
Amendment’s prohibition on cruel and unusual punishment.
Dr. Mitcheff has moved for summary judgment on Mr. Johnson’s claims.
According to Dr. Mitcheff, he didn’t direct the course of Mr. Johnson’s treatment
and wasn’t the final decision-maker in Mr. Johnson’s medical care, and the
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actions he took in his limited role in Mr. Johnson’s care were reasonable and
establish that he wasn’t deliberately indifferent to Mr. Johnson’s serious medical
needs.

STANDARD OF REVIEW
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). The court’s role in deciding a summary
judgment motion “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.” Bryan v. Lyons, No. 2:07-CV-344,
2010 WL 2265617, at *1 (N.D. Ind. June 2, 2010).
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 of an alleged factual dispute, by itself,
won’t defeat a summary judgment motion; “instead, the nonmovant must present
definite, competent evidence in rebuttal,” Parent v. Home Depot U.S.A., Inc., 694
3

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
Mr. Johnson claims that Dr. Mitcheff denied him adequate medical care and
was deliberately indifferent to the pain he suffered following his treatment for a
broken jaw. To establish his claim of deliberate indifference to a serious medical
need in violation of the Eighth Amendment, Mr. Johnson must show that he
suffered from an objectively serious medical condition and that a state official
subjectively disregarded the risk to his health. Burks v. Raemisch, 555 F.3d 592,
593-594 (7th Cir. 2009). The parties don’t dispute that Dr. Mitcheff was a state
official, but Dr. Mitcheff claims Mr. Johnson can’t meet his burden of establishing
a serious medical condition, the objective element, or that he [Dr. Mitcheff]
disregarded the risk to Mr. Johnson’s health, the subjective element.

Objective Element
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Dr. Mitcheff claims Mr. Johnson’s serious medical need wasn’t pain from
his fractured jaw, but was, as reported by Mr. Johnson, pain resulting from the
oral surgeon’s “ripping out” Mr. Johnson’s nerves and muscles when he removed
the mandibular wires from Mr. Johnson’s jaw. According to Dr. Mitcheff, because
“it was physically impossible for Dr. Smith to have ripped out Mr. Johnson’s
muscles and nerves when he removed his mandibular wires and that allegation
does not make medical sense[, Mr. Johnson] can therefore not meet the objective
element of his claim.” Deft. Memo., at 16.
Mr. Johnson explains in response that in reporting his severe jaw pain to
prison medical personnel, he described the pain as being so severe that when the
wires were removed following his surgery, the oral surgeon must have ripped the
muscles and nerves out. He says he chose to use those “strong terms” when
describing the pain he was suffering to show that his pain was real, substantial,
and chronic, and amounted to “an objectively serious medical condition that was
accompanied by an objectively serious medical need for effective pain medication.”
Resp., at 12-13.
Even though the ripping out of Mr. Johnson’s nerves and muscles was a
medical impossibility, Mr. Johnson’s use of those terms to describe the intensity
of his pain doesn’t make his condition medically impossible. “An objectively
serious medical condition 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.’” Gayton v. McCoy, 593 F.3d 610, 620
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(7th Cir. 2010) (quoting Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008)). Mr.
Johnson’s complaints of pain were diagnosed as requiring treatment, and he had
been receiving treatment for his pain since 2010. Thus, Mr. Johnson has
established that he has a serious medical need, leaving for decision the issue of
whether Mr. Johnson can establish deliberate indifference on the part of Dr.
Mitcheff.

Subjective Element
To prevail on the subjective element, Mr. Johnson must establish deliberate
indifference: he must show that Dr. Mitcheff knew of his condition and “turned a
blind eye to it,” or that the treatment provided by Dr. Mitcheff was “blatantly
inappropriate.” Pyles v. Fahim, 771 F.3d 403, (7th Cir. 2014). “Evidence that [Dr.
Mitcheff] acted negligently is insufficient to prove deliberate indifference. Rather,
deliberate indifference is simply a synonym for intentional or reckless conduct,
and that ‘reckless’ describes conduct so dangerous that the deliberate nature of
the defendant’s actions can be inferred.” Gayton v. McCoy, 593 F.3d 610, 620 (7th
Cir. 2010) (internal quotation and citations omitted). “A medical professional is
entitled to deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances.” Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011).
Dr. Mitcheff maintains his actions establish that he wasn’t deliberately
indifferent to Mr. Johnson’s medical needs. In support, he submits his affidavit
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statements about his involvement in Mr. Johnson’s care. See Deft. Exh. A
(Mitcheff Aff.).
Dr. Mitcheff reports that from 2006 to July 4, 2014, he was the regional
medical director for Correctional Medical Services, Inc. (now Corizon), the
company that contracts with the Indiana Department of Correction to provide
medical care to prisoners. Mitcheff Aff., ¶ 3. He says he became familiar with Mr.
Johnson in 2010 when Mr. Johnson was treated at the Miami Correctional Facility
for a broken jaw. Mitcheff Aff., ¶ 4. Dr. Mitcheff states that he never personally
treated Mr. Johnson. Mitcheff Aff., ¶ 7.
Dr. Mitcheff explains the medical care system in the DOC this way: Medical
care providers at the various prison facilities include physicians and nurse
practitioners, who decide on the course of treatment for individual offenders.
Mitcheff Aff., ¶ 5. Dr. Mitcheff says that “[w]hen a provider at a prison wanted to
prescribe a non-formulary medication, [the provider] would submit a NonFormulary Drug Tracking Form that would then be reviewed to see if the
prescription met criteria, just like any other major health organization would do.”
Mitcheff Aff., ¶ 5. Dr. Mitcheff says he would review those requests and then
communicate to the physician his agreement with the prescription or his
suggestion of an alternative treatment plan if he didn’t think the requested
prescription was the best choice; Dr. Mitcheff adds that when an alternative
treatment plan was suggested, the requesting physician would often call him to

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discuss the matter and they would reach an agreement on the best course of
treatment for the offender. Mitcheff Aff., ¶ 5.
Dr. Mitcheff says that he also reviewed requests for offenders to be referred
to outside specialists for consultations, diagnostic imaging, or surgeries. Mitcheff
Aff., ¶ 5. Dr. Mitcheff reports that just like his review of requests for medications,
he communicated his decisions relating to referrals to the requesting physician,
i.e. his agreement with the request or his suggestion for an alternative treatment
plan. Mitcheff Aff., ¶ 5.
Dr. Mitcheff reports that even if he suggested an alternative medication or
treatment plan, “the provider at the prison had the final authority and decision to
proceed with the requested course of treatment regardless of my input. As
Regional Medical Director, I did not make treatment decisions for offenders.
Rather, I reviewed recommendations from facility physicians and sometimes
provided guidance and alternative treatment suggestions.” Mitcheff Aff., ¶ 5. Dr.
Mitcheff insists that “regardless of [his] input, the doctor at the prison had the
ultimate decision and authority regarding what medications to prescribe since
he/she was the offender’s primary care provider.” Mitcheff Aff., ¶ 5.
Dr. Mitcheff has submitted Mr. Johnson’s medical records from December
7, 2010 through June 12, 2014, the time period relevant to this action. See Deft.
Exh. B. Dr. Mitcheff maintains those records, totaling 252 pages, show that his
involvement with Mr. Johnson’s medical care was very limited – over a four-year

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period he had possible involvement in Mr. Johnson’s medical care only eight
times. Dr. Mitcheff offers the following information about those eight occasions:
December 6, 2010

A consultation request was submitted by Dr. Hornaday
for Mr. Johnson to undergo oral surgery for his broken
jaw. That request was approved by either Dr. Mitcheff or
the associate regional medical director. Mitcheff Aff., ¶ 9.

March 22, 2011

Dr. Mitcheff received and reviewed a non-formulary drug
recommendation from Dr. Marandet for Mr. Johnson to
receive Tramadol (Ultram), an opioid; Dr. Mitcheff
followed up with Dr. Marandet about Mr. Johnson’s
condition and learned that Mr. Johnson was expected to
return to the oral surgeon soon; Dr. Mitcheff then
“suggested an alternative treatment plan since it had
been 2 months since Mr. Johnson’s wires had been
removed and non-opioid pain medication should be
sufficient to manage pain this long after the injury. The
risks of prescribing opioid pain medication at that point
were not outweighed by Mr. Johnson’s potential pain.
Furthermore, since Mr. Johnson was to be going to the
oral surgeon soon, it was prudent to wait to see what
suggestions the oral surgeon had regarding pain
management. However, if Dr. Marandet wanted to
prescribe Tramadol for Mr. Johnson, he could have
prescribed it regardless of my input since he was Mr.
Johnson’s treating physician.” Mitcheff Aff., ¶ 10.

March 23, 2011

A non-formulary drug recommendation was submitted
by Dr. Hornaday for Mr. Johnson to receive Ultram. That
request was approved by either Dr. Mitcheff or the
associate regional medical director. Mitcheff Aff., ¶ 11.

April 28, 2011

A non-formulary drug recommendation was submitted
by Dr. Marandet for Mr. Johnson to receive Tramadol,
indicating that Mr. Johnson had refused a low dose of
Tegretol and TCA for pain management. Dr. Mitcheff or
the associate regional medical director reviewed the
request, but didn’t agree that Tramadol was necessary.
Dr. Mitcheff says that if he reviewed this request, he
“likely did not think Tramadol was best for [Mr. Johnson]
since he had declined to try a less strong pain
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medication first. It is always advisable to treat chronic
pain with a less strong pain medication first and if that
does not work, then to try a stronger pain mediation.”
Dr. Mitcheff adds that “regardless of this input, Dr.
Marandet could still prescribe Tramadol for Mr. Johnson
since he was Mr. Johnson’s primary care provider.”
Mitcheff Aff., ¶ 12.
May 9, 2013

A non-formulary drug recommendation was submitted
by Dr. Person (treating physician at New Castle
Correctional Facility) for Mr. Johnson to receive Ultram.
That request was approved by either Dr. Mitcheff or the
associate regional medical director, with the added
suggestion that Mr. Johnson try APAP before trying
Ultram. Mitcheff Aff., ¶ 13.

December 10, 2013

Dr. Mitcheff received and reviewed a non-formulary drug
recommendation from Deborah Perkins, N.P. for Mr.
Johnson to receive Neurontin, indicating that Mr.
Johnson’s use of Ultram had been discontinued due to
seizure activity and Neurontin worked better to control
his pain. Dr. Mitcheff communicated his agreement with
the recommendation. Mitcheff Aff., ¶ 14.

May 15, 2014

Dr. Mitcheff received and reviewed a non-formulary drug
recommendation from Deborah Perkins, N.P. for Mr.
Johnson to receive an increased dosage of Neurontin,
indicating that Mr. Johnson had requested the increase.
Dr. Mitcheff says he recommended that Mr. Johnson
“remain on the current dose, since Neurontin is a highlytrafficked drug in the prison system and rather than
increase the dosage of the drug, another drug could be
added to the Neurontin for pain management. However,
Deborah Perkins, N.P. could still prescribe Neurontin if
she wanted to regardless of my input.” Mitcheff Aff., ¶
15.

June 10, 2014

Dr. Mitcheff received and reviewed a consultation
request from Deborah Perkins, N.P. for Mr. Johnson to
undergo an ultrasound of his right calf. Dr. Mitcheff
communicated his agreement to Nurse Perkins. Mitcheff
Aff., ¶ 16.

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Dr. Mitcheff reports that he had no further involvement with Mr. Johnson’s
medical care after July 4, 2014, when he became the Chief Medical Officer for the
Indiana DOC. Dr. Mandip Bartels replaced Dr. Mitcheff as the Regional Medical
Director and reviewed all later physician requests. Mitcheff Aff., ¶ 17.
Dr. Mitcheff maintains these records establish that he wasn’t deliberately
indifferent – he didn’t act with reckless disregard toward Mr. Johnson’s serious
needs by inaction or woefully inadequate action. Dr. Mitcheff notes that on the
three occasions he disagreed with the provider’s recommendation, he didn’t deny
medical care to Mr. Johnson or prevent Mr. Johnson from receiving care; instead,
in his role as Regional Medical Director, he provided guidance on the nonformulary medications being requested and sometimes recommended alternate
courses of treatment. According to Dr. Mitcheff, Mr. Johnson’s day-to-day
healthcare needs were handled by the medical staff at the facility where Mr.
Johnson was housed, and regardless of Dr. Mitcheff’s input, his opinion on
medical staff requests wasn’t binding – the treating medical care provider had the
ultimate decision about what medication(s) to prescribe to Mr. Johnson. Dr.
Mitcheff concludes that Mr. Johnson isn’t entitled to the relief he seeks and he is
entitled to summary judgment on Mr. Johnson’s deliberate indifference claim.

(i)
In response, Mr. Johnson first argues that “there is a genuine issue of
material fact from which a reasonable trier of fact could conclude that only the
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Associate Regional Medical Director reviewed and communicated an agreement”
with medication recommendations approved on March 23, [2011], May 9, 2013,
and December 10, 2013. Resp., at 14. Mr. Johnson contends Dr. Mitcheff refused
to agree to recommendations for changes in medication on “multiple other
occasions,” so a reasonable trier of fact could conclude that the only time
recommendations for effective pain medication were agreed to was when the
recommendation was reviewed and responded to by someone other than Dr.
Mitcheff.
Mr. Johnson’s argument ignores Dr. Mitcheff’s affidavit statements about
the three requests Mr. Johnson cites. Dr. Mitcheff stated with respect to the
March 23, 2011 request – “I believe that I likely reviewed this request . . . and
agreed with it,” Mitcheff Aff., ¶ 11; with respect to the May 9, 2013 request –
“either I or the Associate Regional Medical Director agreed with the
recommendation,” Mitcheff Aff., ¶ 13; and with respect to the December 10, 2013
request – “I reviewed this request and agreed,” Mitcheff Aff., ¶ 14. Mr. Johnson
hasn’t challenged Dr. Mitcheff’s affidavit statements that he approved the
December 10 request, likely approved the March 23 request, and could have
approved the May 9 request, and so hasn’t demonstrated how a reasonable trier
of fact could conclude that “only” the associate regional medical director reviewed
and agreed to requests for increased pain medication.
Mr. Johnson also hasn’t established that “on multiple other occasions” Dr.
Mitcheff refused to provide him with effective pain medication. Resp., at 14.
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According to Mr. Johnson, on March 22, 2011, Dr. Mitcheff “was probably”
involved in rejecting a recommendation for increased pain medication, Resp., at
5; on April 28, 2011, a recommendation for Tramadol “was not agreed to by
whomever reviewed it – possibly Dr. Mitcheff,” Resp., at 6; and on May 15, 2014,
Dr. Mitcheff disagreed with a recommendation for an increase in a Neurontin
dosage, Resp., at 6. But Mr. Johnson hasn’t alleged or argued that Dr. Mitcheff’s
decision to recommend alternative courses of action on those dates1 was “a
significant departure from accepted professional judgment, practice, or
standards.” Holloway v. Delaware County Sheriff, 700 F.3d 1063, 1073 (7th Cir.
2012); see also Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (“Disagreement
between a prisoner and his doctor, or even between two medical professionals,
about the proper course of treatment generally is insufficient, by itself, to establish
an Eighth Amendment violation. The courts will not interfere with a doctor’s
decision to pursue a particular course of treatment unless that decision
represents so significant a departure from accepted professional standards or
practices that it calls into question whether the doctor actually was exercising his
professional judgment.”).

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See Mitcheff Aff., ¶ 10 (March 22, 2011: “[S]ince Mr. Johnson was to be going to the oral
surgeon [the following day], it was prudent to wait to see what suggestions the oral surgeon had
regarding pain management.”); Mitcheff Aff., ¶ 12 (April 28, 2011: “I likely did not think Tramadol
was best for [Mr. Johnson] since he had declined to try a less strong pain medication first. It is
always advisable to treat chronic pain with a less strong pain medication first and if that does not
work, then to try a stronger pain medication.”); Mitcheff Aff., ¶ 15 (May 15, 2014: recommending
that “rather than increase the dosage [of Neurontin], another drug could be added to the Neurontin
for pain management”).

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Mr. Johnson’s highlighting of a single incident of disagreement by Dr.
Mitcheff over the course of four years of Mr. Johnson’s treatment in the DOC – as
shown by Mr. Johnson’s medical records that total 252 pages with hundreds of
entries, see Deft. Memo., Exh. B – doesn’t support a finding that Dr. Mitcheff
refused “on multiple occasions” to provide Mr. Johnson with effective pain
medication. Mr. Johnson hasn’t established that a reasonable trier of fact could
conclude that “when it was Dr. Mitcheff reviewing recommendations for effective
opioid pain medication or an effective Neurontin dosage, those recommendations
were rejected.” Resp., at 14.

(ii)
Mr. Johnson next claims genuine issues of material fact exist from which
a reasonable trier of fact could conclude that Dr. Mitcheff’s decision “against the
provision of Tramadol/Ultram, or an increased dosage of Neurontin, did not result
from his use of medical judgment, but instead resulted from concerns unrelated
to basic medical judgment.” Resp., at 15. Mr. Johnson complains that Dr. Mitcheff
didn’t identify “what if any criteria had to be met” for him to agree to a medication
request, “so it is possible the criteria related to non-medical concerns, such as the
cost of the recommended medication or whether it was perceived to be something
that might be trafficked by prisoners as contraband.” Resp., at 15. Mr. Johnson
asserts that based on the severity and ongoing nature of his jaw pain, “there is a
reasonable inference that Dr. Mitcheff’s decision to disagree with prescribing
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plaintiff a stronger medication had little or nothing to do with actual medical
judgment.” Resp., at 15.
Mr. Johnson’s claim that Dr. Mitcheff didn’t base his decisions on medical
criteria or use his medical judgment in assessing medication requests ignores Dr.
Mitcheff’s affidavit statements about his decisions:
– March 22, 2011 request from Dr. Marandet for Mr. Johnson to
receive Tramadol/Ultram: “I reviewed this request and followed up with Dr.
Marandet by asking whether Mr. Johnson had an acute fracture now. Dr.
Marandet replied that he did not and his wires were removed in January
2011. Dr. Marandet also responded that Mr. Johnson was expected to
return to the oral surgeon soon. I suggested an alternative treatment plan
since it had been 2 months since Mr. Johnson’s wires had been removed
and non-opioid pain medication should be sufficient to manage pain this
long after the injury. The risks of prescribing opioid pain medication at that
point were not outweighed by Mr. Johnson’s potential pain. Furthermore,
since Mr. Johnson was to be going to the oral surgeon soon, it was prudent
to wait to see what suggestions the oral surgeon had regarding pain
management.” Mitcheff Aff., ¶ 10.
– May 15, 2014 request from Deborah Perkins, N.P. for an increase
in dosage of Neurontin: “At the time, Mr. Johnson was already on 300 mg.
of Neurontin twice a day and wanted an increase to 400 mg. twice a day. I
reviewed this request and recommended an alternative treatment plan that
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he remain on the current dose, since Neurontin is a highly-trafficked drug
in the prison system, and rather than increase the dosage of the drug,
another drug could be added to the Neurontin for pain management.”
Mitcheff Aff., ¶ 15.
– Dr. Mitcheff also addressed an April 28, 2011 request from Dr.
Marandet for Tramadol that he says he may have reviewed: “Dr. Marandet
indicated that Mr. Johnson had refused a low does of Tegretol and TCA for
pain management. . . . The record is not clear whether I or the Associate
Regional Medical Director reviewed this request but either I or the Associate
Regional Medical Director did not agree that this medication was necessary
and communicated that to Dr. Marandet. . . . If I reviewed this request, I
likely did not think Tramadol was best for the patient, since he had declined
to try a less strong pain medication first. It is always advisable to treat
chronic pain with a less strong pain medication first and if that does not
work, then to try a stronger pain medication.” Mitcheff Aff., ¶ 12.
Mr. Johnson hasn’t challenged those statements in which, contrary to Mr.
Johnson’s claim, Dr. Mitcheff says he evaluated the medical considerations of pain
management and the problems associated with long-term use of narcotic or opioid
pain medications, “particularly in patients with Hepatitis C, as Mr. Johnson had.”
Mitcheff Aff., ¶ 8.
Before Dr. Mitcheff can be found deliberately indifferent, Mr. Johnson must
show that Dr. Mitcheff’s actions were “so far afield of professional standards” so
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as to imply that his actions or omissions were not actually based on medical
judgment. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). Mr. Johnson
hasn’t made that showing. Mr. Johnson speculates that the cost of medication
might have been a non-medical concern of Dr. Mitcheff’s, but he provides no
support for his claim. He hasn’t set forth a cost comparison of medications being
used vs. medications being requested that might support his assertion, and his
conjecture on this issue isn’t evidence. Too, even if, as Mr. Johnson suggests, one
of the criteria considered by Dr. Mitcheff was whether the medication being
recommended might be at risk of becoming contraband if an inmate was provided
the medication for pain, see Mitcheff Aff., ¶ 15 (“Neurontin is a highly-trafficked
drug in the prison system”), Mr. Johnson hasn’t suggested how that consideration
was improper for the Regional Medical Director of the state’s Department of
Correction or amounted to deliberate indifference to his medical needs. Mr.
Johnson hasn’t cited to evidence from which a reasonable trier of fact could
conclude that those instances of Dr. Mitcheff’s disagreement with prescribing
stronger medications “had little or nothing to do with actual medical judgment.”

(iii)
Mr. Johnson claims the evidence demonstrates Dr. Mitcheff’s ongoing
disregard for Mr. Johnson’s pain management needs. Resp, at 16. Mr. Johnson
says Dr. Mitcheff was contacted “on multiple occasions” by a prison doctor,
dentist, or nurse about his significant jaw pain, but Dr. Mitcheff “repeatedly failed
17

to inquire” about the possible cause of that pain. According to Mr. Johnson, Dr.
Mitcheff failed to consider “the various factors effecting whether stronger pain
medication was needed” and ask “whether the pain had recently increased or
changed, whether it was accompanied by additional jaw related symptoms
(clicking, swelling, or difficulty in movement), or if the plaintiff had further injured
it.” Resp., at 16. Mr. Johnson contends those failures on Dr. Mitcheff’s part raise
“an inference that although Dr. Mitcheff knew the plaintiff was suffering from
ongoing significant pain, he had no concern about the need to if not eliminate, at
least effectively limit the plaintiff’s severe chronic jaw pain, reflecting deliberate
indifference once again to the plaintiff’s serious medical condition and need.”
Resp., at 16. The summary judgment record doesn’t support Mr. Johnson’s claim.
Mr. Johnson refers to Dr. Mitcheff’s “ongoing disregard” for his pain, but he
hasn’t specified the evidence he claims demonstrates that “ongoing disregard.” Mr.
Johnson sets forth various questions he claims Dr. Mitcheff never asked about his
condition, but he hasn’t pointed to the evidence from which he ascertained the
questions Dr. Mitcheff did or didn’t ask, or the factors Dr. Mitcheff did or didn’t
consider, about his condition. Too, while Mr. Johnson claims Dr. Mitcheff
“repeatedly failed to inquire” about his condition, Mr. Johnson doesn’t identify the
evidence he says supports his conclusory assertion, nor has he challenged Dr.
Mitcheff’s affidavit statements that he did review and follow-up on Mr. Johnson’s
pain management plan with medical providers at the facilities where Mr. Johnson
was housed. See Mitcheff Aff., ¶¶ 5, 10, 11.
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“Deliberate indifference may be inferred based upon a medical professional’s
erroneous treatment decision only when the medical professional’s decision is
such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible did not base the decision
on such a judgment. If this standard is not met, the deliberate indifference
question may not go to the jury.” Gayton v. McCoy, 593 F.3d 610, 622-623 (7th
Cir. 2010) (citation omitted). Mr. Johnson hasn’t pointed to evidence from which
a factfinder could decide that Dr. Mitcheff’s treatment plans and/or medical
judgment “departed so substantially from the processional norm that [he] acted
deliberately indifferent to [Mr. Johnson’s] health. Nor can it be said that [Dr.
Mitcheff’s] actions were ‘so dangerous’ that the deliberate nature of [his] conduct
can be inferred.” Gayton v. McCoy, 593 F.3d 610, 623 (7th Cir. 2010).

(iv)
Mr. Johnson lastly asserts that “the evidence shows that Dr. Mitcheff
exerted considerable influence and control over whether the plaintiff did or did not
receive recommended pain medication at the prison.” Resp., at 17. Mr. Johnson
claims that “[o]n multiple occasions between 2011 and 2014, Dr. Mitcheff declined
to agree with direct medical providers’ recommendations to provide the plaintiff
with a stronger pain medication.” Resp., at 17. According to Mr. Johnson, the
denial of Tramadol/Ultram or an increased dosage of Neurontin occurred after Dr.
Mitcheff had reviewed requests from on-site medical personnel to provide those
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medications, and if Dr. Mitcheff didn’t control the direct care by medical
personnel, “there would have been no requirement that [Dr.] Mitcheff review the
recommendations, there would be no need to seek out his feedback, and no
reason to attempt to obtain his agreement before prescribing a particular nonformulary medication to an inmate, such as the plaintiff.” Resp., at 17-18. Mr.
Johnson says the denial of his medications “was at the direction of, with the
knowledge of, and/or at the consent of Dr. Mitcheff, thereby demonstrating that
Dr. Mitcheff was sufficiently involved in the denial of effective pain medication to
be liable to plaintiff for the violation of plaintiff’s right to receive adequate medical
care.” Resp., at 18.
Mr. Johnson hasn’t specified the evidence he claims demonstrates that Dr.
Mitcheff controlled his right to receive increased dosages of medications, nor has
he addressed Dr. Mitcheff’s affidavit statement that he didn’t direct the course of
Mr. Johnson’s treatment. Dr. Mitcheff stresses that the course of treatment for
individual offenders, including Mr. Johnson, “was decided by the providers at the
prisons, including the physicians and nurse practitioners.” Mitcheff Aff., ¶ 5.
According to Dr. Mitcheff, “regardless of my input, the doctor at the prison had the
ultimate decision and authority regarding what medications to prescribe since
he/she was the offender’s primary care provider. . . . As Regional Medical Director,
I did not make treatment decisions for offenders. Rather, I reviewed
recommendations from facility physicians and sometimes provided guidance and
alternative treatment suggestions.” Mitcheff Aff., ¶ 5; see also Mitcheff Aff., ¶ 10
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(“[I]f Dr. Marandet wanted to prescribe Tramadol for Mr. Johnson, he could have
prescribed it regardless of my input since he was Mr. Johnson’s treating
physician.”); ¶ 13 (“Again, regardless of my input or the input of the Associate
Regional Medical Director, Dr. Person could prescribe whatever he wanted and did
not have to try APAP first.”); ¶ 15 (“Deborah Perkins, N.P. could still prescribe
Neurontin if she wanted to regardless of my input.”). Mr. Johnson’s conjecture
about the protocol for providing medical care and requesting changes in
medication at the prisons isn’t evidence and doesn’t negate Dr. Mitcheff’s
statements that treating physicians at the prisons managed Mr. Johnson’s
medical care and had the ultimate decision-making authority to prescribe
medications to Mr. Johnson.

CONCLUSION
Based on the foregoing, the court concludes that Mr. Johnson hasn’t
established that Dr. Mitcheff was deliberately indifferent to his serious medical
needs in violation of his right to be free from cruel and unusual punishment
under the Eighth Amendment to the United States Constitution. The court
GRANTS the motion of Michael A. Mitcheff for summary judgment motion on Mr.
Johnson’s claims against him [docket # 77], VACATES the final pretrial conference
set for August 15, 2016 and the trial date of September 6, 2016, and DIRECTS the
Clerk to enter judgment accordingly.
SO ORDERED.
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ENTERED:

July 7, 2016

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

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