Fisher v. Rogers et al

Filing 100

OPINION AND ORDER: The Court GRANTS the defendants' 87 Motion for Summary Judgment. As this order disposes all of Mr. Fisher's remaining claims, the Clerk is DIRECTED to enter judgment. Signed by Judge Jon E DeGuilio on 5/17/17. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JACKIE LEE FISHER,
Plaintiff,
v.
CORRECT CARE SOLUTIONS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 3:14-CV-1666 JD

OPINION AND ORDER
While detained in the Elkhart County jail, plaintiff Jackie Lee Fisher slipped on a water
leak in his cell and hit his head. He was promptly tended to by a nurse, and a doctor gave
treatment directions by phone. The following week, he sought additional treatment for
continuing symptoms, but refused to be treated unless the medical staff first agreed to waive the
$15 co-payment, which they did not. Several days later, Mr. Fisher relented and sought treatment
notwithstanding the co-payment. He was evaluated by a nurse, who again consulted with the
doctor by phone, and he saw the doctor in person the following week. Mr. Fisher alleges in this
action that the delay in seeing the doctor in person and the failure to waive the co-payment
caused him to endure unnecessary pain during this period, in violation of his constitutional
rights. The defendants—the doctor, a nurse, and the company that provides medical services at
the jail—have now moved for summary judgment, arguing that there is no evidence that they
were deliberately indifferent to Mr. Fisher’s serious medical needs. The Court agrees, and grants
the motion for summary judgment.
I. FACTUAL BACKGROUND
On April 26, 2014, plaintiff Jackie Lee Fisher was a pretrial detainee in the Elkhart
County jail. Early in the morning, Mr. Fisher slipped on a water leak in his cell and fell and hit

his head. Another inmate in his cell used the call box to notify jail staff that Mr. Fisher had fallen
and was hurt. Jail staff came to the cell and escorted Mr. Fisher to the medical unit, where he was
evaluated by nurses on duty. Mr. Fisher had a cut on his head that was two inches long, but not
deep. He also reported a ringing and tenderness in his ears. His vital signs were generally
normal, though, and he also performed well on tests designed to detect neurological injuries.
At 6:32 a.m., about an hour after the fall, a nurse called and spoke to Dr. John Foster, the
doctor employed by Correct Care Solutions to provide treatment at the jail. The nurse told Dr.
Foster about Mr. Fisher’s injury, and informed him that Mr. Fisher was complaining of nausea,
blurred vision, and a pounding headache. She also provided Dr. Foster with the neurological test
results. Dr. Foster ordered an x-ray of Mr. Fisher’s skull, and also ordered that Mr. Fisher receive
Tylenol 975 mg., twice a day for two days. That medication was in addition to an existing
prescription Mr. Fisher had for Mobic, a mild pain-reliever and anti-inflammatory drug. Dr.
Foster concluded based on the information provided to him that Mr. Fisher was stable from a
neurological perspective and did not need to be sent to the hospital. Mr. Fisher states that he was
also vomiting at this time, but he does not dispute that Dr. Foster was not given that information.
The x-ray was taken that same morning and came back normal, showing no skull fracture. Either
that night or the following day, a nurse called Dr. Foster and informed him that Mr. Fisher was
fine, had no pain, no blurred vision, and was ready to go back to his dorm, so Dr. Foster released
him back to the general population.
Several days later, on April 30, Mr. Fisher submitted a request to see the medical
department. An appointment was scheduled for the following day, but when he was called for his
appointment, Mr. Fisher refused to go. Nurse Daniel Kinnear, the nursing supervisor, asked to
speak with Mr. Fisher about why he was refusing treatment. Mr. Fisher alleges that medical staff

2

had told him he would have to pay a triage fee of $15 in order to be seen. He believed that the
fee was contrary to Correct Care’s policy, though, and also that his injury was the jail’s fault
because of the leak, so he refused to be triaged without being assured that he would not be
charged. Nurse Kinnear encouraged Mr. Fisher to be triaged and advised him that he could be
seen by the medical staff at any time, but Mr. Fisher refused to be seen, believing that he would
be wrongfully charged for the treatment.
On May 6, Mr. Fisher finally agreed to be seen despite the $15 charge. He was examined
on May 8 by Nurse Kinnear. At that time, Mr. Fisher’s vital signs were normal and the cut on his
head was healing nicely, but he complained of headaches and neck pain since his fall. Nurse
Kinnear then called Dr. Foster and discussed Mr. Fisher’s complaints. Dr. Foster ordered that
Mr. Fisher receive Tylenol 975 mg. for seven days. Nurse Kinnear also referred Mr. Fisher for an
appointment with Dr. Foster, which took place on May 15. On that date, Dr. Foster examined
Mr. Fisher in person for the first time since the accident. Mr. Fisher reported a headache that
would come and go, and also reported that he was still very tender in his lower neck and upper
back. Dr. Foster prescribed Flexeril, a muscle relaxant. He also ordered a cervical spine x-ray,
which was taken the next day and came back normal. Mr. Fisher continued to seek and receive
treatment for over the next year, but only focuses in this action on his treatment through May 15,
so the Court need not discuss the rest of his treatment history.
Mr. Fisher filed a pro se complaint in this case on June 18, 2014. Pursuant to 28 U.S.C.
§ 1915A, the Court screened the complaint, and granted Mr. Fisher leave to proceed on a
deliberate indifference claim against eleven individuals involved in his medical care, and against
Correct Care Solutions, the private company that contracted to provide medical services at the
jail and that employed Dr. Foster and Nurse Kinnear. The Court also granted Mr. Fisher’s motion

3

to recruit counsel, so he is now represented.1 Mr. Fisher later stipulated to the dismissal of five of
the individual defendants. In addition, following the remaining defendants’ motion for summary
judgment, Mr. Fisher stipulated to the dismissal of four more of the defendants, conceding that
the record could not support his claims against them. Accordingly, Mr. Fisher’s claims remain
pending against Dr. Foster, Nurse Kinnear, and Correct Care, each of which have moved for
summary judgment.2
II. STANDARD OF REVIEW
Summary judgment is proper when 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 “material” fact is one identified by the substantive law as affecting the outcome of the
suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with
respect to any material fact when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and
summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In
determining whether a genuine issue of material fact exists, this Court must construe all facts in
the light most favorable to the non-moving party and draw all reasonable and justifiable

1

The Court thanks Ms. Nemeth for her willingness to represent Mr. Fisher, and for ably
discharging her duties.
2

The defendants’ “Statement of Material Facts Not in Dispute” is 40 pages long, which reflects
an unduly expansive view of the term “material.” In addition, the argument portion of the
defendants’ brief does not contain any citations to the record or to the statement of facts.
Needless to say, the Court should not have to cross-reference the defendants’ arguments against
a 40-page statement of facts to locate where in the record their arguments are supported.
4

inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v.
Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).
III. DISCUSSION
Mr. Fisher argues that Dr. Foster, Nurse Kinnear, and Correct Care violated his
constitutional rights by delaying his treatment and by improperly charging him for that treatment.
At the time of these events, Mr. Fisher was a pre-trial detainee at the jail. “Although the Eighth
Amendment applies only to convicted persons, pretrial detainees . . . are entitled to the same
basic protections under the Fourteenth Amendment’s due process clause. Accordingly, [courts]
apply the same legal standards to deliberate indifference claims brought under the Eighth or
Fourteenth Amendment.” Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010). A
constitutional claim based on inadequate medical care contains two elements: “(1) the prisoner
suffered an objectively serious harm that presented a substantial risk to his safety, and (2) the
defendants were deliberately indifferent to that risk.” Id.; Petties v. Carter, 836 F.3d 722, 728
(7th Cir. 2016) (en banc).
The defendants do not contest the first element for these purposes, but focus on the
second element. That element requires a dual showing that the defendant (1) had subjective
knowledge of a risk to the inmate’s health, and (2) intentionally disregarded that risk. Thomas v.
Cook Cty. Sheriff’s Dep’t, 604 F.3d 293 (7th Cir. 2010); Minix, 597 F.3d at 831. “For a medical
professional to be liable for deliberate indifference to an inmate’s medical needs, he 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, 541 F.3d at 697 (quoting Sain v. Wood, 512 F.3d 886,
895 (7th Cir. 2008)). The Court considers Mr. Fisher’s claim against each defendant in turn.

5

A.

Dr. Foster
Mr. Fisher first argues that Dr. Foster was deliberately indifferent to his serious medical

needs. Dr. Foster was called early in the morning on April 26, 2014, shortly after Mr. Fisher’s
fall. The nurse relayed Mr. Fisher’s condition and vital signs. Based on the information he
received, Dr. Foster ruled out any life-threatening head injury, so he ordered Tylenol 975 mg.
twice a day for two days, and also ordered an x-ray of Mr. Fisher’s skull. In addition, Mr. Fisher
already had an active prescription for Mobic, a mild pain relieve and anti-inflammatory drug.
The x-ray was performed that same morning and came back normal. Dr. Foster received an
update by phone that evening or the next day from a nurse, who advised him that Mr. Fisher was
fine, had no pain, and no blurred vision. Accordingly, Dr. Foster released Mr. Fisher to return to
the general population. Dr. Foster’s next encounter with Mr. Fisher was a phone call from Nurse
Kinnear on May 8, after Mr. Fisher’s examination by Nurse Kinnear. Nurse Kinnear advised that
Mr. Fisher reported headaches and neck pain since his fall, so Dr. Foster ordered Tylenol 975
mg. for seven days. Finally, on May 15, Dr. Foster examined Mr. Fisher in person. Mr. Fisher
reported an ongoing headache that would come and go, and also reported that his lower neck and
upper back was still tender. Accordingly, Dr. Foster prescribed Flexeril, a muscle relaxant, and
ordered an x-ray, which showed no acute injury.
Mr. Fisher does not point to any evidence showing that the treatment Dr. Foster provided
during this period was deficient in light of the information known to Dr. Foster, much less that it
represented so substantial a departure from accepted professional judgment as to demonstrate
that he actually did not base his decision on such a judgment. Rather, his complaint is that, after
receiving the phone call about Mr. Fisher’s accident on April 26, “Dr. Foster never took it upon
himself to follow up with [Mr.] Fisher when he was next in the jail to ensure that [Mr. Fisher]
was recovered.” [DE 96 p. 15]. Perhaps an unusually attentive doctor would have sought out Mr.
6

Fisher to ensure he had recovered, but the constitution does not require doctors to go above and
beyond in that manner. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (holding that a
prisoner “is not entitled to demand specific care” or “to the best care possible,” but only “to
reasonable measures to meet a substantial risk of serious harm”). Rather, to sustain a claim of
deliberate indifference, Mr. Fisher would have to show that Dr. Foster had subjective knowledge
of a substantial risk to his health, and that Dr. Foster intentionally disregarded that risk by failing
to follow up with him.
There is no evidence of that. After Mr. Fisher’s accident, Dr. Foster ordered Tylenol for
two days, which was in addition to Mr. Fisher’s ongoing prescription for a pain reliever and antiinflammatory drug. Before those two days were up, Dr. Foster was told by a nurse that Mr.
Fisher was doing well and was ready to go back to general population, and all of the objective
tests were normal, so there is no way to conclude that Dr. Foster had subjective knowledge of a
substantial risk to Mr. Fisher’s health that required following up. Likewise, when Dr. Foster was
contacted about Mr. Fisher on May 8, he again ordered Tylenol for Mr. Fisher, and saw Mr.
Fisher in person before that prescription expired. Again, Mr. Fisher has offered no basis for
concluding that Dr. Foster knew based on the information available to him that Mr. Fisher
needed to be seen sooner than that, or that he would suffer unnecessary pain in the interim given
the medication he ordered.
In arguing to the contrary, Mr. Fisher relies on cases where the defendants either delayed
providing any care at all or denied the plaintiff medication that had already been prescribed. On
each occasion Dr. Foster was contacted about Mr. Fisher, though, Dr. Foster did order treatment
for Mr. Fisher. Thus, Mr. Fisher’s complaint boils down to a disagreement with the type of
treatment provided. Without evidence that the treatment departed so substantially from accepted

7

professional standards as to demonstrate that Dr. Foster was not actually relying on such a
judgment, this claim must fail. Jackson, 541 F.3d at 698 (“What we have here is not deliberate
indifference to a serious medical need, but a deliberate decision by a doctor to treat a medical
need in a particular manner.”); Sain, 512 F.3d at 894–95 (“A medical professional is entitled to
deference in treatment decisions unless no minimally competent professional would have so
responded under those circumstances.”); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)
(“[A] plaintiff’s receipt of some medical care does not automatically defeat a claim of deliberate
indifference if a fact finder could infer the treatment was so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate a medical condition.” (second
emphasis added)). Accordingly, the Court grants the motion for summary judgment as to Dr.
Foster.
B.

Nurse Kinnear
Mr. Fisher next asserts a claim against Nurse Kinnear. Mr. Fisher first argues that when

he requested follow-up medical care several days after his fall, Nurse Kinnear refused to waive
the co-payment, which Mr. Fisher believed he should not have had to pay. Mr. Fisher argues that
this delayed his treatment, as he refused to be treated without being assured that he would not be
charged for the treatment. This argument is a non-starter, though, as “the Eighth Amendment
does not compel prison administrators to provide cost-free medical services to inmates who are
able to contribute to the cost of their care.” Poole v. Isaacs, 703 F.3d 1024, 1026 (7th Cir. 2012).
Thus, “it is not deliberate indifference for prison medical professionals to insist that inmates who
are financially able tender a required co-payment before receiving care.” Hightower v. Godinez,
524 F. App’x 294, 296 (7th Cir. 2013). Mr. Fisher does not claim that he was unable to pay the
co-payment. His argument is only that Nurse Kinnear refused to ensure that he would not be
charged. [DE 96 p. 17]. But because the constitution does not entitle him to cost-free medical
8

services, Mr. Fisher cannot state a claim for deliberate indifference based on his own refusal to
accept treatment he would have to pay for. Poole, 703 F.3d at 1027 (“[The plaintiff] had
sufficient funds in his trust fund account but opted to refuse treatment rather than part with his
money. Even though he was in pain until he received treatment, the delay in receiving care was
of his own making.”); Evans v. Heidorn, 556 F. App’x 493, 493–94 (7th Cir. 2014) (dismissing a
deliberate indifference claim as frivolous where the plaintiff cancelled his own doctor’s
appointments after learning that the co-payments would not be waived, even though he had the
ability to pay them).
Mr. Fisher also argues that Nurse Kinnear improperly delayed setting his appointment
with Dr. Foster after evaluating him on May 8, 2014, as he did not see Dr. Foster until a week
later, on May 15. Even attributing this delay to Nurse Kinnear, though, there is no evidence that
he intentionally disregarded a substantial risk to Mr. Fisher, as would be required to support a
deliberate indifference claim. Nurse Kinnear did not allow Mr. Fisher to go entirely without care
during that week. Rather, on the same day that he evaluated Mr. Fisher, Nurse Kinnear called
and spoke to Dr. Foster, who ordered Tylenol for Mr. Fisher. There is no evidence that Nurse
Kinnear should have known that this medication (on top of Mr. Fisher’s existing prescription for
Modic) was inadequate to treat Mr. Fisher’s complaints of headaches and neck pain, or that there
was an urgency for him to see Dr. Foster in person. Accordingly, Mr. Fisher cannot sustain a
claim for deliberate indifference against Nurse Kinnear, either, so the Court grants the motion for
summary judgment as to Nurse Kinnear.
C.

Correct Care Solutions
Finally, Mr. Fisher asserts a claim against Correct Care, a private entity that contracted to

provide medical care at the jail. To hold such an entity liable under § 1983, Mr. Fisher would
have to show that Correct Care maintained a policy or custom that caused a constitutional injury.
9

Glisson v. Ind. Dept. of Corr., 849 F.3d 372, 378–79 (7th Cir. 2017) (en banc). Mr. Fisher argues
that Correct Care has such a policy because its “employees have a widespread practice of
charging inmates for services that are considered ‘non-chargeable services.’” [DE 96 p. 19]. For
the reasons just discussed, though, that policy (assuming there is such a policy, which Correct
Care denies) would not result in any constitutional injury, as the constitution does not guarantee
cost-free medical services to inmates who are able to contribute to the cost of their care. Poole,
703 F.3d at 1026; Hightower, 524 F. App’x at 296. Mr. Fisher does not allege that he was unable
to pay the charge, or that Correct Care has a policy of refusing treatment to such inmates,3 only
that Correct Care is imposing the charges incorrectly. A complaint that Correct Care is violating
state law or county policy by imposing such a charge is a matter of state law, though, and cannot
support a claim under § 1983. Poole, 703 F.3d at 1027 (“[The plaintiff] urge[s] that he should
have been given the benefit of one of those exemptions [to the co-payments]: the one for a
follow-up visit ordered by a physician. But that is just a state-law question that cannot be
pursued under § 1983.”); Hightower, 524 F. App’x at 296 (similar). Accordingly, the Court
grants the motion for summary judgment as to Correct Care.
IV. CONCLUSION
The Court GRANTS the defendants’ motion for summary judgment. [DE 87]. As this
order disposes of all of Mr. Fisher’s remaining claims, the Clerk is DIRECTED to enter
judgment.

3

The evidence shows that Correct Care employees do not require payment prior to providing
treatment, and that they are not even aware of whether inmates have the ability to pay. Rather,
they provide treatment and complete the inmates’ medical records, after which jail staff members
charge the inmates’ accounts.
10

SO ORDERED.
ENTERED: May 17, 2017

/s/ JON E. DEGUILIO
Judge
United States District Court

11