Swann v. Brubaker APN/NP et al

Filing 104

OPINION AND ORDER: The court GRANTS the defendants motion for summaryjudgment 83 , and DENIES the motion to amend 103 . The clerk shallenter judgment for the defendants. Signed by Judge Robert L Miller, Jr on 1/25/2016. (cc: Swann) (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRANCE D. SWANN,

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Plaintiff,
vs.
BARBARA A. BRUBAKER, et al.,
Defendants.

NO. 3:14-CV-1889 RM

OPINION AND ORDER
The defendants seek summary judgment on Terrance D. Swann’s claims
that Nurses Barbara Brubaker, Joelynn Bigheart and Ryann Moore denied him
adequate medical care in violation of the Eighth Amendment. Because Mr. Swann
hasn’t pointed to evidence from which a reasonable trier of fact could decide that
any of the defendants violated his Eighth Amendment right to adequate medical
care, summary judgment will be granted in favor of the defendants.
Summary judgment is 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). Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Id. To determine whether a genuine issue of
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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.
Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party opposing a properly
supported summary judgment motion can’t 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). If the nonmoving party doesn’t establish the
existence of an essential element on which he or she bears the burden of proof at
trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th
Cir. 2006).
Mr. Swann is an inmate in the Indiana Department of Corrections. Dr.
Joseph Thompson, M.D., saw him in June 2013, when he was in the Indiana
State Prison for complaints of lumps on his testicle and urination issues. He was
examined and given a six month prescription for Cardura1 to alleviate these
symptoms. Mr. Swann was transferred to the Westville Control Unit at the
Westville Correctional Facility.
Defendants Joelynn Bigheart and Ryann Moore were licensed practical
nurses at Westville, and defendant Barbara Brubaker was a nurse practitioner.
Inmates housed in the WCU were checked daily by various medical personnel and

The generic name is doxazosin mesylate, which is a medication that relaxes blood
vessels so that blood can flow more easily. This can help make it easier to urinate. See
Cardura, WEBMD, www.webmd.com/drugs2/drug-3710/cardura-oral/details. (Last
visited Jan. 7, 2015).

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a notation was to be made on the inmate’s segregation flow sheet indicating
whether they had any complaints. Mr. Swann’s segregation flow sheet indicates
that he made no complaints of pain from his transfer in August 2013 through the
end of 2014 (the period covered by Mr. Swann’s complaint). Nurse Brubaker
renewed Mr. Swann’s six month prescription of Cardura. Mr. Swann says often
made fun of his body odor when she delivered his Cardura.
In March, 2014, Mr. Swann completed a healthcare request form making
his first complaint that he was having digestive “complications” that he believed
his medication was causing. Nurse Moore addressed his request. Mr. Swann
received a physical examination indicating no abnormalities and he was referred
to Dr. Liaw, an upper level provider. At Dr. Liaw’s direction, Nurse Moore provided
Mr. Swann with a prescription of Colace, told him to increase his activity and fluid
levels and to return to sick call if his symptoms didn’t subside or became more
severe.
Mr. Swann completed a health care form asking whether he was being seen
by a doctor, saying he had gotten a pill that he didn’t know about, and stating
that Nurse Moore hadn’t responded to his complaint about Nurse Bigheart. Mr.
Swann repeated his concerns when Nurse Moore saw him. Nurse Moore, who
didn’t know about Mr. Swann’s complaints concerning other medical personnel,
examined him, noted that he reported a 0/10 pain score, reinstructed him on his
Colace prescription, and told him to address any concerns about Ms. Bigheart to
the facility’s Health Service Administrator.
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Mr. Swann’s March 2014 segregation flow sheet indicates reflects no
complaints about pain, being seen by medical people, or about his medication. Mr.
Swann sent in an April health care form complaining about blood in his stool; the
medical unit didn’t get the form until May 7 because it came through the WCU
mailbox, which move things significantly more slowly. Another early April health
care form about Mr. Swann’s getting sick from his medications were making him
sick didn’t get to medical people through the WCU mailbox on May 7. Still in April,
Mr. Swann sent a health care form asking about his current medication. He got
the information soon after, his Cardura prescription continued through April.
Nurse Brubaker saw Mr. Swann in May about his hard stools, blood in his
stool, abdominal pain, worry that his medication was causing his symptoms, and
concern that he might have a tapeworm. She gave him a full physical examination,
found no abnormalities, and ordered lab work, blood testing, and testing of his
stool. Mr. Swann’s Cadura was discontinued immediately and Nurse Brubaker
ordered Lactulose2 for him. When the blood work was done, Nurse Brubaker
referred the matter to an upper level provider to discuss the results. when all labs
were completed.
Nurse Moore examined Mr. Swann in early June. Mr. Swann gave a stool
specimen, refused testing for tuberculosis, and was given information about
prostate and testicular testing. He made no complaints of not being seen by
medical people or experiencing pain. The examination revealed no abnormality,

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Lactulose is a medication used to treat constipation.

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and Mr. Swann was referred to a provider for his complaints of possible weight
loss, constipation, and fear of having a tapeworm. Nurse Brubaker reordered
testing of Mr. Swann’s stool. Dr. Liaw saw Mr. Swann for his complaints of
constipation and abdominal pain, and Dr. Liaw noted not only was that Mr.
Swann’s weight stable, but that he had actually gained weight “in the past few
weeks.” Dr. Liaw found Mr. Swann normal upon examination, reordered stool
testing, and told Mr. Swann he should increase his fiber intake and fluids for his
constipation, that he should monitor his weight and submit a health care form if
he had any other issues.
Mr. Swann asked for copies of his lab results in July, and was told he
needed to pay for copies. He made no complaint of pain or of not being seen by
medical on that date.
On August 1, Mr. Swann asked to see an upper level provider for rectal
pain, but the system was down, so the request wasn’t entered immediately; Mr.
Swann later submitted a health care form complaining of digestion complications
and body odor. Dr. Sebastian S. Jaeger, responded that Mr. Swann’s labs had all
indicated negative and showed no evidence of rectal bleeding or blood loss, and
that if the symptoms persisted, Mr. Swann might want to talk about his issues
with behavioral health professionals.
Dr. Jaeger saw Mr. Swann again later in August about rectal pain and GI
complaints, and requests for a “colon cleanse” and something to address his body
odor. Dr. Jaeger noted that all of Mr. Swann’s testing, including stool occult and
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parasitic testing, were negative. Mr. Swann said lactulose had helped with
constipation before. Dr. Jaeger ordered Colace and Zantac to alleviate his
symptoms and then discussed a consult with behavioral health personnel with
Mr. Swann to assist in addressing his issues.
A week later, Mr. Swann sent a letter about his “digestion complications.”
Inmates have a constitutional right to adequate medical care. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). To establish an Eighth Amendment violation,
a prisoner must satisfy both an objective and subjecting component by showing:
(1) his medical need was objectively serious; and (2) the defendant acted with
deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825,
834 (1994). A medical need is “serious” if a physician has diagnosed it as
mandating treatment, or is so obvious that even a lay person would easily
recognize the need for a doctor’s attention. Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). Deliberate indifference means that the defendant “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 occurring even though he could have easily
done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (internal citation
omitted).
To be held liable for deliberate indifference to an inmate’s medical needs, the
medical professional must make a decision that represents “such a substantial
departure from accepted professional judgment, practice, or standards, as to
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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). A mere
disagreement with medical professionals doesn’t establish deliberate indifference,
nor does negligence or even medical practice, since “the Eighth Amendment does
not codify common law torts.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011). Prisoners aren’t entitled to demand specific care, nor are they entitled to
the “best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). When
an inmate has received some form of treatment for a medical condition, to
establish deliberate indifference he must show that the treatment was “so
blatantly inappropriate as to evidence intentional mistreatment likely to seriously
aggravate his condition.”Arnett v. Webster, 658 F.3d at 751. Mr. Swann alleges
each of the three defendants were deliberately indifferent to his medical needs.
First, Mr. Swann alleges Nurse Brubaker was deliberately indifferent to his
medical needs when she renewed his six month prescription of Cardura without
first interviewing him. Mr. Swann believes this violated Corizon’s policies and
procedures. Focus on Corizon’s policies is misplaced. Whether Nurse Brubaker
followed Corizon’s policies is a far different question than whether she violated his
Eighth Amendment rights. Violation of a prison policy does not, by itself, establish
a constitutional violation. Bradich ex rel. Estate of Bradich v. City of Chicago, 413
F.3d 688, 690 (7th Cir. 2005).
Nurse Brubaker wasn’t deliberately indifferent when she renewed his
prescription. She had no indication that continuing Mr. Swann’s Cardura
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prescription was inappropriate or detrimental to him in any way. Dr. Joseph had
prescribed it for Mr. Swann, he had made no complaints about taking the
medication at that point, and he voluntarily continued to take the medication as
prescribed. From all indications, Nurse Brubaker renewed his prescription in an
effort to care for Mr. Swann. There was no known risk in Nurse Brubaker
renewing Mr. Swann’s Cardura prescription, and no evidence suggests that her
decision to renew his prescription was “blatantly inappropriate.”Arnett v. Webster,
658 F.3d at 751. No jury could find her to be deliberately indifferent for doing so
on this record. Id.; Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008)
(citations omitted).
Second, Mr. Swann alleges Nurse Brubaker was deliberately indifferent
because she didn’t discontinue his Cardura sooner. A delay in treatment can, in
some instances, establish deliberate indifference, McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010), but Nurse Brubaker didn’t delay any treatment. Mr.
Swann first complained of his medication in March, and was seen and treated by
Nurse Moore and Dr. Liaw. Neither of those healthcare providers thought the
Cardura was harming Mr. Swann. He filled out two more health care forms
complaining about his medication, but the defendants didn’t receive them for
weeks through the WCU mailbox. All the evidence in this record shows that Nurse
Brubaker didn’t know of Mr. Swann’s complaints before she examined him in
Early May, when she learned of his complaints and immediately discontinued
Cardura, had Mr. Swann examined, and prescribed an alternative medication.,
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Nurse Brubaker discontinued his Cardura as soon as she learned he thought it
was causing him pain. Because Nurse Brubaker wasn’t involved in causing any
delay in discontinuing Cardura, she can’t be held liable for any delay. Dunville v.
Morton, 234 F.3d 1272 (7th Cir. 2000).
Mr. Swann complains that Nurse Bigheart was rude to him while she
passed out his medication, calling him names and making fun of his body odor.
Verbal harassment of this sort might be unprofessional, but isn’t a violation of the
constitution. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (observing that
verbal harassment or rude comments by prison staff does not violate the
Constitution); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987)
(unprofessional conduct does not violate the Constitution). Accordingly, this
defendant will be dismissed.
Mr. Swann says Nurse Moore was deliberately indifferent when she failed
to respond to the health care form in which he raised questions about his
medication. Mr. Swann wanted to know what medication he was on, how long he
would be on it, and whether it is supposed to address all of his symptoms. Nurse
Moore informed him – not as quickly as Mr. Swann wanted – that the medication
was Colace, that he would take it for seven days, and that it was a stool softener.
Nurse Moore didn’t delay any treatment. If she delayed anything, it was
telling Mr. Swann about his medication. No evidence in the summary judgment
motion would support an inference that Nurse Moore’s five-day delay in answering
Mr. Swann’s questions caused him any harm, Williams v. Liefer, 491 F.3d 710,
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714-715 (7th Cir. 2007), so it doesn’t amount to an Eighth Amendment violation.
Ford v, Ghosh, 2014 WL 4413871, *7 (N.D. Ill., Sept. 8, 2014).
Finally, in deciding whether the defendants were deliberately indifferent to
Mr. Swann’s medical needs, it’s appropriate to “examine the totality of an inmate’s
care when considering whether that care evinces deliberate indifference. . ..” See
Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999) (quotation omitted); Gutierrez
v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997). In Gutierrez, the plaintiff received
treatment over a ten-month period and at most experienced an “isolated occasion
or two where he did not receive prompt treatment.” 111 F.3d at 1374. Even when
he couldn’t see healthcare providers as soon as he wanted, he still received
medicine and other prescribed treatments. Id. at 1375. Balanced against the
extensive treatments he received, the occasional delays he complained of were
“simply isolated instances of neglect, which taken alone . . . cannot support a
finding of deliberate indifference.” Id.
Mr. Swann, too, received extensive, prolonged treatment from his arrival at
Westville. He was consistently seen and treated by nurses and doctors alike. He
also underwent a battery of tests and examinations and was prescribed various
medications in an effort to deal with his complaints. The segregation flow sheets
also demonstrate that Mr. Swann was seen regularly and routinely reported no
complaints of pain. Ultimately, the record reveals the defendants provided Mr.
Swann with steady medical care of his stomach pains, constipation and perceived
foul odor. Nothing in the summary judgment record would support an inference
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that there were any delays that could be attributable to deliberate indifference. At
most, as in Gutierrez, there might have been a few instances of neglect, which
don’t rise to the level of an Eighth Amendment violation.
After the briefing of this motion concluded, Mr. Swann filed a motion to
amend his response brief. Mr. Swann is concerned that his response doesn’t
comply with the court’s local rules, and he wants to amend his response so that
he can comply with them. That’s not necessary. The court understands that the
plaintiff if trying to represent himself, and so hasn’t held any formatting
shortcomings against him. Mr. Swann also seeks more time to obtain his medical
records. Many of his medical records are already part of the record, and Mr.
Swann hasn’t explained why any more records would be necessary or relevant.
Nor is there any indication that those records would change the outcome of the
summary judgment motion. Because Mr. Swann hasn’t shown any need or benefit
to amending his response brief, the court denies his motion.
For these reasons, the court GRANTS the defendants’ motion for summary
judgment3 (DE 83), and DENIES the motion to amend (DE 103). The clerk shall
enter judgment for the defendants.
SO ORDERED.
ENTERED: January 25, 2016.

/s/ Robert L. Miller, Jr.
Judge

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The defendants ask the court to decline to exercise supplemental jurisdiction over any of Mr.
Swann’s state law claims because the federal claims have be dismissed. Mr. Swann wasn’t
granted leave to proceed on any state law claims, and the screening order didn’t find any state
law claims to have been asserted.

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United States District Court

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