Absher v. Thomas MD et al

Filing 35

OPINION AND ORDER: DENYING 26 MOTION for Summary Judgment by Plaintiff James Absher; GRANTING IN PART AND DENYING IN PART 27 MOTION for Summary Judgment by Defendants John Doe, Dr Thomas MD; and DISMISSING Dr. Carl Kuenzli from this case. Signed by Judge Jon E DeGuilio on 2/12/2018. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES ABSHER,
Plaintiff,
v.
DR. THOMAS, et al.,
Defendants.

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Cause No. 3:16-CV-150 JD-MGG

OPINION AND ORDER
James Absher, a pro se prisoner, is suing Dr. Joseph Thompson1 and Dr. Carl
Kuenzli2 whom he claims were deliberately indifferent to his broken left hand at the
Indiana State Prison in 2015. Absher alleges that when Dr. Joseph Thompson removed
the cast from his hand on September 30, 2015, it was still noticeably disfigured and
broken, causing him pain. Absher asserts that Dr. Thompson ignored the condition of
his hand and refused to provide any treatment until an x-ray later revealed that it was
still broken. Absher also alleges that Dr. Carl Kuenzli knew that Absher needed
treatment by an outside orthopedic specialist, but never approved an outside specialist
to evaluate and treat him. The defendants filed a joint motion (ECF 27) arguing that
they are entitled to summary judgment. Absher filed a motion (ECF 26) for summary

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Misidentified as “Dr. Thomas” in the complaint. See ECF 1; ECF 27 at 1.

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In the screening order, Absher was given leave to proceed against the “Regional Medical
Director.” ECF 5. Dr. Kuenzli answered the complaint as he was the Regional Medical Director in Indiana
during the time period alleged in Absher’s complaint. ECF 11, 12.

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judgment as well.
Absher was provided with a “Notice of Summary Judgment Motion” as required
by N.D. Ind. L.R. 56-1 and a copy of both Federal Rule of Civil Procedure 56 and Local
Rule 56-1. ECF 29. That notice informed him of the importance of responding; that
unless he disputed the facts presented by the defendant, the court could accept those
facts as true. Fed. R. Civ. P. 56(e) (“If a party . . . fails to properly address another
party’s assertion of fact . . . the court may . . . consider the fact undisputed for purposes
of the motion.”). It also told him that unless he submitted evidence creating a factual
dispute, he could lose this case. Fed. R. Civ. P. 56(a) (“The court shall grant summary
judgment if 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.”). Though Absher initially
did not file a response to the defendants’ motion for summary judgment, the court
afforded him one more opportunity to do so. ECF 31. Absher has now filed his
response, which largely consists of 75 pages of his own hand-written notes and medical
records. ECF 32.

DISCUSSION
Summary judgment must be 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 dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

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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. In determining whether summary judgment is appropriate,
the deciding 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). “However, our favor toward the nonmoving party does
not extend to drawing inferences that are supported by only speculation or conjecture.”
Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687
F.3d 297, 306 (7th Cir. 2012)). When deciding cross-motions for summary judgment, the
court must “constru[e] the evidence and all reasonable inferences in favor of the party
against whom the motion under consideration is made.” Durable Manuf. Co. v. U.S.
Dep’t of Labor, 578 F.3d 497, 501 (7th Cir. 2009).
To establish liability under the Eighth Amendment, a prisoner must show: (1) his
medical need was objectively serious; and (2) the defendant acted with deliberate
indifference to his medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994.) A medical
need is “serious” if it is one that a physician has diagnosed as mandating treatment, or
one that is so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention, and if untreated could result in further significant injury or
unnecessary pain, and that significantly affects the person’s daily activities or features
chronic and substantial pain. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Deliberate

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indifference is a high standard, and is “something approaching a total unconcern for a
prisoner’s welfare in the face of serious risks,” or a “conscious, culpable refusal” to
prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). As the Seventh Circuit
has explained:
[C]onduct is deliberately indifferent when the official has 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).
For a medical professional to be held 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 v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). As the Seventh Circuit has
explained:
[M]edical professionals are not required to provide proper medical
treatment to prisoners, but rather they must provide medical treatment
that reflects professional judgment, practice, or standards. There is not one
proper way to practice medicine in a prison, but rather a range of
acceptable courses based on prevailing standards in the field. A medical
professional’s treatment decisions will be accorded deference unless no
minimally competent professional would have so responded under those
circumstances.
Id. at 697-698. Negligence, incompetence, or even medical malpractice do not amount to
deliberate indifference. Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004); Walker v.
Peters, 233 F.3d 494, 499 (7th Cir. 2000).
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Furthermore, a prisoner is not entitled to demand specific care, nor is he entitled
to the “best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Where the
defendants have provided some level of care for a prisoner’s medical condition, in
order to establish deliberate indifference the prisoner must show that “the defendants’
responses to [his condition] were so plainly inappropriate as to permit the inference
that the defendants intentionally or recklessly disregarded his needs.” Hayes v. Synder,
546 F.3d 516, 524 (7th Cir. 2008). A mere disagreement with medical professionals about
the appropriate treatment does not amount to an Eighth Amendment violation.
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). With these principles in mind, the
court turns its attention to the requests for summary judgment.

A.

There is a genuine dispute as to whether Dr. Thompson
was deliberately indifferent to Absher’s broken left hand.

Dr. Thompson is a medical doctor who “provided direct patient care to Mr.
Absher while he was incarcerated at the Indiana State Prison.” ECF 28-1 at 2. Dr.
Thompson denies having been deliberately indifferent to Absher’s broken left hand. In
support, he has provided medical records related to the care Absher received as well as
his own medical opinion. ECF 28-1; ECF 28-2. This evidence illustrates that on July 25,
2015, Absher submitted a health care request form stating that he tripped and fell and
thought that he broke his hand. ECF 28-2 at 109. An x-ray confirmed that Absher had
broken the fifth finger on his left hand. Id. at 17. On August 4, 2015, a short arm hard

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cast was applied to Absher’s left hand. ECF 28-1 at 3, 4; ECF 28-2 at 11-15. On
September 30, 2015, Dr. Thompson removed Absher’s cast. ECF 28-2 at 19.
It is what took place during the September 30, 2015, visit that is disputed and at
the center of this lawsuit. According to Dr. Thompson, Absher’s left hand was
completely healed. There were no signs of swelling or tenderness to his left hand and
Absher had no complaints. ECF 28-1 at 4; ECF 28-2 at 19. Therefore, he did not provide
any further treatment to Absher on that date. To the contrary, Absher alleges that when
the cast was removed on September 30, he was still in pain and told Dr. Thompson that
something was wrong with his hand. ECF 1 at 4; ECF 26 at 2. Absher states his hand
was still broken. Id. Nevertheless, Dr. Thompson ignored his complaints and refused to
treat his broken hand or provide him with sufficient pain medication. Id.
On October 4, 2015, Absher submitted another health care request form stating
that his hand has been in constant pain since the cast was removed. ECF 28-2 at 105. An
x-ray confirmed that Absher’s fifth finger on his left hand was broken. Id. at 21. Absher
continued to receive medical treatment for his hand through March 2016. Id. at 75.
To survive summary judgment on his claim against Dr. Thompson, Absher must
produce evidence suggesting that the condition of his hand on September 30, 2015,
amounted to an “objectively serious medical condition,” and that Dr. Thompson was
“aware of the condition and knowingly disregarded it.” Ortiz v. Webster, 655 F.3d 731
734 (7th Cir. 2011). Absher has met that standard here.

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To start, a reasonable juror could find that Absher had a serious medical
condition - a broken finger on his left hand -when Dr. Thompson removed the cast on
September 30, 2015. Dr. Thompson argues that Absher’s hand was healed on September
30, 2015, and that Absher simply re-broke the same hand a week later. ECF 28-1 at 4. In
an attempt to argue that Absher’s hand was healed, Dr. Thompson points to his own
observations on September 30. ECF 28-1 at 4. However, Dr. Thompson’s account of the
condition of Absher’s hand on September 30 is disputed. Thus, his observations are not
conclusive evidence that Absher’s hand was healed on September 30. In an attempt to
establish that Absher simply re-broke his hand, Dr. Thompson relies on Nurse O’Neil’s
October 7, 2015, report where Absher told her that he “felt a pop when he got out of his
bunk.” ECF 28-2 at 25. But this report is not definitive evidence that Absher re-broke his
hand. Indeed, Absher claims that his hand never healed. He states that it was still
visibly broken and causing him pain on September 30, ECF 26 at 2, and continued to
cause him severe pain continuously afterwards. ECF 28-2 at 105. Given that Absher
claims his hand was still visibly broken and causing him pain on September 30, along
with the fact that an x-ray taken a week later confirmed that the same hand was broken,
the evidence could allow a reasonable factfinder to conclude Absher’s hand was still
broken (or at least not properly healed) on September 30. Although a factfinder might
ultimately give more weight to the physician than Absher, to make that decision at this
stage would be improper. Wilson v. Williams, 997 F.2d 348, 350 (7th Cir. 1993).

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Similarly, a reasonable juror could also find that when Dr. Thompson removed
Absher’s cast on September 30, 2015, he knew or strongly suspected that Absher’s hand
was still broken (or not properly healed). During this visit, Absher claims to have told
Dr. Thompson that his hand was still in pain and seemed broken. ECF 26 at 2. Absher
says that he showed Dr. Thompson that his hand was “purple, discolored and
disfigured.” Id. Absher’s contention is in direct conflict with Dr. Thompson’s affidavit
and medical records. ECF 28-1 at 4; ECF 28-2 at 19. But, this is just another genuine
dispute; to make a credibility determination at this stage would amount to an improper
weighing of the evidence. Wilson, 997 F.2d at 350. Thus, whether Dr. Thompson
believed Absher’s hand was broken on September 30, 2015, is a question for trial. Mkt.
St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588, 597-98 (7th Cir. 1991) (noting that state of
mind is an “inquiry that ordinarily cannot be concluded on summary judgment.”). In
his reply brief, Dr. Thompson argues that Absher’s account is implausible in light of the
medical records. ECF 33. The court recognizes that the medical records show Absher
received a significant amount of medical attention for his broken hand. ECF 28-2. And,
in light of this significant treatment, a jury could conclude that Absher’s version of
events is unbelievable. But, “[h]owever implausible [Absher’s] account might seem, it is
not [the court’s] place to decide who is telling the truth.” Washington v. Haupert, 481 F.3d
543, 550 (7th Cir. 2007).
Prison doctors cannot simply ignore serious medical conditions or an inmate’s
severe pain, and if Absher is believed, Dr. Thompson did just that. Gonzalez v.

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Feinerman, 663 F.3d 311, 314-15 (7th Cir. 2011). Since Absher has put forth sufficient
evidence to permit a reasonable juror to conclude that Dr. Thompson’s inaction
substantially and unreasonably delayed necessary treatment and needlessly prolonged
Absher’s pain,” then he has done enough to withstand summary judgment. Ortiz, 655
F.3d at 735; Gayton v. McCoy, 593 F.3d 610, 623 (7th Cir. 2010).

B.

The undisputed facts establish that Dr. Carl Kuenzli was not
deliberately indifferent to Absher’s need for an outside specialist.

Dr. Carl Kuenzli is a physician “employed by Corizon Health, Inc. as the
Regional Medical Director in Indiana.” ECF 28-3 at 1. Absher was granted leave to
proceed on his allegation that the Regional Medical Director refused to approve the
request for him to see an outside orthopedic specialist. However, the undisputed
evidence belies this allegation. The evidence reveals that the Regional Medical Director
was not made aware of Absher’s broken hand until October 7, 2015. ECF 28-1 at 33. On
that date, the Regional Medical Director was asked to approve a request for Absher to
see an outside orthopedic specialist. Id. The Regional Medical Director approved this
request two days later and Absher visited an outside specialist on October 20, 2015. Id.
at 33, 34. The Regional Medical Director’s office was then asked to approve a second
request in December 2015. In response, the Regional Medical Director requested
another x-ray of Absher’s hand be taken first to establish a medical necessity. ECF 28-2
at 112. After those x-rays were conducted, the Regional Medical Director approved
Absher to go on a second visit in January 2016. ECF 28-2 at 115. This brief delay is
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reasonable and not evidence of deliberate indifference. Murphy v. Walker, 51 F.3d 714,
717 (7th Cir. 1995). Because the record is devoid of any evidence that the Regional
Medical Director acted deliberately indifferent to Absher’s need to see an outside
specialist, summary judgment on his behalf is appropriate.
For these reasons, the court:
(1) DENIES the plaintiff’s motion (ECF 26) for summary judgment;
(2) GRANTS IN PART and DENIES IN PART the Defendants’ motion (ECF 27)
for summary judgment; and
(3) DISMISSES Dr. Carl Kuenzli from this case.
SO ORDERED.
ENTERED: 2/12/2018

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

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