Dewald v. Gorske et al

Filing 131

OPINION AND ORDER GRANTING the motions for summary judgment 119 and 122 and DIRECTING the clerk to enter judgment in favor of the defendants and to close this case. Signed by Judge Robert L Miller, Jr on 8/18/2020. (bas)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BART DEWALD,
Plaintiff,
v.

CAUSE NO. 3:18-CV-182-RLM-MGG

LACEY R. GORSKE, et al.,
Defendants.
OPINION AND ORDER
Bart Dewald, a prisoner without a lawyer, proceeds on six claims against
nine defendants as follows:
•

An Eighth Amendment claim against Debra Rose, Lacey R.
Gorske, Susan Webster, and Christine Tripp for acting with
deliberate indifference to serious medical needs by denying him
adequate pain medication and refusing to see him for his neck
issues since January 1, 2017;

•

An Eighth Amendment claim against Sherry Fritter and Becky
Hess for money damages for acting with deliberate indifference to
serious medical needs by refusing to respond to his complaints
about the lack of medical care for his neck issues since January
1, 2017;

•

An Eighth Amendment claim against Wexford Health Sources,
Inc., for the practice of medical staff refusing to provide

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medication as prescribed and ignoring requests for medical
attention;
•

An Eighth Amendment claim against Nancy Marthakis for acting
with deliberate indifference to serious medical needs by
discontinuing his prescription for Neurontin;

•

A First Amendment claim against Nancy Marthakis for money
damages for discontinuing his prescription for Neurontin in
retaliation for filing this lawsuit; and

•

A claim for injunctive relief against the Warden of the Indiana
State Prison in his official capacity to obtain adequate medical
treatment for his neck issues as required by the Eighth
Amendment.

The defendants filed motions for summary judgment on all claims, arguing that
they acted in accordance with their medical judgment.

FACTS
Mr. Dewald resides at the Indiana State Prison and suffers from chronic
neck and back pain. His medical records include X-rays revealing a moderate
degenerative disc disease in the lumbar spine and mild degenerative disease in
the cervical spine. In March 2013, a neurologist reviewed electromyography and
MRI results and found nerve damage in the arms but no evidence of nerve
damage in the neck, herniated discs, or spinal stenosis. In September 2016, a
neurosurgeon found that Mr. Dewald wasn’t a candidate for surgery but

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recommended physical therapy, which Mr. Dewald received. His medical records
also included evidence of drug-seeking behavior, including various observations
from mental health staff in 2010 and a positive test for unprescribed
amphetamines in 2011. On January 7, 2018, Mr. Dewald told medical staff that
he had smoked what he believed to be “weed.” He has also failed many drug
screens during his time in prison due to consuming illegal substances.
Mr. Dewald was under Dr. Thompson’s care until at least October 2017.
Mr. Dewald had regular appointments with Dr. Thompson for his neck and back
pain. On August 11, 2017, Mr. Dewald complained of unbearable pain. Nurse
Gorske spoke with Dr. Thompson by telephone and administered a Toradol
injection at his direction.
Medication Administration
According to Mr. Dewald, on October 1, 2017, and on October 10, 2017,
he complained of pain, but correctional staff told him that Nurse Rose refused to
call him to the medical unit or treat his pain. On October 8, 2017, he sent
Administrator Fritter a letter regarding his neck condition, but she didn’t
respond.1 ECF 100-1 at 10. He also sent Regional Manager Hess, who doesn’t
work at the Indiana State Prison, two letters telling her that he was going to file
a lawsuit about his neck condition and demanding Nurse Rose’s termination,

1 In the amended complaint, Mr. Dewald also alleges that Administrator Fritter refused to
respond to eight requests for medical care, but provides no information regarding the requests’ contents
or timing. ECF 100-1 at 11.

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and she directed him to use the grievance process.2 On March 17, 2018, he gave
a medical request about neck pain to a staff member to give to Nurse Gorske,
and a correctional officer told him that she had left the correctional facility for
the day. Later that day, Mr. Dewald asked a correctional officer to tell the nurse
on duty that he needed immediate attention for neck pain and that he would sue
the nurse if he wasn’t taken to the medical unit. Nurse Webster gave him Tylenol
but refused to otherwise assist him in an unprofessional manner.3 Id. On March
28, 2018, Mr. Dewald informed Nurse Tripp that his dose of Neurontin was
missing. She told him that she forgot it but would return with it later. Later that
morning, a correctional officer told Mr. Dewald that Nurse Tripp told him that
Mr. Dewald had already received his dose of Neurontin. That afternoon, Nurse
Tripp told Mr. Dewald that he had already received his dose for the morning.
When he responded that he hadn’t, she told him that it was too late for him to
receive it.
Nurse Rose attests that she doesn’t recall Mr. Dewald’s requests for
medical care on October 1, 2017, and on October 10, 2017, and that they don’t
appear in the medical records. Administrator Fritter attested that she doesn’t

2 Mr. Dewald dated this letter June 6, 2017, but it discusses events that occurred in October 2017.
This leads the court to question the letter’s authenticity, but the court assumes for purposes of this order
that Regional Manager Hess received it.

The court can’t credit Mr. Dewald’s aspersions of nefarious intent onto Nurse Webster or Nurse
Tripp for purposes of summary judgment. See Fed. R. Civ. P. 56(c)(4). For instance, he suggests that
Nurse Webster offered Tylenol hoping that she could use his refusal of medical care against him and that
she tried to provoke him by refusing to contact a physician or give him her name. ECF 100-1 at 23-24. He
also suggests that Nurse Tripp fabricated reasons to not give him his morning dose so that she could steal
it. Id. at 13-15. These allegations regarding subjective intent are speculative and without evidentiary
support in the record.
3

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remember getting a letter from Mr. Dewald on October 8, 2017. In her role as
administrator, she couldn’t override the treatment decisions of physicians and
didn’t personally treat inmates. Instead, her role was to ensure that inmates had
access to necessary medical care. Mr. Dewald had a scheduled appointment with
a nurse on October 11 but could not attend due to a lockdown.
Nurse Gorske attests that she doesn’t recall Mr. Dewald’s request for
medical care on March 17, 2018, and that it doesn’t appear in the medical
records. Nurse Webster attested that, March 17, 2018, she examined Mr. Dewald
at the nursing station and saw him walk independently with a strong and steady
gait. There were no signs of distress except for Mr. Dewald crying, which she
questioned due to the absence of any tears. She further observed him remove
his coat and move during the discussion and found that he could move his neck
without difficulty or a limited range of motion. She noted that he already had
active prescriptions for pain medication, including Neurontin and tramadol. As
a result, she decided to address his complaints of pain by giving him Tylenol and
four bags of ice.
Nurse Tripp attested that she doesn’t remember interacting with Mr.
Dewald on March 28, 2018. The medical records indicate that she didn’t
administer medication to Mr. Dewald that morning and that he received his
morning dose on Neurontin but not his evening dose.4

4 Given Mr. Dewald’s certainty regarding the events on this day, it seems likely that a non-party
nurse made a clerical error when administering medication to inmates that evening by filling out the first
available spot for the medication and the date on the form. In any event, the court will credit Mr.
Dewald’s personal observations on this issue for purposes of summary judgment.

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Prescriptions
According to Mr. Dewald, on March 12, 2019, Dr. Marthakis acknowledged
his neck condition and agreed to renew his prescriptions. He told Dr. Marthakis
that he panics and has suicidal thoughts when he doesn’t get Neurontin and
didn’t understand why Wexford exposed itself to civil liability to save money. She
discontinued his Neurontin prescription, stating, “You should have thought
about that beforehand,” which he understood to be a reference to this lawsuit.5
In early 2018, Mr. Dewald’s prescriptions included Neurontin and
tramadol. On July 10, 2018, Dr. Marthakis saw Mr. Dewald for the first time at
a chronic care appointment. She noted his history of neck pain but also the
earlier radiographic images of his spine and his history of drug addiction and
drug-seeking behavior. Based on this information, she believed that Neurontin,
which has addictive properties and is used to treat nerve pain, and tramadol,
which also has addictive properties, were inappropriate for Mr. Dewald for
chronic pain relief. She decided to decrease his prescription for Neurontin and
to replace it with a less addictive alternative. She prescribed Mobic, which is
used to treat patients with arthritis and degenerative disc disease, and Tylenol
for pain relief as needed. Mr. Dewald also requested Flexeril, a muscle relaxer,
but Dr. Marthakis denied the request, reasoning that Mr. Dewald didn’t have

In the amended complaint, Mr. Dewald suggests that Dr. Marthakis made this statement in July
2018, and also represents that she made an identical statement on March 2019. ECF 100-1 at 47, 50-51.
After reviewing the record in its entirety and reexamining the amended complaint, it appears that the
July 2018 reference was a mistake and that his claims against Dr. Marthakis focus on the March 2019
appointment. Succinctly, the record contains no indication that Dr. Marthakis was aware of this lawsuit in
July 2018, and Mr. Dewald amended his complaint to add her as a defendant only two weeks after the
March 2019 appointment. ECF 97.
5

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muscle spasms and that Mobic was more appropriate, given Mr. Dewald’s
degenerative disc disease.
On September 17, 2018, a nurse practitioner increased Mr. Dewald’s
prescription for Neurontin to previous levels due to his complaints of neck pain.
Mr. Dewald had three physical therapy sessions in November 2018. At the final
session, the therapist noted that Mr. Dewald had substantial relief with respect
to his neck condition due to therapy and provided him with a home exercising
plan.
On March 12, 2019, Mr. Dewald complained of a lack of improvement and
a limited range of motion with respect to his neck. Considering the lack of
improvement on Neurontin and his history of drug-seeking behavior, Dr.
Marthakis decided to wean him from Neurontin and to try Trileptal, which is
used to treat chronic nerve pain, as a replacement. She also continued his
prescriptions for Tylenol, Mobic, and aspirin.
On May 31, 2019, Mr. Dewald reported that Trileptal didn’t help him and
that only Neurontin relieved his pain. Dr. Marthakis asked him about the home
exercise plan, but Mr. Dewald said the physical therapist didn’t show him any
exercises. Considering his history of drug-seeking behavior, Dr. Marthakis
declined to restart Neurontin but instead increased his prescriptions for Trileptal
and Mobic.

STANDARD OF REVIEW

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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 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)).

ANALYSIS
Mr. Dewald asserts Eighth Amendment claims of deliberate indifference to
serious medical needs against the defendants. Under the Eighth Amendment,
inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97,
104 (1976). 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.

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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 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). “[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).
Medical 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.
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Id. at 697-698. Negligence, incompetence, or even medical malpractice don’t
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).
A prisoner isn’t 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). When
the defendants have provided some level of care for a prisoner’s medical
condition, a prisoner trying to establish deliberate indifference 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).
Mr. Dewald says Nurse Rose, Nurse Gorske, Nurse Webster, and Nurse
Tripp acted with deliberate indifference to serious medical needs by denying him
adequate pain medication and refusing to see him for his neck issues. As an
initial matter, Mr. Dewald’s claims against Nurse Rose and Nurse Gorske rely
solely on his statements that correctional staff told him that these nurses refused
to call him to the medical unit or treat his pain. These statements are
inadmissible hearsay under Fed. R. Evid. 802, and the record contains no other
evidence that Nurse Rose or Nurse Gorske were aware of his neck pain. Because
the record contains no admissible evidence to suggest that Nurse Rose or Nurse

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Gorkse acted with deliberate indifference to his neck pain, the court grants
summary judgment with respect to these defendants.
Mr. Dewald’s allegations against Nurse Webster amount to no more than
his dissatisfaction with her demeanor and the treatment she provided in
response to his complaints of pain. He doesn’t dispute that she examined him at
the nursing station and observed him remove his coat without difficult and move
freely as he talked with her. He doesn’t dispute that physicians had already
prescribed him pain medication and that she provided him with Tylenol and ice
bags. Similarly, Mr. Dewald’s description of Nurse Tripp’s actions indicate that
she forgot his medication during morning pass, mistakenly believed that she had
given him his morning dose later that day, and ultimately decided not to provide
it after considering the prescribed timing of his Neurontin dosages and the time
of the day. Though Mr. Dewald may believe that Nurse Tripp lied to him to steal
his medication rather than making a mistake or exercising medical judgment,
he has submitted no evidence to support such a motive. Mr. Dewald can’t
proceed against Nurse Webster or Nurse Tripp.
Mr. Dewald asserts an Eighth Amendment claim against Administrator
Fritter and Regional Manager Hess for acting with deliberate indifference to
serious medical needs by refusing to respond to his complaints about the lack of
medical care for his neck issues. Mr. Dewald alleges that, October 8, 2017, he
personally delivered a letter to Administrator Fritter about the health care for his
chronic neck condition but that she never responded. Mr. Dewald doesn’t
describe the contents of the letter with greater specificity, so it is unclear what

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Mr. Dewald expected her to do or how she acted with deliberate indifference to
his medical needs. Further, Administrator Fritter’s role was limited to ensuring
that inmates had access to necessary medical care. The medical records reflect
that he was scheduled for an appointment with a nurse on October 11, 2017.
Consequently, even if Administrator Fritter ignored Mr. Dewald’s requests for
medical care, it is unclear how he was harmed.
The record indicates that Mr. Dewald provided a copy of the letter sent to
Regional Manager Hess in which he notified her of his intent to sue Wexford and
Nurse Rose and demanded Nurse Rose’s termination. She directed him to the
grievance process in response. It is unclear why Mr. Dewald believes that this
response

constitutes

deliberate

indifference.

The

letter

conveys

his

dissatisfaction with a particular staff member on two isolated occasions rather
than dissatisfaction with his overall medical treatment and includes no requests
for medical care. Given the letter’s contents and tone, no reasonable jury could
find that Regional Manager Hess acted with deliberate indifference to serious
medical needs.
Mr. Dewald asserts that Dr. Marthakis acted with deliberate indifference
to his serious medical needs and retaliated against him for filing this lawsuit by
discontinuing his prescription for Neurontin., giving rise to a First Amendment
retaliation claim “To prevail on his First Amendment retaliation claim, [a plaintiff]
must show that (1) he engaged in activity protected by the First Amendment; (2)
he suffered a deprivation that would likely deter First Amendment activity in the
future; and (3) the First Amendment activity was at least a motivating factor in

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the Defendants’ decision to take the retaliatory action.” Gomez v. Randle, 680
F.3d 859, 866 (7th Cir. 2012).
The evidence of a retaliatory motive consists solely of Mr. Dewald’s
representation that, on March 12, 2019, Dr. Marthakis discontinued his
Neurontin prescription, stating, “You should have thought about that
beforehand,” which he understood to be a reference to this lawsuit. Mr. Dewald
does not explain why he believes that this statement was a reference to this
lawsuit. The record contains no evidence that Mr. Dewald and Dr. Marthakis
discussed this lawsuit during the chronic care appointment, and, given the
absence of meaningful context, her statement could have been referring to any
number of topics, including his drug-seeking behavior or his participation in
martial arts that caused the neck injury.
Further, Dr. Marthakis first planned to wean Mr. Dewald from Neurontin
in July 2018 but also planned to replace it with other pain medications. Dr.
Marthakis prepared an affidavit regarding Mr. Dewald’s medical care in August
2018, but there is no indication that she was aware of this case before that. Six
months later, in March 2019, Dr. Marthakis again decided to wean Mr. Dewald
from Neurontin and to replace it with other pain medications. Given this
timeline, Mr. Dewald essentially suggests that Dr. Marthakis waited six months
to retaliate against Mr. Dewald for filing this lawsuit by continuing to implement
a treatment plan that she had developed and had started to implement before
she was aware of this lawsuit. On this record, no reasonable jury could conclude
that Dr. Marthakis retaliated against Mr. Dewald in this manner. The sequence

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of events does not suggest a retaliatory motive, nor is it clear that weaning an
inmate from one pain medication to replace it with another medication used to
treat the same type of pain would deter an inmate of ordinary firmness from First
Amendment activity. Therefore, the court grants the motion for summary
judgment with respect to the First Amendment claim against Dr. Marthakis.
Additionally, the undisputed record indicates that Dr. Marthakis
prescribed pain medication in accordance with her medical judgment. In March
2019, Dr. Marthakis decided to wean Mr. Dewald from Neurontin and replace it
with Trileptal because it was addictive and because he had a history of drugseeking behavior. Though Mr. Dewald believes that Dr. Marthakis shouldn’t have
considered these factors, he can’t reasonably maintain that they are outside the
realm of reasonable medical judgment. Further, Dr. Marthakis didn’t discount
Mr. Dewald’s reports regarding his reliance on Neurontin and neck pain. To the
contrary, she considered his lack of improvement of Neurontin, tapered his dose,
and replaced it with another medication that also alleviated nerve pain. In May
2019, when he reported that he continued to feel pain, she didn’t ignore this
report but increased the dosages of his pain prescription. Because the record
reflects that Dr. Marthakis didn’t act with deliberate indifference but instead
exercised her medical judgment, the court grants the motion for summary
judgment with respect to the Eighth Amendment claim against her.
Mr. Dewald asserts an Eighth Amendment claim against Wexford Health
Sources, Inc., for the practice of medical staff refusing to provide medication as
prescribed and ignoring requests for medical attention. For Section 1983 claims,

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corporate liability exists only “when execution of a [corporation’s] policy or
custom . . . inflicts the injury.” Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir.
2005). A corporation can be held liable for “an express policy that, when
enforced, causes a constitutional deprivation.” Id. Absent an unconstitutional
policy, corporate liability may be established with a showing of “a widespread
practice that, although not authorized by written law or express [corporate]
policy, is so permanent and well settled as to constitute a custom or usage with
the force of law.” McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
The policy or custom must be the “moving force behind the deprivation of his
constitutional rights.” Johnson v. Cook Cty., 526 F. App’x 692, 695 (7th Cir.
2013). As already explained, the record contains no evidence that the defendants
refused to provide medication as prescribed or ignored Mr. Dewald’s requests for
medical attention. Therefore, the motion for summary judgment is granted with
respect to this defendant.
Mr. Dewald asserts an injunctive relief claim against the Warden of the
Indiana State Prison in his official capacity to obtain adequate medical treatment
for his neck condition as required by the Eighth Amendment. The record reflects
that Mr. Dewald has received diagnostics tests, pain medication, and physical
therapy sessions to address his neck condition. In the amended complaint, he
also asked for surgery but has since conceded that no physician has
recommended it and withdrawn his request for surgery. In sum, the record
indicates that Mr. Dewald has received adequate medical treatment for his neck

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condition. The motion for summary judgment is granted with respect to this
claim, and no other claims remain.
As final matter, in his response brief, Mr. Dewald alleges that he suffered
from a constipation and ear pain and was unable to obtain his medication at the
Elkhart County Jail; that Dr. Marthakis told him to purchase stool softeners and
Rolaids from the commissary and discontinued his low floor pass; that he went
seven days without his heart medication; and that his recent hernia surgery
traumatized him. Because these allegations are unrelated to the claims in this
case, the court will not further address them here.
For these reasons, the court:
(1) GRANTS the motions for summary judgment (ECF 119, ECF 122); and
(2) DIRECTS the clerk to enter judgment in favor of the defendants and to
close this case.
SO ORDERED on August 18, 2020
s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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