Orr v. Sevier et al

Filing 78

OPINION AND ORDER GRANTING 59 MOTION for Summary Judgment filed by John Galipeau and 66 MOTION for Summary Judgment filed by Andrew Liaw, DeAngela Lewis, Wexford of Indiana. DIRECTING the Clerk to enter judgment in favor of the defendants and against Michael Orr. Signed by Judge Robert L Miller, Jr on 4/26/2021. (Copy mailed to pro se party)(mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL ORR,
Plaintiff,
v.

CAUSE NO. 3:19-CV-438-RLM-MGG

MARK SEVIER, et al.,
Defendants.
OPINION AND ORDER
Michael Orr, a prisoner without a lawyer, is proceeding in this case against
four defendants on three claims. “[A]gainst Dr. Andrew Liaw and Nurse DeAngela
Lewis in their individual capacities for compensatory and punitive damages for
deliberate indifference to his serious medical need for adequate treatment of his
chronic headaches, in violation of the Eighth Amendment.” ECF 4, at 7. “[A]gainst
Dr. Andrew Liaw, Nurse DeAngela Lewis, and Warden [John Galipeau]1 in their
official capacities for injunctive relief to provide Michael Orr with adequate medical
care for his chronic headaches, as required by the Eighth Amendment.” Id. “[A]gainst
Wexford of Indiana for compensatory and punitive damages for following a policy of
denying necessary medical care in order to save money, resulting in him receiving
inadequate care for his chronic headaches, in violation of the Eighth Amendment.”
Id. at 7-8. Warden Galipeau moved for summary judgment, and Dr. Liaw, Nurse
Lewis, and Wexford of Indiana filed a separate, joint motion for summary judgment.

Warden Galipeau was automatically substituted for former Warden Mark
Sevier pursuant to Fed. R. Civ. P. 25(d).
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With the motions, the defendants provided Mr. Orr the notice arequired by N.D. Ind.
L.R. 56-1(f). Copies of Federal Rule of Civil Procedure 56 and Northern District of
Indiana Local Rule 56-1 were attached to the notices.
The court granted Mr. Orr’s motion for more time to respond and extended the
deadline to respond to the summary judgment motions to March 1, 2021. That
deadline passed more than a month ago, but Mr. Orr has not responded to the
summary judgment motions. It’s time to decide the summary judgment motions.

I.

FACTS

The court accepts Dr. Liaw’s affidavit (ECF 67-2) as undisputed.2 Wexford of
Indiana, LLC employed Dr. Liaw as a licensed physician at the Westville Correctional
Facility during all times relevant to the complaint. Mr. Orr was transferred to the
Westville Correctional Facility in October 2017. Upon intake, Dr. Liaw saw Mr. Orr
for a complaint of elbow discomfort. Dr. Liaw then began seeing Mr. Orr for chronic
care visits on approximately 90-day intervals to provide treatment for Mr. Orr’s
asthma and hypertension. Dr. Liaw and Mr. Orr discussed Mr. Orr’s asthma,
hypertension, and arm pain during the first chronic care visit in October 2017.
In November 2017, Mr. Orr submitted a healthcare request complaining of
headaches. A nurse assessed Mr. Orr but didn’t make a referral for a physician to see
him. Dr. Liaw and Mr. Orr first discussed Mr. Orr’s headache complaints during his
2 Because Mr. Orr didn’t respond to the summary judgment motions, the court
may accept the facts alleged in Dr. Liaw’s affidavit as undisputed. See Fed. R. Civ. P.
56(e) (“If a party . . . fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of
the motion . . ..”)

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second chronic care visit in January 2018. Dr. Liaw asked Mr. Orr if light triggered
or exacerbated the headaches, and Mr. Orr said no. Dr. Liaw prescribed Mr. Orr with
Tylenol and continued his prescriptions of Propranolol and Aspirin.
On January 30, 2018, Mr. Orr reported to a nurse that the Tylenol wasn’t
working. Dr. Liaw approved an order of Excedrin Migraine. Dr. Liaw tried to meet
with Mr. Orr in April 2018, after Mr. Orr had declared a hunger strike, but Mr. Orr
refused to meet with Dr. Liaw. Dr. Liaw saw Mr. Orr for a chronic care visit on May
4, 2018 to discuss his asthma, hypertension, and elbow pain. Dr. Liaw’s notes don’t
indicate that they discussed Mr. Orr’s headaches during this visit.
A nurse assessed Mr. Orr in May 2018 after he complained of headaches that
were sensitive to light. Nursing staff referred Mr. Orr for assessment by an eye
doctor. Dr. Liaw saw Mr. Orr for a chronic care visit in August 2018 to discuss his
asthma, hypertension, and ongoing complaints of arm pain. Dr. Liaw’s notes don’t
indicate that they discussed Mr. Orr’s headaches during this visit.
Dr. Liaw again saw Mr. Orr at a November 2018 chronic care visit, and they
thoroughly discussed his complaints of headaches. Mr. Orr was upset that he was
only receiving Excedrin Migraine three times per week, but Dr. Liaw noted that that
was the manufacturer’s recommended dosage. Mr. Orr wanted a pain medication that
he could take daily. Dr. Liaw didn’t believe that opioid therapy – the next logical
escalation of pain medication -- was appropriate, so he continued offering Mr. Orr
Aspirin, Tylenol, and Propranolol.

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Dr. Liaw saw Mr. Orr for another chronic care visit in March 2019, and there
was no report of any difficulty or change in Mr. Orr’s headaches. Dr. Liaw saw Mr.
Orr again in August 2019 for a chronic care visit, but there was no discussion of any
complaints about headaches. Mr. Orr was referred to Dr. Liaw again in October 2019
regarding ongoing elbow pain, but there was no discussion of headaches during that
visit.
Dr. Liaw and Mr. Orr discussed Mr. Orr’s headaches at the next chronic care
visit in late October 2019, and Mr. Orr reported that he thought the headaches were
related to stress. Dr. Liaw noted that Mr. Orr’s presentation of symptoms wasn’t
consistent with traditional migraine headaches, and that he hadn’t responded well to
the previously provided treatment. Dr. Liaw ordered a sinus x-ray to rule out the
existence of any sinus abnormality or fracture, and the x-ray returned normal. Dr.
Liaw continued the prescription of Tylenol and recommended that a member of the
mental health treatment staff assess Mr. Orr for stress triggers that might be
impacting his headaches. Mr. Orr didn’t present any complaint of headaches at a
February 2020 chronic care visit.
Dr. Liaw attests that he always provided treatment whenever Mr. Orr
complained of headaches, but that Mr. Orr’s headaches didn’t appear to be
debilitating or to significantly impact his activities of daily living. Dr. Liaw explains
that headaches can be triggered by various abnormalities, including tension,
migraines, sinus abnormalities, or environmental factors such as stress or light
sensitivity, and that Mr. Orr’s symptoms were never consistent with the traditional

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presentation of migraine headaches. Dr. Liaw affirms that he had no reason to believe
that some undiagnosed neurological abnormality caused Mr. Orr’s headaches, and
that treating Mr. Orr’s intermittent headaches with a chronic prescription for opioids
would have been against the applicable standard of care.

II.

ANALYSIS

A. Standard of Review
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.” Federal
Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the
evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a
genuine issue of 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. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). 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). “[I]nferences relying on mere speculation or conjecture
will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir.
2009). Summary judgment “is the put up or shut up moment in a lawsuit . .
..” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).

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B. Deliberate Indifference Claim Against Dr. Liaw
The Eighth Amendment assures inmates of a minimal level of medical care.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must
satisfy both an objective and subjective 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). To be held liable for
deliberate indifference to an inmate’s medical needs, a medical professional 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).
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). “Whether and how
pain associated with medical treatment should be mitigated is for doctors to decide
free from judicial interference, except in the most extreme situations.” Snipes v.
DeTella, 95 F.3d 586, 592 (7th Cir. 1996). If the defendants have provided some level
of care for a prisoner’s medical condition, 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. Snyder, 546 F.3d 516, 524 (7th Cir. 2008).
A mere disagreement with medical professionals about the appropriate treatment
doesn’t amount to an Eighth Amendment violation. Ciarpaglini v. Saini, 352 F.3d
328, 331 (7th Cir. 2003).
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No reasonable jury could determine that Dr. Liaw was deliberately indifferent
to Mr. Orr’s complaints of headaches. Mr. Orr alleges in his complaint that Dr. Liaw
wouldn’t address his headaches at the chronic care visits, but the undisputed
evidence shows that Dr. Liaw addressed Mr. Orr’s headaches on numerous occasions
and pursued several treatment methods. Mr. Orr also alleges that Dr. Liaw knew
that the prescriptions for Tylenol, Aspirin, and Propranolol wouldn’t treat his
headaches effectively, but Mr. Orr hasn’t provided any evidence to contradict Dr.
Liaw’s affirmation that he believed that Mr. Orr received appropriate treatment for
his headaches and that the next escalation of pain medication would have been
against the applicable standard of care. See Snipes v. DeTella, 95 F.3d at 592; Jackson
v. Kotter, 541 F.3d at 697 (holding that “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”) (internal
quotation marks and citation omitted). Mr. Orr hasn’t provided any evidence of
additional treatment methods that Dr. Liaw could have, but chose not to, pursue. In
sum, although Mr. Orr disagrees with Dr. Liaw’s treatment methods, the record
contains no evidence by which a reasonable jury could conclude that Dr. Liaw’s
treatment was “plainly inappropriate.” See Hayes v. Snyder, 546 F.3d at 524;
Ciarpaglini v. Saini, 352 F.3d at 331. For these reasons, summary judgment is
warranted in favor of Dr. Liaw on this claim.

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C. Deliberate Indifference Claim Against Nurse Lewis
Mr. Orr alleges that Nurse Lewis was deliberately indifferent to his serious
medical needs because she willfully relied upon information provided by Dr. Liaw
that she knew was false to deny timely and appropriate care to Mr. Orr. ECF 1 at 5.
Nurse Lewis submits an affidavit, in which she attests to the following facts that the
court Mr. Orr hasn’t disputed:
Nurse Lewis was the Health Services Administrator at the Westville Correctional
Facility during the period covered by Mr. Orr’s complaint. Nurse Lewis was to made
sure that the appropriate person assessed each prisoner’s medical needs. Mr. Orr
submitted several grievances to Nurse Lewis about his headaches. Each time, Nurse
Lewis made sure that staff saw him and that a licensed physician had ordered a
treatment plan. Nurse Lewis ensured that Mr. Orr had constant access to care at the
facility. Nurse Lewis was neither qualified nor licensed to change or second-guess
those clinical treatment decisions. Nurse Lewis saw no shortcomings with the care
and treatment provided by Dr. Liaw and believed that the treatment that Mr. Orr
received was not “blatantly inappropriate.”
No reasonable jury could conclude that Nurse Lewis was deliberately
indifferent to Mr. Orr’s medical needs. See Farmer v. Brennan, 511 U.S at 834; Duane
v. Lane, 959 F.2d 673, 677 (7th Cir. 1992) (holding that deliberate indifference is a
high standard, and is “something approaching a total unconcern for a prisoner’s

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welfare in the face of serious risks,” or a “conscious, culpable refusal” to prevent
harm). Summary judgment is warranted in favor of Nurse Lewis on this claim.
D. Injunctive Relief: Dr. Liaw, Nurse Lewis, and Warden Galipeau
Mr. Orr asks for injunctive relief against Dr. Liaw, Nurse Lewis, and Warden
Galipeau to provide him with adequate medical care for his chronic headaches.
Because (1) the record shows that Mr. Orr is being treated for his headaches, and (2)
Mr. Orr hasn’t offered any evidence to contradict Dr. Liaw’s affirmation that Mr. Orr
has received appropriate care and treatment for his headaches and does not “require[]
any additional or different medical treatment for this condition,” Mr. Orr isn’t
entitled to injunctive relief. Summary judgment is warranted in the defendants’ favor
on Mr. Orr’s injunctive relief claim.

E. Eighth Amendment Claim Against Wexford
Mr. Orr alleges that Wexford violated his Eighth Amendment rights by
denying him appropriate medical care for his chromic headaches in favor of less
expensive but ineffective treatment options, pursuant to its policy to deny necessary
medical care to save money. Mr. Orr hasn’t presented any evidence that Wexford
denied him access to available and more effective treatment options. Summary
judgment is warranted in favor of Wexford on this claim.

III.

CONCLUSION

For these reasons, the court:

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(1) GRANTS the defendants’ summary judgment motions (ECF 59 and 66); and
(2) DIRECTS the clerk to enter judgment in favor of the defendants and
against Michael Orr.
SO ORDERED on April 26, 2021
/s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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