Robertson v. Burroughs et al

Filing 124

OPINION AND ORDER: The Court GRANTS 120 Robertson's motion for leave to file a sur-reply; ORDERS the dfts to supplement their discovery as outlined by 2/14/2025; GRANTS the dfts' 112 motion for summary judgment with regard to Robertson& #039;s claim against Nurse Burrell but DENIES the motion with regard to Robertson's claim against Nurse Turner; DISMISSES Nurse Burrell from this action; and REMINDS the parties this case is now proceeding only on Robertson's remaining clai m against Nurse Tiffany Turner in her individual capacity for compensatory and punitive damages for the delay in seeking emergency medical care for post-procedure complications on December 2, 2022, in violation of the Eighth Amendment. Signed by Judge Cristal C Brisco on 1/27/2025. (ash)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
HERBERT E. ROBERTSON,
Plaintiff,
v.

CAUSE NO. 3:23-CV-212-CCB

JEN BURRELL and TIFFANY TURNER,
Defendants.
OPINION AND ORDER
Herbert E. Robertson, a prisoner without a lawyer, is proceeding in this case on
two claims. First, he is proceeding against Nurse Jen Burrell “in her individual capacity
for compensatory and punitive damages for placing him at risk of serious harm by
housing him in a segregation cell in D-Cellhouse, where he could not be easily
monitored for complications following his surgical procedure on December 1, 2022, in
violation of the Eighth Amendment[.]” ECF 11 at 6. Second, he is proceeding against
Nurse Tiffany Turner “in her individual capacity for compensatory and punitive
damages for the delay in seeking emergency medical care for post-procedure
complications on December 2, [2022]1, in violation of the Eighth Amendment[.]” Id. The
defendants filed a motion for summary judgment. ECF 112. Robertson filed a response,
and the defendants filed a reply. ECF 118, ECF 119. Robertson then filed a motion for

1 The screening order contained a typographical error, identifying the date of the incident as
December 2, 2023, not in 2022. ECF 11 at 6. The correct year is clear from context, and no party was
confused by the error.

leave to file a sur-reply, and the defendants filed a response. ECF 120, ECF 121.2 The
summary judgment motion is now fully briefed and ripe for ruling.
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 may not rely merely on allegations or denials in its own
pleading but 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).
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. 825, 834 (1994). “Deliberate indifference occupies a space slightly
below intent and poses a ‘high hurdle and an exacting standard’ requiring ‘something
approaching a total unconcern for the prisoner’s welfare in the face of serious risks.’”

2 The court has reviewed the contents of Robertson’s sur-reply, and concludes it has no impact on
the disposition of this case. Therefore, Robertson’s motion for leave to file his sur-reply is granted, and
the defendants need not be permitted to file a response to his sur-reply.

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Stockton v. Milwaukee Cty., 44 F.4th 605, 615 (7th Cir. 2022) (quoting Donald v. Wexford
Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020)); see also Rasho v. Jeffreys, 22 F.4th
703, 710 (7th Cir. 2022) (stating that deliberate-indifference claims will fail absent
evidence of “callous disregard” for inmate wellbeing). “[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). Deliberate indifference can include the intentional delay in access to medical care.
A delay in treating non-life-threatening but painful conditions may constitute deliberate
indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s
pain. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011) (internal citation omitted)
For a medical professional to be held liable for deliberate indifference to an
inmate’s medical needs, she 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

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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).
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
defendant has 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. Snyder, 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).
The parties provide Robertson’s medical records and their own affidavits, which
show the following facts: On December 1, 2022, Robertson was transported to an offsite
medical provider to receive a steroid injection to his back. ECF 113-1 at 16-19; ECF 118 at
2-3; ECF 118-2 at 5. Robertson returned to the prison later that day and was evaluated by
Nurse Jen Burrell. ECF 113-1 at 16-17. Nurse Burrell was provided with Robertson’s
written discharge instructions from the outside provider, which informed Robertson he
should avoid strenuous activity, drink plenty of fluids, and go immediately to the
emergency room if he exhibited various symptoms including chest pain, shortness of
breath, loss of bladder control, prolonged dizziness, and severe headaches. ECF 118-2 at

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22-23. Robertson also orally reported to Nurse Burrell that the offsite medical provider
wanted the injection site to be cleansed and dressed daily until the site healed. ECF 1131 at 16-17; ECF 113-3 at 1. Nurse Burrell added this direction to the “Treatment Book”3 at
the nurse’s station, recorded it in Robertson’s medical records, and added Robertson to
the nurse’s call list4 for the next day so the injection site would be cleansed and dressed
during the nursing staff rounds. ECF 113-1 at 16-17; ECF 113-3 at 1-2. Nurse Burrell then
returned Robertson to his housing unit. ECF 113-1 at 17.
On December 2, 2022, Robertson was seen and assessed by Nurse Teagan Nelson
and exhibited symptoms of shortness of breath, severe headaches, loss of bladder control,
and dizziness. ECF 118-2 at 15.5 Nurse Nelson determined Robertson needed emergency
care, but he was not provided any emergency care at that time. Id.
On December 3, 2022, Robertson was seen by Nurse Tiffany Turner and reported
several episodes of dizziness and loss of bladder control following his steroid injection.

3 The defendants state in their Statement of Material Facts that Nurse Burrell recorded the
discharge instructions “in the treatment book at the ISP nurses station” on December 1, 2022. ECF 114 at
2. But during discovery, when Robertson requested the defendants to produce a copy of the instructions
recorded in the “Treatment Book” on December 1, the defendants responded there was no evidence that
Nurse Burrell recorded any instructions in the “Treatment Book” on December 1. ECF 86 at 1-2. Because
the defendants now concede in their Statement of Material Facts that Nurse Burrell did record
instructions in the “Treatment Book” on December 1, the court orders the defendants to provide a copy of
those instructions to Robertson as supplemental discovery.
4 Just as with the “Treatment Book,” Robertson requested the defendants to produce a copy of
any “nurses call list” for the date of December 2, 2022, and what the “nurses call list” stated regarding
him, and the defendants produced only the medical record Nurse Burrell made on December 1, noting
that he would be “added to 12/2/22 call list nurses station for follow up assessment and cleansing of post
injection site.” ECF 86 at 2-3, 6-7. Because the defendants refer to Robertson being added to the “nurses
call list” in their Statement of Material Facts, the court orders the defendants to provide a copy of the
“nurses call list” for December 2, 2022, or provide the name of the custodian of that record and explain
why such record is not within their custody or control.
5 Neither party provides a written record of Robertson’s December 2 evaluation by Nurse Nelson.
But Robertson attests he was seen by Nurse Nelson on this date, and the defendants don’t dispute that
attestation.

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ECF 113-1 at 12-14. Nurse Turner consulted with Nurse Karen Fagen who ordered him
to be transported to the hospital. Id. at 14. While in the hospital, Robertson was found to
have a urinary retention and received a foley catheter. Id. at 6-7.
On December 5, 2022, Robertson returned to the prison from the hospital with a
catheter in place and was seen by a Doctor of Nursing Practice. ECF 113-1 at 6-11. The
Doctor of Nursing Practice decided to leave Robertson’s catheter in place while awaiting
further results from testing during his emergency room visit and a urology follow up. Id.
at 11. On December 6, 2022, Robertson was seen by Nurse Burrell at the nurse’s station
for complaints of incontinence, headache, and dizziness. Id. at 2-3. Nurse Burrell noted
Robertson’s injection site did not show signs of increased redness or swelling and passed
the recommendations of the Doctor of Nursing Practice along to the other nurses working
at the prison. Id. at 3. Because neither party disputes these facts, the court accepts them
as undisputed.
Nurse Burrell
Robertson is proceeding against Nurse Burrell “for placing him at risk of serious
harm by housing him in a segregation cell in D-Cellhouse, where he could not be easily
monitored for complications following his surgical procedure on December 1, 2022[.]”
ECF 11 at 6. Specifically, Robertson alleged in his complaint that Nurse Burrell received
written discharge instructions from the offsite physician to monitor him for infection
and emergency symptoms for 24 hours following his procedure, but ignored these
instructions and sent him to his housing unit rather than the infirmary. ECF 2 at 5-6.

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Nurse Burrell argues she was not deliberately indifferent for returning Robertson
to his housing unit on December 1 because she had no reason to believe he required
additional monitoring at that time, as she never received any instructions from
Robertson’s offsite medical provider to monitor him following the steroid injection. ECF
115 at 8-9. She attests that when she examined Robertson on December 1, neither
Robertson nor the escorting correctional officer informed her that Robertson would
require close observation by medical personnel following the injection. ECF 113-3 at 1-2.
In response, Robertson argues Nurse Burrell should have known he required
monitoring because she received and reviewed the written discharge instructions he’d
been provided by the offsite medical provider. ECF 118 at 3-4; ECF 118-2 at 14.
However, the written discharge instructions do not indicate that Robertson needed to
be continuously monitored by medical personnel upon his return to the prison. See ECF
118-2 at 22-23. Rather, the written discharge instructions do not mention any specific
need to monitor Robertson, and there’s nothing in the discharge instructions that
indicate it would be inappropriate to return Robertson to his housing unit. See id.
Robertson also argues that both he and the escorting correctional officer told Nurse
Burrell that he needed to be monitored following his return to the prison. ECF 118 at 35, 9-10. But there’s no evidence that either Robertson or the escorting correctional officer
have any medical training, so Nurse Burrell was not required to defer to their opinions.
See Ciarpaglini, 352 F.3d at 331 (the plaintiff’s mere disagreement with medical
professionals about the appropriate treatment does not show an Eighth Amendment
violation); Berry v. Peterman, 604 F.3d 435, 441 (“mere disagreement with a doctor’s
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medical judgment” is insufficient to show deliberate indifference). Because the written
discharge instructions did not state Robertson needed to be monitored by medical
personal, no reasonable jury could conclude it was “plainly inappropriate” for Nurse
Burrell to return Robertson to his housing assignment based on the written discharge
instructions. See Hayes, 546 F.3d at 524.
Robertson also argues for the first time that Nurse Burrell was deliberately
indifferent for failing to provide him medical care for his post-injection symptoms when
he returned to the prison because both he and the escorting correctional officer reported
to Nurse Burrell that he’d become dizzy and lost control of his bladder during his
transportation back to the prison. ECF 118 at 3-5, 7. However, Robertson never raised
these allegations in his complaint, and they are different from the claim on which he is
proceeding in this case. Specifically, Robertson is proceeding against Nurse Burrell on a
claim asking whether she was deliberately indifferent for returning him to his cell in
defiance of the offsite physician’s written discharge instructions to keep him for
monitoring for 24 hours. See ECF 2 at 5-6 (complaining Nurse Burrell received written
discharge instructions to monitor him for infection and emergency symptoms for 24
hours following his procedure but ignored these instructions by returning him to his
housing unit); ECF 11 at 1-2 (granting Robertson leave to proceed against Nurse Burrell
based on his allegation that Nurse Burrell disregarded the offsite physician’s
“instructions to monitor him for 24 hours” following the procedure). This is different
from the question Robertson now raises regarding whether Nurse Burrell ignored a
serious medical need by failing to provide emergency care for his post-procedure
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symptoms. Thus, Robertson’s allegations that Nurse Burrell failed to provide medical
care for his symptoms of dizziness and loss of bladder control fall outside the scope of
this lawsuit.
Accordingly, because it’s undisputed the offsite physician’s written discharge
instructions did not indicate Robertson needed to be monitored by medical staff after
his procedure, there’s no evidence by which a reasonable jury could conclude Nurse
Burrell’s conduct of returning Robertson to his housing unit was “plainly
inappropriate.” See Hayes, 546 F.3d at 524. Rather, the evidence shows that Robertson’s
belief he should have been kept in the infirmary for monitoring rather than returned to
his housing unit amounts to a mere disagreement with Nurse Burrell, which is
insufficient to show an Eighth Amendment violation. See Ciarpaglini, 352 F.3d at 331.
Summary judgment is therefore warranted in favor of Nurse Burrell.
Nurse Turner
Robertson is proceeding against Nurse Turner “for the delay in seeking
emergency medical care for post-procedure complications on December 2, [2022.]” ECF
11 at 6. Nurse Turner argues summary judgment is warranted in her favor because she
first learned Robertson was experiencing post-procedure complications on December 3,
2022, and she provided constitutionally adequate medical care at that time. ECF 115 at
7. Specifically, she attests she did not receive any information that Robertson was
experiencing loss of bladder control, dizziness, or difficulty breathing prior to
December 3, though she concedes that Nurse Nelson informed her “on an unknown
date” in December 2022 that Robertson was complaining of headaches. ECF 113-2 at 2.
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In response, Robertson attests that Nurse Turner personally told him on
December 6, 2022, that: (1) she’d been informed by Nurse Nelson on December 2 that
Robertson needed emergency medical care; and (2) she hadn’t provided him emergency
medical care on December 2 because she’d been “too busy” at the time. ECF 118-2 at 15.
A reasonable jury could credit this testimony and conclude Nurse Turner denied
Robertson constitutionally adequate medical care on December 2, 2022.6 Because
Robertson provides evidence he was suffering from symptoms indicating he had a
serious medical need on December 2, and that Nurse Turner was aware of those
symptoms but denied him medical care at that time because she was “too busy,” a
reasonable jury could conclude she violated Robertson’s Eighth Amendment rights. See
Arnett, 658 F.3d at 753; Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016) (evidence of “an
inexplicable delay in treatment which serves no penological interest” can prove
deliberate indifference); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008)
(reversing summary judgment for defendants where plaintiff did not receive treatment
for broken nose for nearly two days). Therefore, summary judgment must be denied on
this claim.
For these reasons, the court:
(1) GRANTS Robertson’s motion for leave to file a sur-reply (ECF 120);

6 The defendants object that Nurse Nelson’s December 2 statements to Robertson about his need
for emergency medical care are hearsay. But the defendants don’t argue that Nurse Turner’s December 6
statements to Robertson about her own conduct on December 2 are hearsay. Because Nurse Turner is a
defendant in this case, there’s no basis to exclude her December 6 statements as hearsay.

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(2) ORDERS the defendants to supplement their discovery to provide Robertson
a copy of the instructions recorded by Nurse Burrell in the “Treatment Book” at the
ISP’s nursing station on December 1, 2022 (see ECF 114 at 2) by February 14, 2025;
(3) ORDERS the defendants to supplement their discovery to provide Robertson
a copy of the “nurses call list” for December 2, 2022, (see ECF 114 at 2), or provide the
name of the custodian of that record and explain why such record is not within their
custody or control by February 14, 2025;
(4) GRANTS the defendants’ motion for summary judgment (ECF 112) with
regard to Robertson’s claim against Nurse Burrell but DENIES the motion with regard
to Robertson’s claim against Nurse Turner;
(5) DISMISSES Nurse Burrell from this action; and
(6) REMINDS the parties this case is now proceeding only on Robertson’s
remaining claim against Nurse Tiffany Turner in her individual capacity for
compensatory and punitive damages for the delay in seeking emergency medical care
for post-procedure complications on December 2, 2022, in violation of the Eighth
Amendment.
SO ORDERED on January 27, 2025.
/s/ Cristal C. Brisco
CRISTAL C. BRISCO, JUDGE
UNITED STATES DISTRICT COURT

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