GIVENS v. INDIANA DEPARTMENT OF CORRECTION et al

Filing 121

ORDER - In short, the Court finds that there is no genuine issue of material fact regarding Mr. Givens' §1983 claims and that, based on the evidence in the record, the remaining defendants are entitled to judgment as a matter of law. The Co urt DISMISSES Mr. Givens' official capacity claims and GRANTS Defendants' Summary Judgment Motions, Dkts. 91 and 96 . The Court grants summary judgment in favor of Correctional Medical Services, Dr. Richard Hinchman, Dr. Richard Tanner, Dwight Graves and Walter Martin. Judgment will issue accordingly. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 9/27/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEROME C. GIVENS,
Plaintiff,
vs.
CORRECTIONAL MEDICAL
SERVICES, INC., RICHARD L.
HINCHMAN, M.D., RICHARD R.
TANNER, M.D., WALTER E. MARTIN,
AND DWIGHT L. GRAVES,
Defendants.

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1:10-cv-00064-JMS-MJD

ORDER
Presently before the Court are Defendants’ Motions for Summary Judgment. [Dkts. 91;
96.] For the reasons set forth herein, the Court DISMISSES Plaintiff Jerome C. Givens’
official-capacity claims and GRANTS Defendants’ Summary Judgment Motions.
I.
STANDARD OF REVIEW
A motion for summary judgment asks that the Court find that a trial based on the
uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would
conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for
summary judgment, the non-moving party must set forth specific, admissible evidence showing
that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
As the current version Rule 56 makes clear, whether a party asserts that a fact is
undisputed or genuinely disputed, the party must support the asserted fact by citing to particular
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parts of the record, including depositions, documents, or affidavits.

Fed. R. Civ. Pro.

56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish
the absence or presence of a genuine dispute or that the adverse party cannot produce admissible
evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4).

Failure to

properly support a fact in opposition to a movant’s factual assertion can result in the movant’s
fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ.
Pro. 56(e).
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the
Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not
required to scour every inch of the record for evidence that is potentially relevant to the summary
judgment motion before them,” Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003).
Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible
evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff’s
claims or a defendant’s affirmative defenses, not the weight or credibility of that evidence, both
of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep’t of Corrections,
175 F.3d 497, 504 (7th Cir. 1999). And when evaluating this inquiry, the Court must give the
non-moving party the benefit of all reasonable inferences from the evidence submitted and
resolve “any doubt as to the existence of a genuine issue for trial . . . against the moving party.”
Celotex, 477 U.S. at 330.

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II.
BACKGROUND
The undisputed facts are as follows. At all times during the period relevant to his
complaint, Plaintiff Jerome Givens was incarcerated at various facilities within the Indiana
Department of Corrections (“DOC”), specifically the Reception Diagnostic Center, the
Edinburgh Correctional Facility, the Plainfield Correctional Facility, and the Indianapolis Men’s
Community Re-Entry Center. Correctional Medical Services (“CMS”) contracts with the DOC
to provide medical care to Indiana prisoners, including those at the facilities where Mr. Givens
was incarcerated. During the period relevant to Mr. Givens’ complaint, Dr. Richard Tanner and
Dr. Richard Hinchman were the primary physicians at the Edinburgh Correctional Facility and
the Indianapolis Men’s Community Re-Entry Center, respectively; Walter Martin was the
superintendent of the Indianapolis Men’s Community Re-Entry Center, and Dwight Graves was
an administrative assistant at the facility.
Mr. Givens claims that his medical condition required a no-starch, high-protein diet, and
he alleges that he did not receive that diet during his stay within the DOC. [Dkt. 29 at 9-14.]
When Mr. Givens arrived at the Indianapolis Men’s Community Re-Entry Center, Dr. Tanner
decided that Mr. Givens did not require a no-starch, high protein diet. [Dkt. 92 at 19.] While he
was assigned to kitchen detail, Mr. Givens managed to maintain his requested diet informally.
[Dkt. 29-2.] After he was removed from kitchen detail, Mr. Givens filed a formal grievance to

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have his no-starch, high-protein diet reinstated. [Dkt. 29-2.] Mr. Givens claims that he suffered
from “dumping syndrome”1 as a result of not receiving his requested diet. [Dkt. 29-2.]
Of the defendants included in Mr. Givens’ Amended Complaint, only CMS, Dr. Richard
Hinchman, Dr. Richard Tanner, Dwight Graves, and Walter Martin remain. [Dkt. 29 at 1.]
These defendants now seek summary judgment. [Dkts. 91, 96.]
III.
DISCUSSION
Mr. Givens has sued the defendants under 42 U.S.C. § 1983, alleging deliberate
indifference to his serious medical needs, a cause of action that the Supreme Court has
recognized in Farmer v. Brennan. 511 U.S. 825, 828 (1994). Deliberate indifference may be
manifested “by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.” Erickson v. Pardus, 551 U.S. 89, 90 (2007) (per curiam) (internal
citations omitted).
To succeed on a deliberate indifference claim, a plaintiff must satisfy both an objective
and a subjective component. Farmer, 511 U.S at 834. First, he must demonstrate that his
medical condition is “objectively, sufficiently serious.” Id. Then he must demonstrate that the
defendant acted with a “sufficiently culpable state of mind.” Id. To make this subjective
showing, the plaintiff must establish that the defendant knew he faced a substantial risk of harm
and disregarded that risk. Id. Deliberate indifference “is more than negligence and approaches

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While neither party provides medical evidence as to what constitutes a “dumping syndrome” or
a “dumping event, ” the Mayo Clinic defines it as a group of symptoms, including cramping and
nausea, that “occurs when [the] undigested contents of [the] stomach are transported or ‘dumped’
into [the] small intestine too rapidly.” Mayo Clinic Staff, Dumping Syndrome (accessed
September 27, 2011) <http://www.mayoclinic.com/health/dumping-syndrome/DS00715>.
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intentional wrongdoing.”

Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006) (citation

omitted).
A. Official-Capacity Claims Under § 1983
Mr. Givens’ Complaint alleges § 1983 claims against defendants in both their official and
individual capacities. [Dkt. 29 at 1.] Well-settled case law applying the Eleventh Amendment’s
grant of sovereign immunity establishes that the official-capacity claims against all of the
defendants must be dismissed.

An official-capacity claim is effectively a suit against the

governmental entity employing the defendant.

Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir.

1992), cert. denied, 508 U.S. 942 (1993). In this § 1983 case, therefore, official-capacity claims
against the defendant individuals as employees or agents of the Indiana Department of
Correction are prohibited. Flayter v. Wisconsin Department of Correction, 16 Fed. Appx. 507,
509 (7th. Cir. 2001). See also Kentucky v. Graham, 473 U.S. 159, 165-67 and n.14 (1985)
(barring under the Eleventh Amendment a suit for damages against a state officer in his official
capacity). Accordingly, any claims for damages against the defendants in their official capacities
as employees or agents of the Indiana Department of Correction are DISMISSED.
B. Mr. Givens’ § 1983 Claims Against CMS and Employees
1. Mr. Givens’ § 1983 Claim Against CMS
In his Complaint, Mr. Givens contends that CMS’s alleged constitutional deprivation
“represented the implementation of a policy, practice, or custom of Defendant CMS.” [Dkt. 29 at
7.] In its motion for summary judgment, however, CMS argues that there was no practice or
policy prohibiting special diets or otherwise resulting in constitutional deprivation [Dkt. 92 at 1617.] To show that an entity like CMS demonstrated deliberate indifference, Mr. Givens must
provide evidence that:

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(1) CMS has an express policy that, when enforced, causes a constitutional deprivation;
(2) CMS has a practice so wide-spread that, although not authorized by written or express
policy, is so permanent and well settled as to constitute a custom or usage with the force
of law; or
(3) the alleged constitutional injury was caused by a person with final policy-making
authority.
Estate of Moreland v. Dieter, 395 F.3d 747, 758-59 (7th Cir. 2004) (internal citations omitted).
Mr. Givens provides no such evidence in his brief opposing CMS’s motion for summary
judgment. Asserting only that CMS “provided medical advise [sic] on a plethora of medical
issues,” Mr. Givens makes no mention of any specific policy, practice, or act by a final decisionmaker at CMS that resulted in his alleged constitutional deprivation. [Dkt. 109 at 5.] Moreover,
his failure to develop his claim with argument and citations to the record constitutes a waiver of
the claim.

Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003) (holding that

arguments not presented to the district court in response to summary judgment motions are
waived). See also Celotex, 477 U.S. at 324 (a party opposing a motion for summary judgment
may not rest on the allegations in the pleadings, but must offer specific evidence demonstrating a
factual basis for his entitlement to relief). To whatever extent waiver has not occurred, the Court
finds that no genuine dispute of material fact exists because Mr. Givens has produced no
admissible evidence of any CMS policy, practice, or act by final decision-maker that resulted in
Mr. Givens’ injury.

Accordingly, CMS is entitled to summary judgment, and the Court

GRANTS its motion.

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2. Mr. Givens’ § 1983 Claim Against Dr. Richard Hinchman
In his motion for summary judgment, Dr. Hinchman denies that he had any involvement
in the alleged failure to provide Mr. Givens with the special diet he claims to need. [Dkt. 92 at
19.] In fact, Dr. Hinchman affirmatively testifies that he provided Mr. Givens with the requested
diet. [Dkt. at 18.] In his brief opposing summary judgment, Mr. Givens makes no specific
mention of Dr. Hinchman or his personal participation in the alleged constitutional deprivation.
Personal participation is required as a predicate to any § 1983 claim. Chavez v. Illinois State
Police, 251 F.3d 612, 651 (7th Cir. 2001). Mr. Givens failure equates to a forfeiture as to any
argument that Dr. Hinchman had the required level of involvement.

Witte v. Wisconsin

Department of Correction, 434 F.3d 1031, 1038 (7th Cir. 2006) (a party forfeits any arguments it
fails to raise in a brief opposing summary judgment); Palmer, 327 F.3d at 597-98 (7th Cir.
2003) (claims not addressed in response to summary judgment are deemed abandoned).
Therefore, the Court also GRANTS summary judgment for Dr. Hinchman.
3. Mr. Givens’ § 1983 Claim Against Dr. Richard Tanner
Mr. Givens also claims that Dr. Tanner should be held liable under § 1983 because he did
not order tests to determine “whether Plaintiff has had a ‘dumping event.’” [Dkt. 5.] Dr. Tanner
admits he did not prescribe the diet requested by Mr. Givens, and states he determined that Mr.
Givens was better served with a heart healthy diet. He therefore argues that he acted not with
deliberate indifference, but in accordance with his own medical opinion. [Dkt. at 92 at 19-20.]
In his response brief, Mr. Givens acknowledges Dr. Tanner’s examination and treatment of him
but argues that “what Dr. Tanner did not do which should have been done [sic]” gives rise to a

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material dispute of fact as to whether Dr. Tanner’s care was “reasonable,” thus precluding
summary judgment. [Dkt. 109 at 5.] He is mistaken.
Deliberate indifference “is more than negligence and approaches intentional
wrongdoing.” Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006) (citation omitted). Even if
Dr. Tanner’s conduct was “unreasonable” Mr. Givens still cannot prevail. Medical malpractice
or disagreement with a doctor’s medical judgment does not constitute deliberate indifference.2
Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). Nowhere in his response brief has Mr.
Givens shown why Dr. Tanner’s actions constitute deliberate indifference. Therefore, the Court
GRANTS summary judgment for Dr. Tanner.
C. Claims Against Individuals from the Indianapolis Men’s Community Re-Entry
Center
Mr. Givens has also brought § 1983 claims against Superintendent Walter Martin and
Administrative Assistant Dwight Graves of the Indianapolis Men’s Community Re-Entry Center
(“IMCRC”), alleging liability in their individual capacities.
To recover damages from an official under § 1983, a plaintiff must establish the official’s
personal involvement and responsibility for the alleged deprivation. Chavez, 251 F.3d at 651.
“[A]n official meets the personal involvement requirement when [ ]he acts or fails to act with a
deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the
constitutional deprivation occurs at h[is] direction or with [his] knowledge and consent.” Black
v. Lane, 22 F.3d 1395, 1401 (7th Cir.1994) (citations and internal quotations omitted). See also
Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996) (“[A] prisoner may not attribute any of

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The Court is not aware of any state law claims Mr. Givens has filed against Dr. Tanner for
malpractice.
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his constitutional claims to higher officials by the doctrine of respondeat superior; the official
must actually have participated in the constitutional wrongdoing.”) (internal quotations omitted).
1. Mr. Givens’ § 1983 Claim Against Mr. Dwight Graves
Mr. Graves claims no independent recollection of contact with Mr. Givens, but asserts
that had he been aware of the condition, he would have followed instructions from the CMS staff
regarding Mr. Givens’ diet and prescriptions. [Dkt. 97 at 7.] In his response brief, Mr. Givens
argues only that Mr. Graves was aware of his medical condition, [dkt. 109 at 2-4]; he makes no
mention of how Mr. Graves demonstrated deliberate indifference toward him and cites no
evidence supporting that standard. While Mr. Givens is entitled to the benefit of all inferences,
Mr. Graves’ awareness of Mr. Givens’ medical condition is only half the proof Mr. Givens must
muster. Mr. Givens has failed to either present evidence or develop his argument regarding
deliberate indifference and Mr. Graves’ personal involvement in the alleged deprivation.
Because Mr. Givens must show Mr. Graves’ personal involvement, Chavez, 251 F.3d at 651, and
because Mr. Givens has forfeited any argument regarding deliberate indifference, Mr. Graves is
entitled to summary judgment. Witte, 434 F.3d at 1038; Palmer, 327 F.3d at 597-98. Therefore,
the Court GRANTS summary judgment for Mr. Graves.
2. Mr. Givens’ § 1983 Claim Against Mr. Walter Martin
In his motion for summary judgment, Mr. Martin does not deny awareness of Mr.
Givens’ medical condition, but instead points to his deferral to Dr. Tanner’s medical opinion in
arguing that he acted reasonably, rather than with deliberate indifference. In his response brief,
Mr. Givens again sets out only to show that Mr. Martin was aware of his medical condition, [dkt.
109 at 2-4], but fails to address Mr. Martin’s argument regarding deliberate indifference or
develop his own argument regarding the claim. This Court concludes, then, that Mr. Givens has

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similarly forfeited his claim against Mr. Martin for failure to develop the claim in response to
Mr. Martin’s motion for summary judgment. Witte, 434 F.3d at 1038; Palmer, 327 F.3d at 59798.
Even putting aside Mr. Givens’ forfeiture, Mr. Martin would still be entitled to summary
judgment based on the undisputed facts. Mr. Martin cannot be said to have acted with deliberate
indifference by deferring to the medical opinions of Dr. Tanner regarding Mr. Given’s diet. See
Hayes v. Snyder, 2008 WL 4511881, *11 (7th Cir. 2008) (“The policy supporting the
presumption that non-medical officials are entitled to defer to the professional judgment of the
facility’s medical officials on questions of prisoners’ medical care is a sound one.”); Farmer,
114 S.Ct. at 1983 (“Whether one puts it in terms of duty or deliberate indifference, prison
officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments
Clause.)
Therefore, this Court GRANTS Mr. Martin’s motion for summary judgment.
IV.
CONCLUSION
In short, the Court finds that there is no genuine issue of material fact regarding Mr.
Givens’ § 1983 claims and that, based on the evidence in the record, the remaining defendants
are entitled to judgment as a matter of law. The Court DISMISSES Mr. Givens’ officialcapacity claims and GRANTS Defendants’ Summary Judgment Motions. [Dkts. 91; 96.] The
Court grants summary judgment in favor of Correctional Medical Services, Dr. Richard
Hinchman, Dr. Richard Tanner, Dwight Graves and Walter Martin.
accordingly.

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Judgment will issue

_______________________________

09/27/2011

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Scott Leroy Barnhart
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
James F. Bleeke
BLEEKE DILLON CRANDALL PC
[e-mail]
Andrew C. Briscoe
DREWRY SIMMONS VORNEHM, LLP
[e-mail]
Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
[e-mail]
Thomas J. Grau
DREWRY SIMMONS VORNEHM, LLP
[e-mail]
Lawrence M. Reuben
LAW OFFICES OF LAWRENCE M.REUBEN
[e-mail]
Christopher D. Simpkins
BLEEKE DILLON CRANDALL PC
[e-mail]
Cory Christian Voight
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]

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