PEACHER v. FINNAN

Filing 105

ORDER - denying 83 Motion for Summary Judgment. *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 9/28/2012. Copy Distributed (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
R. PEACHER,

)
)
Plaintiff,
)
v.
)
)
ALAN FINNAN and KEITH BUTTS, )
)
Defendants.
)

No. 1:11-cv-601-SEB-DKL

Entry Discussing Motion for Summary Judgment
Robert Peacher filed an amended complaint in this action on June 14, 2011,
against defendants Finnan and Keith Butts–the former and current
superintendents of Pendleton Correctional Facility (PCF). The claims understood to
be raised in the amended complaint were clarified in the Entry of July 5, 2011.
Peacher alleges he suffers from severe pain from hair growing on his face that can
only be remedied by using electric hair clippers. He alleges he was permitted to use
such hair clippers when he was housed at other DOC facilities but that the
defendants have denied him access to his hair clippers while he has been housed at
the PCF in violation of his Eighth Amendment rights. Peacher alleges that the
defendants are denying him the use of the clippers in retaliation for his pending
lawsuits, in violation of the First Amendment. Peacher seeks injunctive relief from
Superintendent Butts in his official capacity.1 He seeks money damages from both
Superintendent Butts and former Superintendent Finnan in their individual
capacities. The amended complaint is brought pursuant to 42 U.S.C. § 1983.
For the reasons explained below, the defendants’ motion for summary
judgment [83] is denied without prejudice.

1 The defendants argue that defendant Butts is entitled to sovereign immunity on all claims
for money damages in his official capacity. Peacher does not seek money damages from
Superintendent Butts in his official capacity and thus this argument is irrelevant and disregarded as
such. Because Peacher alleges an ongoing violation of federal law (the denial of his First and Eighth
Amendment rights) and seeks injunctive relief properly characterized as prospective, Peacher may
name individual state officials in their official capacities as defendants in the lawsuit for injunctive
relief. Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin., 603
F.3d 365, 371-372 (7th Cir. 2010) (J. Hamilton)(holding that the Eleventh Amendment does not bar
plaintiff’s request for injunctive relief against the named state officials in their official capacity).

Summary Judgment Standard
AAs stated by the Supreme Court, summary judgment is not a disfavored
procedural shortcut, but rather is an integral part of the federal rules as a whole,
which are designed to secure the just, speedy, and inexpensive determination of
every action.@ Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1103 (7th
Cir. 2008) (citations omitted). The motion for summary judgment in this civil rights
action, as with any such motion, must be granted 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.” Fed.R.Civ.P. 56(a). The moving party bears “the initial
responsibility of informing the district court of the basis for its motion,” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), and must demonstrate that no genuine
issue of material fact exists for trial. Id. at 322. However, the moving party is not
required to negate those portions of the nonmoving party’s claim on which the
nonmoving party bears the burden of proof. Id. at 323. Once the moving party
demonstrates that there is no genuine issue of material fact, the nonmoving party
bears the burden of demonstrating that such a genuine issue of material fact exists.
See Harney, 526 F.3d at 1104 (citing cases). AIf the nonmoving party fails to
establish the existence of an element essential to his case, one on which he would
bear the burden of proof at trial, summary judgment must be granted to the moving
party.@ Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied,
519 U.S. 1115 (1997).
Material Facts
Superintendent Alan Finnan
Defendant Alan Finnan was the Superintendent of PCF from August 2009
until June 2011. As Superintendent of PCF, Finnan was responsible for the
operational oversight of the facility, including security, facility maintenance,
industries, offender classification, re-entry programming, budget, human resources,
and contract services for medical services, food services, and education.
Superintendent Finnan is not a medical doctor. Correctional Medical Services
provides medical care to the offenders at PCF.
Superintendent Keith Butts
Defendant Keith Butts was the Superintendent of PCF from June 6, 2011, to
the present. As Superintendent of PCF, Butts is responsible for directing and
managing all security and program operations at the facility. He is responsible for
the operational oversight of the facility, including security, facility maintenance,
industries, offender classification, re-entry programming, budget, human resources,
and contract services for medical services, food services, and education.

Superintendent Butts is not a medical doctor. In his capacity as
Superintendent of PCF, Butts relies on the expertise of Corizon Healthcare Services
to provide medical care to the offenders at PCF.
Discussion
The defendants seek summary judgment as to the Eighth Amendment and
injunctive relief claims. They also seek judgment in their favor on the basis of
qualified immunity. Each of the defendants’ arguments is addressed below.
Eighth Amendment
The Eighth Amendment “safeguards the prisoner against a lack of medical
care that may result in pain and suffering which no one suggests would serve any
penological purpose . . . [and] prison officials violate the Constitution if they are
deliberately indifferent to prisoners’ serious medical needs.” Kress v. CCA of
Tennessee, LLC, 2012 WL 4039764, *2 (7th Cir. September 14, 2012) (quoting Arnett
v. Webster, 658 F.3d 742, 750 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828 (7th Cir. 2009)). In order for an inmate to state a claim
under ' 1983 for medical mistreatment or denial of medical care, the prisoner must
allege “acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate
indifference exists only when an official “knows of and disregards an excessive risk
to an inmate’s health; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) (construing
Estelle).
The defendants’ motion for summary judgment as to the Eighth Amendment
claim must be denied because the record on summary judgment reflects material
facts in dispute relevant to this claim including the following:
o Whether the defendants had personal conversations with Peacher in which
they were notified and made aware that Peacher was in severe pain because
of hair growing on his face and the denial of his electric shaver.
o Whether the pain caused by Peacher’s facial hair is sufficiently severe to be
considered a serious medical need requiring treatment. (Evidence reflects
that medicine may have been prescribed to Peacher for his pain).
o Whether medical personnel prescribed the use of an electric shaver and/or
whether the use of an electric shaver is necessary to treat Peacher’s condition
or relieve his pain.

o Whether prisoners are allowed to possess electric shavers and whether
prohibiting Peacher from possessing his electric shaver interfered with the
treatment decisions of medical providers.
Qualified Immunity
The defendants’ request for summary judgment on the basis of qualified
immunity is denied. The issue of qualified immunity is a question of law for the
Court, but issues of fact relevant to determining whether qualified immunity
applies are questions for the jury. Summary judgment is not appropriate if there is
a genuine factual dispute relating to whether the defendants committed acts that
allegedly violated clearly established rights. For the reasons explained above there
are genuine disputes of material fact which must be resolved by the factfinder
before the court can properly make the ultimate legal determination of whether the
defense of qualified immunity is available.
Injunctive Relief
Peacher seeks a permanent injunction to effectuate the delivery of his electric
hair clippers to him and enjoining defendant Butts or his agents from removing the
hair clippers from Peacher’s possession in the future. The defendants seek summary
judgment on this claim. The defendants’ argument in favor of summary judgment
will not be considered at this time. The reason for this ruling is that the facts
with citations to the evidence relied upon is provided in a response to another
motion filed on September 1, 2011; they are not included in the defendants’
“Statement of Material Facts Not in Dispute” as required by Local Rule 56-1(a).
Given this procedural error it is not clear that Peacher (who was pro se at the time
he filed his response to the motion for summary judgment) could be expected to
understand the need to specifically dispute the facts relied upon. In addition, the
court should not be expected to take the time necessary to cross reference the
defendants’ arguments.
Conclusion
For the reasons explained above, the defendants’ motion for summary
judgment [83] is denied. The court notes that the defendants did not consider the
plaintiff’s retaliation claim in their briefing. This claim should not be overlooked as
this case proceeds.

The plaintiff is now represented by counsel. The magistrate judge is
requested to hold a conference to address the further development of this action.
IT IS SO ORDERED.

09/28/2012
Date: __________________
_______________________________

Distribution:
All Electronically Registered Counsel
Magistrate Judge LaRue

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana