BREWER v. O'BRIEN
Filing
59
ORDER granting Defendant's 40 Motion for Summary Judgment. Judgment consistent with this Entry shall now issue. (See Order). Copy mailed. Signed by Judge Sarah Evans Barker on 3/26/2013. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RODNEY MACK BREWER,
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Plaintiff,
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vs.
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PAUL J. O’BRIEN, Medical Doctor,
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Defendant. )
1:11-cv-908-SEB-MJD
Entry Discussing Motion for Summary Judgment
In this civil rights action brought pursuant to 42 U.S.C. § 1983, plaintiff
Rodney Brewer alleges that defendant Dr. Paul O’Brien was deliberately indifferent
to his serious medical needs when Brewer fractured his leg. Dr. O’Brien moves for
summary judgment.
Standard of Review
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A "material fact" is one that “might affect the
outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over “material fact” is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. If no reasonable jury could
find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris,
127 S. Ct. 1769, 1776 (2007).
“[A] party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). To survive summary judgment, the nonmoving party must establish
some genuine issue for trial such that a reasonable jury could return a verdict in his
favor. Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir. 2011)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). AThe nonmovant will
successfully oppose summary judgment only when it presents definite, competent
evidence to rebut the motion.@ Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699
(7th Cir. 2002) (internal quotation and citation omitted). See Fed.R.Civ.P.
56(c)(1)(A),B)(both the party Aasserting that a fact cannot be,@ and a party asserting
that a fact is genuinely disputed, must support their assertions by Aciting to
particular parts of materials in the record,@ or by Ashowing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.@).
In viewing the facts presented on a motion for summary judgment, a court
must construe all facts in a light most favorable to the non-moving party and draw
all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc.,
45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443
(7th Cir.1994). However, “before a non-movant can benefit from a favorable view of
the evidence, it must show that there is some genuine evidentiary dispute.” SMS
Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009).
Mr. Brewer has not opposed the motion for summary judgment with a
Statement of Disputed Facts as required by Local Rule 56-1. He also has not
supported the facts he alleges with admissible evidence. The consequence of this is
that he has conceded the defendant’s version of the facts. Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated by
the local rules results in an admission.”); Waldridge v. American Hoechst Corp., 24
F.3d 918, 921-22 (7th Cir. 1994). This is the result of Local Rule 56-1, of which the
plaintiff was notified. This does not alter the standard for assessing a Rule 56(a)
motion, but does “reduc[e] the pool” from which the facts and inferences relative to
such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).
Undisputed Facts
On Friday, October 15, 2010, Mr. Brewer stepped down from a step and
injured his lower right leg. He reported hearing a pop and that his right lower leg
started to develop pain. Mr. Brewer submitted a Request for Healthcare on October
16, 2010, stating that he may have fractured his tibia. Mr. Brewer submitted
another Request for Healthcare on October 17, 2010, stating that he felt like he
fractured the tibia of his right leg. Mr. Brewer was examined by Nurse Nicole
Taylor on October 17, 2010. Mr. Brewer reported that he hurt his foot/ankle while
stepping down. Nurse Taylor took Mr. Brewer’s vital signs and noted that his ankle
was swollen and that he could not bear weight on it. She gave him an ACE wrap,
crutches, and scheduled him for an x-ray. She noted that he was already on
Naproxen. Mr. Brewer had an x-ray of his right foot on October 19, 2010 and the xray was negative for recent fracture or other significant bony abnormality.
However, if symptoms persisted, a follow-up x-ray was recommended.
Mr. Brewer submitted a Request for Healthcare on October 20, 2010, stating
that his ankle hurt and that it hurt above the place where the nurse took an x-ray.
In response, medical staff informed Mr. Brewer that he was scheduled to see the
doctor. Mr. Brewer submitted a Request for Healthcare on October 21, 2010, asking
to switch his crutches for a cane. Medical staff responded to the request and
informed Mr. Brewer that he was scheduled to see the doctor. Dr. Paul O’Brien
examined Mr. Brewer on October 25, 2010. At that time, Mr. Brewer had no
swelling or redness, but was unable to bear full weight on his foot. Dr. O’Brien
prescribed a cane for one week. Dr. O’Brien renewed Mr. Brewer’s cane pass for one
week on October 26, 2010. Mr. Brewer submitted Requests for Healthcare on
October 26, 2010 and October 28, 2010 that his right ankle hurt badly. Mr. Brewer
was seen in nursing sick call on October 28, 2010 because he thought the bone was
coming out of his leg. The nurse noted no bulging of the bone from any aspect of the
ankle, that Mr. Brewer was walking without difficultly with a cane, and that there
was no change in the ankle condition since Mr. Brewer saw the doctor. Mr. Brewer
submitted a Request for Healthcare on October 30, 2010, and stated that he could
walk without a cane, but that his ankle and leg were swollen. In response, the nurse
spoke with Dr. O’Brien, who ordered a new pair of TED hose.
Mr. Brewer submitted two different Requests for Healthcare on November 2,
2010, and November 8, 2010, asking for a bottom bunk pass. Medical staff
responded and informed Mr. Brewer that he already had a bottom bunk pass. Mr.
Brewer was seen by a nurse on November 3, 2010, and the nurse referred him to the
doctor. Mr. Brewer submitted three more Requests for Healthcare on November 8,
2010, and November 11, 2010, regarding pain in his ankle. Dr. O’Brien examined
Mr. Brewer on November 12, 2010, and ordered a wheelchair. Mr. Brewer
submitted two Requests for Healthcare on November 13 and 14, 2010, asking for
pain medication. Those requests were forwarded to Dr. O’Brien. Mr. Brewer
submitted three Requests for Healthcare on November 15, 2010, about pain
medication and his cane. In response, medical staff told him that he was taking
Pamelor and Naproxen, which were appropriate for his injury, and his cane pass
was renewed for 30 days. On November 22, 2010, Mr. Brewer was seen in the
Chronic Care Clinic by Jeff Coy, APN. Nurse Practitioner Coy noted edema of the
right foot, with a 1.0 cm-ulceration to the medial aspect of his foot. Nurse
Practitioner Coy prescribed foot soaks to the right foot and Cephalexin for infection.
Dr. O’Brien examined Mr. Brewer again on November 29, 2010. Because Mr.
Brewer reported persistent symptoms in his right ankle, Dr. O’Brien decided to
check for injury in places other than the right foot/ankle, so Dr. O’Brien ordered an
x-ray of the right lower leg. Mr. Brewer had another x-ray, this time of the right
lower leg, which showed a right distal tibia fracture. Dr. O’Brien ordered continued
wheelchair use and pain medication, including Vicodin. He also referred Mr. Brewer
for an orthopedic evaluation, which was scheduled at UAP Bone and Joint Clinic at
Union Hospital. Mr. Brewer went to the UAP Bone and Joint Clinic at Union
Hospital on December 3, 2010, for an orthopedic evaluation. Mr. Brewer reported
continued pain and that he had been completely non-weight-bearing in a wheelchair
for the past two weeks. On exam, the orthopedist noted a small medial calcaneal
wound that was healing and there was no sign of infection. An x-ray taken at the
hospital showed good alignment of the fracture with early attempted callus
formation. The orthopedist placed Mr. Brewer in a short-leg cast and recommended
no weight-bearing and a follow-up in one month. The orthopedic specialist treated
Mr. Brewer conservatively, with instructions for non-weight-bearing for 8-10 weeks
and Vicodin for pain. When Mr. Brewer returned to the prison, Dr. O’Brien followed
all of the recommendations from the orthopedic specialist.
On December 6, 2010, Dr. O’Brien ordered in-dorm meals, in-dorm
medications, and a wheelchair for 90 days. Mr. Brewer’s cane pass was also
renewed for 90 days, per his request, on December 9, 2010. Dr. O’Brien examined
Mr. Brewer on December 21, 2010, because Mr. Brewer’s cast was loose and
cracking. Dr. O’Brien reinforced the cast with fiberglass casting and scheduled an xray for January 3, 2011. He also prescribed Ecotrin for pain. Mr. Brewer had a
follow-up orthopedic appointment at Union Hospital on December 27, 2010, but for
reasons unknown, he did not show up for the appointment. Dr. O’Brien renewed Mr.
Brewer’s Vicodin on December 28, 2010.
Mr. Brewer was seen in nursing sick call on January 5, 2011. His vital signs
were taken, he was scheduled for an x-ray, and he was referred to the doctor. On
January 7, 2011, Mr. Brewer had another new x-ray of the right ankle, which
showed that the distal tibia was healing and was unchanged in position or
alignment. Jeff Coy, APN, examined Mr. Brewer on January 11, 2011. Mr. Brewer’s
capillary refill was normal and he had no complaints. He was told he would have his
cast on for 8 more weeks. Nurse Practitioner Coy prescribed Naproxen for pain on
January 17, 2011. Dr. O’Brien examined Mr. Brewer in the Chronic Care Clinic on
January 28, 2011. Mr. Brewer had decreased liver enzymes, which Dr. O’Brien
thought was probably from the Vicodin, so Dr. O’Brien discontinued Vicodin. He
also noted that they would do another x-ray and if it looked good, he would remove
Mr. Brewer’s cast. Dr. O’Brien ordered an egg crate to elevate Mr. Brewer’s leg on
January 30, 2011. On February 4, 2011, Mr. Brewer received an ACE wrap and an
ambulatory boot.
On February 5, 2011, Dr. O’Brien examined Mr. Brewer and noted that he
had worn the cast for 8 weeks. Dr. O’Brien removed the cast and noted a nickelsized ulcer on the medial ankle with some redness. Dr. O’Brien prescribed
antibiotics and daily dressing changes. He also told Mr. Brewer to wear his boot and
remain non-weight bearing. On February 11, 2011, Mr. Brewer had a new x-ray of
the right tibia and fibula, which showed a healing fracture of the distal tibia, which
healing had progressed from the prior film. On February 21, 2011, Dr. O’Brien
examined Mr. Brewer again and noted that he was doing better and had good
healing of the foot. The ulcer on Mr. Brewer’s ankle was down to 5 mm and Dr.
O’Brien continued antibiotics. He also told Mr. Brewer to start range of motion
exercises for the ankle and start weight-bearing in the dorm with a cane. Dr.
O’Brien renewed Mr. Brewer’s cane pass for 60 days on March 8, 2011. On March
13, 2011, Mr. Brewer was seen in nursing sick call and there was no evidence of
infection in or around his foot ulcer. Mr. Brewer had another x-ray taken on March
30, 2011, which showed that the fracture was well healed.
Mr. Brewer recovered uneventfully from his leg fracture, except for several
ulcers that developed under his cast, which were treated as they arose. Dr. O’Brien
personally examined Mr. Brewer within 10 days of the initial injury. It was not
medically necessary for Dr. O’Brien to examine Mr. Brewer prior to that time
because Mr. Brewer was seen by the nursing staff, who rendered the appropriate
medical treatment, and the initial x-ray was negative for any fracture.1
Discussion
Brewer alleges that Dr. O’Brien was deliberately indifferent to his serious
medical needs. Pursuant to the Eighth Amendment, prison officials have a duty to
provide humane conditions of confinement, meaning, they must take reasonable
measures to guarantee the safety of the inmates and ensure that they receive
adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825,
834 (1994). To establish a medical claim that a prison official has violated the
Eighth Amendment, a plaintiff must demonstrate two elements: (1) an objectively
serious medical condition; and (2) deliberate indifference by the prison officials to
that condition. Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006).
As to the first element, “[a]n objectively serious medical need is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor's attention.@
King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (internal quotation omitted).
The defendants do not dispute that Brewer had an objectively serious medical
condition.
As to the second element, A[t]o show deliberate indifference, the plaintiff must
demonstrate that the defendant was actually aware of a serious medical need but
then was deliberately indifferent to it.@ Knight v. Wiseman, 590 F.3d 458, 463 (7th
Cir. 2009). “A medical professional's deliberate indifference may be inferred when
the medical professional's decision is such a substantial departure from accepted
Dr. O’Brien also asserts that if Mr. Brewer’s fracture had been diagnosed on the first day possible,
his course of treatment would not have changed. But it is undisputed that once Mr. Brewer’s fracture
was diagnosed, he was placed in a cast and given Vicodin for pain – treatments he had not received
before his fracture was diagnosed. There court will therefore disregard Dr. O’Brien’s assertion to the
contrary.
1
professional judgment, practice, or standards as to demonstrate that the person
responsible did not base the decision on such a judgment.” King, 680 F.3d at 10181019 (internal quotation omitted). ADeliberate indifference is more than negligence
and approaches intentional wrongdoing.@ Johnson, 444 F.3d at 585 (internal
quotation omitted). A[D]eliberate indifference is essentially a criminal recklessness
standard, that is, ignoring a known risk.@ Id. (internal quotation omitted). AEven
gross negligence is below the standard needed to impose constitutional liability.@
Id. (internal quotation omitted).
A court examines the totality of an inmate's medical care when determining
whether defendants have been deliberately indifferent to an inmate's serious
medical needs. Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999). Here, Mr.
Brewer received an abundance of medical care for his leg injury. He was examined
regularly. He obtained a cane and a wheelchair to assist his movement and ample
pain medication. He was treated appropriately for sores that developed. While his
injury was initially misdiagnosed, there is no evidence that this was the result of
more than negligence on the part of those who were treating him. Negligence on the
part of medical providers is not sufficient to support a claim of deliberate
indifference. See Walker v. Peters, 233 F.3d 494, 499 (7th Cir. 2000) (“A doctor might
be careless in not appreciating the need to investigate several possible explanations
for a particular prisoner's symptoms, and this carelessness may constitute
malpractice. But malpractice alone is not enough to meet the constitutional
standard.”); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (“[A] medical
professional's erroneous treatment decision can lead to deliberate indifference
liability if the decision was made in the absence of professional judgment.”) (citing
Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998)). Further, when
Mr. Brewer’s pain and swelling persisted, Dr. O’Brien ordered a further x-ray,
which was positive for a tibia fracture. Dr. O’Brien then referred Mr. Brewer for an
orthopedic evaluation and followed all of the specialist’s recommendations. While
Mr. Brewer may have unfortunately been the victim of negligence on the part of his
medical providers, Dr. O’Brien’s actions did not rise to the level of deliberate
indifference. Accordingly, Dr. O’Brien is entitled to summary judgment as to Mr.
Brewer’s claims.
Conclusion
Dr. O’Brien’s motion for summary judgment [40] is granted. Judgment
consistent with this Entry shall now issue.
IT IS SO ORDERED.
03/26/2013
Date: _____________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
Electronically registered counsel
Rodney Mack Brewer
DOC #984455
New Castle Correctional Facility
1000 Van Nuys Road
P.O. Box A
New Castle, IN 47362
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