ROWE v. HYSELL et al

Filing 136

Entry - Granting Gibson's Second Motion for Summary Judgment; This Entry resolves all claims against Ms. Gibson, but not all claims against all parties. No partial final judgment shall issue at this time. Signed by Judge Sarah Evans Barker on 10/4/2013. Copy Mailed. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JEFFREY ALLEN ROWE,
Plaintiff,
vs.
ROSE VAISVILAS, WAYNE SCAIFE,
LISA GIBSON, DEB DOTSON,
CHRIS DEEDS, DOCTOR WOLFE,
MELISSA '”MISSY” PERRY,
Defendants.

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Case No. 1:11-cv-00975-SEB-DKL

Entry Granting Gibson’s Second Motion for Summary Judgment
This matter is before the Court on defendant Lisa Gibson’s second motion for summary
judgment. Through this motion, Ms. Gibson seeks to resolve the sole remaining claim of
retaliation alleged against her by plaintiff Jeffrey Allen Rowe. Specifically, Mr. Rowe alleges
that Ms. Gibson refused to refill his Zantac prescription between July 3, 2011, and August 2,
2011, in retaliation for filing this lawsuit. See Second Am. Compl. at ¶¶ 52 and 53. For the
reasons explained below, Ms. Gibson’s second motion for summary judgment [dkt. 120] is
granted.
Discussion
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). In this case, Ms.
Gibson has met her burden through her unopposed motion for summary judgment. Smith v.

Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (A[F]ailure to respond by the nonmovant as mandated
by the local rules results in an admission.@). By not responding to the motion for summary
judgment, Mr. Rowe has conceded to Ms. Gibson’s version of the facts. Brasic v. Heinemann=s
Inc., 121 F.3d 281, 286 (7th Cir. 1997). This is the result of Local Rule 56-1(f), of which Mr.
Rowe was notified. See dkt. 119. This does not alter the standard for assessing a Rule 56 motion,
but does Areduc[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).
The undisputed record shows that in a letter dated July 6, 2011, Mr. Rowe, an inmate at
the Pendleton Correction Facility, requested Ms. Gibson’s assistance in refilling his prescription
for Zantac. At that time, Ms. Gibson was the Health Services Administrator at Pendleton
Correctional Facility. She does not have a nursing or medical degree and is neither licensed, nor
authorized, to prescribe, renew, refill, or alter medication prescriptions. At the time of his letter
to Ms. Gibson, Mr. Rowe did not have a chronic care condition or prescription warranting the
refill of Zantac. In her response, Ms. Gibson advised Mr. Rowe that he would need to purchase
Zantac from commissary if he wished to continue taking it. At the time Ms. Gibson responded to
Mr. Rowe’s letter in July of 2011, she was not aware that Mr. Rowe had filed this lawsuit. Ms.
Gibson’s response to Mr. Rowe’s July 6, 2011, letter would have been the same, regardless of
whether or not he had filed this lawsuit.
In order to succeed on his retaliation claim against Ms. Gibson, Mr. Rowe must
ultimately show that (1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the
First Amendment activity was “at least a motivating factor” in the defendant’s decision to take
the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009); see also Mays v.

Springborn, 719 F.3d 631, 635 (7th Cir. 2013). In this case, there is no evidence upon which a
reasonable jury could conclude that Ms. Gibson knew of Mr. Rowe’s protected activity or that
the protected activity was a substantial or motivating factor in her decision to take an adverse
action against him. See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 287 (1977). To
the contrary, Ms. Gibson did not have the authority to refill Mr. Rowe’s prescription and her
alleged actions were not of the sort that would deter a person of ordinary firmness from
participating in future protected activity.
In these circumstances, there was no violation of Mr. Rowe’s federally secured rights and
no reasonable jury could conclude otherwise. If no reasonable jury could find for the nonmoving party, then there is no “genuine” dispute. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).
Accordingly, Ms. Gibson’s second motion for summary judgment [dkt. 120] is granted.
This Entry resolves all claims against Ms. Gibson, but not all claims against all parties.
Accordingly, no partial final judgment shall issue at this time.
IT IS SO ORDERED.

_______________________________

10/04/2013
Date: __________________

Distribution:
JEFFREY ALLEN ROWE
Reg. No. 116017
Wabash Valley Correctional Facility
Electronic Service Participant -- Court Only
All Electronically Registered Counsel

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