OUTLAW v. CORRECTIONAL MEDICAL SERVICES, INC. et al
Filing
47
ENTRY DISCUSSING MEDICAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - There is no doubt that Mr. Outlaw was entitled to certain constitutional protections while confined at the prison in New Castle, including constitutionally adequate medical ca re. He has not, however, come forward with a genuine issue for trial. That is precisely the situation with respect to the present case, and the medical defendants' (Correctional Medical Services, Inc. ("CMS"), Michelle Bertram, Steph anie Clapp, Alisha Coomer, Jessica Kenekham, Anita Kerrigan, Kelly Kurtz, Amber Lamb, and Brad Owens) motion for summary judgment (Dtk. 28 ) must therefore be GRANTED. No partial final judgment shall issue at this time as claims against the remaining defendants are not resolved by this Entry. Signed by Judge Tanya Walton Pratt on 2/19/2013. Copy Mailed. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY OUTLAW,
)
)
Plaintiff,
)
)
v.
)
)
CORRECTIONAL MEDICAL SERVICES, INC., )
MICHELLE BERTRAM, STEPHANIE CLAPP, )
ALISHA COOMER, JESSICA KENEKHAM,
)
ANITA KERRIGAN, KELLY KURTZ, AMBER )
LAMB, BRAD OWENS, THE GEO GROUP, INC.,)
G. THOMPSON, K. GARD, M. KRUL,
)
OFC. PRATER, OFC. M. SPARKS,
)
JANE/JOHN DOE,and D. ITTENBACH,
)
)
Defendants.
)
Case No. 1:11-cv-1440-TWP-DKL
ENTRY DISCUSSING MEDICAL DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Plaintiff Larry Outlaw (“Mr. Outlaw”) has filed a complaint which alleges Correctional
Medical Services, Inc. (“CMS”),1 Michelle Bertram, Stephanie Clapp, Alisha Coomer, Jessica
Kenekham, Anita Kerrigan, Kelly Kurtz, Amber Lamb, and Brad Owens (hereinafter, “the
medical defendants”) were deliberately indifferent to his serious medical needs by failing to
provide him with medical care and by not prescribing him a new pair of eyeglasses while he was
incarcerated at the New Castle Correctional Facility, an Indiana prison. The claims against each
individual defendant are the following:
Stephanie Clapp, LPN, allegedly refused to get Mr. Outlaw a new pair of eyeglasses on
August 17, 2009.2
1
Correctional Medical Services, Inc. is the company that contracts with the Department of Correction to provide
medical services to state prisons.
2
See Plaintiff’s Complaint, Statement of Facts, paragraph 8, attached to the Designation of Pleadings and Evidence
as Exhibit A, Dkt 31-1 (hereinafter “Exhibit A”).
Alisha Coomer, LPN, allegedly refused to give Mr. Outlaw a pair of eyeglasses from
August 17, 2009 to November, 2009.3
Jill Kenekham, LPN; Amber Lamb, LPN; and Michelle Bertram, LPN allegedly failed to
administer proper first aid to Mr. Outlaw, failed to take his vital signs, and failed to
contact the eye doctor from August 17, 2009 to November 4, 2009.4
Kelly Kurtz, Brad Owens, and Anita Kerrigan, N.P. allegedly failed to administer proper
first aid and CPR, failed to take Mr. Outlaw’s vital signs, and failed to respond to his
Requests for Healthcare and schedule him to see the eye doctor from August 17, 2009 to
November 4, 2009.5
There are no specific factual allegations asserted against Correctional Medical Services,
Inc.
The medical defendants seek resolution of the claims alleged against them through summary
judgment.
I. STANDARD OF REVIEW
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 substantive law
identifies that facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is genuine only “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 nonmoving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372 (2007).
II. MATERIAL FACTS
As an initial matter, the Court must discuss the adequacy of Mr. Outlaw’s opposition of
the motion for summary judgment. Local Rule 56-1(b) requires a brief in opposition to a motion
for summary judgment to include a section labeled “Statement of Material Facts in Dispute.”
Exhibit A, paragraph 9.
Exhibit A, paragraph 10.
5 Exhibit A, paragraph 11.
3
4
2
The “Statement” must respond to the movant=s asserted material facts by identifying the
potentially determinative facts and factual disputes which the nonmoving party contends
demonstrate that there is a dispute of fact precluding summary judgment. These facts must be
supported by appropriate citations to admissible evidence. See 56-1(e). Such citation must be
by page or paragraph number or similar specific reference. Id.
In response to the medical defendants’ statement of material facts not in dispute, Mr.
Outlaw did provide a “Statement of Disputed Factual Issues.” (See Dkt. 41-1.) In this Statement
Mr. Outlaw lists questions that he would like answered in his favor, such as “whether the
medical defendant(s) were deliberately indifferent to Plaintiff’s serious medical needs.” Those
questions, however, are not supported by facts with citations to admissible evidence; such as a
citation to a discovery response, a deposition, or an affidavit. Local Rule 56-1(f) provides that
the court will assume that the facts as claimed and supported by admissible evidence by the
movant are admitted without controversy except to the extent that the non-movant specifically
controverts the facts in that party’s “Statement of Material Facts in Dispute” with admissible
evidence.
Although we construe pro se filings liberally, pro se litigants are not exempt from
procedural rules. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008). Compliance
with Federal Rules of Civil Procedure 56 and Local Rule 56.1 are necessary to the court’s
efficient review of this and every case. See, e.g., Greer v. Bd. of Educ., of the City of Chicago,
267 F.3d 723, 727 (7th Cir. 2001); Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (stating
that procedural rules “apply to uncounseled litigants and must be enforced”). The Seventh
Circuit has “consistently and repeatedly upheld” district courts’ discretion to require compliance
with the local rules governing summary judgment. Bordelon v. Chicago Sch. Reform Bd. of
3
Trustees, 233 F.3d 524, 527 (7th Cir. 2000); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994) (collecting numerous cases).6
Because Mr. Outlaw has not properly opposed the motion for summary judgment, the
Court must treat that failure as an admission of the truth of the medical defendants’ statement of
material facts for purposes of the court acting on the motion for summary judgment. See Johnson
v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir. 1994). This is the result of Local Rule 56-1, of
which Mr. Outlaw was notified. This, however, 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
material facts are as follows:
Mr. Outlaw was incarcerated at the New Castle Correctional Facility from August 2009
to November 4, 2009 in a segregation unit. Mr. Outlaw suffers from diabetes, a disease which
can be complex and often difficult to control; therefore, Mr. Outlaw was enrolled in the prisons’
Chronic Care Clinic for diabetes. As a Chronic Care offender, Mr. Outlaw was seen every 12
weeks for his condition and his diabetes was managed with a diabetic diet, exercise, oral
medication, insulin, routine blood sugar checks, and a quarterly lab test called a hemoglobin
A1c test (“A1c”); which monitors blood sugar levels so that doctors can make adjustments to
medication, if needed. Mr. Outlaw had a medical history of sometimes refusing insulin, oral
medication, and blood sugar checks, as well as not being compliant with a diabetic diet and
ordering foods off the Commissary that are high in sugar and not good for him. Consequently,
6
The Court also notes that the affidavit submitted by Mr. Outlaw with his response in opposition to the motion for
summary judgment does not comply with Rule 56(c)(4), in that it contains multiple statements not based on personal
knowledge, states facts which would not be admissible in evidence and does not show that Mr. Outlaw has the
qualifications to testify on the medical matters asserted. Finally, Mr. Outlaw does not provide an affidavit
specifying why he cannot present facts essential to justify his opposition as required by Rule 56(d).
4
Mr. Outlaw’s diabetes is not well-controlled and he often has elevated blood sugars and an
elevated A1c.
Mr. Outlaw was examined in the Chronic Care Clinic by Anita Kerrigan, N.P. on August
5, 2009. Mr. Outlaw had been compliant with taking his insulin, but reportedly had been buying
food from the Commissary. His hemoglobin A1c was 10.1, so Nurse Practitioner Kerrigan
increased his insulin. Mr. Outlaw did not complain of any eye symptoms or vision difficulties
during this examination. On August 19, 2009, Nurse Practitioner Kerrigan reviewed Mr.
Outlaw’s food purchases from the Commissary to determine whether she needed to adjust his
insulin. On August 29, 2009, Mr. Outlaw refused his morning and evening insulin. Mr. Outlaw
also requested to receive a regular diet rather than a diabetic diet and stated that he was no longer
diabetic. Mr. Outlaw’s blood sugar was taken that morning and was within normal limits. On
August 30, 2009, Mr. Outlaw submitted a Request for Healthcare because he had “bleeding
blood vessels” in his eyes and he was supposed to wear his glasses “at all times relevant” and
that on August 17, 2009, custody staff confiscated and destroyed his eyeglasses. He claimed he
had headaches and dizziness from not having his eyeglasses. That same day, Nurse Alicia
Coomer responded to the Request and informed Mr. Outlaw that she had referred him to the eye
doctor.
On September 1, 2009, Nurse Michelle Bertram attempted to check Mr. Outlaw’s blood
sugar and he grabbed the accu-check machine from her and attempted to negotiate its return. On
September 21, 2009, Mr. Outlaw submitted a Request for Healthcare asking for an annual
medical review as asked for a checkup of the following: “eyes (eye doctor), teeth (dentist), feet
(podiatrist), skin infection (dermatologist), a reliable diabetes educator (RN,RD or RPH) who
has a special interest in training and caring for people with diabetes”. On September 22, 2009
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health care staff responded that Mr. Outlaw would be notified when his appointment will be set.
Mr. Outlaw submitted another Request for Healthcare on September 21, 2009, complaining that
officers confiscated his tennis shoes, which he needed for diabetic neuropathy and medical staff
responded that same day agreeing with Mr. Outlaw that he is required to have properly fitting
shoes, and if his shoes do not fit, he should tell his case manager. On September 29, 2009, Dr.
Charpentier reviewed Mr. Outlaw’s recent blood sugars and renewed his medication. Nurse
Practitioner Kerrigan adjusted Mr. Outlaw’s medication on October 1, 2009 and renewed his
medication the next day. On October 18, 2009, Mr. Outlaw submitted a Request for Healthcare
stating he had a severe case of neuropathy7 and complained about his shoes. On October 19,
2009, Mr. Outlaw submitted a Request for Healthcare regarding his cell assignment and again
complained about shoes. On October 21, 2009, Dr. Charpentier ordered State issued boots for
Mr. Outlaw.
On October 26, 2009, Mr. Outlaw submitted a Request for Healthcare asking for a refill
of his medication. Rick Willyard, N.P. examined Mr. Outlaw on October 28, 2009. He noted
that Mr. Outlaw would only take his insulin from certain nurses and that he was non-compliant
with his medical regimen. On November 3, 2009, Mr. Outlaw refused his evening insulin,
medication, and blood sugar check and was belligerent and verbally abusive to the nurse. Mr.
Outlaw transferred from the New Castle Correctional Facility to the Indiana State Prison on
November 4, 2009. Mr. Outlaw saw the optometrist at the Indiana State Prison on December 8,
2009.
The evidence before the Court is that from August 1, 2009 to November 4, 2009, while
Mr. Outlaw may not have always felt well, he was not in any medical distress, did not experience
7
Diabetic neuropathy is damage to nerves in the body that occurs due to high blood sugar levels. Symptoms can
range from pain and numbness in the extremities, to problems with the digestive system, urinary tract, blood vessels
and heart.
6
any diabetic complications, and never experienced unconsciousness or diabetic shock. Mr.
Outlaw did not require CPR, first aid, or his vital signs to be taken from August 1, 2009 to
November 4, 2009 because he was not in any medical distress or experiencing any serious
complication from diabetes, or any illness whatsoever. Furthermore, during his time at the New
Castle Correctional Facility, Mr. Outlaw did not experience any serious medical need or
complication whatsoever from his diabetes, including vision or eye problems, despite his
frequent non-compliance with his treatment regimen.
According to the medical records, Mr. Outlaw does not have “bleeding blood vessels” in
his eyes, but instead has early-stage diabetic retinopathy, which is a non-emergent, chronic
change to the retina of the eyes caused by diabetes. Eyeglasses have nothing to do with treating
or controlling diabetic retinopathy. The only way to treat or control Mr. Outlaw’s diabetic
retinopathy is to control his diabetes, particularly his blood sugar. Medical staff at the New
Castle Correctional Facility, including each of the individual medical defendants, had no control
over whether an offender receives eyeglasses. All the medical staff could do was refer Mr.
Outlaw to the prison optometrist, who examines the offender when he is at the prison. The
prison optometrist was typically at the New Castle Correctional Facility once or twice a month,
depending on how many patients he had to see. Medical staff at the New Castle Correctional
Facility had no control over the prison optometrist’s schedule and no control over how many or
which patients the optometrist saw. It was not uncommon for the prison optometrist not to come
to the prison for a month. All medical staff could do is tell the prison optometrist which
offenders needed to be seen. If an offender had a medical issue involving the eye other than
eyesight, medical staff could refer the offender to an ophthalmologist or the emergency room if
necessary. This was never necessary for Mr. Outlaw.
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Additionally, medical defendants had no control or involvement with the correctional
officers’ confiscation of Mr. Outlaw’s eyeglasses in August, 2009. The medical defendants could
not give Mr. Outlaw a new pair of glasses because glasses had to be ordered by the optometrist.
The only thing the medical defendants could do was refer Mr. Outlaw to the optometrist, which
they did once an appointment was available. The medical care rendered to Mr. Outlaw was
reasonable, appropriate, and within the standard of care. Admittedly, diabetes is an awful
disease, however, Mr. Outlaw’s diabetes was stable while at the New Castle Correctional
Facility. While at New Castle, he never experienced a serious medical need from his diabetes,
and his condition never required emergency measures.
Further, Defendant Kelley Kurtz (“Ms. Kurtz”) was the Health Services Administrator at
the New Castle Correctional Facility from August to November 2009. Her job was to order
medical supplies for the facility, hire medical staff, maintain the nursing staff schedule, respond
to offender grievances regarding medical issues, and deal with human resources issues for the
medical staff. Ms. Kurtz never treated or provided any medical care to any offender at the New
Castle Correctional Facility, including Mr. Outlaw. Ms. Kurtz did not make any treatment
decisions regarding offenders and had no involvement in determining whether an offender
needed a particular medical procedure or medication. Ms. Kurtz’s role as Health Services
Administrator was administrative and she did not provide input or guidance regarding any
offender’s course of medical treatment. She did not review offenders’ requests for healthcare,
nor did she schedule offenders to see the nurses or doctors; that job was done by a member of the
nursing staff. Simply stated, Ms. Kurtz had no authority over, and did not exercise any control
over, the physician or nursing staff with regard to their medical care and treatment of Mr.
Outlaw. Ms. Kurtz did not render first aid or CPR to any offender, because she is not a medical
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provider, but was part of the administrative staff in the medical department at the New Castle
Correctional Facility. The decisions regarding Mr. Outlaw’s course of treatment were made by
the doctors and nurses, not by Ms. Kurtz.
III.
DISCUSSION
The Eighth Amendment imposes a duty on prison officials to provide medical care to
inmates. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520 U.S. 1230 (1997).
In order for an inmate to state a claim under 42 U.S.C. § 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). A condition is serious if “the
failure to treat a prisoner’s condition could result in further significant injury or the unnecessary
and wanton infliction of pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citation
and internal quotations omitted).
“[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).
“[T]he burden on the moving party may be
discharged by ‘showing’ – that is, pointing out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.
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The medical defendants in this civil rights action have met the above burden in their
motion for summary judgment which must therefore be granted. The medical defendants have,
in particular, shown that there was no violation of Mr. Outlaw=s federally secured rights
associated with the delivery of necessary medical services to Mr. Outlaw during his confinement
at the New Castle Correctional Facility. A court examines the totality of an inmate's medical
care when determining whether prison officials have been deliberately indifferent to an inmate’s
serious medical needs. Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999). Mr. Outlaw has
established that he has serious and complex medical needs. However, the designated evidence
establishes that the medical defendants as well as other medical personnel exercised their
professional judgment in Mr. Outlaw’s best interests, and well within the bounds of the
Constitution, in meeting his medical needs and concerns. In support of this conclusion, the Court
finds the following:
1. There is no evidence to support Mr. Outlaw’s claim that he required first aid and his vital
signs to be taken from August 17, 2009 to November 4, 2009. The undisputed facts show
that Mr. Outlaw’s medical condition was stable during this time period and did not
require the administration of CPR, first aid, or that his vital signs be taken. The medical
defendants did not violate Mr. Outlaw’s constitutional rights by not giving him medical
treatment that he did not require.
2. The medical defendants referred Mr. Outlaw to the prison optometrist once they became
aware that Mr. Outlaw needed a new pair of glasses, but medical defendants had no
control over when the optometrist came to the prison. The medical defendants did all that
was in their power to do with regard to Mr. Outlaw’s eyeglasses and they cannot be
found deliberately indifferent for failing to give Mr. Outlaw a new pair of glasses when
they did not have the power or authority to prescribe eyeglasses.
3. Mr. Outlaw has diabetes which is a serious medical condition for which he was being
monitored and treated through the Chronic Care Clinic with regular blood sugar checks,
regular lab work, oral medication, insulin, a diabetic diet, and instructions for food
restrictions and exercise. The undisputed medical evidence shows that Mr. Outlaw’s
diabetes was stable and he was not in any medical distress or having any diabetic
complication during the relevant time period.
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4. Mr. Outlaw has diabetic retinopathy, which is a non-emergent, chronic condition of the
eye which is not treated or controlled by eyeglasses. Rather, Mr. Outlaw’s diabetic
neuropathy is controlled by diabetes management. Although Mr. Outlaw did have a
serious health condition of the eye there is no evidence that he needed any emergency
medical treatment for his eyes.
In addition, the evidentiary record negates the presence of the subjective state of mind required
to show deliberate indifference, i.e., that the medical defendants were “subjectively aware of
[Outlaw=s] serious medical needs and disregarded an excessive risk that a lack of treatment posed
to his health or safety.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). Because of this
showing, the medical defendants are entitled to the entry of judgment in their favor and against
the plaintiff. Celotex Corp., 477 U.S. at 322-23 (explaining that when the moving party has met
the standard of Rule 56, summary judgment is mandatory).
CMS is entitled to judgment as a matter of law on an additional independent basis. CMS
is a corporation, and a private corporation is not vicariously liable under 42 U.S.C. ' 1983 for its
employees’ deprivations of others’ civil rights, but can only be liable if the injury alleged is the
result of a policy or practice. Chaves v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001);
Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008). This element of a viable claim is absent
as to the claim against CMS. Mr. Outlaw has not presented any evidence that CMS’s customs,
practices, policies, or procedures violated his constitutional rights.
IV.
CONCLUSION
There is no doubt that Mr. Outlaw was entitled to certain constitutional protections while
confined at the prison in New Castle, including constitutionally adequate medical care. He has
not, however, come forward with a genuine issue for trial. Liberles v. County of Cook, 709 F.3d
1122, 1126 (7th Cir. 1983) (“It is a well-settled rule that a party opposing a summary judgment
motion must inform the trial judge of the reasons, legal or factual, why summary judgment
11
should not be entered.”). “Summary judgment is not a discretionary remedy. If the plaintiff lacks
enough evidence, summary judgment must be granted.” Jones v. Johnson, 26 F.3d 727, 728 (7th
Cir. 1994), cert. granted 513 U.S. 1071 (1995). That is precisely the situation with respect to the
present case, and the medical defendants’ (Correctional Medical Services, Inc. (“CMS”),8
Michelle Bertram, Stephanie Clapp, Alisha Coomer, Jessica Kenekham, Anita Kerrigan, Kelly
Kurtz, Amber Lamb, and Brad Owens) motion for summary judgment (Dtk. 28) must therefore
be GRANTED.
No partial final judgment shall issue at this time as claims against the remaining
defendants are not resolved by this Entry.
SO ORDERED.
02/19/2013
Date: __________________
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
8
Correctional Medical Services, Inc. is the company that contracts with the Department of Correction to provide
medical services to state prisons.
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DISTRIBUTION:
Larry Outlaw, #900496
WESTVILLE CONTROL UNIT
Inmate Mail/Parcels
5501 South 1100 West
Westville, Indiana 46391
Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
carol@bleekedilloncrandall.com
James F. Bleeke
BLEEKE DILLON CRANDALL, P.C.
jim@bleekedilloncrandall.com
Adam Garth Forrest
BOSTON BEVER KLINGE CROSS & CHIDESTER
aforrest@bbkcc.com
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