CHERRY v. LEVINE et al
ORDER - For the reasons set forth within, the defendants' motion for summary judgment [dkt. 34 ] is GRANTED. Judgment consistent with this Entry shall now issue. Signed by Judge Sarah Evans Barker on 2/28/2017. Copy Mailed. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DANNY WILLIAM CHERRY,
CORIZON HEALTH, INC., and
Entry Granting Defendants’ Motion for Summary Judgment
and Directing Entry of Final Judgment
For the reasons explained in this Entry, the defendants’ motion for summary judgment
[dkt. 34] is granted.
The plaintiff in this 42 U.S.C. § 1983 civil rights action is Danny Cherry (“Mr. Cherry”).
The defendants are Corizon LLC (referred to as Corizon Health, Inc.) (“Corizon”) and Dr. Scott
Levine (“Dr. Levine”). At all relevant times, Mr. Cherry was incarcerated at the Pendleton
Correctional Facility (“Pendleton”). He is currently confined at the New Castle Correctional
Mr. Cherry alleges in his amended complaint, filed on December 17, 2015, that Corizon
has a policy and practice of forcing injections when it is unwarranted and it does not properly
train its medical staff at Pendleton. He also alleges that Dr. Levine ordered forced injections of
antipsychotic medication against his will because he was on a religious fast. He alleges
violations of his First and Eighth Amendment rights and breach of contract as a third-party
The defendants seek resolution of Mr. Cherry’s claims through the entry of summary
judgment. Mr. Cherry has opposed the motion, albeit he did so four and a half months after the
motion was filed and he submitted no evidentiary materials. The Court has considered Mr.
Cherry’s opposition. The defendants replied and the motion is ripe for resolution.
II. Summary Judgment Standard
Summary judgment is appropriate 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). 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.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). 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. Undisputed Facts
On the basis of the pleadings and the portions of the expanded record that comply with
the requirements of Rule 56(c)(1) of the Federal Rules of Civil Procedure, construed in a manner
most favorable to Mr. Cherry as the non-moving party, the following facts are undisputed for
purposes of the motion for summary judgment:
Mr. Cherry has a history of bipolar disease, depression, psychosis, and delusions. He is
also HIV-positive. On April 27, 2015, he was transferred from the Marion County Jail to the
Reception Diagnostic Center. On May 15, 2015, Mr. Cherry was transferred to Pendleton.
On June 9, 2015, Dr. Levine, a psychiatrist at Pendleton, conducted a chart update on Mr.
Cherry’s medications and mental health status. At that time, Dr. Levine recommended
continuing Mr. Cherry’s Celexa prescription as treatment for depression. Mr. Cherry’s records
revealed that he had previously taken Geodon, an antipsychotic medication, with a May 9, 2015,
On June 30, 2015, Mr. Cherry was placed in administrative segregation for writing a
threatening letter to a female guard. On July 2, 2015, he was seen by a counselor for segregation
monitoring. During the encounter, Mr. Cherry presented with poor reasoning, impulse control,
judgment and insight. In August 2015, Mr. Cherry refused medications and medical care
including a recommended Hepatitis B vaccine and a blood draw to evaluate his HIV infection.
On September 4, 2015, Mr. Cherry saw a nurse in the facility clinic for right flank pain.
His treating physician, Dr. Paul Talbot, was concerned that Mr. Cherry could be exhibiting signs
of liver complications from his HIV infection, so he was sent to the emergency room at St.
Vincent’s Hospital for evaluation of severe acute right upper quadrant abdominal pain. At the
time, it was noted that Mr. Cherry weighed 242 pounds. After a CT scan reflected no
abnormalities related to his complaints of abdominal pain, Mr. Cherry was discharged from the
emergency room. No further treatment was recommended and Mr. Cherry did not complain
further of abdominal pain.
On September 8, 2015, a chart note entered by Susan Resch, RN, reflected that Mr.
Cherry stated he was going on a hunger strike. It was also noted that Mr. Cherry had a history of
suicide attempts, he had been diagnosed as bipolar, and his sister had committed suicide. Mr.
Cherry was determined to be a suicide risk.
On September 8, 2015, Mr. Cherry was seen in the urgent care unit at Pendleton by staff
psychologist, Dr. Roger Perry, for an initial Behavioral Health and Suicide Monitoring visit. Dr.
Perry reported Mr. Cherry was anxious, agitated, and disheveled. His reasoning, judgment, and
insight were poor. His attitude was hopeless and uncooperative. Mr. Cherry spoke rapidly about
inept medical care, various miscarriages of the legal system, an unfair trial, and unfair charges to
his inmate account. Mr. Cherry stated he had been refusing his HIV medication because it made
him sick. During the encounter, Mr. Cherry denied suicidal ideation, but talked about loneliness,
hopelessness, and frustration. He stated that he might starve himself in order to meet Christ’s
record of fasting for forty days. His thought processes were somewhat tangential, and his thought
content revealed paranoia, delusions, and phobias. Mr. Cherry was diagnosed as symptomatic for
chronic bipolar disorder and depression, with exacerbation. It was noted that he had a past
history of self-harm. Dr. Perry recommended that Mr. Cherry be placed in the Pendleton
Hospital Restraint Unit (“HRU”) in the high risk unit on close suicide observation. Dkt. 35-1, at
p. 5; dkt. 35-2, at p. 323-24.
On September 10, 2015, Mr. Cherry was seen by Dr. Perry for a suicide monitoring visit.
Dr. Perry reported that Mr. Cherry was uncooperative, paranoid, and appeared delusional. His
thought processes were incoherent, and showed loose associations, as well as flight of ideas and
perseveration. He repeated his concerns over and over again. He showed a flawed sense of logic
and stated he feared government entities and representatives were out to destroy him. Mr. Cherry
had refused seven meals to date, and pledged to cleanse himself so as to be worthy of sacrificing
his life so things could be better for others. And though he denied suicidal ideation or intent, Mr.
Cherry did not appear to understand the danger of his actions. Dkt. 35-1, at p. 5; dkt. 35-2, at pp.
On September 10, 2015, Mr. Cherry began refusing all medical care, including refusing
to be weighed, give urine samples, have his vital signs taken or blood drawn, and, at times, even
to talk to medical staff. He was regularly assessed by nursing and medical staff as part of the
suicide observation protocol. Dkt. 31-5, at p. 5; dkt. 35-2, at pp. 13-14, 166-306.
On September 11, 2015, Mr. Cherry was seen by Dr. Perry who reported that he
continued to be unstable. He had missed ten meals but insisted he was not on a hunger strike and
was instead experiencing a religious purification. Although Mr. Cherry denied suicidal ideation,
he seemed unaware that his behavior of refusing all medications and meals could become lifethreatening. Dkt. 35-1, at p. 5.
On September 14, 2015, Mr. Cherry was seen by Dr. Paul Talbot for an unscheduled visit
in response to his continued hunger strike. Dr. Talbot noted that Mr. Cherry had been on a
hunger strike for 7-8 days with 21 or more missed meals. Though Mr. Cherry had been drinking
some water, a visual examination revealed that his lips and mucus membranes were dry. He
refused all medical care, a nursing and medical assessment, food, vital sign check, weight check,
and urine or blood tests. He would not sign refusal of treatment forms. He was informed that
continued refusal of food and medical treatment could cause damage to his organs, including his
brain. He was advised to eat and allow medical testing. Mr. Cherry’s refusal of treatment form
was signed by the physician, nurse, and officer present. Dkt. 35-1, at p. 6.
On September 15, 2015, Dr. Levine saw Mr. Cherry for a medication management visit.
He noted that, in addition to his hunger strike, Mr. Cherry was now refusing hydration. Mr.
Cherry was minimizing the risks of his behavior, stating “Jesus fasted for 40 days and 40 nights.”
He claimed his actions were in protest of multiple wrongs based on beliefs he was not being
protected from assault (for which Internal Affairs found no supporting evidence), that medical
was doing venipuncture in order to manipulate him, and that prison staff had stolen his legal
work. Mr. Cherry acknowledged a history of psychiatric care, but he continued to refuse
pharmacotherapy. During the encounter, Mr. Cherry spoke loudly, excessively, and rapidly, with
flight of ideas. His reasoning, judgment, and insight were very poor. He was unable to
understand and could not agree to refrain from harmful action. Mr. Cherry exhibited signs of
delusional thinking and psychosis. In the event Mr. Cherry reconsidered his refusal to take antipsychotic medication, Dr. Levine ordered 10 mg fluphenazine tablets to be taken once daily for
acute mood stabilization and psychosis. Dkt. 35-1, at pp. 6-7.
Based on multiple factors, Dr. Levine recommended that Mr. Cherry be reviewed by the
Indiana Department of Correction (“IDOC”) medical treatment review committee to determine
whether Mr. Cherry met the criteria for involuntary treatment with medication to address his
psychotic symptoms. These factors included: Dr. Levine’s examination of Mr. Cherry; Dr.
Levine’s conference with Dr. Perry regarding Mr. Cherry’s mental health condition; Dr. Levine’s
review of Mr. Cherry’s medical records; Dr. Levine’s experience in treating inmates with mental
disorders; Mr. Cherry’s multiple delusions; and Mr. Cherry’s dramatic loss of weight due to his
refusal of food and water. In Dr. Levine’s medical opinion, Mr. Cherry posed a risk of serious
harm to himself such that a forced administration of medication was recommended. Id. at p. 7.
Later on September 15, 2015, Mr. Cherry was seen again by Dr. Perry who noted that
Mr. Cherry claimed he was refusing meals for a higher purpose. Mr. Cherry also was refusing
water, claiming that the water from his cell was tainted. He continued to refuse psychiatric
On September 16, 2015, Mr. Cherry was seen by Dr. Perry for a suicide monitoring visit.
Mr. Cherry continued to refuse behavioral health medication and exhibited delusional speech and
ideation. An emergency involuntary medication hearing was scheduled for September 17, 2015.
On the evening of September 16, 2015, Nurse Resch was able to get Mr. Cherry’s weight.
At the time, he weighed 189 pounds, which was a 53-pound decrease since his last measurement
on September 4, 2015, only 12 days before. Id.
On September 17, 2015, Mr. Cherry’s involuntary treatment hearing was held before the
medical treatment review committee (“the committee”) in accordance with IDOC Health Care
Service Directive 4.10 “Involuntary Psychotropic Medication Administration.” The committee
was composed of Dr. Stephanie Dresher, Dr. Paul Talbot, and Jeff Ballenger (prisoner advocate
from custody staff). Dkt. 35-1, at p. 8. Mr. Cherry was present for the committee hearing. He
expressed his opinion that he did not need medicine. “It is a form of control. I have a religious
right to fast.” Dkt. 35-2, at p. 343. The committee noted that Mr. Cherry’s immune system was
already compromised (from his HIV infection) and that fasting and refusing water would be
further detrimental to his health. The committee noted that Mr. Cherry presented with psychosis,
persecutory delusions, and tangential speech, and had refused 26 meals. He had also refused
water claiming he would prefer IV fluids. Mr. Cherry had experienced significant weight loss.
Dr. Levine was present at the hearing and presented evidence of Mr. Cherry’s mental health
condition. As Dr. Levine was not a member of the committee, he did not vote on whether to
approve the use of involuntary medications for Mr. Cherry. The committee unanimously
approved use of psychotropic medications to attempt to stabilize Mr. Cherry’s mental health
condition. It found that Mr. Cherry “presents with psychosis and it is felt he can only be
stabilized with involuntary medication.” Dkt. 35-1, at p. 8; dkt. 35-2, at p. 343.
On September 17, 2015, Dr. Levine saw Mr. Cherry after the involuntary treatment
committee hearing. He noted that Mr. Cherry had refused his 26th meal that morning, and stated
that he had not been taking fluids because he believed the facility’s water was harming him. Dr.
Levine noted that Mr. Cherry’s judgment and insight continued to be very poor and he exhibited
signs of psychosis. Based on the committee’s approval of involuntary psychotropic medication,
Dr. Levine ordered a series of fluphenazine decanoate (Prolixin) injections, to be administered
daily for two days beginning on September 17, 2015, and again on October 17, 2015, followed
by a single injection of 25 mg/mL solution to be administered once every two weeks. Dkt. 35-1,
at pp. 8-9.
Later on September 17, 2015, Mr. Cherry was seen by Dr. Perry who noted that Mr.
Cherry continued to be somewhat delusional and continued to refuse meals. Mr. Cherry
continued to refuse water in his cell, but suggested that he could be hydrated medically through
intravenous fluids. Dr. Perry noted that Mr. Cherry was on involuntary treatment status and “may
not refuse” his fluphenazine injections. He determined that Mr. Cherry would continue to be
observed closely through the initial injections to determine if he responded to the medications.
Dkt. 35-1, at p. 9.
On September 18, 2015, Dr. Levine conducted a chart update for Mr. Cherry. Mr. Cherry
continued to refuse food and hydration. Dr. Levine noted that the immediate-release
fluphenazine injectable that had been prescribed for Mr. Cherry would not be available until the
following Monday, so he ordered that an alternative medication Prolixin Decanoate be initiated
immediately. On September 18, 2015, as ordered, Mr. Cherry was administered 0.5 ml of
Prolixin Decanoate. He tolerated the injection well, though he stated that he did not want it. Id. at
On September 21, 2015, Mr. Cherry was seen by Dr. Perry. Mr. Cherry continued to
refuse meals, asserting that he was doing so for religious reasons. He continued to show lack of
insight into the overall danger of his actions. Mr. Cherry stated that he would consider eating if
he was given chicken patties. It was determined that he would continue on close observation and
would be seen daily by both medical and mental health personnel. Later on the same day, Mr.
Cherry ate his evening meal and voiced no complaints of discomfort. Id. at p. 10.
Mr. Cherry continued to be monitored on close suicide watch over the next several days.
Although he continued to refuse medical treatment such as lab draws and vital sign checks, he
did eat his meals. On September 25, 2015, Mr. Cherry was seen by Dr. Perry. Mr. Cherry had
submitted a note in which he stated he had decided he would have to adjust to prison life and
wanted to return to the general prison population. He was generally calm, cooperative, and
appropriately social. He denied suicidal ideation or intent. It was noted that Mr. Cherry had
received his first involuntary injection on September 18, 2015. Mr. Cherry stated he felt much
better, with no racing thoughts or need to try and quell his thoughts of fasting. It was determined
that he would return to the general population the following week. Id. at pp. 10-11.
On September 28, 2015, Mr. Cherry was seen by Dr. Perry. He denied any suicidal
ideation or intent, or intent to harm himself or others. Mr. Cherry confirmed his request to be
released from all suicide observation. Though Mr. Cherry’s mood was anxious, his memory was
intact, his attitude was cooperative, his attention was maintained, his self-perception was
realistic, and his thought processes were logical. He was released from suicide watch status and
returned to his assigned unit. Over the next two months, Mr. Cherry was seen regularly by
mental health professionals for follow up visits and continued to receive a fluphenazine injection
every two weeks. Id. at p. 11.
On November 16, 2015, Mr. Cherry was seen by Dr. Perry for a mandatory therapy
appointment. Mr. Cherry loudly stated that he had filed a legal complaint against several mental
health staff and presented Dr. Perry with an email notification of a legal complaint. (Mr. Cherry
filed the present lawsuit on November 9, 2015.) Mr. Cherry had ignored several previous mental
health appointment passes and he told Dr. Perry he did not wish to be seen, but he would not sign
a refusal of treatment form. During the encounter, Mr. Cherry was agitated and uncooperative.
Dr. Perry determined that Mr. Cherry would be evaluated the next day in the Department Staff
Meeting to determine if he should be monitored for decompensation. Id. at p. 12.
On November 24, 2015, Mr. Cherry was admitted to the high risk unit on a temporary
mental health placement for suicide monitoring and was seen by Dr. Perry. Mr. Cherry had not
honored several passes for therapy visits and was very loud and out of control. Mr. Cherry
threatened to go on another hunger strike if he was forced to do anything else he did not want to
do. After his placement in the HRU, Mr. Cherry was very angry and spat on his cell’s window,
for which he then apologized. Except for his anger, Mr. Cherry’s mental status was clear. Dr.
Perry determined that Mr. Cherry would be seen again later that day to determine if he had
calmed sufficiently to return to his assigned housing. Id. at pp. 12-13.
Later that evening, Mr. Cherry was again seen by Dr. Perry. Mr. Cherry was calm and
apologetic. He insisted that he was not suicidal and had no intention of self-harm. Mr. Cherry
pledged to be more cooperative in the future and to follow procedures. During the encounter, Mr.
Cherry’s behavior and speech were appropriate. Mr. Cherry was released from his temporary
mental health hold to return to his assigned unit. Id. at p. 13.
On November 27, 2015, Mr. Cherry was seen by Kim Simpson, RN, for cuts to his left
wrist. Mr. Cherry had eight small lacerations to the inner aspect of his left wrist. The nurse
cleaned and dried the wounds, stopped the bleeding with direct pressure, and covered the area
with small Band-Aids. Dkt. 35-2, at pp. 103-04. Mr. Cherry stated that he had not “thought of
killing himself” until he woke up and found the pass requiring that he appear in the clinic for his
forced medication injection. Id. at p. 104. He claimed that made him suicidal “because that’s one
of the side effects of that shot and I don’t want it.” Id. A call was placed to Dr. Perry and Mr.
Cherry was placed on suicide watch status in the high risk unit. Mr. Cherry stated that he was
“upset about the injection he was to receive” and voiced threats of suicide. Id. at p. 100.
After several days of observation, on November 30, 2015, Mr. Cherry was evaluated by
Dr. Perry. Mr. Cherry was calm and cooperative. He denied any suicidal intent or ideations. He
was released from suicide watch and cleared to return to his assigned housing. On December 7,
2015, Mr. Cherry was seen by Dr. Stephanie Drescher for a suicide monitoring post-release
follow-up visit. Mr. Cherry stated he would like to be removed from involuntary medication. Dr.
Drescher informed him that in order for this to happen he would need to begin complying with
his treatment plan including attending his therapy appointments and avoiding self-harming
behaviors. Dkt. 35-1, at p. 14.
On December 21, 2015, based on additional threats of self-harm, Mr. Cherry was
returned to suicide watch in the HRU, where he remained until December 28, 2015. In January
and February 2016, Mr. Cherry was placed on suicide watch several times based on reports of his
depression, failure to eat, and failure to comply with his mental health treatment program. He
continued to receive fluphenazine injections every two weeks. On February 1, 2016, Mr. Cherry
was seen by Dr. Perry for a suicide monitoring visit at which time Dr. Perry reported that part of
Mr. Cherry’s behavior plan agreement with his primary therapist was that he would return to the
HRU if he felt he was spiraling out of control and believed he might hurt himself. Once he was
in HRU, Mr. Cherry missed several meals and indicated he was fearful of his lack of self-control
and admitted that he felt better when he accepted meals. Id.
On March 14, 2016, Mr. Cherry was provided with a “Notice of Treatment Review
Committee Hearing” regarding the recommendation that he continue to be given fluphenazine
decanoate. The hearing before the IDOC treatment review committee was scheduled for March
15, 2016. Mr. Cherry was informed that he was entitled to be present at the hearing and could
present evidence and request assistance in presenting his case to the committee. Mr. Cherry
signed the Notice, indicating that he had been informed of the need for the hearing and that he
had been advised of his rights. Dkt. 35-1, at p. 15; dkt. 35-2, at p. 354.
On March 15, 2016, the committee held a six-month review of Mr. Cherry’s need for
continued involuntary medication. The committee was composed of Dr. Drescher, Dr. Rippetoe,
and Dr. Talbot. Dr. Levine, Dr. Bolding, Dr. Perry, and John Safford also attended the hearing.
Mr. Cherry chose not to attend the hearing. The committee noted the reason for initiation of
involuntary medication had been Mr. Cherry’s fasting and fluid refusal. Dkt. 35-2, at p. 344. The
committee also noted that Mr. Cherry felt he was being manipulated by medical staff; he suffered
from delusions without medication; and his hygiene decreased significantly without medication.
Id. The committee approved continuation of Mr. Cherry’s involuntary medication because of his
refusal to take medications voluntarily. Dkt. 35-1, at p. 15. The treatment summary further stated
that when Mr. Cherry decompensates he puts his physical health at risk, including additional
health risks due to his HIV status. Dkt. 35-2, at p. 346. The summary noted that Mr. Cherry had a
history of suicide attempts and threats of self-injurious behavior including the September 2015
threats of self-harm, the November 2015 self-inflicted cuts to his wrist, and threats of self-harm
in December 2015, January 2016, and February 2016. Id. The treatment summary also states Mr.
Cherry’s last suicide attempt was in 2014 and that he had a history of attempted overdose,
attempted hanging, and a carbon monoxide poisoning attempt. Id.
Although Mr. Cherry continues to suffer from a serious mental health condition, he
showed some improvement and began eating and drinking after he received anti-psychotic
medication beginning in September 2015. Mr. Cherry was closely monitored while on antipsychotic medication and continually evaluated by mental health staff. His health, including his
mental condition, continues to be evaluated and monitored. Dkt. 35-1, at p. 16.
Mr. Cherry argues in his response that “everything the defendants stated in the summary
judgment was lies.” Dkt. 42. He has not identified any specific “lies” nor has he presented any
evidence to support this broad statement. He also contends that he should not have had the forced
injections of medication.
1. Fourteenth Amendment Due Process Claim
Dr. Levine, the only individual defendant in this case, did not order that Mr. Cherry
receive involuntary injections. Rather, he referred the case to a medical treatment review
committee who made that determination. Nonetheless, the Court will discuss whether Mr.
Cherry’s due process rights under the Fourteenth Amendment were violated by the
administration of involuntary medication.
The Supreme Court has discussed the circumstances under which it is lawful for a prison
to treat a mentally ill prisoner with antipsychotic drugs against his will. Washington v. Harper,
494 U.S. 210 (1990). “[G]iven the requirements of the prison environment, the Due Process
Clause permits the State to treat a prison inmate who has a serious mental illness with
antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the
treatment is in the inmate’s medical interest.” Id. at 227. “[T]here is little dispute in the
psychiatric profession that proper use of [antipsychotic medications] is one of the most effective
means of treating and controlling a mental illness likely to cause violent behavior.” Id. at 226.
To satisfy due process in a situation in which a prisoner wants to exercise his right to
refuse treatment, three requirements must be satisfied: 1) the State must find that medication is in
the prisoner’s medical interest (independent of institutional concerns); 2) the panel that reviews a
treating physician’s decision to prescribe forced medication must make an impartial and
independent judgment, taking into account the prisoner’s best interest; and 3) the prisoner must
be allowed the opportunity to argue before the review panel that he does not need forced
medication. Harper, 494 U.S. at 222, 227, 233; see also Fuller v. Dillon, 236 F.3d 876, 881 (7th
Cir. 2001); Sullivan v. Flannigan, 8 F.3d 591 (7th Cir. 1993).
The record reflects that each of the Harper requirements were satisfied before it was
determined that involuntary administration of antipsychotic medication was necessary. Mr.
Cherry’s treating psychiatrist, Dr. Levine, was of the medical opinion that Mr. Cherry posed a
serious risk of harm to himself by refusing food and water. He recommended that Mr. Cherry be
reviewed by the IDOC medical treatment review committee. Dr. Levine was present at the
hearing but did not vote. Other physicians and a prisoner advocate from the prison’s custody
staff comprised the committee. Mr. Cherry was present at the first hearing.
The committee members noted that Mr. Cherry was suffering from psychosis and had
refused food and fluids for a significant period of time. They noted further that Mr. Cherry
already had a compromised immune system. The committee made an independent decision that
Mr. Cherry could only be stabilized with involuntary medications. This decision took into
account Mr. Cherry’s medical needs and his best interest, in accordance with the first two
requirements under Harper. Mr. Cherry was allowed to express his opinion that he did not need
medicine and that he had a religious right to fast, satisfying the third component under Harper.
Dkt. 35-2, at p. 343.
Under these circumstances, after Mr. Cherry refused antipsychotic medications, his due
process rights under the Fourteenth Amendment were not violated when the involuntary
administration of antipsychotic medication was approved.
2. Eighth Amendment Claim Against Dr. Levine
The Court has also considered whether Dr. Levine’s overall treatment could be viewed as
being deliberately indifferent to Mr. Cherry’s serious medical needs. The Eighth Amendment to
the United States Constitution requires prison officials to “ensure that inmates receive adequate
food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the
safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation
omitted). To prevail on an Eighth Amendment deliberate indifference medical claim, a plaintiff
must demonstrate two elements: (1) he suffered from an objectively serious medical condition;
and (2) the defendant knew about the plaintiff’s condition and the substantial risk of harm it
posed, but disregarded that risk. Id. at 837; Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016);
Pittman ex rel. Hamilton v. County of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014); Arnett v.
Webster, 658 F.3d 742, 750-51 (7th Cir. 2011). “A medical condition is objectively serious if a
physician has diagnosed it as requiring treatment, or the need for treatment would be obvious to
a layperson.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
For purposes of summary judgment, the parties do not dispute the first element, that Mr.
Cherry has a serious medical need. He has been diagnosed with bipolar disorder, depression,
delusions, a history of self-harm, and he is HIV positive.
The undisputed record reflects that within several days after the involuntary medication
was first given on September 18, 2015, Mr. Cherry began to eat and drink. He stated that he felt
much better, and he was generally more calm and cooperative. Within about ten days, Mr.
Cherry was released from suicide observation. He was allowed to return to general population.
He continued to receive the antipsychotic injections every two weeks and was seen regularly by
mental health professionals.
In November of 2015, Mr. Cherry showed signs of decompensation, refused to be seen
by mental health staff, and cut his left wrist. Mr. Cherry’s threats of self-harm, failure to eat, and
failure to comply with his treatment plan caused him to be placed on suicide watch several more
times during the following months.
A six-month review by the committee was conducted in March 2016. Mr. Cherry was
notified of the hearing but chose not to attend. Based on Mr. Cherry’s refusal to take medications
voluntarily, his threats of suicide, his signs of psychosis, and his additional health risks due to his
HIV status, the committee approved the continuation of the involuntary medication.
The undisputed record indicates that Dr. Levine acted in Mr. Cherry’s best interests by
prescribing an antipsychotic medication. When Mr. Cherry initially refused the medication, Dr.
Levine exercised his professional judgment and recommended that he be evaluated by the
medical review committee. There is no evidence that Dr. Levine was deliberately indifferent to
Mr. Cherry’s serious medical needs. To the contrary, if Dr. Levine had not acted as he did, Mr.
Cherry could have died. Dr. Levine took steps to provide needed treatment when Mr. Cherry had
lost more than 50 pounds in a matter of days from refusing food and water.
“A prisoner may establish deliberate indifference by demonstrating that the treatment he
received was blatantly inappropriate.” Pyles, 771 F.3d at 409 (internal quotation omitted).
“Making that showing is not easy: A medical professional is entitled to deference in treatment
decisions unless no minimally competent professional would have so responded under those
circumstances.” Id. (internal quotation omitted). Mr. Cherry has not shown that any treatment
provided or referred by Dr. Levine was so contrary to accepted professional standards that a jury
could infer that it was not based on medical judgment. See Duckworth v. Ahmad, 532 F.3d 675,
679 (7th Cir. 2008). Rather, Dr. Levine responded reasonably to Mr. Cherry’s serious mental
Mere disagreement with a provider’s medical judgment is not enough to prove deliberate
indifference. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). Even if Mr. Cherry had
shown negligence on the part of Dr. Levine, which he has not, that would not be sufficient to
demonstrate a violation of the Eighth Amendment. Petties, 836 F.3d at 728 (“showing mere
negligence is not enough”); Pyles, 771 F.3d at 409 (“Something more than negligence or even
malpractice is required.”).
Dr. Levine is entitled to judgment in his favor on Mr. Cherry’s deliberate indifference
3. First Amendment Claim Against Dr. Levine
Mr. Cherry contends that he had told the defendants that he is a Christian and he was
fasting in accordance with his First Amendment rights. The Free Exercise Clause of the First
Amendment protects an inmate’s right to practice his or her religion. To survive summary
judgment on a Free Exercise claim, Mr. Cherry must “submit evidence from which a jury could
reasonably find that the defendants personally and unjustifiably placed a substantial burden on
his religious practices.” Thompson v. Holm, 809 F.3d 376, 379 (7th Cir. 2016). “A substantial
burden put[s] substantial pressure on an adherent to modify his behavior and to violate his
beliefs.” Id. (internal quotation omitted). “A burden is unjustified if it is not reasonably related to
a legitimate penological interest.” Id. at 380.
Even if the Court assumes for purposes of this motion that “fasting” is a practice of
Christianity, Mr. Cherry has presented no evidence showing that being allowed to refuse more
than twenty (20) meals consecutively and to the point where it endangered his health, was a
practice of his religion. There is also no evidence that prescribing antipsychotic medication,
referring Mr. Cherry’s case to the medical review committee, or the resulting forced medication
constituted substantial burdens on Mr. Cherry’s religious practices. Not only is there no showing
of a substantial burden, but the actions taken by Dr. Levine were justified. There is evidence in
the record which indicates that Mr. Cherry did not comprehend how dangerous his refusal to eat
and drink was to his overall well-being. His serious mental illness prevented him from accepting
necessary treatment. His dramatic weight loss and lack of hydration created serious health risks.
The introduction of forced medication was reasonably related to the need to provide him
adequate mental health treatment and to protect Mr. Cherry’s safety.
To the extent Mr. Cherry believes there was a substantial burden placed on his religious
practices, no reasonable jury could find that such burden was unjustified and was not reasonably
related to legitimate interests of keeping Mr. Cherry alive and hydrated. Under these
circumstances, Dr. Levine is entitled to summary judgment on Mr. Cherry’s First Amendment
4. Eighth Amendment Claim Against Corizon
Mr. Cherry alleges that Corizon has a policy and practice of forcing medication when it is
unwarranted and does not properly train its medical staff at Pendleton. To establish liability
against a corporate entity such as Corizon, a plaintiff must introduce evidence that establishes a
plausible inference that Corizon “maintains a policy that sanctions the maintenance of prison
conditions that infringe upon the constitutional rights of the prisoners.” Woodward v.
Correctional Medical Services, 368 F.3d 917, 927 (7th Cir. 2004). To prove that a Corizon
policy rather than the acts of its employees caused the harm, “[e]ither the content of an official
policy, a decision by a final decisionmaker, or evidence of custom will suffice.” Glisson v.
Indiana Department of Correction, No. 15-1419, 2017 WL 680350, *5 (7th Cir. Feb. 21, 2017).
The plaintiff must “show that a [Corizon] policy was the ‘direct cause’ of or ‘moving force’
behind his constitutional injury.” Pyles, 771 F.3d at 409-410; Glisson, 2017 WL 680350 at *5
(“The central question is always whether an official policy, however expressed (and we have no
reason to think that the list in Monell [v. New York City Dept. of Soc. Serv. 436 U.S. 658 (1978)],
is exclusive), caused the constitutional deprivation.”).
This claim warrants little discussion because Mr. Cherry has presented no evidence of a
Corizon policy or practice of forcing unwanted medication when it is not necessary. In his own
circumstances, Mr. Cherry was in need of the antipsychotic medication to help prevent serious
physical and mental health complications. Dr. Levine was not deliberately indifferent to Mr.
Cherry’s medical needs, and there is no showing of deficient training. See City of Canton v.
Harris, 489 U.S. 378, 391 (1989) (plaintiff must prove that a deficiency in training caused
deliberate indifference on the part of the individual defendant). In fact, there was an IDOC policy
by which an inmate who refused psychotropic treatment could be evaluated. Dkt. 35-3. Dr.
Levine followed that policy and acted in Mr. Cherry’s best interest when Mr. Cherry put his own
health and safety at risk. Without some admissible evidence of an unconstitutional Corizon
policy that caused him harm, Mr. Cherry cannot create a genuine issue of fact regarding this
claim. Accordingly, Corizon is entitled to summary judgment on Mr. Cherry’s Eighth
Amendment policy claim.
5. State Law Breach of Contract Claim
Mr. Cherry’s final claim is that Corizon breached its contract with the IDOC by failing to
properly train its medical personnel. He alleges that he is a third-party beneficiary of that
contract. This claim also fails for lack of evidence. Without discussing the issue of whether Mr.
Cherry was intended to be a third-party beneficiary of the contract, the evidence shows that his
medical treatment was within the standard of care. Mr. Cherry presents no evidence of what
training was deficient or that any “breach” occurred. Corizon is entitled to summary judgment on
In sum, the undisputed facts demonstrate that neither Corizon nor Dr. Levine violated Mr.
Cherry’s First, Eighth, or Fourteenth Amendment rights. In addition, there was no breach of
contract. Accordingly, the defendants are entitled to summary judgment in their favor.
For the reasons set forth above, the defendants’ motion for summary judgment [dkt. 34]
is GRANTED. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Danny William Cherry, #249323
New Castle Correctional Facility - Psychiatric Unit
1000 Van Nuys Road
NEW CASTLE, IN 47362
Electronically registered counsel
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