GRUND v. INDIANA DEPARTMENT OF CORRECTION et al

Filing 55

ENTRY ON MOTION FOR SUMMARY JUDGMENT - For the reasons stated herein, the Defendants' Motion for Summary Judgment, 36 , is GRANTED. Judgment consistent with this Entry shall now issue. (See Entry). Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 9/6/2017. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SUSAN GRUND,
Plaintiff,
v.
CORIZON, JULIE MURPHY, and
DR. DAVID HINCHMAN,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 1:16-cv-00096-TWP-MJD

ENTRY ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed by Defendants
Corizon (Health Services, Inc.) (“Corizon”), Julie Murphy (“Murphy”), and Dr. David Hinchman
(“Dr. Hinchman”) (collectively, the “Defendants”). Plaintiff Susan Grund (“Grund”), an Indiana
inmate, formerly confined at the Indiana Women’s Prison (“IWP”), brings this action pursuant to
42 U.S.C. § 1983 alleging the Defendants were deliberately indifferent to her serious medical
needs. Specifically, Grund alleges she was improperly denied testing, including an MRI, to
determine if she is suffering from complications related to her breast implants. She also alleges
that she was improperly cleared to work a strenuous prison job. The Defendants have moved for
summary judgment and Grund has responded. For the following reasons, the Defendants’ Motion
for Summary Judgment (Filing No. 36), is granted.
I. STANDARD OF REVIEW
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56(a) provides that
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.” In ruling on a motion for
summary judgment, the admissible evidence presented by the non-moving party must be believed
and all reasonable inferences must be drawn in the non-movant’s favor.

Hemsworth v.

Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party’s favor.”). However, “[a] party who bears the burden of
proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by
specific factual allegations, that there is a genuine issue of material fact that requires trial.”
Hemsworth, 476 F.3d at 490. Finally, the non-moving party bears the burden of specifically
identifying the relevant evidence of record, and “the court is not required to scour the record in
search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d
713, 723 (7th Cir. 2001).
II. FACTS
The statement of facts is not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed evidence are presented in the light
reasonably most favorable to Grund as the non-moving party. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000). The facts presented are those material to Grund’s claims
regarding her job assignment within the prison and the necessity of testing for breast implant
complications.
A.

Julie Murphy
Defendant Murphy is the Health Services Administrator at IWP. During the time relevant

to the Complaint, she was employed by Corizon, the prison medical provider which contracted
2

with the Indiana Department of Correction to provide healthcare to Indiana prisoners. As the
Health Services Administrator, Murphy is responsible for ordering medical supplies for the
facility, hiring medical staff, maintaining the nursing staff schedule, responding to offender
grievances regarding medical issues, and dealing with human resources issues for the medical staff.
She occasionally treats offenders if the medical team is short-staffed or if there is an emergency or
a difficult medical issue. Murphy was not involved in Grund’s day-to-day medical assessment and
treatment; rather, the decisions regarding Grund’s course of treatment were made by doctors and
nurse practitioners.
Grund wrote a letter to Murphy on December 30, 2015, stating that she had been
reclassified from a non-laborious job as a game clerk to a laborious job as a porter. Grund
requested that Murphy provide her medical verification and/or medical restrictions so that Grund
could be reclassified to a non-laborious job. Murphy referred this matter to a doctor because the
doctor is the only person who can recommend that an inmate be reclassified to a different job
classification based on a medical condition. Murphy never submitted a job request for Grund to
be assigned to any particular job at the prison. As the Health Services Administrator, Murphy
cannot assign an inmate to a prison job; that is done by the prison administration. The only
involvement Murphy has with the job assignment process is to confirm whether or not an inmate
has a medical condition that prevents her from performing a particular prison job.
Grund saw Dr. Sackett regarding her job assignment, however Dr. Sackett told her to speak
to Murphy. Grund then spoke personally to Murphy, who stated that she would tell Dr. Sackett to
write a restriction order. In addition, over the years there have been occasions when Murphy has
responded to Grund’s requests for healthcare. If Grund submitted a Request for Healthcare form

3

that asked a question or sought specific information, rather than asking for specific medical
treatment, then Murphy might be the one to respond to such a request. Murphy has also ordered
new batteries for Grund’s hearing aid. Grund sent Murphy a letter on February 10, 2015, regarding
a list of vitamins and eyeglasses that she wanted. Murphy forwarded this letter to Dr. Malola to
determine if Grund could have the items she requested and forwarded the response back to Grund.
However, Murphy made no decision regarding Grund’s requests.
B.

Grund’s Breast Implants
Grund had breast implants prior to coming to prison. In July 2010, her implants were

replaced because they had ruptured and were leaking. Grund arrived at the IWP in 2012. While
at IWP, she saw Dr. Raines because she was experiencing a tightening sensation in her breasts.
He prescribed a “detox” treatment. This treatment alleviated the tightening for a while, but the
sensation returned after a few months. Dr. Raines referred Grund to Dr. Hinchman, who at that
time was the provider of gynecological services for inmates at IWP, including their yearly
gynecological examinations.
Dr. Hinchman examined Grund on October 16, 2013. Grund reported breast discomfort
that began after her breast surgery. She reported that she always had discomfort along the outer
sides of both breasts. Dr. Hinchman noted that subsequent breast examinations and mammograms
after her surgery were normal and unremarkable. Grund’s vital signs were within normal limits.
Dr. Hinchman performed a physical examination of Grund’s breasts. Her breasts appeared to be
symmetrical and the skin surface of both breasts was normal to inspection and palpation. Grund
expressed mild tenderness to palpation along the outer sides of both breasts. There were no
palpable masses in the tissue of either breast. Grund states that her pain had lessened at this time
4

because of the detox treatment. Dr. Hinchman’s examination of Grund’s breasts was normal and
he felt no physical abnormalities in her breasts. Dr. Hinchman’s plan was for Grund to continue
monthly breast self-exams and to return as needed.
On September 17, 2014, Grund had a mammogram, which was normal. Grund was
concerned that if her new implants had ruptured, the mammogram would cause more damage, but
she did not refuse the test. Grund experienced considerable pain during and after the mammogram.
In October of 2014, she submitted a healthcare request to see a doctor for her breast pain. She saw
Dr. Malola who told her she could not do anything for her pain, but discussed the possibility of
another detox treatment.
Dr. Hinchman’s first examination of Grund in 2015 was on July 10, 2015. During that
examination, Grund reported a dull achy sensation in both breasts that she said was “chronic” since
she had her breast implants replaced in 2010. According to Dr. Hinchman, while Grund said she
was currently experiencing symptoms, she did not appear to be in acute distress. Grund states that
Dr. Hinchman asked her only if she showers and washes her hair and she replied that she did, but
not without pain. She informed Dr. Hinchman that she was unable to participate in exercise,
activities, or work at any job that requires the use of her arms or upper body. She did not have
uninterrupted or painless sleep. Grund reported that twice a year she had episodes of redness and
warmth in the skin of each breast that was not in both breasts at the same time. However, she said
she was unable to go to the health care unit during those episodes because, outside of emergences,
prisoners are not allowed to see medical staff without being called to the health care unit and health
care requests take days to process. Grund did show the inflammation once to Dr. Malola, but by
then it was not as inflamed as it had been at onset.

5

Dr. Hinchman noted that Grund’s last mammogram in September 2014 was normal, as was
her recent lab work. He examined Grund’s breasts while she was laying on her back and while
she was sitting with her arms at her sides. Her breasts appeared symmetric with no skin dimpling.
Dr. Hinchman noted no inflammation or tenderness to palpation in either breast. Grund testifies
that his examination was too gentle to trigger her to “cry out” in pain. Her implants were in place
and were symmetric, mobile and non-tender to movement on palpation. Her nipples were normal
with no discharge. Dr. Hinchman’s objective findings did not corroborate Grund’s reported
symptoms of pain. His plan to monitor Grund’s breasts was for her to do monthly self-breast
exams, for the provider to do an annual examination, and for an annual mammogram. Dr.
Hinchman or the provider at the prison could also do a breast examination as needed or upon
request. Dr. Hinchman advised Grund to seek medical attention the next time she experienced
anything abnormal such as inflammation. Dr. Hinchman concluded that there was no indication
for an MRI at that time.
The Defendants have submitted an affidavit from Dr. Charles Zollman, who has extensive
experience in breast augmentation, including breast implants. Dr. Zollman states that physical
examination of the breasts is the best way to tell if there is a problem with an implant. With normal
findings upon a physical examination, there is no indication for any diagnostic testing such as an
MRI. After the post-operative period, there is no requirement that a patient undergo any type of
regularly scheduled monitoring of breast implants.
Grund asserts that blood tests in 2015 indicated that she had high levels of anti-nuclear
antibodies (“ANA”). She concludes that this result demonstrated that her body was rejecting a
foreign substance – either the silicone breast implants themselves or the presence of free-flowing

6

silicone. According to Dr. Hinchman, Grund’s positive ANA screen suggested she had an
autoimmune disorder, which is why she was tested for lupus and several other conditions and she
was eventually diagnosed with Celiac disease. Dr. Hinchman concludes that Grund’s subsequent
diagnosis of Celiac disease is consistent with her positive ANA screen and other abnormal lab
values, as well as her complaints of weight loss and gastrointestinal issues and not related to her
breast implants. In addition, Dr. Hinchman opined that Grund’s past chronic complaints of weight
loss, fatigue, and gastrointestinal issues are consistent with her eventual diagnosis of Celiac
disease.
III. DISCUSSION
The Defendants seek summary judgment on Grund’s claims. They argue that claims based
on actions that took place in 2013 are barred by the statute of limitations and that they were not
deliberately indifferent to her serious medical needs. Defendant Corizon also argues that it does
not maintain a policy and practice that resulted in any violation of Grund’s constitutional rights.
A.

Statute of Limitations
Defendants first argue that any claim based on treatment that took place in 2013 is barred

by the statute of limitations. Suits under Section 1983, such as this one, use the statute of
limitations and tolling rules that states employ for personal-injury claims.

In Indiana, the

applicable statute of limitations period is two years. See Richards v. Mitcheff, 696 F.3d 635, 637
(7th Cir. 2012); Ind. Code § 34–11–2–4. Grund claims, in part, that Dr. Hinchman denied her a
referral to a specialist and denied her diagnostic testing in October, 2013. Based on the applicable
statute of limitations, she had through October 2015, to file a lawsuit based on these facts. But she
filed this case nearly three months later, in January 2016. Any deliberate indifference claim based
7

on medical care received in October 2013 is barred by the statute of limitations and the Defendants
are therefore entitled to summary judgment on these claims.
B.

Deliberate Indifference
The Defendants next argue that they were not deliberately indifferent to Grund’s need for

medical treatment. 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 prevail on an Eighth Amendment
deliberate indifference medical claim, a plaintiff must demonstrate two elements: (1) she 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; Pittman
ex rel. Hamilton v. County of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014).
Murphy and Dr. Hinchman do not argue that Grund’s asserted condition is not a serious
medical condition, rather they assert they were not deliberately indifferent to her condition.
“[C]onduct is ‘deliberately indifferent’ when the official has acted in an intentional or criminally
reckless manner, i.e., “the defendant must have known that the plaintiff ‘was at serious risk of
being harmed [and] decided not to do anything to prevent that harm from occurring even though
he could have easily done so.’” Board v. Freeman, 394 F.3d 469, 478 (7th Cir. 2005) (quoting
Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)). “To infer deliberate indifference on
the basis of a physician’s treatment decision, the decision must be so far afield of accepted
professional standards as to raise the inference that it was not actually based on a medical
judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). See also Plummer v. Wexford

8

Health Sources, Inc., 609 Fed. Appx. 861, 2015 WL 4461297, *2 (7th Cir. 2015) (holding that
defendant doctors were not deliberately indifferent because there was “no evidence suggesting that
the defendants failed to exercise medical judgment or responded inappropriately to [the plaintiff’s]
ailments”). In addition, the Seventh Circuit has explained “[a] medical professional is entitled to
deference in treatment decisions unless no minimally competent professional would have
[recommended the same] under those circumstances.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014). “Disagreement between a prisoner and his doctor, or even between two medical
professionals, about the proper course of treatment generally is insufficient, by itself, to establish
an Eighth Amendment violation.” Id.
1.

Murphy

Grund claims in her Complaint that Murphy medically cleared her to work at a strenuous
prison job and denied her grievance regarding her medical care. Murphy argues that she was not
deliberately indifferent to Grund’s medical condition because she had no role in the decisions
regarding Grund’s medical treatment or job assignment. 1 Murphy asserts that when Grund
requested a change in her job classification, she forwarded the request to a doctor. Grund asserts
that she spoke to Dr. Sackett regarding her job assignment, and he told her to speak to Murphy.
She then spoke personally to Murphy, who stated that she would tell Dr. Sackett to write a
restriction order. The parties’ versions of the events are not materially inconsistent. It is
undisputed that Murphy referred Grund’s request to a doctor and that the doctor did write a
restriction order.

In so doing, Murphy did not ignore a risk to Grund or fail to respond

1

Grund contends that Murphy “involved herself” in her medical care in 2013, but as discussed above, any claim based
on medical care received in 2013 is barred by the statute of limitations. Further, these allegations, based on acts that
took place in 2013, are insufficient to raise an inference that Murphy participated in making medical decisions for
Grund in 2015.

9

appropriately to her complaints. See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016), as
amended (Aug. 25, 2016) (a plaintiff must provide evidence that an official actually knew of and
disregarded a substantial risk of harm). In addition, there is no evidence that Murphy had any role
in Grund’s initial assignment to a more strenuous job. See Sanville v. McCaughtry, 266 F.3d 724,
734 (7th Cir. 2001) (a defendant can only be liable for the actions or omissions in which he
personally participated). Grund therefore has not presented any evidence to support a conclusion
that Murphy was deliberately indifferent to her medical needs regarding her job assignment.
Grund further asserts generally that Murphy was always involved in her medical care and
that she had to submit her medication requests to Murphy. But Grund’s general conclusions about
Murphy’s involvement in her medical care are insufficient to create a genuine issue of material
fact. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (“The object of [Rule
56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory
allegations of an affidavit.”). Further, the fact that Grund had to submit certain medical requests
to Murphy does not dispute the facts, presented by Murphy, that she receives and processes
requests regarding inmate medical care, but does not make medical decisions. Grund thus has
presented no evidence that Murphy made any decision regarding Grund’s request for treatment for
her breast implants.
In sum, it is undisputed that Murphy played no role in Grund’s job classification other than
to process her request for a re-classification after she had been assigned a physically strenuous job.
It is further undisputed that Murphy did not make the medical decisions related to Grund’s
complaints in this case. Murphy is therefore entitled to summary judgment on Grund’s claims.

10

2.

Dr. Hinchman

Grund alleges that Dr. Hinchman has been deliberately indifferent to the potential breast
implant complications she believes she has experienced, including her associated pain. The only
time Dr. Hinchman saw Grund during the time relevant to the Complaint and not barred by the
statute of limitations was on July 10, 2015. 2 At that visit, Grund expressed that she was
experiencing breast pain. Dr. Hinchman examined her breasts while she was laying on her back
and while she was sitting with her arms at her sides. Her breasts appeared symmetric with no skin
dimpling. There was no inflammation or tenderness to the touch. Her implants were in place and
symmetric, mobile and non-tender to movement or palpation.

Grund also reported to Dr.

Hinchman that she occasionally had episodes of redness and warmth in the skin of her breasts, but
she was not able to get a medical appointment before the flare-up would begin to diminish.
Based on his examination and discussion with Grund, Dr. Hinchman concluded that her
breasts were normal. His plan was for her breasts to be monitored through monthly self-exams,
annual examinations by the provider, and an annual mammogram. Dr. Hinchman or the other
providers could also do a breast examination as needed upon request. He also advised Grund to
seek medical attention the next time she experienced anything abnormal such as inflammation.
Dr. Hinchman did not conclude that Grund needed an MRI at that time. Dr. Zollman has testified
that the best way to evaluate breast implants is by physical examination, and that a physical
examination consisting of soft breasts, without hardness or infection, is an indication of normal

2

Ms. Grund alleges in her Complaint that she saw Dr. Hinchman in January 2015, but there is no evidence in her
medical records of this visit and she does not argue in response to the motion for summary judgment that he examined
her at that time.

11

breast. Diagnostic tests, such as MRIs, are not indicated when there is no abnormal physical
examination. Further, routine MRIs are not necessary after breast implant surgery.
Grund states that rupture of the implants is a potential complication of breast implant
surgery and that Dr. Hinchman failed to consider this potential complication. But this conclusion
is not supported by the record. As already discussed, Dr. Hinchman thoroughly examined Grund
based on her complaints of pain and the physical examination was normal. The undisputed
evidence here is that when a physical examination is normal, no further testing is indicated.
Grund further argues that blood test results in October 2015 indicate the presence of leaking
silicone. But it was not unreasonable for her medical providers to conclude that Grund’s blood
test results indicated the presence of Celiac disease and not silicone in her system, especially
considering her history of gastrointestinal problems. Grund’s disagreement with the conclusion
that she has Celiac disease is not evidence to show deliberate indifference. Pyles v. Fahim, 771
F.3d 403, 409 (7th Cir. 2014) (“Disagreement between a prisoner and [her] doctor, or even between
two medical professionals, about the proper course of treatment generally is insufficient, by itself,
to establish an Eighth Amendment violation.”).
Grund also argues that an ultrasound report from 2011 shows the need for further testing.
But she is not qualified to interpret that report and has failed to present evidence or argument to
connect any findings from that report to her complaints at issue here, which took place in 2015.
In sum, Grund has failed to present evidence to raise an inference that Dr. Hinchman was
deliberately indifferent to her serious medical needs. She went to him complaining of breast pain
and he performed a thorough examination. His examination indicated that her breasts were normal
and the examination did not corroborate her complaints of pain. Dr. Hinchman recommended that

12

Grund perform monthly self-exams and noted that she could request an examination from him or
another medical provider. In these circumstances, the standard of care did not require him to order
an MRI or do anything further. In other words, Dr. Hinchman exercised sound medical judgment
that, according to Dr. Zollman, was within the standard of care. See Plummer v. Wexford Health
Sources, Inc., 609 Fed. Appx. 861, 2015 WL 4461297, *2 (7th Cir. 2015) (holding that defendant
doctors were not deliberately indifferent because there was “no evidence suggesting that the
defendants failed to exercise medical judgment or responded inappropriately to [the plaintiff’s]
ailments”); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (“To infer deliberate
indifference on the basis of a physician’s treatment decision, the decision must be so far afield of
accepted professional standards as to raise the inference that it was not actually based on a medical
judgment.”). Dr. Hinchman is therefore entitled to summary judgment on Grund’s claims.
3.

Corizon

The Defendants also seek summary judgment on Grund’s claim against Corizon and her
claims against Murphy and Dr. Hinchman in their official capacities. Because Corizon acts under
color of state law by contracting to perform a government function, i.e., providing medical care to
correctional facilities, it is treated as a government entity for purposes of Section 1983 claims. See
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 fn.6 (7th Cir. 2002); but see Shields v. Illinois
Department of Correction, 746 F.3d 782, 790 (7th Cir. 2014) (finding “substantial grounds to
question the extension of the Monell holding for municipalities to private corporations”). “To
establish municipal liability [in a Section 1983 claim], a plaintiff must show the existence of an
‘official policy’ or other governmental custom that not only causes but is the ‘moving force’ behind

13

the deprivation of constitutional rights.” Teesdale v. City of Chicago, 690 F.3d 829, 833-34 (7th
Cir. 2012).
To support her claim of an official policy or custom sufficient to make Corizon liable for
the alleged deliberate indifference to her medical needs, Grund asserts that Corizon doctors must
submit requests to Corizon’s main office for approval of medication or visits to specialists. But
even assuming such a policy exists, this does not show deliberate indifference on Corizon’s part
because it does not show that the policy was the “moving force” behind the individual Defendants’
actions. Grund argues that all of the treatment decisions regarding her breast implants were made
by Dr. Hinchman and that other prison doctors referred her to him when she complained about her
breasts. The Court has held that Dr. Hinchman was not deliberately indifferent to Grund’s serious
medical needs. He evaluated her and concluded that she did not need an MRI or other examination
or treatment for her breast implants. There is no evidence to raise an inference that Dr. Hinchman
was deterred by any policy in making such a recommendation, only that he did not do so based on
his medical judgment. Corizon is therefore entitled to summary judgment on Grund’s claims. For
the same reason, any claim against Dr. Hinchman and Murphy in their official capacities must be
dismissed because these claims are duplicative of the claims against Corizon. See Monell v. New
York City Dep't of Social Services, 436 U.S. 658 (1978); DeGenova v. Sheriff of DePage County,
209 F.3d 973, 974 n.1 (7th Cir. 2000) (a claim against an individual in his or her official capacity
is the same as a claim against the entity of which the person is an agent).

14

IV. CONCLUSION
For the reasons stated herein, the Defendants’ Motion for Summary Judgment, (Filing No.
36), is GRANTED. Judgment consistent with this Entry shall now issue.

SO ORDERED.

Date: 9/6/2017

Electronic distribution to counsel of record via CM/ECF and by U.S. mail to:
SUSAN GRUND
941457
MADISON CORRECTIONAL FACILITY
800 Bus Stop Dr
Madison, IN 47250

15