UNDERHILL v. LOVERIDGE et al
ENTRY - Discussing Motion for Summary Judgment; The defendants' motion for summary judgment, dkt. 20 , is granted in part and denied in part. The motion is granted as to Defendants NP Allen and HSA Profitt and the claims against them are di smissed. The clerk shall terminate Allen and Profitt as defendants. The motion is denied as to Defendants Brown, Loveridge, and Perkins. The Court will direct further proceedings through a separate order. If Underhill wishes to request the assistance of counsel, he should file a motion on the Court's form, which the clerk shall include with his copy of this Entry. Signed by Judge Sarah Evans Barker on 2/13/2018. Copies Mailed. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
BENJAMIN LOVERIDGE Medical Doctor, )
Corizon, LLC, TRACY PROFITT Health )
Services Administrator, Corizon, LLC,
DEBORAH L PERKINS Nurse Practitioner,
BROWN Nurse, Corizon, )
Case No. 1:16-cv-00687-SEB-TAB
Entry Discussing Motion for Summary Judgment
Plaintiff Ricky Underhill, an Indiana inmate, filed this civil action pursuant to 42 U.S.C.
§ 1983 complaining about events that occurred which he was incarcerated at the New Castle
Correctional Facility (“New Castle”). He alleges that between January 2014 and October 10,
2014 (when he was transferred to Westville Correctional Facility) he was denied constitutionally
adequate medical treatment for his injured left shoulder and arm. The defendants have filed a
motion for summary judgment and Underhill has responded. For the following reasons, the
motion for summary judgment, dkt. , is granted in part and denied in part.
I. Standard of Review
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. Statement of Facts
The following statement of facts is evaluated pursuant to the standard set forth above.
That is, this 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 Underhill as the non-moving party with respect to the motion for
summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
A. Underhill’s Care Between January 2014 and March 2014
Underhill’s left shoulder and arm were injured in January 2014 when his arm was pulled
down while he was shackled. Cassandra Brown, LPN saw him on January 27, 2014. Underhill
stated that his shoulder was “sore and still burning.” Dkt. 21-1 pg 179. During her examination,
Nurse Brown did not observe any visible sign of injury to Underhill’s left shoulder. Id. The range
of motion in his left arm was within normal limits, his left shoulder reflected normal placement,
and no swelling was noted. Id. Nurse Brown notified Nurse Practitioner Deborah Perkins of the
results of her examination. NP Perkins determined that, based on the results of the physical
examination, there was no need for x-ray orders at that time.
Nurse Brown examined Underhill again on February 16, 2014. He told her that his left
should pain was a 7-8 on a scale of 1-10 and the pain medication he was using was not effective.
Dkt. 21-2, pg. 177. Underhill requested a referral to the facility doctor, but Nurse Brown did not
refer him to the doctor. Dkt. 30-1, par. 7.
On about February 20, 2014, Underhill went on a “hunger strike” because he felt he was
not receiving adequate medical care for his injured arm and shoulder. Dkt. 30-1, par. 8. On
February 24, 2014, Underhill was seen by Nurse Brown for evaluation of the hunger strike.
Underhill stated he would not eat until he received an MRI for his shoulder. Dkt. 21-2, p. 172-74.
He also stated that he was refusing to eat because he had been assaulted by a correctional officer.
Nurse Brown noted that Underhill “had refused medical trip out this AM (which was for MRI).”
Id. She reported Underhill stating, “I thought the trip out was for the urologist again or else I
would’ve went.” 1 Id. Underhill states that he also saw Dr. Loveridge that day who told him that
after he regained his strength, “they would schedule . . . an appointment within two weeks
concerning his arm and shoulder.” Dkt. 30-1, par. 9.
On March 9, 2014, Underhill filled out a Request for Health Care requesting to be seen
by a NP or doctor concerning his injury and was told he had a scheduled appointment. Dkt. 30-2,
For security reasons, inmates are not informed of the exact time or location of an outside
medical provider visit. It appears that there must have been a misunderstanding if Underhill was
informed that his outside medical appointment on February 24, 2014, was for an MRI instead of
for his urological condition. In addition to there being no medical records reflecting that
Underhill was recommended for an MRI in February 2014, the scheduled outside provider visit
that had been scheduled for Underhill on February 24, 2014, was for his urological condition as
he was sent out for a urological visit shortly thereafter.
pg. 53. Underhill submitted another Request for Health Care on March 20, 2014, asking again to
seen for his shoulder pain. Dkt. 30-2, pg. 54.
B. Care Between April 2014 and Underhill’s Transfer to Westville Correctional Facility
Underhill started another hunger strike on about April 2, 2014, because he felt that he
was not receiving adequate medical care, including that he had not been seen by Dr. Loveridge
as requested. Dkt. 30-1, par. 12. On April 9, 2014, Underhill saw Dr. Loveridge and Tracy
Profitt 2 and they told him “you are not receiving further medical treatment for your left shoulder
because there is nothing wrong with you.” Dkt. 21-2, pg. 161; dkt. 30-1. par. 14.
On April 10, 2014, Underhill was seen by Nurse Brown for his complaints of mild to
moderate left upper quadrant pain and left shoulder pain. Dkt. 21-2, pg. 157. There is no record
of any treatment or recommendations given for the shoulder pain that day. On about April 15,
2014, Underhill saw NP Perkins. He asked for an MRI or a referral to a doctor, but NP Perkins
denied these requests. Dkt 30-1, par. 16; Dkt. 30-2, pg. 57.
On April 30, 2014, NP Perkins saw Underhill for a chronic care visit. His reported
present conditions were hyperlipidemia and gastroesophageal reflux disease (“GERD”). The
chart reflects that NP Perkins inquired twice if Underhill had any further health care complaints,
and he responded, “no.” She noted in Underhill’s chart that “he was very quiet today with no
complaints which was unusual for him.” She ordered follow up labs for his lipid levels. But
Underhill states that he complained of his shoulder pain and NP Perkins once again denied his
request for a referral. Dkt. 30-2, par. 18.
Six days later, on May 6, 2014, Underhill was seen again by NP Perkins for a medical
provider visit to evaluate his complaints of left shoulder pain. Underhill stated the pain was
Defendant Tracy Profitt Mills, is the Health Services Administrator (HSA) at New Castle. She
was no responsible for directing Underhill’s medical care at any time.
burning and dull and was aggravated by lifting and pushing. Upon examination, NP Perkins did
not observe any redness or swelling in Underhill’s left shoulder. After her examination, NP
Perkins provided Underhill with written instructions for rotator cuff and shoulder conditioning
exercises. NP Perkins informed Underhill that if he would try the exercises, she would
recommend him for physical therapy. According to NP Perkins, Underhill refused the exercise
instructions and informed NP Perkins that he only wanted an MRI. Underhill states that the
exercises “aggravated” his injury.
On May 8, 2014, Underhill was seen again by NP Perkins in response to his complaint of
left shoulder pain. Underhill reported his symptoms as moderate, but that the pain was not going
away. NP Perkins evaluated Underhill’s range of motion in his left shoulder as good. He was
able to rotate the arm with little pain. He could lift his left arm to a 45-90 degree angle to the
side, but was not able to reach to the ceiling. NP Perkins did not note any redness or swelling in
the left shoulder area. Underhill’s hand grips were equal and there was no muscle mass loss. She
noted that she had seen Underhill twice recently and had offered treatment to address his
shoulder pain, but Underhill stated that the exercises were ineffective. NP Perkins believed that
over-the-counter pain relievers were appropriate on an “as needed” basis. She did not feel that
there was any clinical indication to prescribe narcotic level pain relievers for Underhill’s
Dr. Loveridge saw Underhill on June 26, 2014, for follow up on his complaints of left
shoulder pain. Dr. Loveridge examined Underhill’s left shoulder. Rotation of the left shoulder
was normal, but his ability to raise his left arm to the side was limited to about 90 degrees. There
was no visible deformity in the left shoulder. Underhill had mild to moderate tenderness.
Underhill stated that sitting still made the pain worse and that movement of the shoulder helped
relieve pain. Based on Underhill’s physical examination, including his rotation ability, location
of pain, and a review of his medical record, Dr. Loveridge diagnosed Underhill with a grade 1
AC joint separation. This is a common type of shoulder injury involving a sprain or partial tear
of shoulder AC ligaments. The initial recommended treatment for a partial tear or sprain of the
AC ligaments is rest, range of motion exercises as tolerated, and over-the counter pain
medications as needed. Dr. Loveridge instructed Underhill on range of motion exercises and
informed him that doing the exercises in his cell would improve his shoulder condition over
time. Dr. Loveridge gave Underhill a steroid injection to help with his complaints of pain during
movement and to allow him to begin his range of motion exercises with reduced pain. Underhill
expressed understanding of the recommendations.
Based on Underhill’s physical examination and Dr. Loveridge’s review of his medical
record, Dr. Loveridge concluded that an MRI was not indicated until and unless intractable
symptoms failed to respond to the therapeutic exercises and over-the-counter pain medications.
Dr. Loveridge believed that over-the-counter analgesics were appropriate to address his pain on a
symptomatic basis. Underhill states that he requested a prescription because he was not permitted
to order over-the-counter medications from the commissary in the Restricted Housing Unit. Dkt.
30-1, par. 23.
On August 6, 2014, Underhill was seen for the first time by Nurse Practitioner Desma
Allen for his complaints of left shoulder pain. NP Allen discussed his condition with him. She
noted that he had been seen multiple times by NP Perkins and once by Dr. Loveridge. She noted
that Underhill had received a steroid injection five weeks prior and had been instructed on range
of motion exercises for his shoulder pain. NP Allen informed Underhill that surgery was not
recommended for his shoulder condition at that time. He was not pleased with that answer and
walked out of the examination room before NP Allen could complete the full physical
examination. According to Underhill, NP Allen told him that she and the other defendants
believed he was “faking” his injury. Dkt. 30-1, par. 24.
On August 19, 2014, Underhill was seen by NP Perkins for a chronic care visit to
evaluate his symptoms of GERD, high cholesterol level, left shoulder pain, and enlarged
prostate. NP Perkins noted that Underhill’s medical conditions were under control except he
continued to complain that he was experiencing pain in his left shoulder and left flank. A review
of his medical records reflected that Underhill had been seen by Dr. Loveridge several weeks
earlier and given a steroid shot and therapeutic exercises. NP Perkins also noted that she had
attempted to provide Underhill with therapeutic exercises which he refused. Upon examination,
NP Perkins did not note any abnormalities in his left shoulder and encouraged him to do the
recommended shoulder therapy exercises.
On September 9, 2014, at 11:43 a.m., Underhill was seen by Cassandra Brown, LPN,
because he had initiated another hunger strike and had refused his scheduled nurse wellness visit
required by his hunger strike status. Nurse Brown noted that Underhill refused to come out of his
cell for a wellness check, had missed five meals, would not sign a refusal of treatment form, and
stated he was continuing his hunger strike. Nurse Brown stated in her nursing note that the
medical director and various administrative staff were notified of Underhill’s latest hunger strike
Later that day at 2:06 p.m., Underhill was seen for a behavioral health follow up visit
with mental health provider Christopher Hufford, at which time Underhill stated that he was on a
hunger strike to force a transfer to another facility. Hufford encouraged Underhill to consider
other alternatives to a hunger strike. He noted that Underhill was not amenable to further
discussion. That evening at 6:02 p.m., Guyanna Bedwell, LPN, entered a nurse protocol use of
force evaluation required by Underhill’s refusal to come to the nurses’ office for physical
assessment during his hunger strike. Then, at 11:24 p.m., Underhill was seen by Erica M.
Ellington, R.N. in response to an emergency call involving a report by custody staff of Underhill
stating that he had experienced seizure activity. The medical records reflect that Underhill was
examined in his cell by Erica M. Ellington, R.N. in the presence of custody staff. Upon
examination for his reported seizure, Underhill was alert and oriented, had no breathing
difficulties, and no seizure activity was noted. Underhill stated to Nurse Ellington, “get out of
here. Leave me alone.” Underhill refused any medical treatment and a Refusal of Treatment form
was completed by Nurse Ellington.
On September 10, 2014, Underhill was seen by Nurse Bedwell for follow-up on his cell
extraction and his reported seizure activity the night before. He reported dizziness when standing
up and a knot on right side of his head. Upon examination, Underhill stated that he had injured
himself during recreation. He did not recall falling the night before. He noted that bruising on his
wrists and arms was from resisting a cell extraction the day before. During the examination,
Underhill was alert and oriented. He stated that he had started eating again. Underhill was given
On September 25, 2014, Underhill was seen by NP Allen for follow up. Underhill
reported tenderness in his left shoulder and mild pain with motion. NP Allen did not observe and
Underhill did not report numbness, tingling, joint instability, or decreased mobility in his left
shoulder. NP Allen reported that Underhill’s physical “exam is essentially negative and he does
not appear to be in any distress.” NP Allen further noted that she would prescribe Celexa to
address Underhill’s continuing complaints of shoulder pain. She also prescribed a tapering dose
of steroids to address Underhill’s pain complaints.
C. Underhill’s Transfer to Westville Correctional Facility
On October 10, 2014, Underhill was transferred to Westville Correctional Facility.
(“Westville”) and did not receive further treatment from any of the defendants. The medical
records reflect that Underhill received an x-ray of his left shoulder on November 25, 2014, which
reflected no abnormalities. Eight months later, on July 15, 2015, Underhill received an MRI of
his left shoulder. The MRI results reflected that Underhill had a partial thickness under surface
tear of his rotator cuff tendon. Dr. Loveridge contemplated this as a possibility when he
diagnosed Underhill with a grade 1 AC joint separation on June 26, 2014. It is unclear when the
partial tear of Underhill’s rotator cuff occurred as he had complained several times of injuring
his left shoulder and even when he reported that his shoulder was injured in January 2014, he
stated that he had “injured his left shoulder again.”
The medical records reflect that, after his transfer to Westville, during January 2016,
Underhill was prescribed four sessions of physical therapy at an outside facility for the purpose
of strengthening and stabilizing his shoulder. Underhill stated that he had not been performing
any therapeutic exercises on his own as they caused pain. He was provided a Home Exercise
Plan (HEP) for use in his cell by his outside physical therapist to assist him in strengthening his
shoulder. On January 23, 2016, Underhill submitted a request for health care stating that his
course of outside physical therapy had injured his left shoulder. When he was scheduled for a
nursing visit to follow up on his complaints that he had been injured in physical therapy, he
refused treatment. The physical therapy treatment prescribed in January 2016 to treat Underhill’s
partial tear of his rotator cuff tendon was almost identical to the treatment prescribed by Dr.
Loveridge and NP Perkins at New Castle which Underhill refused to follow. Conservative, nonsurgical treatment designed to build up Underhill’s shoulder strength and increase the range of
motion in his left shoulder were the goals of therapeutic exercise recommended by medical
providers at both facilities.
D. Treatment for Shoulder Injuries
The defendants explain that in about 50% of patients, nonsurgical treatment of a partial
tear of the rotator cuff relieves pain and improves function in the shoulder. Nonsurgical
treatment options may include: rest, activity modification, non-steroidal anti-inflammatory
medication (such as ibuprofen and naproxen), strengthening exercises, physical therapy, and
steroid injection. Surgery may eventually be recommended for some rotator cuff injuries. Signs
that rotator cuff surgery is recommended include: symptoms lasting six to twelve months, a large
tear of the tendon, and significant loss of function in the shoulder. Complications from rotator
cuff surgery may include: nerve damage, infection, deltoid muscle detachment; persistent
All of the defendants state that they believed that over-the-counter pain medications taken
on an as-needed basis would be sufficient to manage Underhill’s pain. Underhill states that he
was not able to obtain over-the-counter medications because he was being held in Restricted
Housing at the time. The defendants state that although inmates in Restricted Housing are not
allowed to keep medication in their cells, there is no prohibition on receiving over-the-counter
medications dispensed by nursing staff on their daily rounds. They also argue that Underhill’s
statement to the contrary is demonstrably false because Underhill did obtain acetaminophen from
the commissary on one occasion. But the records reflect that Underhill was given over-the-
counter acetaminophen by Nurse Bedwell, who examined him after a cell extraction and possible
seizure. It is not clear from the records whether he ordered that medication from the commissary
or Nurse Bedwell simply gave it to him. There is thus a dispute of fact regarding whether
Underhill could have obtained over-the-counter medications while in Restricted Housing.
Underhill asserts that all of the defendants failed to provide him with adequate medical
care for his injured shoulder. At all times relevant to his claims, he was a convicted offender.
Accordingly, his treatment and the conditions of his confinement are evaluated under standards
established by the Eighth Amendment’s proscription against the imposition of cruel and unusual
punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993) (“It is undisputed that the
treatment a prisoner receives in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment.”). The defendants argue that some of Underhill’s
claims are barred by the statute of limitations and that they did not violate his Eighth
A. Statute of Limitations
The defendants first argue that Underhill’s claims are limited by the applicable statute of
limitations. The statute of limitations for civil rights suits under 42 U.S.C. § 1983 is determined
by the statute of limitations for personal injury actions in the state where the incident forming the
basis of the claim occurred. See Wilson v. Garcia, 471 U.S. 261, 275 (1985); Eison v. McCoy,
146 F.3d 468, 470 (7th Cir.1998); Baskin v. City of Des Plaines, 138 F.3d 701, 702-03 (7th Cir.
1998). Thus, Underhill’s 42 U.S.C. § 1983 claim for deliberate indifference to his serious
medical needs is governed by Indiana’s two-year statute of limitations for personal injuries. See
Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 894 (7th Cir. 2001)
(“Indiana’s two-year statute of limitations . . . is applicable to all causes of action brought in
Indiana under 42 U.S.C. § 1983.”) Underhill filed this lawsuit on March 25, 2016. The statute of
limitations therefore bars all of Underhill’s claims based on events that occurred before March
25, 2014. The Court notes, however, that while these claims are barred, Underhill’s medical
complaints and the treatment he received for those complaints is relevant to the extent it shows
the knowledge the defendants had of his condition and his continuing complaints.
B. Deliberate Indifference
Each of the defendants also seeks summary judgment on Underhill’s Eighth Amendment
claims. 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) 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; Pittman ex rel.
Hamilton v. County of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014).
The defendants do not contend for purposes of summary judgment that Underhill’s
injured shoulder was not a serious medical condition. But they each argue that they were not
deliberately indifferent to this condition. “Conduct 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 Plummer v. Wexford Health Sources, Inc., 609 Fed. Appx. 861, 2015 WL 4461297,
*2 (7th Cir. 2015) (holding that 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 that
“[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.
Underhill’s claims are based not only on the contention that the treatment he received for
his underlying condition was inadequate, but also on the assertion that the defendants failed to
treat his pain. A delay in treatment that causes unnecessary pain is actionable even if it did not
exacerbate the injury or diminish the chances of a full recovery. See Gomez v. Randle, 680 F.3d
859, 865-66 (7th Cir. 2012) (holding that the plaintiff stated an Eighth Amendment claim
because “even though this [four-day] delay [in treatment] did not exacerbate [the plaintiff’s]
injury, he experienced prolonged, unnecessary pain as a result of a readily treatable condition”);
Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011) (“A delay in treating non-life-threatening
but painful conditions may constitute deliberate indifference if the delay exacerbated the injury
or unnecessarily prolonged an inmate’s pain.”). Underhill’s deliberate indifference claims against
each defendant is discussed in turn.
1. Nurse Brown
Nurse Brown seeks summary judgment on Underhill’s claims arguing that her assessment
and treatment of his complaints was appropriate. She asserts that, as a licensed practical nurse,
she did not have authority to prescribe medications or recommend outside testing or treatment.
She argues that she either directly consulted with a medical provider or appropriately referred
Underhill to a medical provider for follow-up every time she saw him.
The first time Nurse Brown saw Underhill after March 25, 2014, was on April 10, 2014,
one day after he had ended a hunger strike based on his complaint that he was not receiving
adequate medical care. At that appointment, Nurse Brown examined him related to his
complaints of upper quadrant pain and left shoulder pain. There is no record of any treatment or
recommendation for his shoulder pain that day. Between that appointment and September 9,
2014, Underhill was seen by other providers for his shoulder complaints. Nurse Brown saw
Underhill on September 9, 2014, because he had initiated another hunger strike and had refused
his scheduled nurse visit required by his hunger strike status. While Nurse Brown evaluated
Underhill’s medical condition based on the hunger strike, there is no record that she provided
any evaluation or treatment for his shoulder pain.
Here, there is a genuine issue of material fact regarding whether Nurse Brown was
deliberately indifferent to Underhill’s shoulder pain. A review of the facts in the light most
favorable to Underhill reveals that during the time frame relevant to his claims, he saw Nurse
Brown twice. The records reflect that he complained to her of shoulder pain each of those times,
but there is no record that she made a recommendation or otherwise provided Underhill with
treatment for his complaints of shoulder pain. Moreover, each time Nurse Brown saw him, he
had initiated a hunger strike based on his belief that he was not receiving care for his shoulder. A
reasonable response to this action might have been at least to examine his shoulder. Based on
these facts, a reasonable jury could conclude that Nurse Brown knew Underhill was experiencing
serious pain and a possible shoulder injury, but did nothing to treat his injury or his pain. See
Arnett, 658 F.3d at 753 (“A delay in treating non-life-threatening but painful conditions may
constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged
an inmate’s pain.”). Nurse Brown is therefore not entitled to summary judgment.
2. NP Perkins
NP Perkins also seeks summary judgment on Underhill’s deliberate indifference claims.
She argues that she provided Underhill with medical care that met or exceeded the applicable
standard of care.
The first time NP Perkins saw Underhill after March 25, 2014, was on April 30, 2014,
when she saw him for his chronic care visit to evaluate his hyperlipidemia and GERD conditions.
There is an issue of fact regarding the conversation she and Underhill had at this visit. NP
Perkins states that she specifically inquired if he had any other health concerns and he stated that
he did not. But Underhill states that he was seen by NP Perkins “concerning [his] reinjured left
arm and shoulder and during this scheduled appointment [she] refused once again to refer [him]
for further treatment . . . .” NP Perkins saw Underhill again May 6, 2014, for his complaints of
shoulder pain and recommended exercises to improve shoulder strength and reduce pain
symptoms. She told him that if he would try the exercises, she would recommend him for
physical therapy, but Underhill would not do the exercises. NP Perkins saw Underhill again on
August 19, 2014, for a chronic care visit. Underhill’s medical records revealed that he had been
seen by Dr. Loveridge several weeks earlier and was given a steroid shot and prescribed
therapeutic exercises. NP Perkins noted that she had attempted to provide Underhill with
therapeutic exercises which he refused. Upon examination, she did not note any abnormalities in
Underhill’s left shoulder and encouraged him to try the exercises. NP Perkins concluded that
Underhill’s symptoms did not reflect that his shoulder required constant pain medication or that
he was suffering from an emergent condition. 3
Construing these facts in the light most favorable to Underhill, a reasonable jury could
conclude that NP Perkins was deliberately indifferent to Underhill’s pain. First, there is a dispute
of fact regarding whether Underhill raised his shoulder pain complaints with her on April 30,
2014. If a jury believed Underhill, it could reasonably conclude that NP Perkins was deliberately
indifferent by failing to address his complaints. In addition, while NP Perkins might have
reasonably concluded on May 6, 2014, that Underhill should perform strengthening exercises in
his cell before advancing to more aggressive treatment and that an ongoing prescription for pain
medication was not necessary, Underhill has raised a dispute of fact regarding whether she
should have made sure that he could receive over-the-counter pain medication as needed. As
explained above, the defendants state that Underhill could have received over-the-counter pain
medications from the commissary while he was in Restricted Housing, but Underhill states that
he could not have. If a reasonable jury believes Underhill’s statement of the facts, it could
conclude that NP Perkins ignored his complaints and failed to provide him with a means of pain
The Court notes that the defendants describe Underhill as a “difficult patient” who, among
other things, refused recommendations, missed appointments, filed duplicative requests for
health care, and often was cuffed when he did arrive at medical visits. The defendants argue that
Underhill was provided with adequate care despite these difficulties. But, while whether
Underhill missed appointments and refused exercises recommendations might be relevant,
whether Underhill overall was a “difficult patient” is not relevant to whether the medical he
received was adequate. If Underhill was cuffed at appointments, and this hampered a defendant’s
ability to examine him, the defendants could have asked for the cuffs to be removed. In addition,
another reasonable inference from the fact that Underhill filed so many health care requests –
other than the defendants’ inference that Underhill was intentionally being difficult – is that he
was in serious pain and pleading for treatment.
control, causing him to experience unnecessary pain. Gomez, 680 F.3d at 865-66. NP Perkins is
therefore not entitled to summary judgment.
3. Dr. Loveridge
Dr. Loveridge next argues that he is entitled to summary judgment on Underhill’s claims.
Dr. Loveridge saw Underhill on April 9, 2014, because Underhill had been on a several-day
hunger strike. Underhill states that Dr. Loveridge told him he would not receive further medical
treatment for his shoulder because there was nothing wrong with him. Dr. Loveridge then
examined Underhill on June 26, 2014, and concluded that Underhill’s symptoms suggested a
grade 1 AC joint separation – a shoulder injury involving a sprain or partial tear of shoulder AC
ligaments. Dr. Loveridge explains that these symptoms generally do not require surgery as the
initial treatment – especially not without an initial course of therapeutic exercise. Dr. Loveridge
points out that for the nine months following his transfer from New Castle, Underhill was not
prescribed an MRI. He was prescribed an MRI in June 2015 and recommended for physical
therapy in January 2016.
Based on these facts, which have been construed in the light most favorable to Underhill,
a reasonable jury could conclude that Dr. Loveridge was deliberately indifferent to Underhill’s
shoulder pain. While Doctor Loveridge provided Underhill with appropriate treatment on June
26, 2014, Underhill states that he also saw Dr. Loveridge on April 9, 2014. Underhill states that
he was pursuing a hunger strike on April 9, 2014, because he felt he was not being treated for his
shoulder injury. According to Underhill, Dr. Loveridge provided no treatment that day. If this is
true, a reasonable jury could conclude that, while he evaluated the hunger strike, Dr. Loveridge
provided no treatment or recommendation for Underhill’s underlying complaint – his shoulder
pain. Dr. Loveridge therefore is not entitled to summary judgment.
4. NP Allen
NP Allen also argues that she is entitled to summary judgment on Underhill’s deliberate
indifference claims. Underhill saw NP Allen on August 6, 2014. Underhill walked out of the
examination room before the exam was over apparently because he was unhappy that NP Allen
reported that Dr. Loveridge had stated that his shoulder condition did not require surgery at that
time. She saw him again on September 25, 2014, to address his complaints of headache and
dizziness related to a seizure he may have had after a cell extraction. Based on his continuing
complaints of shoulder pain, she prescribed Celexa and a tapering dose of steroids.
NP Allen is entitled to summary judgment on Underhill’s claims. The first time she saw
him, he left the exam room before she could complete her examination. She cannot be expected
to treat him if he abandoned the examination. The next time she saw him, she prescribed him
pain medication and steroids. There is no evidence that she ignored his complaints or otherwise
failed to treat him. There is also no evidence that “no minimally competent professional would
have [done the same] under those circumstances.” Pyles, 771 F.3d at 409.
5. HSA Profitt
Finally HSA Profitt argues that she is entitled to summary judgment because she made no
medical decisions for Underhill. As the HSA at New Castle, HSA Profitt was responsible for
administrative tasks such as personnel supervision, staff scheduling oversight, procurement,
fiscal management, maintenance supervision, and records supervision. The record reflects that
Underhill was regularly scheduled to see medical providers. Profitt was not a medical provider
and could not prescribe medications or order any doctors or nurses to prescribe medications or
recommend outside consultations. In other words, Profitt could not, and did not, make decisions
regarding Underhill’s medical care, other than oversight of scheduling and records, which the
records reflect she did. This is true, even if, as Underhill states, she reiterated Dr. Loveridge’s
conclusion that there was “nothing wrong” with him. Underhill states generally that HSA Profitt
refused to help him. But this general allegation is insufficient to create a genuine issue of
material fact with regard to his claim against her. Profitt is therefore entitled to summary
judgment on Underhill’s claims against her.
For the foregoing reasons, the defendants’ motion for summary judgment, dkt. , is
granted in part and denied in part. The motion is granted as to Defendants NP Allen and
HSA Profitt and the claims against them are dismissed. The clerk shall terminate Allen and
Profitt as defendants. The motion is denied as to Defendants Brown, Loveridge, and Perkins.
The Court will direct further proceedings through a separate order. If Underhill wishes to request
the assistance of counsel, he should file a motion on the Court’s form, which the clerk shall
include with his copy of this Entry.
IT IS SO ORDERED.
PENDLETON - CIF
CORRECTIONAL INDUSTRIAL FACILITY
5124 West Reformatory Road
PENDLETON, IN 46064
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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