PARSONS v. GILBERT
Entry Granting in Part and Denying in Part Defendant's Motion for Summary Judgment - Charles Parsons brought this 42 U.S.C. § 1983 action against Ariene Gilbert, his former parole officer. Mr. Parsons alleges that while he was on parole, his state-mandated GPS ankle monitor began to cause severe pain and injury to his leg. He asserts two related Eighth Amendment claims against Ms. Gilbert, contending that she was (1) deliberately indifferent to his serious medical needs by not pr oviding or seeing to his medical treatment, and (2) deliberately indifferent to the pain and injury caused by the GPS ankle monitor by not assisting with the removal or loosening of the monitor. Ms. Gilbert seeks summary judgment on both claims. O n the first claim, she argues that she owed no duty to provide medical care to Mr. Parsons because he was not a prisoner in the state's custody. On the second claim, Ms. Gilbert argues she was not deliberately indifferent to the harm and pain caused by the monitor, and that in any event, she is entitled to qualified immunity. Ms. Gilbert's motion for summary judgment on the deliberate indifference to serious medical needs claim is granted. That claim is dismissed. Ms. Gilbert 9;s motion for summary judgment on Mr. Parsons's second claim is denied. Ms. Gilbert's motion for summary judgment, dkt. 21 , on Mr. Parsons's deliberate indifference to serious medical needs claim is granted and that claim is dis missed. Summary judgment on the second claim, deliberate indifference to Mr. Parsons's pain and the harm caused by the GPS ankle monitor is denied and that claim will proceed to trial. No partial judgment will enter at this time. Because this action will be resolved either by trial or settlement, the Court on its own motion reconsiders Mr. Parsons's September 21, 2017, motion for assistance with recruiting counsel. That motion, dkt. 28 , is granted. The Court will attempt to rec ruit counsel for Mr. Parsons to assist him in final preparations for trial, for settlement discussions, and for jury or non-jury trial. The Magistrate Judge is requested to schedule this action for a status conference at his earliest opportunity to discuss what remains to be done in preparation for trial and for the possibility of settlement. (SEE ENTRY). Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 2/13/2018. (APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Case No. 1:16-cv-02343-JMS-TAB
Entry Granting in Part and Denying in Part
Defendant’s Motion for Summary Judgment
Charles Parsons brought this 42 U.S.C. § 1983 action against Ariene Gilbert, his former
parole officer. Mr. Parsons alleges that while he was on parole, his state-mandated GPS ankle
monitor began to cause severe pain and injury to his leg. He asserts two related Eighth Amendment
claims against Ms. Gilbert, contending that she was (1) deliberately indifferent to his serious
medical needs by not providing or seeing to his medical treatment, and (2) deliberately indifferent
to the pain and injury caused by the GPS ankle monitor by not assisting with the removal or
loosening of the monitor. Ms. Gilbert seeks summary judgment on both claims. On the first claim,
she argues that she owed no duty to provide medical care to Mr. Parsons because he was not a
prisoner in the state’s custody. On the second claim, Ms. Gilbert argues she was not deliberately
indifferent to the harm and pain caused by the monitor, and that in any event, she is entitled to
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). The movant bears the initial responsibility of informing the district court of the basis of
its motion, and identifying those portions of designated evidence that demonstrate the absence of
a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After “a
properly supported motion for summary judgment is made, the adverse party must set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (quotation marks and citation omitted).
A factual issue is material only if resolving the factual issue might change the outcome of
the case under the governing law. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A
factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict
in favor of the non-moving party on the evidence presented. See Anderson, 477 U.S. at 248. In
deciding a motion for summary judgment, the court “may not ‘assess the credibility of witnesses,
choose between competing reasonable inferences, or balance the relative weight of conflicting
evidence.’” Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 808 (N.D. Ill. 2010) (quoting Stokes v.
Bd. of Educ. of the City of Chi., 599 F.3d 617, 619 (7th Cir. 2010)). Instead, it must view all the
evidence in the record in the light most favorable to the non-moving party and resolve all factual
disputes in favor of the non-moving party. See Anderson, 477 U.S. at 255.
III. Facts Not in Dispute
For purposes of summary judgment, the material facts are not generally in dispute. There
is no particular disputed fact that is material to the resolution of the summary judgment motion
because, for the most part, the operative questions are questions of law. These facts are taken from
the undisputed fact section of Ms. Gilbert’s brief, which are uncontested by Mr. Parsons.
Charles Parsons was released to parole by the Indiana Department of Correction in early
2014. He was required to wear a GPS ankle monitor that was affixed to his leg at the direction of
the state. He was required to obtain his parole officer’s approval for many activities away from his
home, including visits to a doctor in Kentucky. In June of that year Ms. Gilbert became
Mr. Parsons’ parole officer. Two months later, sometime in August, Mr. Parsons’ leg became
swollen and bloody underneath the monitor. When Ms. Gilbert visited Mr. Parsons at his home in
early August, he asked her to help him get the monitor removed, but she would not help him.
Approximately two weeks later Mr. Parsons saw Ms. Gilbert in her office and again asked for help
with the monitor. She told him that the person who could take it off was on vacation for “the next
week or so.” A few days later when Mr. Parsons saw an audiologist, that doctor saw his leg and
immediately sent Mr. Parsons to the emergency room. Emergency room doctors were told by
someone, not Ms. Gilbert, that the monitor could not be cut off, so they prescribed medication for
“open lesions and [an] ulcerous foot . . . and . . . [an] infection.” The next day Mr. Parsons took a
certificate from the hospital to another state official, a SOMM instructor, who had the monitor cut
Ms. Gilbert seeks summary judgment on both of Mr. Parsons’s deliberate indifference
A. Deliberate Indifference to Serious Medical Needs
Ms. Gilbert seeks summary judgment on Mr. Parsons’s medical care claim arguing that
because Mr. Parsons was a parolee, not an inmate, she had no duty to see to his medical needs and
provide him medical care and, therefore, she cannot be liable for being deliberately indifferent to
Mr. Parsons’s serious medical needs.
In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Court recognized the state’s obligation
to provide adequate medical care to its prisoners. Accord, Farmer v. Brennan, 511 U.S. 825, 832
(1994). But a parolee, who is, albeit, in a form of custody, is nevertheless not a prisoner, and the
affirmative duty imposed on the state to provide medical care to its prisoners does not extend to a
non-prisoner parolee. This rationale was explained in DeShaney v. Winnebago Cty. Dep’t of Soc.
Servs., 489 U.S. 189, 196 (1989). There, the Court addressed the state’s duty to a child who had
notified state officials of his father’s abuse. In rejecting the child’s argument that an affirmative
duty to protect him existed, the Court examined and explained its Estelle holding:
[W]hen the State takes a person into its custody and holds him there against his
will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being. The rationale for this principle
is simple enough: when the State by the affirmative exercise of its power so
restrains an individual’s liberty that it renders him unable to care for himself, and
at the same time fails to provide for his basic human needs – e.g., food, clothing,
shelter, medical care, and reasonable safety – it transgresses the substantive limits
on state action set by the Eighth Amendment and the Due Process Clause. The
affirmative duty to protect arises not from the State’s knowledge of the
individual’s predicament or from its expressions of intent to help him, but from
the limitation which it has imposed on his freedom to act on his own behalf.
Id. at 199–200 (citations omitted; emphasis added). Because Mr. Parsons was a parolee, although
subject to the terms of his parole agreement, he did not suffer sufficient limitation on his freedom
to “act on his own behalf” that prevented him from obtaining medical attention on his own.
Therefore the government – and Ms. Gilbert – did not have an affirmative duty to assume
responsibility and provide him medical care. Mr. Parsons had the ability to, and indeed did, seek
and receive medical care on his own. This particular level of freedom removes Mr. Parson from
the group of persons for whom the state must provide medical care.
Ms. Gilbert’s motion for summary judgment on the deliberate indifference to serious
medical needs claim is granted. That claim is dismissed.
B. Deliberate Indifference to the Infliction of Pain and Harm
Ms. Gilbert also seeks summary judgment on Mr. Parsons’s claim that she was deliberately
indifferent to the fact that the state-mandated GPS ankle monitor was causing him intense pain and
injury. She also argues that she is entitled to qualified immunity on this claim. The qualified
immunity argument will be addressed first.
Certain officials, including police officers and other state actors who perform
“discretionary functions,” are shielded from suit if their conduct did not violate a “clearly
established statutory or constitutional right[ ] of which a reasonable person would have known.”
Saucier v. Katz, 533 U.S. 194, 200–01 (2001); Wilson v. Layne, 526 U.S. 603, 609 (1999). This
doctrine, known as “qualified immunity,” provides not only a defense to liability, but immunity
from suit. Hunter v. Bryant, 502 U.S. 224, 227 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). To gain the protection of the doctrine, a defendant must show that (1) the plaintiff has not
demonstrated “a deprivation of an actual constitutional right” or (2) that the right at issue was not
“clearly established at the time of the alleged violation.” Conn v. Gabbert, 526 U.S. 286, 290
Mr. Parsons need not point to an identical case finding the alleged violation unlawful, “but
existing precedent must have placed the statutory or constitutional question beyond debate.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011). “[W]e look first to controlling Supreme Court precedent and our own circuit
decisions on the issue.” Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000). If no
controlling precedent exists, “we broaden our survey to include all relevant caselaw in order to
determine ‘whether there was such a clear trend in the caselaw that we can say with fair assurance
that the recognition of the right by a controlling precedent was merely a question of time.’” Id.
(quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)). In the absence of
controlling or persuasive authority, Mr. Parsons can demonstrate clearly established law by
proving that Ms. Gilbert’s conduct was “so egregious and unreasonable that . . . no reasonable
[official] could have thought [she] was acting lawfully.” Abbott v. Sangamon County, 705 F.3d
706, 724 (7th Cir. 2013); see also Jacobs, 215 F.3d at 767 (“In some rare cases, where the
constitutional violation is patently obvious, the plaintiffs may not be required to present the court
with any analogous cases. . . .”).
Thus the relevant dispositive inquiry in this case in determining whether a right is clearly
established is whether it would be clear to a reasonable official that her conduct was unlawful in
the situation she confronted. Saucier, 533 U.S. at 202.
Deprivation of an Actual Constitutional Right
(a) Actual Constitutional Right
The constitutional right at issue here is the Eighth Amendment’s proscription against cruel
and unusual punishment. “‘[T]he unnecessary and wanton infliction of pain . . . constitutes cruel
and unusual punishment forbidden by the Eighth Amendment.’” Whitley v. Albers, 475 U.S. 312,
319 (1986) (some internal quotation marks omitted). “Among ‘unnecessary and wanton’
inflictions of pain are those that are ‘totally without penological justification.’” Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). “Infliction of pain that is ‘totally without penological
justification’ is per se malicious.” Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004), quoting
from Hope v. Pelzer, 536 U.S. 730, 737 (2002), in turn quoting Rhodes, 452 U.S. at 346.
Mr. Parsons had an actual constitutional right to be free from unnecessary and wanton pain and
injury caused by the continuous presence of the ankle monitor. The pain and injury caused by the
ankle monitor was totally without penological justification.
(b) Deprivation of that Right
Ms. Gilbert contends, in part, that it was reasonable for her to not do anything about the
pain Mr. Parsons complained of because she knew he had a doctor appointment in the near future.
A reasonable fact finder could determine that despite that knowledge, Ms. Gilbert was deliberately
indifferent to Mr. Parsons’s current pain and suffering by allowing it to continue, even if just for a
few days. Additionally, the doctor appointment was with an audiologist – Mr. Parsons’s hearing
doctor – not normally the medical specialty dealing with injuries to limbs and open wounds.
Ms. Gilbert also contends that Mr. Parsons, even though he was a parolee, was not a
prisoner and therefore could have sought emergency treatment on his own at any time. That is
irrelevant to whether Ms. Gilbert’s actions in twice declining to address Mr. Parsons’s pain was
an unconstitutional deliberate indifference to his pain and injury. Mr. Parsons’s pain and injury
was ongoing. Additionally, the fact that when he did seek treatment in an emergency room he was
unable to have the ankle monitor removed is evidence that, if true, a fact finder could take into
account to find that Ms. Gilbert was deliberately indifferent to Mr. Parsons’s pain and injury. This
is relevant in light of Ms. Gilbert being one of only a very few people who could have the ankle
monitor removed. 1
Ms. Gilbert’s argument that Mr. Parsons only told her about the ankle monitor problem on
two occasions is also unpersuasive, as there is no minimum number of times that an official would
Ms. Gilbert has not argued that she lacked authority to either remove, adjust, or relocate
the ankle monitor. She has not argued that she lacked authority to request another responsible state
official do so. Likewise, there is no evidence that the SOMM instructor who eventually removed
the monitor is the person referred to by Ms. Gilbert who was authorized to adjust the ankle monitor
for Mr. Parsons. There is no evidence that the person authorized to take the monitor off or adjust
it was on vacation, unavailable, or that another person had been designated to handle urgent matters
with GPS ankle monitors during the aforementioned person’s absence.
need to be put on notice about an unconstitutional condition before the law required some remedial
action to be taken. A reasonable fact finder could determine that Ms. Gilbert showed deliberate
indifference following the first time Mr. Parsons asked her for help with the ankle monitor.
In sum, there is evidence upon which a reasonable finder of fact could conclude that
Ms. Gilbert deprived Mr. Parsons of his right to be free from the pain and injury caused by the
Clearly Established Right
The next inquiry is whether the actual constitutional right at issue is clearly established. “A
plaintiff can demonstrate that the contours of a constitutional right are so established as to make
the unconstitutionality obvious.” Ault v. Speicher, 634 F.3d 942, 946 (7th Cir. 2011). At the outset,
the state has a very limited but otherwise affirmative duty to “assume some responsibility for
[Mr. Parsons’s] safety and general well-being” while he remained under its supervision and subject
to the restrictions of parole. DeShaney, 489 U.S. at 200 (emphasis added). What responsibility is
owed depends on the nature and scope of the restrictions placed on the individual’s freedoms. Id.
As concerns the ankle monitor, Mr. Parsons suffered from a complete lack of freedom – he could
not loosen it, remove it, or otherwise adjust it. Thus, when it became the source of Mr. Parsons’s
pain and injury, the ability to remedy the pain and injury was held solely by the state.
With the right to be free from unnecessary and wanton pain without penological
justification, and the ability to remove or alleviate that pain being completely with the state, it
follows that Ms. Gilbert’s duty to do something about the pain and injury was constitutionally
obvious. While Mr. Parsons was not a state prisoner at the time of his ankle injury, nevertheless
as a parolee he was in a form of custody. Hankins v. Lowe, 786 F.3d 603 (7th Cir. 2015); Jones v.
Cunningham, 371 U.S. 236, 241–43 (1963); Cochran v. Buss, 381 F.3d 637, 640 (7th Cir. 2004);
White v. Indiana Parole Board, 266 F.3d 759, 763 (7th Cir. 2001); Wilson v. Flaherty, 689 F.3d
332, 336 (4th Cir. 2012). Ms. Gilbert was well aware of Mr. Parsons’s status as being in a form of
custody as she directed many facets of his life and movements. She knew that Mr. Parsons had no
authority to loosen or remove the GPS ankle monitor. This law, too, was clearly established well
before Ms. Gilbert’s interactions with Mr. Parsons. Therefore, if Ms. Gilbert was aware of the pain
and suffering experienced by Mr. Parsons due to the ankle monitor, and did nothing, she could be
found to have violated Mr. Parsons’s constitutional rights.
The contours of this clearly established constitutional right can also be found in well-settled
law concerning the duty of state officials to intervene and stop pain and harm when they see it.
Police officers may not stand by and watch other officers commit battery, and they must intervene
to stop the constitutional deprivation. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Prison
guards cannot ignore inmates’ complaints of pain. Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940
(7th Cir. 2015). The law is clearly established that law enforcement officials cannot stand by idly
and watch constitutional violations in progress if they have the authority and capability to
intervene. Ms. Gilbert had both, and a reasonable finder of fact could determine that she was
deliberately indifferent to Mr. Parsons’s pain and injury caused by the ankle monitor that she could
have caused to be adjusted, removed, or relocated.
Ms. Gilbert is therefore not entitled to qualified immunity.
Finally, Ms. Gilbert presents several other alternative arguments to support her motion for
summary judgment. Those contentions have been addressed above when addressing the question
of whether there had been a deprivation of a constitutional right. The arguments at best create fact
questions for the jury. On summary judgment, the facts must be viewed in a light most favorable
to Mr. Parsons, and a reasonable fact finder could determine that Ms. Gilbert was deliberately
indifferent to Mr. Parsons’s requests for help despite plainly visible circumstances calling for
Ms. Gilbert’s motion for summary judgment on Mr. Parsons’s second claim is denied.
Ms. Gilbert’s motion for summary judgment, dkt. , on Mr. Parsons’s deliberate
indifference to serious medical needs claim is granted and that claim is dismissed. Summary
judgment on the second claim, deliberate indifference to Mr. Parsons’s pain and the harm caused
by the GPS ankle monitor is denied and that claim will proceed to trial. No partial judgment will
enter at this time.
Because this action will be resolved either by trial or settlement, the Court on its own
motion reconsiders Mr. Parsons’s September 21, 2017, motion for assistance with recruiting
counsel. That motion, dkt. , is granted. The Court will attempt to recruit counsel for
Mr. Parsons to assist him in final preparations for trial, for settlement discussions, and for jury or
non-jury trial. The Magistrate Judge is requested to schedule this action for a status conference at
his earliest opportunity to discuss what remains to be done in preparation for trial and for the
possibility of settlement.
IT IS SO ORDERED.
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
David A. Arthur
OFFICE OF THE ATTORNEY GENERAL
INDIANA ATTORNEY GENERAL
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