HENDRICKS v. WEXFORD HEALTH et al

Filing 64

Entry Granting Summary Judgment and Directing Final Judgment - The defendants' unopposed motions for summary judgment, dkt. 54 and dkt. 57 , are granted. Mr. Hendricks's claims are dismissed with prejudice. Final judgment shall issue accordingly. (See Entry). Signed by Judge Jane Magnus-Stinson on 12/12/2019. (JDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL E. HENDRICKS,
Plaintiff,
v.
WEXFORD OF INDIANA, LLC, et al.
Defendants.

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No. 1:18-cv-01714-JMS-DLP

Entry Granting Summary Judgment and Directing Final Judgment
Plaintiff Michael Hendricks, who at all relevant times was incarcerated at Pendleton
Correctional Facility (“PCF”), brought this action pursuant to 42 U.S.C. § 1983 against defendants
Nurse Rebecca Davis, Dr. Paul Talbot, and Wexford of Indiana (“Wexford”), alleging that the
defendants were deliberately indifferent to his serious medical needs in violation of his Eighth
Amendment rights.
The defendants now move for summary judgment on the merits of Mr. Hendricks’s claims.
Nurse Rebecca Davis seeks judgment as to allegations regarding her treatment of Mr. Hendricks
on March 25, 2017, when Corizon, LLC, was the medical service provider for PCF. Dkt. 55. Dr.
Paul Talbot and Wexford seek judgment as to allegations regarding Mr. Hendricks’s treatment
after April 1, 2017, when Wexford had assumed the role as PCF’s medical service provider. Dkt.
58.
Mr. Hendricks has not responded to the defendants’ motions, and the time to do so has
passed, leaving the defendants’ motions unopposed. For the reasons explained, the defendants’
unopposed motions for summary judgment, dkt. [54] and dkt. [57], are granted.

I.

Standard of Review

Summary judgment should be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to the
non-moving party, and all reasonable inferences are drawn in the non-movant’s favor. Ault v.
Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
II.

Factual Background

As noted above, Mr. Hendricks failed to respond to the defendants’ motion for summary
judgment. The consequence is that Mr. Hendricks has conceded the defendants’ version of the
events. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the
nonmovant as mandated by the local rules results in an admission.”). The local rule provides:
A party opposing a summary judgment motion must . . . file and serve a response
brief and any evidence . . . that the party relies on to oppose the motion. The
response must . . . identif[y] the potentially determinative facts and factual disputes
that the party contends demonstrate a dispute of fact precluding summary judgment.
S.D. Ind. Local Rule 56-1 This does not alter the standard for assessing a Rule 56 motion, but it
does “[r]educ[e] the pool” from which the facts and inferences relative to such a motion may be
drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).
Accordingly, the following facts, unopposed by Mr. Hendricks and supported by
admissible evidence, are accepted as true. Although the defendants present substantial evidence,
the Court sets forth only the facts necessary to resolve Mr. Hendricks’s claims given the unopposed
nature of the defendants’ motion.
On March 25, 2017, Mr. Hendricks was playing basketball at PCF when he jumped for a
rebound, landed on another player’s foot, and felt a pop when his foot twisted. Dkt. 16 at 3.

Mr. Hendricks was in extreme pain and was sent to the medical unit in a wheelchair because he
could not walk. Id. at 3-4. Nurse Rebecca Davis treated him that day. She took his vital signs;
wrapped his ankle in an elastic bandage; requested a two-day medical lay-in (for meals and
medications to be delivered to his cell); and gave him Tylenol, ice compresses, crutches, and the
use of a wheelchair. Id. at 4-5; dkt. 56-1 at ¶¶ 6-7. Mr. Hendricks requested that she recommend
he be moved to a bottom bunk, and she advised him that she did not have the authority to issue a
bottom bunk pass. Dkt. 16 at 5. She recommended he return for further evaluation, including for a
possible referral for a bottom bunk, in two days. Dkt. 56-1 at ¶ 7. Nurse Davis attested that she
provided Mr. Hendricks’s name to the nursing and doctor sick call list so that they would put his
name on the list for a follow-up visit. Id. at ¶ 9.
Mr. Hendricks’s name apparently never made it to the sick call list. Dkt. 16 at 5.
Mr. Hendricks was not called for a medical appointment on March 26, 2017, so on March 27,
2017, he asked a correctional officer to contact medical about his injury because he had not yet
received a medical pass. Id. at 5-6. That officer called medical, and they advised him he was not
on the call list and would not be seen on March 27, but he would be on the list for March 28. On
March 28, he again did not receive a pass, so the officer again contacted medical, who told him to
send Mr. Hendricks to medical. Id. at 6.
On March 28, 2017, Mr. Hendricks saw a nurse who x-rayed his right foot and provided
him with pain medication. Id. On March 29, 2017, Dr. Paul Talbot examined Mr. Hendricks for
the first time as it related to this injury. Dr. Talbot reviewed the x-ray which revealed swelling but
no fracture. Dkt. 59-1 at ¶ 6. He noted tenderness in Mr. Hendricks’s ankle, but nothing indicated
a torn ligament or serious injury. Id. He ordered pain medication for one week, a follow-up in a
week, permits for a bottom bunk pass and bottom range pass, a medical lay-in for thirty days,

crutches, and a wheelchair for longer distances, and he placed Mr. Hendricks’s ankle in a splint.
Id.
On April 11, 2017, Mr. Hendricks fell down in the shower and further injured his right
ankle. Id. at ¶ 7. He went to medical where a nurse noted swelling and tenderness. Dkt. 16 at 7.
She contacted Dr. Talbot, who ordered that she provide Mr. Hendricks with an injection of
Toradol. Dkt. 59-1 at ¶ 7. The next day, Dr. Talbot examined Mr. Hendricks. He concluded that
Mr. Hendricks had a recurrent right ankle sprain, and he counseled Mr. Hendricks to not bear any
weight on his foot to provide time for it to heal. Id. at ¶ 8. Dr. Talbot ordered that Mr. Hendricks
be moved to the medical block for handicap showers for thirty days and crutches for thirty days,
for all medication and meals to be delivered for thirty days, and for Mr. Hendricks to return for a
follow-up in two to four weeks. Id. At his next visit, on April 27, 2017, Dr. Talbot found the
swelling had resolved but that Mr. Hendricks was unable to move his ankle due to tenderness and
pain, so he ordered that Mr. Hendricks continue no weight-bearing activities and provided
Tramadol for pain. Id. at ¶ 9. Dr. Talbot also told Mr. Hendricks he would discuss his case with
the Regional Medical Director for next steps. Id.
Mr. Hendricks received another x-ray on May 18, 2017, that showed no abnormality except
mild degenerative changes and resolved effusion. Id. at ¶¶ 10-11. At a follow-up visit on May 31,
2017, Dr. Talbot assessed Mr. Hendricks to have chronic degenerative joint disease of the right
ankle with a resolved prior sprain. Id. at ¶ 11. In consultation with the Regional Medical Director,
Dr. Talbot concluded that no further imaging was necessary but ordered that Mr. Hendricks
continue with an ankle support and use of a cane, and he further ordered that he receive on-site
physical therapy. Id.

Dr. Talbot next discussed Mr. Hendricks’s ankle issue at a chronic care appointment on
July 10, 2017. Id. at ¶ 13. Mr. Hendricks still walked with a cane, wore a splint, and reported mild
tenderness in his ankle. Id. Dr. Talbot noted he should continue with physical therapy. Id. He
ordered an additional x-ray, which was taken the following day and showed no abnormality. Id. at
¶ 14.
Mr. Hendricks attended physical therapy on July 17, 2017, and July 27, 2017, where
physical therapist Dana Miller provided him with strengthening exercises. Id. at ¶¶ 15-16.
Dr. Talbot saw Mr. Hendricks again on August 2, 2017, where Mr. Hendricks requested an air cast
and topical pain patch. Id. at ¶ 17. Dr. Talbot provided the pain patch and an ankle support, and he
noted that Mr. Hendricks had reported improvement with the physical therapy. Id. Mr. Hendricks
had his third physical therapy appointment with Ms. Miller on August 10, 2017. Id. at ¶ 18. She
noted some improvement with the therapy but, because arthritic issues were causing pain, she did
not recommend further therapy. Id.
Dr. Talbot next saw Mr. Hendricks on October 5, 2017. Because Mr. Hendricks was still
limping, using a cane, and reporting pain, Dr. Talbot submitted a request for Mr. Hendricks to
receive an MRI off-site, as well as an ankle brace and pain medication. Id. at ¶ 19.
On November 14, 2017, Mr. Hendricks received an MRI at Eskenazi Hospital in
Indianapolis. Dkt. 59-3 at 225-26. His MRI revealed mild bone bruises to the medial malleolus,
a tear of the anterior talofibular ligament, as well as two other ligament sprains. Id. After
reviewing the results of the MRI, Dr. Talbot submitted an off-site patient request for Mr. Hendricks
to receive an evaluation from an orthopedic specialist. Dkt. 59-1 at ¶ 21.
On January 5, 2018, Mr. Hendricks received an evaluation from orthopedic specialist Tyler
McCarroll. Dkt. 59-3 at 227-29. Dr. McCarroll noted a history of chronic ankle instability

secondary to an injury in March 2017 and noted some swelling and decreased strength in his ankle.
Id. He recommended that Mr. Hendricks receive a lace-up ankle brace (or the equivalent), physical
therapy, pain medication, and a follow-up visit after six weeks. Id.
On January 10, 2018, Dr. Talbot had another chronic care visit with Mr. Hendricks where
they discussed his ankle. Dkt. 59-1 at ¶ 23. He again reviewed the MRI results and ordered that he
was to receive a permit for a cane, bottom bunk and bottom range passes, anti-inflammatory
medication (which he refused), and Lidocaine patches. Id. Dr. Talbot also informed Mr. Hendricks
that he had been approved for further on-site physical therapy and he was to be provided with a
laced ankle support. Id.
Mr. Hendricks had physical therapy on January 18, 2018, February 1, 2018, and February
13, 2018, with physical therapist Dana Miller. Id. at ¶¶ 24-26. At the third appointment, Ms. Miller
noted that he was not improving. Dkt. 59-3 at 155.
On February 16, 2018, Mr. Hendricks returned to Eskenazi Hospital for a follow-up
orthopedic appointment, and his treatment provider referred him to Dr. Shively for possible surgery
given the persistence of the ankle instability. Id. at 223-24.
On February 22, 2018, Mr. Hendricks had his seventh and final physical therapy
appointment with Ms. Miller. Id. at 149. There, they discussed the lack of progress with physical
therapy, and Ms. Miller noted he would soon be seeing a specialist about possible surgery. Id.
On March 14, 2018, Dr. Talbot saw Mr. Hendricks again regarding his ankle. Dkt. 59-1 at
¶ 29. Dr. Talbot noted that Mr. Hendricks had received an ankle support and Lidocaine patches but
was reporting they were not helping. Id. Dr. Talbot also noted that Mr. Hendricks had been
approved to see an orthopedic specialist at Eskenazi Hospital. Id. Dr. Talbot ordered a month’s
worth of Tramadol for Mr. Hendricks’s ongoing pain. Id.

On April 2, 2018, Dr. Shively evaluated Mr. Hendricks. Dr. Shively noted that he was
seeing Mr. Hendricks for a second opinion after he had previously been evaluated regarding chronic
ankle instability secondary to his March 2017 basketball injury. Id. at ¶ 30; dkt. 59-3 at 222.
Dr. Shively discussed with Mr. Hendricks the potential for a surgical correction, but in his opinion
this surgery would “fail due to the natural pull of his foot.” Dkt. 59-3 at 222. Dr. Shively did not
think surgery was the best option at that time, and he decided to provide a series of casts over
several weeks to provide stability to the ankle. Id. Mr. Hendricks shortly thereafter received his
first cast. He would also return a few weeks later to receive his second cast. Id.
On May 9, 2018, Dr. Shively replaced Mr. Hendricks’s second cast with a third cast, and he
told Mr. Hendricks that he would likely have to be in a lifelong brace to help with the stability of
his ankle. Id. at 234-35. Mr. Hendricks returned for another cast replacement on May 14, 2018. Id.
at 231-32. Dr. Shively recommended an EMG nerve conduction study. Id. He recommended a
future removal of the cast, with Mr. Hendricks to receive a boot until he could be fit for a custom
ankle foot orthosis (“AFO”), which might be a long-term or lifetime assistive device. Id.
Mr. Hendricks thereafter received another cast, which was to be removed by the facility physicians
when they were ready to transition him into the boot and the AFO. Id.
On May 15, 2018, Dr. Talbot again saw Mr. Hendricks regarding his ankle instability.
Dr. Talbot noted Mr. Hendricks had been seen by a separate orthopedic specialist, and that his
condition was being managed non-surgically with casts. Dkt. 59-1 at ¶ 33. Dr. Talbot placed a
referral for Mr. Hendricks to receive a nerve conduction study and to continue with the
recommendations of his outside specialists. Id. Dr. Talbot saw Mr. Hendricks again on May 22,
2018, where he provided Tylenol for pain management, recommended he lose weight to decrease
pressure on his ankle, and discussed his off-site treatment. Id. at ¶ 34. On June 12, 2019, Dr. Talbot

submitted a request for Mr. Hendricks to be sent to a specialized orthotic center for fitting his AFO.
Id. at ¶ 35.
On June 19, 2018, Mr. Hendricks received an EMG nerve conduction study, which returned
normal with no clear evidence of neuropathy. Dkt. 59-3 at 233.
On June 26, 2018, Mr. Hendricks had a chronic care visit with Dr. Talbot where they
discussed Dr. Talbot’s treatment plan for Mr. Hendricks’s ankle. Dkt. 59-1 at ¶ 37. Dr. Talbot
noted Mr. Hendricks had been fitted for the AFO and had another off-site follow-up visit approved.
Id.
On August 13, 2018, Dr. Shively again evaluated Mr. Hendricks. Dkt. 59-3 at 232.
Dr. Shively noted that Mr. Hendricks had transitioned to an AFO and walked with a cane, and that
he still experienced pain with any weight-bearing activity. Id. Dr. Shively noted there was no
obvious reason why Mr. Hendricks could not evert his foot—that is, turn the sole of his foot
outwards—but he still felt surgery was not warranted. Id. He encouraged Mr. Hendricks to continue
wearing the AFO and work on strengthening his ankle. Id. Mr. Hendricks was only to follow up
“PRN,” which means “as needed.” Id.; Dkt. 59-1 at ¶ 38.
Dr. Talbot attested that once he referred Mr. Hendricks to an orthopedic specialist, he
deferred ongoing management to the recommendations of the specialists. Dkt. 59-1 at ¶ 41. The
specialists’ recommendations aligned with Dr. Talbot’s, insofar as they focused on non-weight
bearing activities, support devices for the ankle, and physical therapy. Id. at ¶ 42. None of the
specialists recommended surgery. Id. Dr. Talbot opined that, given Mr. Hendricks’s history of ankle
injury and rolling, continued use of the AFO was the best course of treatment. Id. at ¶ 43.
At his deposition, taken April 23, 2019, Mr. Hendricks walked with a cane and continued
to use his AFO. Dkt. 59-2 at 41-42. Mr. Hendricks stated the AFO helped. Id. at 40. Mr. Hendricks

stated he was suing Nurse Davis due to her refusal to call the doctor and issue him a bottom bunk
pass. Id. at 15. He also disagreed with her decision to wrap his ankle. Id. He was suing Dr. Talbot
because he believed Dr. Talbot delayed treatment by waiting several months to order an MRI. Id.
at 16. He thinks the delay in the MRI caused a delay in getting a walking cast and resulted in a
lifelong injury. Id. at 34-35.
III.

Discussion

Mr. Hendricks asserts Eighth Amendment medical care claims against the defendants. At
all times relevant to Mr. Hendricks’s claim, 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.”).
Pursuant to the Eighth Amendment, prison officials have a duty to ensure that inmates
receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 835 (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). Deliberate indifference in this context is “something akin to recklessness.” Arnett v.
Webster, 658 F.3d 742, 751 (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.” Id. at 753.

For a medical practitioner, deliberate indifference can be shown by a “treatment decision
that is ‘so far afield of accepted professional standards’ that a jury could find it was not the product
of medical judgment.” Cesal v. Moats, 851 F.3d 714, 724 (7th Cir. 2017) (quoting Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)). 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).
No defendant argues for summary judgment based on the lack of a serious medical need.
Accordingly, the Court will consider only whether each defendant was deliberately indifferent to
Mr. Hendricks’s injury.
A. Nurse Davis
The undisputed evidence shows Nurse Davis provided Mr. Hendricks with prompt
treatment on March 25, 2017, the day of his injury. She examined his ankle, wrapped it in a
bandage to immobilize it, provided instructions on self-care, requested a medical lay-in for two
days, and provided Mr. Hendricks with Tylenol, crutches, and a wheelchair. She ordered ice
compresses as needed and advised him to return if his symptoms did not improve. Although Mr.
Hendricks contends that she wrapped his ankle too tightly in the bandage, there is no evidence that
the bandage caused or aggravated his injury. Her treatment decisions were guided by her
professional judgment and training, dkt. 56-1 at ¶ 8, and do not reflect deliberate indifference.
Further, she cannot be deliberately indifferent for not issuing a bottom bunk pass when she had no
authority to do so herself. She noted his request for a bottom bunk and placed him on a two-day
lay-in to limit his movement until he could be evaluated at a follow-up visit. Dkt. 56-2 at 3-4.

There is some dispute as to whether Nurse Davis provided Mr. Hendricks’s name to the
nurse or doctor to be placed on the sick list for a follow-up visit, but this does not prevent a decision
on summary judgment. In deciding a motion for summary judgment, the Court need only consider
disputed facts that are material to the decision. A disputed fact is material if it might affect the
outcome of the suit. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words,
while there may be facts that are in dispute, summary judgment is appropriate if those facts are not
outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Assuming
Mr. Hendricks was not on a sick call list for March 26 or 27, he was seen on March 28.
Mr. Hendricks testified that in the days before his follow-up visit, he was able to get into the top
bunk with the assistance of other offenders. Dkt. 59-2 at 22. Noting Mr. Hendricks had access to
ice, Tylenol, crutches, and a wheelchair during that time, there is no evidence that the one or twoday delay before his follow-up appointment exacerbated his injury or unnecessarily prolonged his
pain. Arnett, 658 F.3d at 753.
No reasonable factfinder could conclude that Nurse Davis was deliberately indifferent to
Mr. Hendricks’s injury. She is therefore entitled to summary judgment.
B. Dr. Talbot
The undisputed evidence shows that Dr. Talbot responded appropriately to Mr. Hendricks’s
complaints. During his first visit with Mr. Hendricks, he ordered a number of assistive permits and
prescriptions, including crutches, a cane, pain medication, and a splint to immobilize his ankle.
Dr. Hendricks also recommended a bottom bunk pass and a 30-day lay-in so that Mr. Hendricks
would not have to travel any distance. Dr. Talbot did not deny or delay treatment. As
Mr. Hendricks’s ankle issues persisted, he consulted with the regional director and referred
Mr. Hendricks to outside specialists for imaging and treatment. He also referred Mr. Hendricks to

participate in physical therapy. The specialists treated Mr. Hendricks over the course of several
months, and their treatment recommendations largely mirrored Dr. Talbot’s. Dr. Talbot deferred
the ongoing management of Mr. Hendricks’s treatment to the recommendations of specialists.
Mr. Hendricks received the AFO recommended by the specialist, and none of the specialists
recommended surgery. There is no evidence that Dr. Talbot failed to exercise medical judgment
or respond appropriately to Mr. Hendricks’s complaints.
No reasonable factfinder could conclude that Dr. Talbot was deliberately indifferent to Mr.
Hendricks’s injury. He is therefore entitled to summary judgment.
C. Wexford
Because Wexford acts under color of state law by contracting to perform a government
function, i.e. providing medical care to correctional facilities, Wexford 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). Therefore, to prove a deliberate indifference claim against Wexford,
Mr. Hendricks must establish that he suffered a constitutional deprivation as the result of an
express policy or custom of Wexford. Mr. Hendricks must show that Wexford has: (1) an express
policy that, when enforced, caused a constitutional deprivation; (2) a practice that is so wide-spread
that, although not authorized by written or express policy, is so permanent and well settled as to
constitute a custom or usage with the force of law, or (3) an allegation that the constitutional injury
was caused by a person with final policy making authority. Estate of Moreland v. Dieter, 395 F.3d
747, 758-759 (7th Cir. 2004). In addition, the failure to make policy itself may be actionable
conduct. Glisson v. Indiana Dep't of Corr., 849 F.3d 372, 381 (7th Cir. 2017).
Mr. Hendricks stated in his deposition that he included Wexford as a defendant because
they employed Nurse Davis and Dr. Talbot, and someone told him to include Wexford as a

defendant. Dkt. 59-2 at 17-18. “It is well-established that there is no respondeat superior liability
under § 1983.” Jackson 300 F.3d at 766. A private corporation is not vicariously liable for their
employees’ alleged deprivations of others’ civil rights. Id. And, as the Court previously concluded,
there is no evidence that Nurse Davis or Dr. Talbot acted with deliberate indifference. It is well
established that where there is no evidence of any constitutional violation, any claim based on an
unconstitutional policy necessarily fails. Houskins v. Sheahan, 549 F.3d 480, 493-94 (7th Cir.
2008) (collecting cases). Finally, there simply is no evidence in the record that Wexford has any
policy or practice of denying requests for medical treatment or of condoning deliberate
indifference to serious medical needs. Therefore, Wexford is entitled to summary judgment on Mr.
Hendricks’s policy and practice claim.
IV.

Conclusion

For the reasons explained above, the defendants’ unopposed motions for summary
judgment, dkt. [54] and dkt. [57], are granted. Mr. Hendricks’s claims are dismissed with
prejudice. Final judgment shall issue accordingly.

IT IS SO ORDERED.

Date: 12/12/2019

Distribution:
MICHAEL E. HENDRICKS
901825
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Douglass R. Bitner
KATZ KORIN CUNNINGHAM, P.C.
[e-mail]
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]
Mary L. Graham
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]