PRESTON v. O'BRIEN

Filing 40

Entry Discussing Motion for Summary Judgment - Plaintiff Corey Preston, a former inmate of the Putnamville Correctional Facility ("Putnamville"), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendant Dr. O� 39;Brien violated his right to constitutionally adequate medical care. Specifically, Preston alleges that Dr. O'Brien delayed diagnosing and treating his orbital fracture. Dr. O'Brien moves for summary judgment. Judgment consistent with this Entry shall now issue. Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 9/26/2014. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
COREY PRESTON,
Plaintiff,
vs.
DR. O’BRIEN,
Defendant.

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Case No. 2:13-cv-137-WTL-WGH

Entry Discussing Motion for Summary Judgment
Plaintiff Corey Preston, a former inmate of the Putnamville Correctional Facility
(“Putnamville”), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendant Dr.
O’Brien violated his right to constitutionally adequate medical care. Specifically, Preston alleges
that Dr. O’Brien delayed diagnosing and treating his orbital fracture. Dr. O’Brien moves for
summary judgment.1
I. Summary Judgment Standard
“The court shall grant summary judgment 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. The court
should state on the record the reasons for granting or denying the motion.” Fed.R.Civ.P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l–Ind., Inc., 211
F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine issue of material fact, the
court construes all facts in a light most favorable to the non-moving party and draws all reasonable
inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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Mr. Preston filed a belated response to the motion for summary judgment in the form of a “motion for supporting
facts.” The “motion for supporting facts” [dkt 34] is granted to the extent that the Court will consider it as Preston’s
response to the motion for summary judgment. The defendant’s motion to strike [dkt 35] is denied.

(1986). However, neither the “mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts will defeat a motion for
summary judgment.” Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000)
(internal quotes omitted). “In a § 1983 case, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must come forward with sufficient
evidence to create genuine issues of material fact to avoid summary judgment.” McAllister v. Price,
615 F.3d 877, 881 (7th Cir. 2010).
II. Undisputed Facts
The following statement of facts is assessed consistent with the standard set forth above.
That is, as the summary judgment standard requires, the undisputed facts are presented in the light
most favorable to Preston 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 (2000). Facts
relevant to each of Mr. Preston’s allegations of deliberate indifference and malpractice are
discussed together.
A. Mr. Preston’s Injury and Initial Treatment
On September 12, 2010, while he was an inmate at Putnamville, Mr. Preston was hit in the
face by another offender. That day, Mr. Preston was taken to the medical unit, where Charlotte
Dean, LPN, assessed two lacerations on his right eye and a scratch on the side of his nose and under
his nose. Exhibit C to Defendant’s Motion for Summary Judgment, Medical Records of Corey
Preston (“Exhibit C”), at 1. Nurse Dean applied steri-strips to Mr. Preston’s eye and gave him
aspirin. Id. She did not note any other injuries. Id. Mr. Preston submitted a Request for Healthcare
on September 16, 2010, reporting that he needed to see the doctor for his right eye and he had
dizziness and headaches and his face was swollen. Id. at 2. Mr. Preston submitted two Requests for
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Health Care on September 19, 2010, stating that he saw the nurse on September 12 and was
supposed to see the doctor but he had not yet. Id. at 3-4. He complained of significant swelling
under his eye and that his nose was numb. Id. Nursing staff responded to his Requests on September
21, 2010 and informed Mr. Preston that he was scheduled for an x-ray and advised him to take
Ibuprofen as needed and use ice for discomfort. Id. at 4. On September 21, 2010, Preston saw
Cynthia Moore-Sivert, L.P.N. for right eye swelling. Id. at 5-8. Mr. Preston said that he could see
fine except from the right side of his right eye and that he had pain all over his head. Id. Nurse
Moore-Sivert noted that the right eye was swollen completely around and was completely blood
shot. She took Preston’s vital signs and contacted Dr. O’Brien and Dr. O’Brien ordered an x-ray.
This was the first time Dr. O’Brien was aware of Preston’s injuries. Exhibit B to Defendant’s
Motion for Summary Judgment, Affidavit of Dr. O’Brien (“Exhibit B”), para. 4.
On September 22, 2010, Mr. Preston submitted a Request for Healthcare reporting that he
was in behavioral segregation and did not want to miss his appointment for his x-ray. Exhibit C at
10. He also reported pain in his right eye and numbness in his face. He also submitted another
Request for Healthcare that day stating that he was spitting up blood and requesting his x-ray. Id.
at 11. Mr. Preston received the x-ray. Dr. O’Brien examined Mr. Preston for the first time on
September 23, 2010. Id. at 12-21.
B. Treatment for Pain
During his September 23, 2010 exam, Dr. O’Brien prescribed Mr. Preston Vicodin for 10
days for pain and submitted a consultation request for a CT scan. Id. at 16. Mr. Preston was seen in
the Chronic Care Clinic on September 25, 2010 by Dr. Person for his chronic health conditions. Id.

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at 22-23. On September 26, 2010, Dr. O’Brien renewed Mr. Preston’s Vicodin for 10 days.2 Id. at
24-29. In his Request for Healthcare submitted on September 28, 2010, Mr. Preston reported pain
in his eye and nose and numbness. Id. at 31. Mr. Preston had an appointment with Dr. O’Brien on
September 29, 2010, but the appointment was cancelled because Dr. O’Brien was ill. Id. at 32. On
September 30, 2010, Dr. O’Brien examined Mr. Preston and noted that the fracture was stable. Id.
at 33-35. Dr. O’Brien thought that Mr. Preston was doing well, with no double vision or pain over
his sinuses. Id. His eye movement was also intact and symmetrical. Id.
Mr. Preston submitted a Request for Healthcare on October 1, 2010 stating that he wanted
to take the Vicodin that Dr. O’Brien ordered because he was in pain. Id. at 39. The Request for
Health Care states: “Dr. O’Brien have order pain medication for me for am and pm. The order is
Vicodin 500. I wish to take my medication!” Id. Medical staff responded to the Request on October
3, 2010 and notified Mr. Preston that his Vicodin was discontinued. Id. Mr. Preston submitted a
Request for Healthcare on October 4, 2010 stating that he had pain and numbness. Id. at 41. On
October 6, 2010, Dr. O’Brien prescribed Vicodin again for 10 days. Id. at 43-44 and 46-48. Medical
staff responded to Mr. Preston’s Request on October 6, 2010 and informed Mr. Preston that
medication had been ordered. Id. at 41.
On October 17, 2010, Mr. Preston submitted a Request for Healthcare that he was in pain
and his pain medication expired. Id. at 51. In response, medical staff sent his Request to the doctor.
Id. Mr. Preston was seen in nursing sick call on October 19, 2010. Id. at 52-54. Mr. Preston reported
pain in his head and headaches. Id. The nurse took his vital signs and noted some swelling in the

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The medical records identify this as “resubmit of deleted approved . . . for Vicodin . . . dates 9/23-10/3/10” but do not
explain why the original approval was deleted. Id. at 27. There is no evidence that Dr. O’Brien caused the deletion or
delayed in resubmitting the prescription. 

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right eye area. Id. The nurse noted that she would request that Dr. O’Brien see Mr. Preston to
discuss pain medication. Id. Mr. Preston had a CT scan on October 22, 2010 at the Plainfield
Correctional Facility. Id. at 55-58. Mr. Preston submitted a Request for Healthcare on October 26,
2010 requesting the results of his CT scan and stating that still had discomfort on the right side of
his face. Id. at 59. In response two days later, he was informed that he was scheduled that day to
see Dr. O’Brien. Id. Dr. O’Brien examined Mr. Preston on October 28, 2010 and discussed with
him his CT scan report, which came in that day. Id. at 60-70. Dr. O’Brien noted some tenderness
to the lateral orbit of the right eye and some mild swelling around the nose. Id. He also prescribed
Vicodin for 30 days. Id.
Dr. O’Brien saw Mr. Preston again on November 1, 2010 and noted that he was doing well
with pain medication and had no visual changes or double vision. Id. at 72-73. Mr. Preston
submitted a Request for Healthcare on November 2, 2010 asking if he had been scheduled to see a
plastic surgeon and that he had pain and blurred vision. Id. at 74. In response, he was informed that
his Vicodin prescription was renewed through November 28, 2010. Id. On November 3, 2010, Mr.
Preston submitted a Request for Healthcare complaining of pain, numbness, headaches, and blurred
vision. Id. at 76. On November 8, 2010, Mr. Preston submitted a Request for Healthcare against
stating that he had blurred vision, numbness, and discomfort when he chewed. Id. at 78.
On November 10, 2010, Mr. Preston was scheduled for a nursing sick call visit in response
to his November 8, 2010 Request for Healthcare, but Mr. Preston opted not to see the nurse. Id. at
81. On November 12, 2010, Mr. Preston submitted three Requests for Health Care. Id. at 82-84. In
the first Request, he asked about certain entries in his chart from Dr. O’Brien on November 2, 2010
because he did not see Dr. O’Brien on that date. Id. at 84. Medical staff responded to the Request
the next day and informed Mr. Preston that Wishard Hospital contacted the doctor to schedule his
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plastic surgery appointment on November 2, 2010. Id. The second Request asked for medical
treatment and the third Request was regarding pain in his face and headaches. Id. at 82-83. Mr.
Preston was scheduled for nursing sick call on November 15, 2010, but the appointment could not
take place because the facility was on lock-down. Id. at 76. Mr. Preston submitted a Request for
Healthcare on November 20, 2010 regarding headaches, blurred vision and pain in his face. Id. at
85. Mr. Preston was seen in nursing sick call on November 22, 2010 for complaints of vision
changes. Id. at 85-88. The nurse took Mr. Preston’s vital signs and tested his visual acuity. Id. His
eye exam was within normal limits, but the nurse referred Mr. Preston for an eye exam with the eye
doctor due to his injury. Id.
On November 24, 2010, Mr. Preston submitted a Request for Health Care stating that his
Vicodin was about to run out. Id. at 89. In response, medical staff said they would ask the doctor.
Id. Mr. Preston submitted another Request for Healthcare on November 30, 2010 that he was being
denied medication for his pain. Id. at 90. He wanted to see the doctor and the eye doctor. Id. Medical
staff responded to this Request three days later and informed Mr. Preston that the eye doctor only
came to the prison twice a month and that he was scheduled for the next time that the eye doctor
was at the prison. Id. Mr. Preston was also informed that he was scheduled to see Dr. O’Brien. Id.
On December 3, 2010, Mr. Preston submitted a Request for Health Care stating that he had
been trying to see the doctor for pain in his face and blurry vision, headaches, night sweats and
dizziness. Id. at 92. Mr. Preston was scheduled for nursing sick call on December 6, 2010, but the
appointment could not be completed because the facility was on lock-down. Id. at 76. Mr. Preston
had an appointment to see medical staff on December 7, 2010. Id. at 92, 94, and 96. However, Mr.
Preston refused the appointment because it was too cold, and he refused to sign the refusal form,
which was witnessed by two people. Id. Mr. Preston then submitted a Request for Health Care on
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December 7, 2010 stating that he was supposed to go to medical that day and officers escorted him
out into the cold without a coat and a hat and that he was not refusing medical treatment but he was
refusing to go outside without a coat and a hat. Id. at 95. In response, he was told he was scheduled
to see the doctor on December 9, 2010. Id.
Mr. Preston had an appointment to see Dr. O’Brien on December 9, 2010, but there was no
custody staff available to escort Mr. Preston to the appointment. Id. at 98. The appointment
therefore had to be rescheduled. Id. On December 10, 2010, Mr. Preston submitted a Request for
Health Care stating that he had been trying to see the doctor for his facial problems. Id. at 99.
Medical staff responded that he was scheduled to see the doctor. Id. at 76 and 99. Mr. Preston had
an appointment with Dr. O’Brien on December 13, 2010, but the appointment had to be rescheduled
because there was no custody staff available to escort Mr. Preston to the appointment. Id. at 100.
On December 28, 2010, Mr. Preston had an exam with the optometrist, Dr. Aaron
Cunningham, and received a prescription for reading glasses. Id. at 76 and 101-102. On January 4,
2011, Dr. O’Brien examined Mr. Preston and discussed treatment options with him. Id. at 103-104;
Exhibit B para 10. Dr. O’Brien noted that Mr. Preston had a stable orbital fracture and that surgery
was not indicated. Exhibit C. at 103-04. Mr. Preston had pain under the right eye, but good ocular
motion. Id. He denied changes in vision or changes in smell. Id. Dr. O’Brien prescribed Naprosyn
for discomfort. Id.
On May 22, 2011, Mr. Preston reported pain on the right side of his face and blurred vision.
Id. at 105. In response, he was scheduled to see the doctor. Id. Mr. Preston was seen in Chronic
Care Clinic on August 4, 2011 by Dr. Michael Person, but he did not report any problems with his
face or vision during that appointment. Id. at 106-07. Mr. Preston had another Chronic Care Clinic

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appointment on October 31, 2011 with Dr. Haynes. Id. at 108-09. He did not mention any issues
with his face at that appointment. Id.
Mr. Preston received his own supply of Naprosyn that he kept on his person from January
4, 2011 to July 21, 2011. Id. at 113-15. Dr. O’Brien left his position at Putnamville on November
24, 2011 and he had no further involvement with Mr. Preston after that time. Exhibit B, para. 12.
C. The CT Scan
On initial exam on September 23, 2010, Dr. O’Brien noted that Mr. Preston was assaulted
by another inmate and was struck in the right eye. Id. Dr. O’Brien’s physical exam was negative
for vision loss, diplopia and open laceration. Id. Because of Mr. Preston’s x-ray results, which
showed that Mr. Preston had a fracture of the right orbit, Dr. O’Brien submitted a consultation
request for a CT scan of the facial bones at the Plainfield Correctional Facility Radiology
Department. Id. Dr. O’Brien believed that sending Mr. Preston to the Plainfield Correctional
Facility for his CT scan would be faster than referring him to an outside hospital for testing. Exhibit
B, para 5.
On September 27, 2010, Darla Scherb, the scheduling assistant, scheduled Mr. Preston’s
CT scan at the Plainfield Correctional Facility. Exhibit C at 30. However, the initial appointment
for a CT scan did not occur because the mobile imaging company could not come to the prison on
the scheduled day. 3 Exhibit B, para 6. The appointment was rescheduled. Mr. Preston submitted a

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Based on his filings, Mr. Preston appears to believe that the CT scan was denied by Dr. O’Brien, but this conclusion
is not supported by the record. He bases his conclusion in part on a grievance response stating “Mr. Harris, Health Care
Administrator reports that a Consultation Request has been submitted, approved, and scheduled for a CT scan to be
completed of your face. . . .” (See Attachment to Mr. Preston’s Motion for Supporting Facts). But this statement does
not necessarily imply that Harris is the one who approved the CT scan. It is simply a report based on Harris’s
understanding of the situation. Preston also says that on September 30, 2010, Dr. O’Brien denied the CT scan and
refused to treat his pain. But the medical records show that the initial appointment for a CT scan did not occur because
the mobile imaging company could not come to the prison on the scheduled day. Further, Mr. Preston signed a consent

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Request for Healthcare on September 28, 2010 asking to see another doctor and for his CT scan.
Exhibit C at 31. Because the CT scan was delayed, Dr. O’Brien ordered another set of x-rays to
confirm that the fractures were stable. Exhibit B, para. 6; Exhibit C at 33-35. That x-ray was
performed on September 30, 2010. Exhibit C at 36. The x-rays showed a possible blow out fracture
of the right orbit; follow up by CT scan of the facial bones was strongly recommended. Id. at 36.
Mr. Preston submitted a Request for Healthcare on October 4, 2010 that he had pain and
numbness. Id. at 41. Medical staff responded to the Request and informed Mr. Preston that
medication had been ordered. Id. The response also stated “CT scan has been denied at this time.”
On October 6, 2010, Mr. Preston also signed a consent form for his CT scan that was scheduled.
Id. at 45. On October 13, 2010, Mr. Preston submitted a Request for Healthcare asking when he
would be going for his CT scan. Id. at 50. In response, he was informed that he could not be told of
the appointment date due to security rules. Id.
Mr. Preston had a CT scan of his face on October 22, 2010. Exhibit C at 55-58. Mr. Preston
submitted a Request for Healthcare on October 26, 2010 that he wanted the results of his CT scan
and still had discomfort on the right side of his face. Id. at 59. Dr. O’Brien examined Mr. Preston
on October 28, 2010 and discussed with him his CT scan report, which came in that day. Id. at 6070. Dr. O’Brien noted some tenderness to the lateral orbit of the right eye and some mild swelling
around the nose. Id. He submitted a consultation request to send Mr. Preston to a plastic surgeon
for evaluation of his fractures. Id.

form for CT scan on October 6, 2010 and in response to his October 13, 2010 Request for Health Care asking “when
will I go for my CT scan?,” he was told “you are scheduled soon.”

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D. Treatment by the Plastic Surgeon
When Dr. O’Brien examined Mr. Preston on October 28, 2010, he discussed with him his
CT scan report, which came in that day. He also submitted a consultation request to send Mr.
Preston to a plastic surgeon for evaluation of his fractures. Mr. Preston submitted a Request for
Healthcare on November 2, 2010 asking if he had been scheduled to see a plastic surgeon and that
he had pain and blurred vision. Id. at 74. In response, he was informed that his Vicodin was renewed
through November 28, 2010. Id. Also on November 2, 2010, someone from Wishard Hospital called
Dr. O’Brien to schedule Mr. Preston’s plastic surgery appointment. Exhibit B, para. 8.
When Dr. O’Brien referred a patient to an outside hospital or specialist, Dr. O’Brien had no
control over when that hospital or specialist scheduled the patient. Id. When an offender was
scheduled for an appointment outside of the prison, medical staff could not inform the offender of
the date and time of the appointment pursuant to Department of Correction security policies. Id. On
November 4, 2010, scheduling assistant Darla Scherb noted that she scheduled Mr. Preston for an
urgent appointment with plastic surgery at Wishard Hospital. Exhibit C at 77. Mr. Preston went to
Wishard Hospital on November 8, 2010, and saw the plastic surgery team. Id. at 79; Exhibit E to
Defendant’s Motion for Summary Judgment, Wishard Hospital Medical Records, at 1-2. On exam,
Mr. Preston had some callous formation and tenderness, but normal sensation and he was able to
move his eyes freely in all directions and had no evidence of entrapment. Id. at 2. The plastic
surgeon determined that surgery was not indicated and recommended that Mr. Preston return in
approximately 6 months for a follow-up exam. Id. The record also states:
most likely no surgical intervention would have been required for any of the
fractures other than the right orbital floor fracture. I explained to him that though he
does not have any evidence of enophthalmos currently, he may develop that over
the ensuing months, at which point in time surgical intervention may become
necessary. Therefore we plan on seeing him back in six months’ time to see for the
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possibility of development of enophthalmos and if that occurs then possible surgical
intervention would be planned
Id.
On November 30, 2010, Mr. Preston submitted a Request for Health Care stating that he
saw the plastic surgeon on November 8, 2010 and he claimed the plastic surgeon would not fix his
face and he wanted to know who would. Exhibit C at 91. The plastic surgeon had recommended
that Mr. Preston return in 6 months, or approximately May, 2011. Exhibit B, para. 10. However, it
was Dr. O’Brien’s opinion that it was not medically necessary to send Mr. Preston back to Wishard
Hospital because he had no complaints regarding his face and no deformity at the fracture site. Id.
III. Discussion
Mr. Preston asserts the following claims against Dr. O’Brien: (1) a claim pursuant to 42
U.S.C. § 1983 that Dr. O’Brien was deliberately indifferent to his serious medical needs in violation
of the Eighth Amendment to the United States Constitution and (2) a state law claim for medical
malpractice.
A. Deliberate Indifference
Dr. O’Brien moves for summary judgment on Mr. Preston’s § 1983 claim arguing that he
was not deliberately indifferent to Preston’s serious medical needs. A claim of deliberate
indifference “must demonstrate two elements: 1) an objectively serious medical condition; and 2)
an official’s deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011). A medical condition is objectively serious if “a reasonable doctor or patient” would
deem the condition “important and worthy of comment or treatment.” Hayes v. Snyder, 546 F.3d
516, 523–24 (7th Cir. 2008) (quotation omitted). Deliberate indifference to the serious medical
need exists only when an official “knows of and disregards an excessive risk to an inmate’s health;
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the official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S.
825, 837 (1994). Deliberate indifference “is more than negligence and approaches intentional
wrongdoing.” Arnett, 658 F.3d at 751 (citing Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th
Cir. 1998)). A plaintiff can show that a medical professional disregarded his serious medical need
only if the professional’s subjective response was so inadequate that it demonstrated an absence of
professional judgment, that is, that “no minimally competent professional would have so responded
under those circumstances.” Arnett, 658 F.3d at 751. A court examines the totality of an inmate’s
medical care when determining whether prison officials have been deliberately indifferent to an
inmate’s serious medical needs. Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999).
Here, Dr. O’Brien does not dispute for purposes of summary judgment that Mr. Preston’s
fracture constituted a serious medical need. He argues, however, that he was not deliberately
indifferent to that need. Mr. Preston alleges that Dr. O’Brien was deliberately indifferent to his
serious medical needs in four different ways, each of which will be discussed in turn.
1. Delay in initial treatment
First, Mr. Preston asserts that Dr. O’Brien unreasonably delayed in initially treating his
facial fracture. It is undisputed, however, that Dr. O’Brien was not aware of Preston’s injury until
September 21, 2010, 9 days after the injury. Exhibit B, para. 4. When he became aware of the
injuries, he ordered an x-ray and examined him two days later, on September 23, 2010. Id. paras. 4
and 5. Because Dr. O’Brien was not aware of Mr. Preston’s injuries until September 21, 2010, he
cannot be found to be deliberately indifferent for any delay in treatment that occurred before that
date. On that date, Dr. O’Brien ordered x-rays for Mr. Preston and he examined Mr. Preston two
days later. This is not a significant enough delay to constitute deliberate indifference.
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2. Denial of pain medication
Mr. Preston also alleges that Dr. O’Brien was deliberately indifferent to his pain. Dr.
O’Brien treated Mr. Preston’s pain nearly continuously from the time he became aware of Mr.
Preston’s injuries. Every time Dr. O’Brien examined Mr. Preston, Mr. Preston had or received a
prescription for pain medication. For example, Dr. O’Brien prescribed Mr. Preston Vicodin for 10
days when he first examined him on September 23, 2010. Dr. O’Brien also submitted a consultation
request for a CT scan at this time. He resubmitted the Vicodin prescription on September 26, 2010.
To the extent that Mr. Preston asserts that Dr. O’Brien denied him pain medication, Mr. Preston
has not created a genuine issue of material fact because this assertion is belied by the record. In
fact, Mr. Preston’s medical records show that he submitted a Request for Healthcare on October 1,
2010 that he wanted to take the Vicodin that Dr. O’Brien had ordered. Medical staff responded to
the Request on October 3, 2010 and notified Mr. Preston that his Vicodin was discontinued. The
reason for this appears to be that the original prescription was for only September 23 through
October 3, 2010. Mr. Preston submitted a Request for Healthcare on October 4, 2010 that he had
pain and numbness. On October 6, 2010, Dr. O’Brien again prescribed Mr. Preston Vicodin for 10
days.
On October 17, 2010, Mr. Preston submitted a Request for Healthcare stating that he was
in pain and his pain medication expired. In response, medical staff sent his Request to the doctor.
Mr. Preston was seen in nursing sick call on October 19, 2010. Mr. Preston reported pain in his
head and headaches. Dr. O’Brien examined Mr. Preston on October 28, 2010 and renewed his
Vicodin prescription for 30 days. While there is a gap in Mr. O’Brien’s pain medication between
October 16, 2010 and October 28, 2010, there is no evidence that this gap was caused by misconduct
on Dr. O’Brien’s part or that Dr. O’Brien consciously ignored Mr. Preston’s requests for
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medication. Dr. O’Brien did not examine Mr. Preston during that time period and deny him
medication and there is no record that Dr. O’Brien otherwise affirmatively denied Mr. Preston’s
need for medication. And when Dr. O’Brien did examine Mr. Preston on October 28, 2010, he
again refilled Mr. Preston’s Vicodin prescription.
There was also a significant gap in Mr. Preston’s pain medication between November 24,
2010 and January 4, 2010. On November 24, 2010, Mr. Preston submitted a Request for Health
Care stating that his Vicodin was about to run out. He submitted a further request on November 30,
2010 stating that he had been denied medication for his pain. He was informed that he was
scheduled to see Dr. O’Brien. Mr. Preston’s appointment with Dr. O’Brien was unfortunately
delayed a number of times in December of 2010 because of the unavailability of a custody staff to
escort him. When Mr. Preston did see Dr. O’Brien, on January 4, 2011, he prescribed Naprosyn for
pain. Mr. Preston received Naprosyn for 6 months.
Deliberate indifference requires a finding that a medical professional “intentionally
disregarded the known risk to inmate health or safety.” Collins v. Seeman, 462 F.3d 757, 762 (7th
Cir. 2006). In other words, “[t]he official[] must know of and disregard an excessive risk to inmate
health; indeed, they must ‘both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists’ and ‘must also draw the inference.’” Greeno v. Daley, 414
F.3d 645, 653 (7th Cir.2005) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). While there
were significant delays in the treatment of Mr. Preston’s pain, there is no evidence that Dr. O’Brien
was aware of or contributed to these delays. When Dr. O’Brien did examine Mr. Preston, he noted
his pain and prescribed medication for it. In these circumstances, the Court cannot find that Dr.
O’Brien was deliberately indifferent to Mr. Preston’s pain.

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3. Delay of CT scan
Mr. Preston also asserts that Dr. O’Brien exhibited deliberate indifference by denying him
a CT scan. Dr. O’Brien first referred Mr. Preston for a CT scan when he saw him on September 23,
2010. At that time, Dr. O’Brien referred Mr. Preston to another prison where a mobile imaging
company could do the CT scan, which he thought would be faster. However, the initial appointment
for a CT scan did not occur because the mobile imaging company could not come to the prison on
the scheduled day. The appointment was therefore rescheduled. It was beyond Dr. O’Brien’s control
that the mobile imaging company had to reschedule the appointment. In the interim, because of the
delay, Dr. O’Brien ordered another set of x-rays to confirm that Mr. Preston’s fractures were stable.
On September 30, 2010, Dr. O’Brien examined Mr. Preston and noted that the fracture was stable.
Dr. O’Brien thought that Mr. Preston was doing well, with no double vision or pain over his sinuses.
His eye movement was also intact and symmetrical. Because Mr. Preston’s CT scan had to be
rescheduled, Dr. O’Brien ordered repeat x-rays and a re-evaluation in two weeks. Mr. Preston had
additional x-rays on the same day, which showed possible blow out fracture of the right orbit.
Follow-up by CT scan of the facial bones was strongly recommended. Dr. O’Brien ordered the CT
scan, but had no control over when the scan would be scheduled. Mr. Preston had a CT scan on
October 22, 2010 at the Plainfield Correctional Facility.
There can be no doubt that there was significant delay in Mr. Preston receiving a CT scan.
But there is no evidence that Dr. O’Brien caused or contributed to this delay. He had no control
over the mobile imaging unit or the scheduling of the scan. When the scan could not be completed
as initially scheduled, Dr. O’Brien ordered repeat x-rays and a follow-up exam to monitor Mr.
Preston’s fracture. To the extent that the medical records reflect one instance of denial of the scan,
they also reflect that Mr. Preston signed a release for a scheduled CT scan that same day. Further,
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there is no indication in the records that Dr. O’Brien ever denied Mr. Preston a CT scan. In short,
Dr. O’Brien was not deliberately indifferent to Mr. Preston’s need for a CT scan.
4. Denial of follow-up visit with plastic surgeon
Finally, Mr. Preston challenges the fact that the plastic surgeon recommended that Mr.
Preston return for a follow-up visit in 6 months, but Dr. O’Brien did not order a follow-up. Dr.
O’Brien did not feel a return visit was medically necessary based on his examination of Mr. Preston
and conclusion that Mr. Preston had no complaints regarding his face and no deformity at the
fracture site.
A doctor is deliberately indifferent when “no minimally competent professional would have
so responded under the circumstances.” Arnett, 658 F.3d at 751. Because Dr. O’Brien based his
decision not to have Mr. Preston follow up with the plastic surgeon on his exam and findings
regarding the healing of Mr. Preston’s facial fracture, there is no evidence to support such a
conclusion here. In other words, Dr. O’Brien was not deliberately indifferent for failing to have Mr.
Preston follow-up with a plastic surgeon.
B. Medical Malpractice
Mr. Preston also makes a claim for medical malpractice under Indiana state law.4 The
Indiana Medical Malpractice Act provides that a lawsuit cannot be brought against a qualified
healthcare provider before the claimant’s proposed complaint has been presented to a medical
review panel established under Indiana Code section 34-18-10 and an opinion is given by the panel.

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“When all federal claims in a suit in federal court are dismissed before trial, the presumption is that the court will
relinquish federal jurisdiction over any supplemental state-law claims.” Al's Serv. Ctr. v. BP Prods. N. Am., Inc., 599
F.3d 720, 727 (7th Cir. 2010). But where “an interpretation of state law that knocks out the plaintiff’s state claim is
obviously correct, the federal judge should put the plaintiff out of his misery then and there, rather than burdening the
state courts with a frivolous case.” Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997). Because that
is the case here, the Court will maintain jurisdiction over Mr. Preston’s state law claim.

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See Ind. Code § 34-18-8-4. While Dr. O’Brien treated Mr. Preston during the relevant time period,
Dr. O’Brien was a “qualified healthcare provider” under the Indiana Medical Malpractice Act.
Exhibit D to Defendant’s Motion for Summary Judgment, Affidavit of Nancy Wilkins, paras. 5-7.
Mr. Preston has not filed a proposed complaint with the Indiana Department of Insurance. Id.
Because it is undisputed that Dr. O’Brien is a qualified healthcare provider under this statute and
Mr. Preston has not filed a proposed complaint against Dr. O’Brien with the Indiana Department
of Insurance, his medical malpractice claim must be dismissed.
IV. Conclusion
The defendant’s motion for summary judgment [dkt 20] is granted. Judgment consistent
with this Entry shall now issue.
IT IS SO ORDERED.

Date: 9/26/14

_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Corey Preston, #871340
410 G Birchtree Lane
Fort Wayne, IN 46807
Electronically registered counsel

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