FOWLER v. LOCKETT et al

Filing 119

Entry Discussing Motion for Summary Judgment - For the foregoing reasons, the defendants' motion for summary judgment [dkt 105 ] is granted. The motion to file a surreply [dkt 114 ] is granted to the extent the Court considered the arguments made in the proposed surreply. Judgment consistent with this Entry shall now issue ***SEE ENTRY***. Copy sent to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 2/2/2017. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JAMES FOWLER,
Plaintiff,
vs.
ALEX JASTILLANO, et al.,
Defendants.

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Case No. 2:14-cv-00297-WTL-DKL

Entry Discussing Motion for Summary Judgment
Plaintiff James Fowler’s claims in his Amended Complaint, as screened by the Court in
the Entry of March 17, 2015, are that defendants Physician Assistant Alex Jastillano and Dr.
William Wilson exhibited deliberate indifference to his serious medical need for treatment of back,
neck, shoulder, and arm pain. Fowler’s claims are brought pursuant to the theory recognized in
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
The defendants move for summary judgment on Fowler’s claims and he has responded.
For the following reasons, the motion for summary judgment [dkt 105] is granted.
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 nonmoving 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).
Undisputed Facts
A. Background of Fowler’s Injuries and Pain
Fowler was incarcerated at the United States Penitentiary in Terre Haute, Indiana (“USP
Terre Haute”) from September 1, 2011 to October 7, 2013. During this time, Fowler experienced
pain in his back, neck, shoulder, and arm. He saw BOP physician Dr. Roger Jones at Chronic Care
Clinic on September 15, 2011, shortly after he arrived at the prison. Dr. Jones noted that Fowler
had a history of “low back pain for 20 years” and had been told that his lumbar discs “were
crushed.” Fowler also reported a compression fracture in his back from a diving accident, injuries
from a gunshot wound to the throat, and injuries from a serious motor vehicle accident in 2008.
Dr. Jones prescribed Gabapentin and Ibuprofen for Fowler’s chronic pain and requested x-rays of
Fowler’s thoracic and lumbar spine.
The x-rays that Dr. Jones ordered were performed on September 21, 2011. Fowler’s lumbar
spine x-ray was “negative.” His thoracic spine x-ray was abnormal and revealed: “[m]inimal

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[degenerative disc disease]; mild age-indeterminate compression deformity . . . ; [and a] metallic
BB in [the] right lower neck/upper chest . . . .”1
B. Fowler’s Early Interactions with PA Jastillano
PA Jastillano examined Fowler for the first time a week after the x-rays, on September 28,
2011. PA Jastillano reviewed the September 21 x-rays, noted Fowler’s history of back trauma, and
placed requests for Fowler to see a neurosurgeon. PA Jastillano also updated Fowler’s medical
duty status to note that he was cleared for food service but restricted him from climbing, using
ladders, and lifting more than 15 lbs. The next day, PA Jastillano made an administrative note that
Fowler could not yet be referred to a neurosurgeon because Fowler first needed a CT of his thoracic
spine. PA Jastillano therefore placed a request for Fowler to have a CT scan.
Fowler had a CT scan of his thoracic spine on November 21, 2011. Based on his continuing
complaints of pain, Fowler had a cervical spine x-ray on February 9, 2012, which was “[n]egative
except for moderate degenerative disc disease” and “narrowing of the neural foramina bilaterally
at C5/6.”2 Fowler’s lumbar spine x-ray was performed on February 15, 2012.

1

The Court notes that the Statement of Material Facts Not in Dispute submitted by the defendants
contains a number of quotations like this one which are replete with medical jargon for which no
definition or explanation is provided. Such a presentation makes a clear understanding of the facts
unnecessarily difficult. In reciting the facts here, the Court has attempted either to simplify the
facts presented or find explanatory information for the medical jargon as background. The Court
and the parties would be better served in the future if such simplification and explanation were
provided by the parties.
2

In other words, a narrowing of the openings along the spine through which the nerves pass.
http://www.spine-health.com/glossary/neural-foraminal-stenosis
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On February 10, 2012, PA Jastillano refilled Fowler’s Acetaminophen and requested a CT
scan of Fowler’s cervical and thoracic spine. On February 28, 2012, Fowler had a CT scan of his
cervical spine.
Fowler saw Dr. Jones at Chronic Care Clinic on March 6, 2012. Dr. Jones noted that the
results from the February 28, CT scan were still pending but that Neurontin was not controlling
Fowler’s neck and back pain. Dr. Jones therefore added Elavil (Amitriptyline) and Naproxyn to
address Fowler’s neck and back pain. On March 14, 2012, in light of the CT scan results, Dr. Jones
placed a request for Fowler to see a neurosurgeon.
C. Fowler’s Fall
On April 1, 2012, Fowler slipped and fell while working in the USP Terre Haute kitchen.
After the fall, Fowler was seen by RN Haddix who noted that Fowler had an abrasion on his right
forearm and was complaining of “lower back pain, right elbow/arm pain, and posterior neck pain.”
Fowler reported that he had “chronic lower back pain and neck pain” and was “receiving Naproxin
[sic], Neurontin, and Elavil.” RN Haddix prescribed Acetaminophen and ice, gave Fowler a 2-day
medical idle, and instructed Fowler to return to sick call in 12-24 hours.
D. Neck Surgery
On May 16, 2012, based on Dr. Jones’s request, Fowler saw Dr. Pradeep Narotam, a
neurosurgeon at Union Hospital in Terre Haute. Dr. Narotam noted that “[i]n 1998 [Fowler] dived
into a river and sustained a T6 and T7 fracture.” Fowler “complain[ed] of numbness in his hands
for 10 years, worsening since June 2005,” “weakness in [his] [upper extremities] for 5 years, with
increasing hand numbness,” and “chronic neck pain since 1998, worsening since 2007.” Dr.
Narotam diagnosed Fowler with nerve irritation in his neck and recommended surgery. Dr.

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Narotam also recommended that Fowler receive “vicodin for pain management until surgery” and
noted that Fowler “may need carpal tunnel release in addition to neck surgery.”
On June 13, 2012, PA Jastillano reviewed Dr. Narotam’s report from Fowler’s May 16
appointment. PA Jastillano noted that the recommended surgery needed to be approved by the
Regional Office and placed a formal request for the surgery. PA Jastillano also noted that Fowler
needed to see a neurologist for a test known as an electromyogram/nerve conduction study
(“EMG/NCS”) of his upper extremities. PA Jastillano requested the neurology consultation, and
indicated that Fowler may need carpal tunnel surgery.
On June 20, 2012, PA Jastillano saw Fowler. PA Jastillano noted that Dr. Narotam had
recommended that Fowler be placed on narcotic pain medication while he was waiting for surgery.
PA Jastillano therefore prescribed Percocet (Oxycodone/ Acetaminophen).
On August 6, 2012, Fowler was admitted to Union Hospital in Terre Haute for neck
surgery. The surgery was performed on August 8, 2012, and Fowler was discharged back to the
prison that same day.
Fowler had several physical therapy sessions in the months following his surgery. After
these were completed, the physical therapist discharged him to his housing unit with no
restrictions.
On October 11, 2012, Fowler had a cervical spine x-ray, apparently as a follow-up to
surgery. The x-ray was “[n]egative except for moderate degenerative disc disease.” An
“[i]ntervallic anterior and interbody fusion at C5-6”3 was visible and there was “[u]nchanged
multilevel foraminal narrowing, most severe at C5-6.”

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There is no elaboration in the record of what this means.
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Fowler saw BOP physician Dr. Klint Stander at Chronic Care Clinic on October 16, 2012.
Dr. Stander noted that Fowler’s surgical scar was “well healed” and that Fowler had “[n]o arm
pain or weakness.” Dr. Stander reported that Fowler’s neck was “stiff” and he “ha[d] difficulty
turning to the left” but could “turn to the right ok.” Fowler also complained of low back pain and
some numbness in his left buttock, the back of his left leg, and the bottom of his left foot. Dr.
Stander increased Fowler’s Gabapentin to 2700 mg per day and noted that Fowler was scheduled
for follow up with Dr. Narotam.
On November 14, 2012, Fowler had a three-month follow up appointment with Dr.
Narotam about his neck surgery. Fowler “complain[ed] of neck pain and stiffness but no arm pain
or weakness.” Dr. Narotam recommended that Fowler apply heat to his neck, perform stretches or
other activity to keep his muscles loose, and wean off his Neurontin. Dr. Narotam stated that
Fowler should follow up as necessary but a return was not scheduled.
On January 1, 2013, Fowler saw PA Jastillano about left shoulder pain. PA Jastillano noted
that the pain was “most likely . . . a refeered [sic] pain from his neck problem” and declined to
increase Fowler’s Gabapentin to 3600 mg per day because Fowler was already on a very high dose
of Gabapentin and was also receiving other pain medications, including Ibuprofen.
E. Elbow and Hand Pain
In addition to his neck problems, Fowler was also treated during the relevant time period
for elbow and hand pain. On September 25, 2012, Fowler saw LPN Dobbins at Sick Call
complaining of right elbow pain. Fowler requested Ibuprofen for pain instead of Naproxen. LPN
Dobbins prescribed Ibuprofen and scheduled Fowler to see PA Jastillano. Fowler saw PA
Jastillano on September 27, 2012. Fowler complained of right elbow pain and again stated that the

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Naprosyn was not helping his pain. Fowler requested Ibuprofen, which had already been
prescribed and was waiting for him at the pharmacy.
On October 18, 2012, Fowler saw Dr. Doug McGuirk at the UAP Bone and Joint Center
about his carpal tunnel syndrome and epicondylitis (tennis elbow). Fowler stated that “for the past
few years he ha[d] had intermittent numbness and tingling in his right hand” and had right elbow
pain for the past few months. Dr. McGuirk performed steroid injections into Fowler’s right elbow
and right carpal tunnel and ordered a wrist splint for Fowler. Dr. McGuirk did not recommend
carpal tunnel surgery.
On November 16, 2012, PA Jastillano made an administrative note regarding Fowler’s
appointment with Dr. McGuirk. Because Dr. McGuirk had ordered follow up in “3-4 months,” PA
Jastillano placed a request for Fowler to see a hand surgeon.
On January 31, 2013, Fowler saw Dr. McGuirk regarding his right elbow and right carpal
tunnel pain. Fowler stated that the steroid injections on October 18, helped for “a couple months”
but he was still having right elbow pain and numbness and tingling in his right hand. Dr. McGuirk
did another steroid injection of Fowler’s right elbow, recommended right carpal tunnel release
surgery, and prescribed Ultram to treat Fowler’s elbow pain.
Upon his return to USP Terre Haute, Fowler saw LPN Sawyer. She noted the prescription
for Ultram and contacted Dr. Wilson who determined that Ultram was not indicated and nonformulary. On February 28, 2013, PA Jastillano made an administrative note about Fowler’s
January 31 appointment with Dr. McGuirk. PA Jastillano noted that pain medication would be
substituted as necessary for the Ultram that was prescribed by Dr. McGuirk and placed a request
for Fowler to have hand surgery.

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The next day, Fowler saw PA Jastillano at Chronic Care Clinic. Fowler complained of
“back pain, elbow pains[,] and also hand pain (CTS),”4 and requested an increase in his
Gabapentin. PA Jastillano noted that Fowler was scheduled to have a CTS release and questioned
whether Fowler truly needed an increase in his Gabapentin. However, PA Jastillano did ultimately
increase Fowler’s Gabapentin from 2700 mg per day to 3000 mg per day.
On April 10, 2013, Fowler saw BOP physician Dr. Joseph Bergeron at Chronic Care Clinic.
Fowler stated that his neck surgery “neither helped or worsened his neck pain,” and he complained
of right elbow pain, which had not been helped by steroid injections. Dr. Bergeron ordered an xray of Fowler’s right elbow, which was performed on April 12, 2013. The x-ray was negative.
On April 26, 2013, Fowler had right carpal tunnel release surgery and a steroid injection to
his right elbow performed by Dr. McGuirk. Fowler saw EMT Webb upon his return to USP Terre
Haute and was given Percocet (Oxycodone/Acetaminophen) to manage his post-operative pain.
Fowler saw Dr. McGuirk for a follow up appointment on May 7, 2013. Fowler reported
that he had mild to moderate pain in his hand and wrist, as well as moderate pain in his elbow. Dr.
McGuirk recommended surgery on Fowler’s right elbow.
On May 28, 2013, Fowler saw BOP PA Timothy Tabor to follow up about his carpal tunnel
surgery. PA Tabor noted that Dr. McGuirk had recommended additional surgery. Accordingly, PA
Tabor placed a request for the recommended elbow surgery with appropriate follow up.
On June 10, 2013, Fowler saw LPN Dobbins at Sick Call complaining that his right thumb
was “popping out of place.” LPN Dobbins scheduled Fowler to see PA Jastillano. Fowler saw PA
Jastillano on July 22, 2013, about his thumb pain. Fowler stated that the thumb pain developed

4

The note “CTS” apparently refers to carpal tunnel syndrome.
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after the hand surgery. PA Jastillano prescribed Prednisone and noted that narcotic medications
were not indicated.
On August 2, 2013, Fowler had surgery on his right elbow and a right trigger thumb release5
performed by Dr. McGuirk. Fowler saw RN May upon his return to USP Terre Haute. RN May
updated PA Tabor on Fowler’s post-operative condition and PA Tabor instructed RN May to give
Fowler Percocet to manage his postoperative pain.
Fowler saw Dr. McGuirk on August 12, 2013, to follow up on his elbow and thumb surgery.
Fowler was “doing very well” and had “minimal soreness in his lateral elbow . . . and slight
soreness and swelling in his thumb.” Dr. McGuirk noted that Fowler had “excellent early results
following his procedures” and instructed Fowler to limit heavy activity with his right arm and to
follow up in 6 weeks.
On October 7, 2013, Fowler was transferred from USP Terre Haute to FCI Beckley.
F. Dr. Wilson
Dr. Wilson is the Clinical Director of FCC Terre Haute. He treated Fowler on two
occasions – August 8, 2012, and August 23, 2012. On August 8, 2012, based on PA Jastillano’s
note, Dr. Wilson made an administrative note indicating that Fowler would need a surgery followup in 90 days. He submitted a neurosurgery consultation request and a request for Fowler to
undergo physical therapy. On August 23, 2012, based on Fowler’s complaints of pain, Dr. Wilson
changed Fowler’s medications, suggested he use a neoprene elbow brace, and released him to light

5

“Trigger finger . . . is a condition in which one of your fingers gets stuck in a bent position.
Your finger may straighten with a snap — like a trigger being pulled and released.”
http://www.mayoclinic.org/diseases-conditions/trigger-finger/basics/definition/con-20043819
(last visited January 27, 2017).
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duty work. He also submitted a request that Fowler see a hand surgeon “for consideration of carpal
tunnel release.” On January 31, 2013, Dr. Wilson noted that Ultram was non-formulary and not
indicated. Fowler was directed to follow up as necessary.
G. Review of the Fowler’s Care
Dr. Eric Potts, a Board Certified neurosurgeon employed by Goodman Campbell Brain &
Spine in Indianapolis, Indiana, reviewed Fowler’s medical records and opined that the medical
care that Fowler received at FCC Terre Haute was timely, appropriate, and within the standard of
care. Dr. Potts noted that Fowler was evaluated on multiple occasions, during which appropriate
tests and consultations were ordered, performed, and reviewed. Moreover, Dr. Potts opined that
Fowler’s spinal problems preceded his April 1, 2012 fall. Thus, although the fall may have
exacerbated Fowler’s spinal problems, it neither caused nor created all of his neck complaints.
Finally, Dr. Potts opined that he saw no reason for Fowler to have received a work restriction or
medical idle prior to the April 1, 2012 fall.
Dr. Gregory Merrell, a hand surgeon at the Indiana Hand to Shoulder Center in
Indianapolis, Indiana, reviewed Fowler’s medical records and opined that the medical care
provided to Fowler by BOP Health Services staff members was timely, appropriate, and within the
standard of care. Like Dr. Potts, Dr. Merrell noted that Fowler’s neck and back problems, which
were associated with numbness, tingling, and weakness in his arms, all preceded his April 2012
fall. However, Dr. Merrell did not see any indication that Fowler had any significant functional
musculoskeletal issues that would have limited his ability to work in the USP Terre Haute kitchen.
Thus, Dr. Merrell did not see any reason for Fowler to be medically idled prior to his fall on April
1, 2012.

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Discussion
Defendants Dr. Wilson and PA Jastillano seek summary judgment on Fowler’s claims that
they were deliberately indifferent to his serious medical needs, arguing that many of his claims are
barred by the statute of limitations and that they provided him with timely and appropriate care.
A. Statute of Limitations
The defendants first argue that some of Fowler’s claims should be dismissed as barred by
the applicable statute of limitations. The statute of limitations in a Bivens action such as this one
is two years. See King v. One Unknown Federal Correctional Officer, 201 F.3d 910, 913 (7th Cir.
2000). Fowler filed the Complaint in this action in Vigo Superior Court on September 15, 2014.
Thus, the statute of limitations bars claims arising out of incidents that occurred before September
15, 2012.
Fowler resists this conclusion, arguing that the Court should apply equitable tolling to his
claims because he was thwarted and delayed in his attempts to exhaust his available administrative
remedies, a requirement before filing suit, and that defendant PA Jastillano acted deliberately in
hiding his actions by refusing to order a CT scan that would have shown the full extent of Fowler’s
back problems.
Fowler initially appears to have argued that the statute of limitations on his claim under the
Federal Tort Claims Act should be tolled. But the only claims in this case are Fowler’s Bivens
claims against PA Jastillano and Dr. Wilson. This does not include an FTCA claim against the
United States. Fowler sought to amend his complaint in August of 2016 to add an FTCA claim
against the United States, but this motion to amend was denied. Dkt. 98. Fowler has demonstrated
no “manifest error of law” in this ruling. See Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th

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Cir. 2000). Further, in his proposed surreply, Fowler abandons any FTCA claim. Dkt 114-1
(“Plaintiff is asserting that any Bivens claims are equitably tolled . . . .”). Accordingly, it is not
necessary to decide whether the statue of limitations is tolled for any FTCA claims.
Fowler also argues that the statute of limitations should be tolled for his Bivens claims.
Equitable tolling permits a plaintiff to avoid the statute of limitations bar if, despite the exercise of
all due diligence, he was unable to file his claim in a timely fashion. Shropshear v. Corp. Counsel
of the City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001). “Generally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005).
Fowler argues that the statute of limitations should be tolled from the time he started
exhausting his administrative remedies and that PA Jastillano hid his injuries from him. Fowler
also suggests that he was transferred several times during the relevant period which thwarted his
ability to file this lawsuit. With regard to his first argument, he does not state when, other than in
2012, he started exhausting his administrative remedies. He also, notably, does not state when the
administrative remedy process was complete. He could have filed suit any time after its completion
and there is therefore no reason to toll the statute of limitations after the administrative remedy
process is complete.6 Moreover, this argument conflicts with Fowler’s second argument – that
Jastillano hid his back problems from him until he underwent a CT scan in 2016. Fowler fell in

6

While it is true, as Fowler suggests, that in certain circumstances, the statute of limitations is
tolled while administrative remedies are exhausted, those circumstances are based on the
application of a tolling statute in Illinois for which there is no Indiana counterpart. See Santiago v.
Snyder, 211 F. App’x 478, 480 (7th Cir. 2006).
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April of 2012 and says he started exhausting his administrative remedies related to that fall in
2012. By his own admission, therefore, he was aware of his injuries and their possible cause in
2012. Finally, Fowler’s argument that he was transferred between prisons is not an “extraordinary
circumstance” that justifies the application of equitable tolling. Denton v. United States, 40 F.
App’x 498, 502 (7th Cir. 2011). Fowler has thus not shown that he was pursuing his rights
diligently and some extraordinary circumstance stood in his way.
In short, because he filed this action on September 15, 2014, any claim arising from actions
that took place before September 15, 2012, is barred by the statute of limitations. Thus, the only
claims that remain are based on one interaction with Dr. Wilson in October of 2012 and the
interactions with PA Jastillano regarding the follow-up from Fowler’s neck surgery and the
treatment for Fowler’s elbow and hand pain.
B. Deliberate Indifference
The defendants also argue that they were not deliberately indifferent to Fowler’s medical
needs. 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 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).

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“[C]onduct is ‘deliberately indifferent’ when the official has acted in an intentional or
criminally reckless manner, i.e., “the defendant must have known that the plaintiff ‘was at serious
risk of being harmed [and] decided not to do anything to prevent that harm from occurring even
though he could have easily done so.’” Board v. Freeman, 394 F.3d 469, 478 (7th Cir. 2005)
(quoting Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)). “To infer deliberate
indifference on the basis of a physician’s treatment decision, the decision must be so far afield of
accepted professional standards as to raise the inference that it was not actually based on a medical
judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). See Plummer v. Wexford Health
Sources, Inc., 609 Fed. Appx. 861, 2015 WL 4461297, *2 (7th Cir. 2015) (holding that defendant
doctors were not deliberately indifferent because there was “no evidence suggesting that the
defendants failed to exercise medical judgment or responded inappropriately to [the plaintiff’s]
ailments”). 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.
For purposes of summary judgment, the defendants appear to concede that Fowler’s
medical conditions were sufficiently serious to satisfy the Eighth Amendment test. They argue,
however, that they were not deliberately indifferent to those conditions.
1. Dr. Wilson

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Dr. Wilson argues that he cannot be held liable for Fowler’s claims because he only treated
Fowler on two occasions – August 8, 2012, and August 23, 2012. The record also reflects that Dr.
Wilson reviewed a request for Ultram, a non-formulary medication for Fowler’s pain on January
31, 2013. Dr. Wilson denied that request because the medication was non-formulary but Fowler
was instructed to follow-up as necessary. Dr. Wilson argues that the care provided on those
occasions – submitting consultation requests, adjusting Fowler’s medications, instructing him to
obtain an elbow brace, and releasing him to light duty work does not amount to deliberate
indifference. Dr. Wilson points out that as Clinical Director of FCC Terre Haute he cannot be held
responsible for actions of his subordinates, but only for acts he participated in. See Arnett v.
Webster, 658 F.3d 742, 758 (7th Cir. 2011). Fowler does not respond to this argument and appears
to concede that Dr. Wilson’s acts were not deliberately indifferent. A review of the record
regarding Dr. Wilson’s treatment of Fowler reveals that Dr. Wilson considered Fowler’s
complaints and provided adequate care. There is no evidence that Dr. Wilson was deliberately
indifferent to Fowler’s needs. He is therefore entitled to summary judgment on Fowler’s claims.
2. PA Jastillano
PA Jastillano also argues that he was not deliberately indifferent to Fowler’s needs. PA
Jastillano argues that Fowler received care that was timely, appropriate, and within the standard of
care.
Because earlier claims are barred by the statute of limitations, Fowler’s claims against PA
Jastillano must be based on care provided after September 15, 2012. During this time period,
Fowler received post-operative care for his neck surgery and underwent carpal tunnel surgery and
elbow and thumb surgery. He saw a number of doctors, including outside doctors. PA Jastillano

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examined Fowler for his complaints of pain and considered his requests for additional pain
medication. He referred Fowler to outside specialists and complied with their recommendations. The
medical records establish that the care provided to Fowler was attentive and thorough. There is no
evidence in this record that would support an inference that PA Jastillano was deliberately
indifferent to Fowler’s needs. See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (explaining
the circumstances in which deliberate indifference can be inferred). Further, PA Jastillano has
submitted expert testimony that the care Fowler received was medically appropriate, timely, and
within the standard of care. Fowler challenges this testimony, arguing that these conclusions are
contradicted by his medical records and that his condition qualified as a disability under the Social
Security Administration’s regulations. But Fowler’s mere disagreement with the proper course of
treatment for him is not enough to show deliberate indifference. See Pyles, 771 F.3d at 409.
Fowler also argues that PA Jastillano was deliberately indifferent to him in treating him for
an unrelated condition involving an infection of his scrotum. Fowler suggests that PA Jastillano’s
behavior toward him during this treatment demonstrates a pattern of deliberate indifference. But
this condition is not part of a claim in this case and PA Jastillano’s treatment of him for that
condition is not relevant to show whether or not he was deliberately indifferent to the medical
needs at issue in this case.
In short, an examination of the care Fowler received for the conditions that are at issue in
this case does not support a conclusion that PA Jastillano was deliberately indifferent to his needs.
Further, Drs. Potts and Merrell opined that there was no negligence. In the absence of negligence,
there can be no deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Arnett v.
Webster, 658 F.3d 742, 758 (7th Cir. 2011) (stating that deliberate indifference is not medical

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malpractice and that the Eighth Amendment does not codify common law torts); Norfleet v.
Webster, 439 F.3d 392, 396 (7th Cir. 2006); Sanville v. McCaughtry, 266 F.3d 724, 735 (7th Cir.
2001) (explaining that negligence does not state an Eighth Amendment claim); Holmes v. Sheahan,
930 F.2d 1196, 1200 (7th Cir. 1991) (citation omitted) (stating that a plaintiff “must demonstrate
more than mere negligence on the part of government personnel in the diagnosis or treatment of a
medical condition: a complaint alleging no more than ‘an inadvertent failure to provide adequate
medical care’ does not state a valid claim of medical mistreatment under Estelle”). PA Jastillano
is therefore entitled to summary judgment on Fowler’s deliberate indifference claims.7
Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment [dkt 105] is
granted. The motion to file a surreply [dkt 114] is granted to the extent the Court considered the
arguments made in the proposed surreply. Judgment consistent with this Entry shall now issue.

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In his response to the motion for summary judgment, Fowler again challenges the Court’s ruling
allowing recruited counsel to withdraw their appearances on his behalf, but Fowler still fails to
show that there was any error in this ruling. As the Court explained in detail in its rulings granting
the motion to withdraw filed by Fowler’s counsel and denying Fowler’s motion for reconsideration
on this issue, Fowler had able counsel recruited by the Court to represent him in this matter on a
pro bono basis. It bears noting that recruited counsel, John Maley, is highly regarded in
Indianapolis and has successfully represented pro se prisoners in previous cases in this Court. See,
e.g., Kadamovas v. Lockett, 2:11-cv-15-WTL-DKL; Gabaldon v. Lilly et al., 2:10-cv-149-WTLWGH. The record reflects that recruited counsel consulted an orthopedic surgeon to provide an
opinion regarding the medical care that Fowler received. Dkt. 86-2. Based on a review of the
medical records, the surgeon concluded that he or she could not opine that there were any breaches
in the standard of care. Dkt. 86-2. After learning this, Fowler then “relieved [counsel] from
representation.” Dkt. 98. Counsel was thus permitted to withdraw. Dkt. 87. The Court further
declined to seek new counsel to represent Fowler, explaining: “There simply are not enough
attorneys willing and able to volunteer their time on a pro bono basis to permit a litigant to seek
new counsel whenever counsel provides the litigant advice with which he disagrees.” Dkt. 87.
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IT IS SO ORDERED.
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Date: 2/2/17
Distribution:
JAMES FOWLER
23654-058
FCI Petersburg Medium
P.O. Box 1000
Petersburg, VA 23804
All electronically registered counsel

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