OGLE v. WEXFORD HEALTH SERVICES et al

Filing 50

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - Defendants' motion to strike is GRANTED. Dkt. 49 . The clerk is directed to strike the responses filed at dkts. 46 and 48 .Defendants' motion for summary judgment is GRANTED. Dkt. 39 . Final judgment will issue in a separate entry. SEE ORDER. Signed by Judge James Patrick Hanlon on 3/12/2025. Copy to Plaintiff via US Mail. (AAS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
BRYAN A. OGLE,

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Plaintiff,
v.
WEXFORD OF INDIANA, LLC, et al.,
Defendants.

No. 2:22-cv-00169-JPH-MG

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Bryan Ogle alleges that Defendants, who are employed by
Wexford to provide medical care to inmates at Wabash Valley Correctional
Facility, were deliberately indifferent to his migraine headaches, epilepsy,
hypoglycemia, and eye injury in violation of the Eighth Amendment, and
retaliated against him for seeking care in violation of the First Amendment.
Defendants have filed a motion for summary judgment. Dkt. [39]. For the
reasons below, that motion is GRANTED.
I.
Facts and Background
Because Defendants have moved for summary judgment under Rule
56(a), the Court views and recites the evidence "in the light most favorable to
the non-moving party and draws all reasonable inferences in that party's
favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).
Plaintiff failed to timely respond to the summary judgment motion.
Accordingly, facts alleged in the motion are "admitted without controversy" so
long as support for them exists in the record. S.D. Ind. L.R. 56-1(b), (f).
1

Mr. Ogle is incarcerated at Wabash Valley. Dkt. 1 at 2. He is a chronic
care patient, meaning that he typically would be seen by medical staff every six
months. Dkt. 42-11 at 6. He suffers from migraine headaches, epilepsy,
hypoglycemia, and gastroesophageal reflux disease, and has complex partial
seizures. Dkt. 1 at 12; dkt. 42-11 at 9. He received medical care at Wabash
Valley from about 2019 through 2021 for his seizures, hypoglycemia, a hand
injury, and eye injuries.
A. Seizures and migraine headache medication
Mr. Ogle is diagnosed with having complex partial seizures, and alleges
that he also has grand mal seizures that cause him to lose consciousness.
Dkt. 42-11 at 9; dkt. 42-12 at 23. Mr. Ogle testified that his medical
conditions are interrelated, and managing his migraine headaches is key to
preventing grand mal seizures. Dkt. 42-11 at 10; dkt. 42-1 at 4; dkt. 42-2 at 1.
Dr. Rajoli began treating Mr. Ogle in 2019. Dkt. 42-1 at 2. At that point,
it had been at least a year since Mr. Ogle had taken antiseizure medications.
Id. at 1–2. Dr. Rajoli did not prescribe any antiseizure medication, but instead
continued a prescription for Excedrin migraine, to be taken when necessary.
Id. At times, Mr. Ogle's Excedrin prescription would expire. Id. at 4–5; dkt. 4212 at 75. To get the prescription extended, Mr. Ogle was told he would have to
sign up for nurse sick call or wait to be seen at another appointment. Dkt. 4212 at 75–76; dkt. 42-4 at 2. Another time, Mr. Ogle submitted a healthcare
request when his prescription expired, and nurse Kayla McDonald emailed Dr.
Rajoli, who ordered a refill that same day. Dkt. 42-6 at 2; dkt. 42-14 at 1.
2

In April 2020, Mr. Ogle saw Dr. Byrd, who prescribed Dilantin, an
antiseizure medication. Dkt. 42-2 at 2. Mr. Ogle took Dilantin for a few
months, but subsequently stopped taking it as it caused heartburn; Dr. Byrd
therefore discontinued the prescription for Dilantin. Id. When Mr. Ogle saw
Dr. Rajoli again in September 2020, however, he asked to try Dilantin again,
and Dr. Rajoli prescribed it. Dkt. 42-1 at 3. By February 2021, Mr. Ogle
ceased taking Dilantin, and no other antiseizure medication was prescribed.
Id.
B. Hypoglycemia
Dr. Byrd believed that Mr. Ogle's hypoglycemia was properly managed
with education and an order for Mr. Ogle to have an additional snack, to
regulate his blood sugar. Dkt. 42-2 at 3. Dr. Byrd did not believe Mr. Ogle
required daily blood sugar checks.
On August 29, 2019, nurse Barbara Riggs responded to a call that Mr.
Ogle was "out of it" and lying on the ground in the housing unit. Dkt. 42-7 at
2. Mr. Ogle's blood sugar was low, and Ms. Riggs provided him with glucose
gel; Mr. Ogle was transported to the infirmary. Id. Mr. Ogle informed Ms.
Riggs he had not eaten breakfast that morning. Id.
C. Hand injury
On May 16, 2019, Mr. Ogle injured his thumb during a volleyball
game. Dkt. 42-2 at 2; dkt. 42-12 at 12–13. Mr. Ogle was seen that day, and
was instructed to ice, rest, and use Tylenol until he could be seen by a doctor.
Dkt. 42-12 at 12–13. Dr. Byrd issued an order for an x-ray. Dkt. 42-2 at 2;
3

dkt. 42-12 at 12–13. Mr. Ogle requested to be seen the next day, and Ms.
Riggs told him to submit another request if he saw no improvement. Dkt. 42-7
at 1–2. Mr. Ogle continued to have issues with his thumb, and Dr. Rajoli saw
Mr. Ogle on July 11, 2019. Dkt. 42-1 at 2; dkt. 42-12 at 12–13. He ordered a
compression wrap, medication, and home exercises for his thumb injury. Id.
D. Eye injuries
On August 27, 2020, Mr. Ogle's eye was injured while he was playing
basketball. Dkt. 42-5 at 1. He was seen that day by nurse Julie Hamilton.
Dkt. 42-5 at 1. She relayed her findings to Dr. Byrd, who ordered that Mr.
Ogle receive an eyepatch, Tylenol, and be followed up with the next day to
receive antibiotic eyedrops. Dkt. 42-2 at 2; 42-5 at 1. The following day, Dr.
Byrd instructed Ms. Riggs to give Mr. Ogle antibiotic eyedrops, which Ms. Riggs
dispensed to Mr. Ogle that morning. Dkt. 42-2 at 3; dkt. 42-7 at 3.
Mr. Ogle submitted a grievance requesting a treatment plan for his eye
injury. Dkt. 42-3. Kimberly Hobson, the health services administrator,
responded to the grievance, informing him he already had a treatment plan and
instructing him to submit a healthcare request if he had further medical
issues. Id. at 3.
On December 14, 2020, nurse Kayla McDonald saw Mr. Ogle after he
submitted a healthcare request. Dkt. 42-6 at 1. Ms. McDonald asked the
facility administrative assistant about whether Mr. Ogle would be able to see
an eye doctor, but was informed that the eye doctor would not be back at

4

Wabash Valley until January. Id. Ms. McDonald therefore scheduled Mr. Ogle
for a visit with the physician instead. Id. at 1–2.
On December 17, 2020, Dr. Rajoli saw Mr. Ogle for the ongoing eye
injury. Dkt. 42-1 at 3. Dr. Rajoli prescribed artificial tears, and ordered that
Mr. Ogle be scheduled with an on-site optometrist. Id.
On April 26, 2021, nurse Teresa Auler saw Mr. Ogle after he submitted a
healthcare request about his eye. Dkt. 42-8 at 1. Mr. Ogle described having
sharp pain in his eye. Id. Ms. Auler contacted Dr. Rajoli, who ordered a
Toradol injection for the pain and immediate referral to the on-site eye doctor.
Id.; dkt. 42-1 at 3. Ms. Auler provided the Toradol injection and submitted the
referral paperwork. Dkt. 42-8 at 2.
Two days later, Dr. Rajoli referred Mr. Ogle to see an ophthalmologist
about a potential corneal injury. Dkt. 42-1 at 4. Amy Wright assisted in
preparing the referral paperwork. Dkt. 42-1 at 4; dkt. 42-4 at 2–3. The referral
request was sent to Abigail Cooper, an administrative assistant at Wabash
Valley who was responsible for scheduling off-site medical care. Dkt. 42-9 at 1.
Ms. Cooper was unable to secure an urgent ophthalmology appointment or onsite optometry appointment for Mr. Ogle due to provider availability. Id. at 2–3.
On May 5, 2021, Dr. Rajoli was able to consult with the optometrist, and
then ordered topical anti-inflammatories and antibiotics for the eye injury.
Dkt. 42-1 at 4; dkt. 42-9 at 3.

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E. Grievances, medical requests, and scheduling
Mr. Ogle filed medical care requests and grievances relating to the
scheduling of his medical appointments, the healthcare he received, and issues
with prescriptions not being refilled. See dkt. 42-12 at 70–76; dkt. 42-13.
These include:
•

A grievance regarding his medical care, which was forwarded to Ms.
Hobson, the Health Services Administrator. Dkt. 42-11 at 11; dkt.
42-3; dkt. 42-13 at 2. Ms. Hobson was confused as to what the
grievance was requesting, and responded that Mr. Ogle would need to
be more specific and clarify what he was having issues with. Dkt. 423 at 2–3; dkt. 42-13 at 2–3.

•

Two different medical requests regarding his medication being delayed
or cancelled, and other chronic care issues or issues with his
treatment plan not being followed. Dkt. 42-11 at 11–12. Ms. Wright
responded to these requests, telling Mr. Ogle that he would have to
wait and address his concerns during his chronic care appointments,
which occurred every six months. Id.

•

A healthcare request on March 17, 2020, stating that he had a
headache and had had seizures, and that he had seen a nurse who
had told him that there was nothing the nurses could do and he
needed to see a doctor. Dkt. 42-12 at 72. Ms. Riggs responded to the
request, noting that Mr. Ogle was scheduled for a chronic care
appointment the following week. Id.; dkt. 42-7 at 2.

•

A healthcare request on August 28, 2020, which was denied. Dkt. 4211 at 13; 42-13 at 4. Mr. Ogle mistakenly believed that this request
was denied by Julie Chantell, but now agrees that the request was
actually denied by a nurse named Juanita Chattin. Dkt. 42-11 at 13.

Additionally, Mr. Ogle was supposed to have a chronic care appointment
in March 2020, but Ms. Riggs and Chelsea Pearison informed Mr. Ogle that his
appointment was rescheduled for the following week. Dkt. 42-11 at 19. Ms.
Pearison and Ms. Riggs made Mr. Ogle take off his sunglasses, which the
optometrist had authorized Mr. Ogle to wear. Dkt. 42-11 at 14, 18. Ms.
6

Pearison told Mr. Ogle that there were other patients in worse condition than
Mr. Ogle was, and that Mr. Ogle would have to wait for his chronic care
appointment to see the doctor. Id. Mr. Ogle expressed disbelief at the delayed
appointment, and Ms. Riggs replied, "you want to go for two weeks?" Dkt. 4211 at 19.
Chelsea Pearison worked as a medical assistant, creating and submitting
paperwork to assist medical staff. Dkt. 42-10 at 1. Ms. Pearison did not have
the authority to cancel a patient's appointment but could communicate with
patients about rescheduling appointments. Id. She does not specifically
remember any interaction with Mr. Ogle. Id.
Ms. Riggs does not recall any involvement in rescheduling Mr. Ogle's
appointment. Dkt. 42-7 at 3.
Mr. Ogle was ultimately seen for his chronic care appointment with Dr.
Byrd on April 2, 2020. Dkt. 42-7 at 3. Dr. Byrd does not have any
independent memory of the rescheduling. Dkt. 42-2 at 4.
Mr. Ogle alleges that the Wexford medical providers would use the co-pay
system to deter patients from complaining or from seeking medical care. Dkt.
42-11 at 20–21.
F. Procedural history
Defendants moved for summary judgment on July 30, 2024. Dkt. 39.
Mr. Ogle sought an extension of time to respond, dkt. 44, which the Court
granted, giving him until November 25, 2024, to file a response, dkt. 45. Mr.
Ogle filed a response on January 29, 2025, dkt. 46, giving no explanation for
7

filing his response more than two months after the Court-imposed deadline. A
week later he filed another response, dkt. 48.
II.
Summary Judgment Standard
Summary judgment shall be granted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party must
inform the court "of the basis for its motion" and specify evidence
demonstrating "the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must "go beyond the pleadings" and identify
"specific facts showing that there is a genuine issue for trial." Id. at 324.
In ruling on a motion for summary judgment, the Court views the
evidence "in the light most favorable to the non-moving party and draw[s] all
reasonable inferences in that party's favor." Zerante, 555 F.3d at 584 (citation
omitted).
III.
Analysis
A. Motion to strike
Mr. Ogle filed a response to Defendants' motion for summary judgment
on January 29, 2025, more than two months after the deadline. Dkt. 46; see
dkt. 45. Moreover, it was unsigned, and Mr. Ogle did not designate any
additional evidence or submit a statement of material facts in dispute. Dkt. 46.
Defendants filed a reply, arguing that Mr. Ogle's response should be stricken
8

as untimely and improper, as well as responding to the substance of the
motion. Dkt. 47. Three days later, Mr. Ogle filed another response, which was
signed and contained different arguments than his first filing. Dkt. 48.
Defendants filed a motion to strike, arguing that multiple responses to a
dispositive motion are improper. Dkt. 49.
Mr. Ogle has provided no explanation or excuse as to why his responses
were untimely, or why he filed a second, different response. The first response,
dkt. 46, violates Federal Rule of Civil Procedure 11(a) because it is unsigned. It
also violates S.D. Ind. L.R. 56-1(b) because it does not have a statement of
material facts in dispute or otherwise support asserted facts with specific
citations to the evidentiary record. The Court therefore strikes Mr. Ogle's first
response, dkt. 46. Hinterberger v. City of Indianapolis, 966 F.3d 523, 528-29
(7th Cir. 2020) (affirming district court's striking of plaintiff's purported
statement of disputed material facts because it did not comply with S.D. Ind.
L.R. 56-1(b)).
The second response, dkt. 48, fares no better. In addition to having been
filed more than two months after the Court's deadline, it too does not comply
with S.D. Ind. L.R. 56-1(b). To the extent that Mr. Ogle intended for the first 10
pages to function as a statement of material facts in dispute, they don't.
Instead, his second response is a lengthy narrative, bereft of citations to record
evidence and would require the Court to sift through it searching for genuinely
disputed material facts, which would defeat the purpose of the rule.
Hinterberger, 966 F.3d at 529. The Court therefore GRANTS Defendants'
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motion to strike, dkt. 48. See Rosemary B. on Behalf of Michael B. v. Board of
Educ. of. Comm. High School, 52 F.3d 156, 158 (7th Cir. 1995) ("A district court
has the power to strike a response to a motion for summary judgment when
the non-moving party fails to comply with local rules regarding
that response."); see also Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.
2006) (noting that "even pro se litigants must follow rules of civil procedure").
B. Eighth Amendment Deliberate Indifference
"The Eighth Amendment proscribes deliberate indifference to serious
medical needs of prisoners amounting to the unnecessary and wanton
infliction of pain." Stockton v. Milwaukee County, 44 F.4th 605, 614 (7th Cir.
2022). "In order to maintain a deliberate indifference claim, [Mr. Ogle] must
point to evidence that (1) [he] suffered an objectively serious medical condition;
(2) the defendant in question knew of the condition and was deliberately
indifferent to treating [Mr. Ogle]; and (3) this deliberate indifference injured [Mr.
Ogle]." Id.
Mr. Ogle brings Eighth Amendment deliberate indifference claims against
the eleven individual defendants. Defendants do not dispute that Mr. Ogle's
medical conditions were serious; instead, they argue that no reasonable jury
could find that they were deliberately indifferent to treating that condition, and
they are therefore entitled to summary judgment. See dkt. 40 at 8; dkts. 42-1–
42-11.

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1. Dr. Rajoli
Mr. Ogle alleges that Dr. Rajoli failed to prescribe antiseizure medication,
manage Mr. Ogle's hypoglycemia or properly treat Mr. Ogle's eye injury, and
allowed prescriptions to lapse. Dkt. 42-11 at 5–6, 8–9. Dr. Rajoli responds
that the care he provided was appropriate. Dkt. 40 at 9.
Mr. Ogle was not taking antiseizure medication when Dr. Rajoli began
treating him, and his medical records do not indicate that his seizures were
exacerbated without medication or were severe enough to require antiseizure
medication to treat. Dkt. 42-11 at 1, 4. When Mr. Ogle requested to try
antiseizure medication again, Dr. Rajoli prescribed it. Id. at 3. Mr. Ogle had
told Dr. Rajoli that Excedrin was effective at managing his seizures, as his
seizures were tied to his migraines, and Dr. Rajoli continued to prescribe
Excedrin. Id. at 4. Mr. Ogle argued Dr. Rajoli should have prescribed an
antiseizure medication rather than Excedrin alone, dkt. 42-11 at 5–6, however,
the Eighth Amendment does not require that Dr. Rajoli prescribe a certain
class of medication to treat Mr. Ogle's condition. The designated evidence
shows that Dr. Rajoli's decision to prescribe Excedrin rather than another
medication was based on his professional judgment, and there is no designated
evidence from which a reasonable jury could conclude that his decision was a
substantial departure from that acceptable professional judgment, either. See
Lockett v. Bonson, 937 F.3d 1016, 1024 (7th Cir. 2019) (noting that there is no
Eighth Amendment violation "where a prisoner's claim is based on a preference

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for one medication over another unless there is evidence of a substantial
departure from acceptable professional judgment."); see dkt. 42-12.
For Mr. Ogle's hypoglycemia, Dr. Rajoli determined it was properly
managed through lifestyle modification and consuming food to alleviate
incidences of low blood sugar. Dkt. 42-1 at 4. Dr. Rajoli authorized a
continuous order for an additional snack for Mr. Ogle to help to manage his
blood sugar. Id.; dkt. 42-12 at 6, 68. Dr. Rajoli did not believe that Mr. Ogle
required any additional treatment or daily blood sugar checks. Id.; see dkt. 4211 at 10. The designated evidence shows that this decision was based on Dr.
Rajoli's professional judgment, and was not "blatantly inappropriate" or
otherwise in violation of the Eighth Amendment. See Pyles v. Fahim, 771 F.3d
403, 409 (7th Cir. 2014) ("The federal courts will not interfere with a doctor's
decision to pursue a particular course of treatment unless that decision
represents so significant a departure from accepted professional standards or
practices that it calls into question whether the doctor actually was exercising
his professional judgment.").
As to the eye injury, Dr. Rajoli ordered Toradol to alleviate the pain, and
referrals to see an optometrist and ophthalmologist. Id. at 3–4. When there
were no immediately available appointments for Mr. Ogle to see either provider,
Dr. Rajoli consulted with the optometrist and then ordered medications. Id.
No designated evidence supports a conclusion that Dr. Rajoli's course of
treatment was not appropriate, or that he was responsible for the unavailability
of specialist appointments. See Pyles, 771 F.3d at 409; Walker v. Benjamin,
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293 F.3d 1030, 1038 (7th Cir. 2002) (no Eighth Amendment violation where
doctor was not responsible for delay in inmate's appointment with specialist).
Finally, while Mr. Ogle's prescriptions lapsed at times, they were refilled
when Mr. Ogle submitted written healthcare requests informing medical staff
that he needed a refill, or continued when he saw medical providers. Nothing
in the designated evidence allows a reasonable jury to find that Dr. Rajoli did
not authorize prescriptions when he was aware that Mr. Ogle needed them.
The Eighth Amendment does not require Dr. Rajoli to ensure that prescriptions
never lapse. See Machicote v. Roethlisberger, 969 F.3d at 822, 828 (7th Cir.
2020) (affirming summary judgment where no evidence suggested doctor could
have anticipated delay in prescription being filled); Arnett v. Webster, 658 F.3d
742, 758–59 (7th Cir. 2011) (no deliberate indifference where doctor failed to
investigate after patient did not receive prescribed pain medications); see also
Blake v. Warner, 756 F. App'x 653 (7th Cir. 2019).
Dr. Rajoli is therefore entitled to summary judgment on Mr. Ogle's Eighth
Amendment claim.
2. Dr. Byrd
Mr. Ogle alleges that Dr. Byrd allowed Mr. Ogle's prescriptions to
lapse at times. Dkt. 42-11 at 10. Mr. Ogle testified, however, that Dr. Byrd
does an "awesome job" as a medical provider, and that nothing he had done
was "necessarily malicious," so any claim against Dr. Byrd was "nominal" or
could be completely dropped. Id. Dr. Byrd responds that he was minimally

13

involved in Mr. Ogle's treatment, and that the treatment he did provide was
adequate. Dkt. 40 at 10.
The designated evidence does not allow a reasonable jury to find that Mr.
Ogle could not request—and receive—refills or continuations of his
prescriptions when needed, or that Dr. Byrd prevented Mr. Ogle from receiving
his medications. Therefore, Dr. Byrd is entitled to summary judgment on Mr.
Ogle's Eighth Amendment claim. See Arnett, 658 F.3d at 758–59.
3. Ms. Hobson
Mr. Ogle alleges that Ms. Hobson did not resolve his complaint that he
had to submit healthcare requests to get prescriptions refilled. Dkt. 42-11 at
11. Ms. Hobson responds that she did not have any direct involvement with
Mr. Ogle's medical care and made no decisions regarding his care. Dkt. 40 at
11; dkt. 42-3 at 3–4.
The designated evidence shows only that Ms. Hobson reviewed Mr. Ogle's
medical records and then responded to the grievance specialists with that
information. There is no designated evidence that shows Ms. Hobson ever
ignored a request, prevented Mr. Ogle from receiving treatment, or otherwise
contributed to or interfered with his care. See Arnett, 658 F.3d at 756 (case
manager was not deliberately indifferent because he "was able to relegate to the
prison's medical staff the provision of good medical care"); Machicote, 969 F.3d
at 827 (affirming summary judgment for health services administrator where
no evidence suggested she was involved in plaintiff's treatment or had authority

14

to intervene in his treatment); Rivera v. Gupta, 836 F.3d at 839, 841 (7th Cir.
2016).
Ms. Hobson is entitled to summary judgment on Mr. Ogle's Eighth
Amendment claim.
4. Ms. Wright
Mr. Ogle alleges Ms. Wright did not adequately address his grievances
when she responded by informing him that he would have to wait for his
chronic care appointment scheduled for the following month to see a doctor, or
sign up for nurse sick call. Dkt. 42-11 at 12; dkt. 42-12 at 71, 75. Ms. Wright
responds that she was minimally involved in Mr. Ogle's care, and she
responded properly to Mr. Ogle's complaints. Dkt. 40 at 12; dkt. 42-4 at 1–2.
The designated evidence shows that Ms. Wright responded to Mr. Ogle's
grievances. The grievances do not indicate that Mr. Ogle needed emergency
medical attention, or that Ms. Wright could have thought that he would be at a
risk of substantial harm if he was not seen by medical providers immediately
and disregarded that risk. See dkts. 42-12 at 71, 75. The designated evidence
does not show, therefore, that Ms. Wright exhibited any deliberate indifference
to Mr. Ogle's medical care. See Arnett, 658 F.3d at 756; Machicote, 969 F.3d at
827.
Ms. Wright is therefore entitled to summary judgment on the Eighth
Amendment claim.
5. Ms. Chantell
Ms. Chantell was mistakenly named as a defendant in this lawsuit. Mr.
15

Ogle believed she had signed a response to a healthcare request form he
submitted, however, he subsequently agreed that it was actually a different
nurse, Juanita Chattin, who had signed that form. Dkt. 42-11 at 12–13.
There is no other claim or allegation against Ms. Chantell, and she is entitled to
summary judgment.
6. Ms. Hamilton and Ms. Auler
Ms. Hamilton and Ms. Auler were both nurses who treated Mr. Ogle's eye
injury on two different occasions. Mr. Ogle alleges they did not provide
adequate care. Dkt. 42-11 at 13, 16. Ms. Hamilton and Ms. Auler respond
that as nurses they did not have the authority to order specific care, but they
assessed Mr. Ogle's injury, contacted the physician, and followed the
physician's directions. Dkt. 40 at 14, 16.
The designated evidence shows that, when Ms. Hamilton saw Mr. Ogle
for his injury, she completed a nurse assessment, contacted Dr. Byrd, and
followed Dr. Byrd's directions. Dkt. 42-5. Similarly, the designated evidence
shows that when Ms. Auler saw Mr. Ogle for his injury, she completed an
assessment and contacted Dr. Rajoli, who instructed her to provide a Toradol
injection for the pain and refer Mr. Ogle to an optometrist. Dkt. 42-8 at 1–2.
Ms. Auler followed those instructions. Id. Based on these facts, no reasonable
juror could conclude that either Ms. Hamilton or Ms. Auler was deliberately
indifferent to Mr. Ogle's medical needs. See Brown v. Osmundson, 38 F.4th
545, 553 (7th Cir. 2022) (no deliberate indifference when nurse performed

16

assigned duties and relayed necessary information to doctor, as only doctor
could make important treatment decisions for patient).
Ms. Hamilton and Ms. Auler are both entitled to summary judgment on
the Eighth Amendment claim.
7. Ms. McDonald
Mr. Ogle alleges Ms. McDonald delayed his medical care when she saw
him on December 14 in response to a healthcare request he had submitted on
December 9. Dkt. 42-11 at 13; dkt. 42-12 at 43–45; dkt. 42-6. Ms. McDonald
responds that she provided appropriate care, including by referring Mr. Ogle to
be seen by a physician. Dkt. 40 at 15.
The December 9 healthcare request is not included in the designated
evidence. Also, the designated evidence does not show when Ms. McDonald
became aware of it, or whether Mr. Ogle complained of being in significant
pain. While "inexcusable or excessive" delays may constitute an Eighth
Amendment violation, a "minimal" delay does not. Brown, 38 F.4th at 551
(holding that a delay of three-and-a-half days to send patient with appendicitis
to the hospital was only a "minimal" delay); see Petties v. Carter, 836 F.3d 722,
730 (7th Cir. 2016). Here, there is no designated evidence that would allow a
reasonable juror to conclude that there was an "inexcusable or excessive" delay
between Mr. Ogle submitting the request and Ms. McDonald seeing him five
days later, or that Ms. McDonald herself was responsible for the delay. See
Thomas v. Martija, 991 F.3d 763, 773 (7th Cir. 2021) (affirming summary
judgment for a defendant who "had nothing to do with any delays").
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Consequently, Ms. McDonald is entitled to summary judgment on Mr.
Ogle's Eighth Amendment claim.
8. Ms. Riggs
Mr. Ogle alleges Ms. Riggs was deliberately indifferent when she did not
give him prescribed medicated eye drops until the day after his injury, refused
to see him for an in-person assessment, and prevented him from seeing the
doctor. Dkt. 42-11 at 14–17. Ms. Riggs responds that she appropriately
followed a physician's orders in providing Mr. Ogle care. Dkt. 40 at 15–16.
The designated evidence shows that Ms. Riggs received a verbal order
from Dr. Byrd on August 28, 2020—the day after Mr. Ogle's eye was injured—
to give Mr. Ogle eye drops and dispensed the eye drops to him that same
morning, less than 24 hours after the injury occurred. Dkt. 42-7; dkt. 42-2 at
3; dkt. 42-12 at 34, 38. She did not receive instructions that Mr. Ogle should
be seen by a doctor or have an in-person assessment at that point, nor did she
believe it was necessary for Mr. Ogle to do so. Id. As the designated evidence
shows Ms. Riggs followed the physician's instructions and promptly delivered
Mr. Ogle's medication, no reasonable juror could conclude that she was
deliberately indifferent to Mr. Ogle's medical needs. See Brown, 38 F.4th at
553.
Consequently, Ms. Riggs is entitled to summary judgment on the Eighth
Amendment claim.
9. Ms. Cooper
Mr. Ogle alleges Ms. Cooper was deliberately indifferent for failing to
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schedule him an appointment with an ophthalmologist. Dkt. 42-11 at 17. Ms.
Cooper responds that her role was limited to administrative and scheduling
responsibilities, rather than provide medical care, and that she took steps to
follow the directions of medical professionals. Dkt. 40 at 17.
The designated evidence shows that Ms. Cooper tried to schedule an
appointment for Mr. Ogle promptly after receiving the request, but no providers
were able to accommodate him as a patient at that time. Dkt. 42-9 at 2–3. Ms.
Cooper had no control over whether providers had available appointments or
not, so she cannot be liable for the lack of available appointments. See Walker
v. Wexford Health Sources, Inc., 940 F.3d 954, 966 (7th Cir. 2019) (affirming
summary judgment for individual who had no control over scheduling delays
with outside specialists).
Ms. Cooper is therefore entitled to summary judgment on the Eighth
Amendment claim.
10.

Ms. Pearison

Mr. Ogle alleges Ms. Pearison was deliberately indifferent because
she delayed his chronic care appointment in March 2020, and she told him to
remove his sunglasses. Dkt. 42-11 at 17–19. Ms. Pearison responds that she
was not involved in rescheduling his appointment, and asking a patient to
remove sunglasses is not a constitutional violation. Dkt. 40 at 18–19.
As to the rescheduled appointment, the designated evidence shows that
Ms. Pearison could not have been responsible, as she did not have the
authority or ability to change appointment times. Dkt. 42-10 at 2. As she was
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not responsible for the delayed appointment, she cannot be liable for the delay.
See Thomas, 991 F.3d at 773.
As to the sunglasses, Ms. Pearison testified that she did not remember
any interaction with Mr. Ogle, and so did not deny that she told him to take off
his sunglasses. Id. There is no designated evidence, however, suggesting that
Ms. Pearison was aware that Mr. Ogle needed to wear the sunglasses, or that
not wearing the sunglasses would cause Mr. Ogle any harm, or that taking the
sunglasses off did cause Mr. Ogle any harm. Therefore, a reasonable juror
could not conclude from the designated evidence that Ms. Pearison was aware
of and disregarded a substantial risk to Mr. Ogle's safety by instructing him to
take off his sunglasses, as required by the Eighth Amendment deliberate
indifference standard. See Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996)
("[A] defendant's inadvertent error, negligence or even ordinary malpractice is
insufficient to rise to the level of an Eighth Amendment constitutional
violation.").
Ms. Pearison is therefore entitled to summary judgment on the Eighth
Amendment claim.
C. First Amendment Retaliation
To establish a First Amendment retaliation claim, a plaintiff must show
that: (1) he engaged in protected First Amendment activity; (2) he suffered a
deprivation that would likely deter future First Amendment activity; and (3) the
protected activity was a motivating factor in the defendants' decision to take
the allegedly retaliatory action. Jones v. Van Lanen, 27 F.4th 1280, 1284 (7th
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Cir. 2022). If he does so, the burden shifts to the defendants to show that the
deprivation would have occurred even if he had not engaged in protected
activity. Manuel v. Nalley, 966 F.3d 678, 680 (7th Cir. 2020). If they can make
that showing, the burden shifts back to the plaintiff to demonstrate that the
proffered reason is pretextual or dishonest. Id.
Mr. Ogle alleged that Defendants retaliated against him by delaying his
care, which resulted in Mr. Ogle not getting medical assistance, updated
treatment plans, or medication renewals when he was supposed to. Dkt. 42-11
at 22. For instance, he alleged that Dr. Byrd's failure to immediately prescribe
a different antiseizure medication when Mr. Ogle stopped taking Dilantin was
retaliation for Mr. Ogle complaining about his care, as was Ms. Cooper's failure
to schedule an ophthalmology appointment. Id. at 24, 25. Mr. Ogle also
alleges that defendants used copays to deter inmates from complaining or
seeking medical care. Id. at 20.
Defendants do not dispute that Mr. Ogle engaged in protected First
Amendment activity by requesting medical attention or complaining about the
care he received. Dkt. 40 at 19–20. They argue, however, that Mr. Ogle did not
suffer any deprivation, and that no defendant's conduct was motivated by any
protected First Amendment activity. Id.
As to the deprivation element, the designated evidence shows that Mr.
Ogle was able to continue to access and receive care—including through
chronic care appointments and nursing sick calls—file healthcare requests,
and receive the medications that he needed. Thus, while denial of adequate
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medical care is a cognizable deprivation in the First Amendment context, see
Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015), Mr. Ogle has not shown
that he suffered any deprivation that would likely to deter "a person of ordinary
firmness" from continuing to file healthcare requests or grievances. See
Douglas v. Reeves, 964 F.3d 643, 647–48 (7th Cir. 2020) (A plaintiff "needed to
point to a deprivation with some significant deterrent effect in the prison
context" to support a First Amendment retaliation claim).
As to the motivating factor element, the designated evidence does not
allow a reasonable jury to find that any defendant's decisions or conduct was
motivated by Mr. Ogle's requests for care. While Mr. Ogle may believe that
each defendant sought to retaliate against him, mere speculation as to
motive—without any other evidence—is insufficient to survive summary
judgment. Similarly, there is no explanation in the designated evidence as to
how charging copays was in any way retaliatory or designed to deter healthcare
requests. See Jones, 27 F.4th at 1284 (quoting Devbrow v. Gallegos, 735 F.3d
584, 587 (7th Cir. 2013).
In sum, there is no designated evidence that would support a retaliation
claim against any defendant. Consequently, all defendants are entitled to
summary judgment on Mr. Ogle's First Amendment claim.
D. Monell claim against Wexford
A private company acting under color of state law such as Wexford can
be held liable when its "official policy, widespread custom, or action by an
official with policy-making authority was the 'moving force' behind [the]
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constitutional injury." Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir.
2016); Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir. 2010); see Monell v. Dep't
of Soc. Servs., 438 U.S. 658, 611 (1978).
Mr. Ogle alleges that Wexford had an unconstitutional policy or custom
of delaying medication delivery and access to medical providers, and of custody
officers not using proper emergency signals to contact medical staff.
As a threshold matter, however, if there is no underlying constitutional
deprivation, a Monell claim cannot survive. Dean v. Wexford Health Sources,
Inc., 18 F.4th 214, 235 (7th Cir. 2021) ("To begin, a § 1983 plaintiff must
always show 'that he was deprived of a federal right.'"); Sallenger v. City of
Springfield, 630 F.3d 499, 505 (7th Cir. 2010) ("[B]ecause there is no
underlying constitutional violation, the City cannot be liable under Monell.").
As discussed above, the designated evidence would not allow a reasonable jury
to conclude that Mr. Ogle's medical care was so delayed as to violate the Eighth
Amendment. See Munson v. Newbold, 46 F.4th 678, 682 (7th Cir. 2022)
(holding that "Wexford cannot be liable where, as here, [plaintiff] is unable to
establish that he was deprived of a federal right."). And to the extent that Mr.
Ogle argues custody officers should contact medical staff via a different
method, he does not explain how that implicates any constitutional right, or
offer evidence that Wexford was responsible for the actions of custody officers,
or that the method of calling delayed his care. See Dean, 18 F.4th at 235.

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Without any underlying constitutional injury, there is no Monell liability
under § 1983. Therefore, Wexford is entitled to summary judgment on Mr.
Ogle's Monell claim.
IV.
Conclusion
Defendants' motion to strike is GRANTED. Dkt. [49]. The clerk is
directed to strike the responses filed at dkts. 46 and 48.
Defendants' motion for summary judgment is GRANTED. Dkt. [39].
Final judgment will issue in a separate entry.
SO ORDERED.
Date: 3/12/2025

Distribution:
BRYAN A. OGLE
156782
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
All electronically registered counsel

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