Brodigan v. Roberts et al

Filing 155

MEMORANDUM AND ORDER: Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. 130 ) is GRANTED. A separate Order of Judgment will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Plaintiff's Motions for Leave to File Out of Time (Docs. 141 , 149 ) are GRANTED. IT IS FINALLY ORDERED that Plaintiff's Motions to Appoint Counsel (Docs. 142 , 151 ) are DENIED as moot. Signed by District Judge John A. Ross on 3/4/21. (JAB)

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 1 of 23 PageID #: 3215

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID JAMES BRODIGAN,
Plaintiff,
v.
BEN E. SWINK, M.D., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:18-CV-00273-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Corizon, LLC (“Corizon”), Dr. Ben Swink,
Nurse Practitioner (“NP”) Tracy Sutton, Registered Nurse (“RN”) Jessica Engle, NP Shannon
Owens, NP Amy Wallen, and Dr. Sandra Zakroff’s Motion for Summary Judgment. (Doc. 130).
The motion is fully briefed and ready for disposition. 1 For the reasons discussed below, the motion
will be granted.
I.

FACTUAL AND PROCEDURAL BACKGROUND
During all times relevant to the First Amended Complaint (Doc. 79), Plaintiff David James

Brodigan was incarcerated at Eastern Reception, Diagnostic and Correctional Center. (Doc. 132
at ¶ 1). 2 All individual Defendants are healthcare providers and employees of Corizon, which

The Court recognizes that the COVID-19 pandemic has created logistical challenges for Plaintiff and appreciates
that Plaintiff has timely requested appropriate extensions of deadlines. Certain filings in response to the instant motion
were delayed by no fault of Plaintiff. (Docs. 141; 146; 149-152). In its discretion, this Court accepts Plaintiff’s delayed
filings as operative.
1

Defendants filed a Statement of Material Facts (“SMF”) along with their Motion for Summary Judgment. (Doc. 132).
Plaintiff has filed a response challenging certain facts in the SMF. (Doc. 144). While Plaintiff’s response does not
comply with the requirements of E.D. Mo. L.R. 4.01(E), it clearly addresses areas of material disagreement with the
SMF and is accepted in this Court’s discretion. All facts not addressed in Plaintiff’s response are deemed admitted for
purposes of this Motion for Summary Judgment.
2

1

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 2 of 23 PageID #: 3216

contracts with the State of Missouri to provide medical care and treatment to inmates within the
Missouri Department of Corrections (“MDOC”). (Id. at ¶¶ 2-8).
Plaintiff brought this case pursuant to 42 U.S.C. § 1983 alleging that Defendants were
deliberately indifferent to his serious medical needs. Plaintiff’s claims cover a nearly eight-year
period but generally concern Defendants’ alleged failure to adequately treat Plaintiff’s right
inguinal hernia. Beyond alleging deliberate indifference against each of the individual Defendants,
Plaintiff claims that Corizon “has an unconstitutional policy, custom[], and practice to deny
medical care predicated upon the cost of the treatment or procedure, and to the detriment of their
patient’s health, welfare and constitutional rights.” (Doc. 79 at ¶ 96).
II.

LEGAL STANDARD
Under Fed. R. Civ. P. 56, a movant is entitled to summary judgment if they can “show[]

that there is no genuine dispute as to any material fact” and they are “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In determining whether summary judgment is appropriate,
evidence must be viewed in the light most favorable to the nonmoving party. Osborn v. E.F. Hutton
& Co., Inc., 853 F.2d 616, 619 (8th Cir. 1988). The nonmovant, however, “‘must do more than
simply show that there is some metaphysical doubt as to the material facts,’ and must come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp,
475 U.S. 574, 587-87 (1986)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Because Plaintiff is proceeding pro se, this Court construes his filings liberally. Estelle v. Gamble,
429 U.S. 97, 106 (1976).

2

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 3 of 23 PageID #: 3217

III.

PLAINTIFF’S MEDICAL HISTORY
Some facts remain disputed in this case, as demonstrated by Plaintiff’s 105-page response

to the SMF. (Doc. 144). Before addressing the parties’ specific legal arguments, however, it is
helpful to at least outline those portions of Plaintiff’s relevant medical history acknowledged by
both parties. In early 2012, Plaintiff was diagnosed by Corizon staff as having a right inguinal
herniation, or a medical condition where tissue protrudes through a weak spot in the abdominal
muscle, with the resulting bulge potentially causing pain and discomfort. (Doc. 132 at ¶¶ 11-12;
Doc. 144 at ¶ 2). Throughout 2012, Plaintiff submitted multiple Medical Services Requests
(“MSRs”) indicating that his hernia was causing substantial pain, and Plaintiff received services
accordingly. (Doc. 132 at ¶¶ 13-18; Doc. 144 at ¶¶ 9-19). On December 3, 2012, Corizon employee
Dr. Mullen performed a physical exam, determined Plaintiff’s hernia was non-reducible, and
placed a referral for a CT scan. (Doc. 132 at ¶¶ 18-19; Doc. 144 at ¶¶ 20-21). Plaintiff received a
CT scan at Vista Imaging of Jefferson County on December 19, 2012 which showed “right greater
than left fat containing inguinal ring defects are appreciated. No bowel loop herniation.” (Doc. 132
at ¶ 20; Doc. 132-1 at 760). 3
The next few years follow a similar pattern. Plaintiff repeatedly complained of hernia
symptoms, frequently submitting MSRs and sometimes self-declaring medical emergencies due to
intolerable pain. (Doc. 132 at ¶¶ 22-31; Doc. 144 at ¶¶ 22-49). Finally, on March 18, 2016, NP
Owens determined that Plaintiff’s hernia was non-reducible and had increased in size and
accordingly requested a referral for consultation with general surgery. (Doc. 132 at ¶ 32; Doc. 144

Defendants contend that Plaintiff’s hernia was not consistently present from 2012 to 2016. There are medical records
at least indicating that the hernia had “gone back down” or otherwise was not present at certain points in time. (Doc.
145 at 33, 39). Plaintiff disputes these findings.
3

3

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 4 of 23 PageID #: 3218

at ¶ 54). 4 Plaintiff filed an Informal Resolution Request (“IRR”) the same day complaining of
inadequate treatment and requesting hernia repair surgery. (Doc. 132 at ¶ 33). In April 2016,
Plaintiff had a telehealth appointment with off-site surgeon Dr. Jonathan Roberts of Jefferson City
Medical Group. (Doc. 132 at ¶ 39; Doc. 144 at ¶¶ 55-59). After reviewing Dr. Roberts’ diagnosis,
Corizon Regional Medical Director Hammerly approved the surgery referral, and Plaintiff
underwent hernia surgery on June 22, 2016 at St. Mary’s Hospital in Jefferson City, MO. (Doc.
132 at ¶¶ 40-50; Doc. 144 at ¶ 61). The above events can be described as Plaintiff’s “Pre-Surgery
Treatment,” while the below events constitute the “Post-Surgery Complications.”
Plaintiff began experiencing complications shortly after the surgery. On each of June 27,
2016 and July 8, 2016, Plaintiff self-declared medical emergencies due to intolerable pain in his
groin and right testicle. (Doc. 132 at ¶¶ 60-64; Doc. 144 at ¶ 71). On the latter date, Plaintiff
received an off-site ultrasound at Vista Imaging which revealed decreased blood flow to the right
testicle and partial testicular torsion; the radiologist recommended that Plaintiff be sent to the
emergency room. (Doc. 132 at ¶ 55; Doc. 144 at ¶ 72; Doc. 133-1 at 153). Plaintiff was transported
to St. Mary’s Hospital in Jefferson City, Missouri, which is allegedly over two hours from Vista
Imaging. (Doc. 132 at ¶¶ 66-67; Doc. 144 at ¶¶ 75-81). Plaintiff strongly disputes the explanation
offered by Defendants as to why Plaintiff was transported to such a distant emergency room. After
being admitted to the St. Mary’s Hospital emergency room at 7:00 P.M., the emergency room
physician (Dr. Wilmore) consulted with the on-call general surgeon (Dr. Petersen) and urologist
(Dr. Trulson). (Doc. 132 at ¶¶ 68-70; Doc. 144 at ¶¶ 82-85). Dr. Wilmore ultimately concluded
that Plaintiff had postoperative right inguinal hernia swelling with resulting diminished blood flow,

Plaintiff disputes NP Owens’ characterization of the changes in Plaintiff’s symptoms. Plaintiff argues that the lump
had become “harder and more sensitive to the touch” but “[n]one of the hernia symptoms” described by NP Owens
“were new symptoms. The [P]laintiff had been experiencing them for years.” (Doc. 144 at ¶ 54).

4

4

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 5 of 23 PageID #: 3219

noting that this was a “normal postoperative finding” and Plaintiff could be discharged. (Doc. 132
at ¶ 70; Doc. 133 at 154).
Plaintiff had a follow-up telehealth visit with his outside surgeon, Dr. Roberts, on August
9, 2016. (Doc. 132 at ¶ 77; Doc. 144 at ¶ 120). Over the following few months, Plaintiff submitted
multiple MSRs noting that he continued to experience complications from hernia surgery and that
his right testicle had “drastically shrunk in size and was hard with little feeling to it.” (Doc. 132 at
¶¶ 79-86; Doc. 144 at ¶¶ 123-129). Eventually, NP Oaks placed a referral for Plaintiff to be
evaluated by an off-site urologist. (Doc. 132 at ¶ 89). Plaintiff had an appointment with an outside
urologist, Dr. Trulson, on November 22, 2016. Dr. Trulson assessed possible neuropathic pain
from nerve compression, stated that Plaintiff should function fine with one testicle, and did not
recommend any further surgical intervention. (Doc. 132 at ¶ 92). Dr. Trulson also indicated that
Plaintiff “can trial Neurontin for nerve pain, but otherwise would plan to observe,” though Plaintiff
alleges that Dr. Trulson had stated that Neurontin was necessary. (Id.; Doc. 144 at ¶¶ 133-139;
Doc. 133 at 352). Over the next few years, Plaintiff continued to submit numerous MSRs
predominantly alleging numbness or pain in the groin and testicular area. (Doc. 132 at ¶¶ 93-121;
Doc. 144 at ¶¶ 140-162). On August 3, 2018, Plaintiff filed suit against Defendants. (Doc. 11-1).
IV.

DISCUSSION
A. Exhaustion of Pre-Surgery Treatment Claims 5
Plaintiff alleges that Defendants failed to address his hernia pain and delayed necessary

surgery from 2012 to 2016. (Doc. 79 at ¶¶ 1-36). Pursuant to the Prison Litigation Reform Act

5
The only individual Defendants involved with Plaintiff’s Pre-Surgery Treatment are NP Reinholdt, NP Owens, and
RN Emilee Garcia. This Court previously granted NP Reinholdt’s Motion to Dismiss. (Doc. 127). It appears that
process was never successfully served on RN Garcia. (Doc. 124). Defendants RN Garcia and NP Reinholdt were part
of the same interaction with Plaintiff, and RN Garcia would have been dismissed for the same reasons as NP Reinholdt
if she had been properly served.

5

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 6 of 23 PageID #: 3220

(“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Under the PLRA, “[e]xhaustion is no longer left
to the discretion of the district court, but is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006).
Courts in this district have consistently confirmed that the PLRA’s exhaustion requirement applies
to claims of deliberate indifference against entities like Corizon and their employees. See Arnold
v. Corizon, Inc., No. 1:15-CV-62 SNLJ, 2016 WL 520950 (E.D. Mo. Feb. 10, 2016); Nettles v.
Lombardi, No. 1:13-CV-146 JAR, 2015 WL 5098729 (E.D. Mo. Aug. 31, 2015).
A prison’s grievance procedures govern the requirements of exhaustion under the PLRA.
Jones v. Bock, 549 U.S. 199, 217-18 (2007). For an MDOC inmate, exhaustion requires filing of
an IRR, Offender Grievance, and Offender Grievance Appeal. (Doc. 132 at ¶ 34). See Foulk v.
Charrier, 262 F.3d 687, 694 (8th Cir. 2001); Barnett v. Hill, No. 1:19-CV-00008-JAR, 2020 WL
440561, at *3 (E.D. Mo. Jan. 28, 2020). Defendants argue that Plaintiff failed to exhaust his
administrative remedies as to the Pre-Surgery Treatment claims because his only exhausted
grievance concerned the Post-Surgery Complications. Plaintiff “does not dispute the general
proposition that prisoners must properly exhaust available administrative remedies” but argues
that he filed numerous grievances and that his exhausted grievance relates back to the Pre-Surgery
Treatment. (Doc. 143 at 2-4).
Plaintiff filed numerous IRRs, as evidenced by the 150-page compilation of Plaintiff’s
grievance documents submitted by Defendants. (Doc. 133-1). It is apparent, however, that Plaintiff
only exhausted one relevant grievance (Grievance #ERDC-16-2195). In the underlying IRR,
submitted by Plaintiff on November 30, 2016, Plaintiff alleged medical malpractice, indifference,
and negligence, stating the following:

6

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 7 of 23 PageID #: 3221

After several years of [Medical Services Requests] & IRRs complaining hernia pain
in groin area I was sent out for surgery, after which I began to experience severe
pain and discomfort in testic[le] area. Was sent out for ultrasound and informed of
restricted blood flow to right testic[le] sent back to hospital where unknown doctor
informed me surgeon said it was normal, saw ERDCC doctor, he said the same.
Saw surgeon on telemed, he once again said normal. Now right testic[le] is dead.
(Doc. 133-1 at 32).
In response to Plaintiff’s Grievance Appeal, Corizon concluded that while Plaintiff did suffer
damage to the right testicle from surgery, “staff were attentive to your complaints and responded
by obtaining imaging, sending you to the emergency room for evaluation, referring you to the
operating surgeon, and referring you to the urologist for further evaluation.” (Doc. 133-1 at 1-2).
The Supreme Court has clarified that the PLRA’s statutory exhaustion requirement
“suggests no limits on an inmate’s obligation to exhaust – irrespective of any ‘special
circumstances.’” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). It is apparent from the record that
Plaintiff’s only exhausted grievance exclusively concerns the Post-Surgery Complications and
does not relate back to Pre-Surgery Treatment. Muhammad v. Mayfield is instructive. 933 F.3d
993 (8th Cir. 2019). In Muhammad, the Eighth Circuit held that the plaintiff’s exhausted
grievances concerning the presence of pork in the prison’s pork-free diet did not raise the otherwise
unexhausted issue, and the one before the Court, of plaintiff seeking daily halal meals. Id. at 100203. The grievance exhausted by the plaintiff in Muhammad was clearly somewhat similar to the
claim before the Court, but that was not sufficient for exhaustion under the PLRA.
Here, there is simply no indication that Grievance #ERDC-16-2195, filed roughly five months
after Plaintiff’s hernia surgery and clearly concerning the Post-Surgery Complications, exhausts
Plaintiff’s claims as to the Pre-Surgery Treatment. 6 Because there is no genuine dispute of material

Plaintiff did submit an IRR and Offender Grievance in Spring 2016 regarding the delay in receiving hernia surgery
(Doc. 133-1 at 138-142), but he did not exhaust this grievance, presumably because he was ultimately scheduled for
surgery. Plaintiff has not brought forth any evidence suggesting that his failure to exhaust should be excused because
a remedy was unavailable. See Muhammad, 933 F.3d at 1000 (quoting Ross, 136 S. Ct. at 1859-60) (An administrative

6

7

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 8 of 23 PageID #: 3222

fact on this issue, summary judgment can be granted in favor of Defendants on all claims
concerning the Pre-Surgery Treatment. 7 This Court will still proceed in the alternative, however,
and substantively address Plaintiff’s claims of deliberate indifference prior to surgery.
B. Deliberate Indifference
Deliberate indifference to an inmate’s serious medical needs constitutes cruel and unusual
punishment in violation of the Eighth Amendment. Nelson v. Corr. Med. Servs., 583 F.3d 522,
531-32 (8th Cir. 2009) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). To make such a claim, a
plaintiff must “make two showings – one objective and one subjective.” Kulkay v. Roy, 847 F.3d
637, 642 (8th Cir. 2017). First, the plaintiff must prove he or she suffered an objectively serious
medical need, which is “one that has been diagnosed by a physician as requiring treatment, or one
that is so obvious that a layperson would easily recognize the necessity for a doctor’s attention.”
Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (quoting Camboros v. Branstad, 73 F.3d
174, 176 (8th Cir. 1995)). Second, the plaintiff must demonstrate that the defendant deliberately
disregarded the need, acting with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511
U.S. 825, 834 (1994) (citation omitted). The required state of mind for culpability “approach[es]
actual intent.” Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993).
“Merely demonstrating that a prison doctor committed medical malpractice is insufficient
to establish deliberate indifference.” Jackson v. Buckman, 756 F.3d 1060, 1065-66 (8th Cir. 2014)

remedy is unavailable “(1) where ‘it operates as a simple dead end – with officers unable or consistently unwilling to
provide any relief to aggrieved inmates,’ (2) where the ‘administrative scheme’ is so ‘opaque’ as to be practically
‘incapable of use’, and (3) where ‘administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.’”). Instead, it appears that Plaintiff was scheduled for surgery soon
after filing his IRR.
This Court has dismissed NP Reinholdt on related grounds, noting that Plaintiff’s receipt of hernia repair surgery
shortly after he filed an IRR “illustrat[es] that the administrative review process was available and functioning.” (Doc.
127 at 5).
7

8

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 9 of 23 PageID #: 3223

(citing Fourte v. Faulkner Cty., 746 F.3d 384, 387 (8th Cir. 2014)). Instead, deliberate indifference
“requires the ‘unnecessary and wanton infliction of pain.’” Choate, 7 F.3d at 1374 (quoting Givens
v. Jones, 900 F.2d 1229, 1232 (8th Cir. 1990)); see also Fourte, 746 F.3d at 387 (citations omitted)
(“Deliberate indifference is more than negligence, more even than gross negligence, and mere
disagreement with treatment decisions does not rise to the level of a constitutional violation.”).
Plaintiff evidently suffered from a genuinely serious medical need as to both the PreSurgery Treatment and Post-Surgery Complications, and Defendants do not suggest otherwise.
Courts in this circuit and the Eighth Circuit Court of Appeals itself have repeatedly confirmed that
a hernia requiring surgery constitutes a serious medical need. See Johnson v. Lockhart, 941 F.2d
705 (8th Cir. 1991); Hancock v. Arnott, 2019 WL 1578768 (W.D. Mo. Apr. 2, 2019); Williams v.
Chandler, No. 4:05-CV-00661 ERW, 2006 WL 2795382 (E.D. Mo. Sept. 27, 2006). Plaintiff’s
Post-Surgery Complications, which required emergency treatment and allegedly resulted in the
loss of Plaintiff’s right testicle, so obviously constitute a serious medical need that a layperson can
recognize them as requiring a doctor’s attention. Therefore, the only question as to each of the
individual Defendants is whether they deliberately disregarded Plaintiff’s serious medical needs.
The Court notes that Plaintiff has substantially disputed the accuracy of his own medical
records. As to virtually each individual Defendant, Plaintiff alleges that the medical records and
treatment notes do not accurately reflect his own statements or the care he received. The Eighth
Circuit has advised that “[i]n the face of medical records indicating that treatment was provided
and physician affidavits indicating that the care provided was adequate, an inmate cannot create a
question of fact by merely stating that [he] did not feel [he] received adequate treatment.” Dulany
v. Carnahan, 132 F.3d 1234, 1242 (8th Cir. 1997). While Courts do not weigh evidence and decide
the truth of the matter at the summary judgment stage, summary judgment may be appropriate

9

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 10 of 23 PageID #: 3224

when “opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
(1) Dr. Swink
Dr. Swink first visited Plaintiff in the Transitional Care Unit (“TCU”) following Plaintiff’s
hernia surgery. (Doc. 132 at ¶ 52). Plaintiff claims that he informed Dr. Swink on June 24, 2016
that there was an “alarming amount of bruising that covered the [P]laintiff’s [e]ntire groin region”
and that Plaintiff’s penis was swollen, but Dr. Swink only recommended ice and rest. (Doc. 144 at
¶ 62). Dr. Swink observed the swelling but believed it was normal after hernia surgery. (Doc. 132
at ¶¶ 52-53). This determination is consistent with the “Surgical/Procedure Care Instructions” from
St. Mary’s Hospital, which Plaintiff signed and specifically provide that “[i]t is common to have a
bruise around one or more incisions.” (Doc. 133-11 at 124). Dr. Swink ordered Prednisone, Colace
(a stool softener), and rest/ice for Plaintiff, and planned a follow-up appointment for three days
later. (Id.). On the morning of June 27, 2016, Dr. Swink released Plaintiff from the TCU after
Plaintiff indicated he was “doing fine today” and requested release back to his housing area. (Id.
at ¶ 59). Dr. Swink ordered ibuprofen and Hydrocodone RDN for pain and limited Plaintiff to
lifting no more than 10 pounds. (Id.; Doc. 133-2 at ¶ 10).
Later that same day, Plaintiff self-declared a medical emergency for hernia pain and
increased swelling. (Doc. 132 at ¶ 60; Doc. 144 at ¶ 63). The responding nurse consulted with Dr.
Swink who proceeded to order Plaintiff Norco for an additional five days to treat pain. (Id.).
Plaintiff did not visit with Dr. Swink again until July 15, 2016, one week after Plaintiff obtained
an ultrasound at Vista Imaging and visited the St. Mary’s Hospital emergency room. (Doc. 132 at
¶¶ 74-75; Doc. 144 at ¶¶ 107-115). According to Defendants, Dr. Swink relied on the judgment of
the surgeon and urologist at St. Mary’s and determined that no further off-site evaluation was
10

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 11 of 23 PageID #: 3225

necessary because Plaintiff’s symptoms were normal for post-operative recovery from inguinal
hernia surgery. (Doc. 132 at ¶ 75; Doc. 133-2 at ¶ 13). Plaintiff disputes the adequacy of Dr.
Swink’s physical examination and alleges that Dr. Swink failed to prescribe necessary pain
medication. (Doc. 144 at ¶¶ 107-115).
While Plaintiff disputes numerous facts regarding his treatment by Dr. Swink, a reasonable
factfinder could not conclude that Dr. Swink was deliberately indifferent to Plaintiff’s serious
medical need based upon the undisputed facts before this Court. Dr. Swink visited Plaintiff
multiple times in the TCU and only discharged Plaintiff upon request and after Plaintiff indicated
he was “doing fine.” Dr. Swink prescribed pain medication and limited Plaintiff’s physical
activities. Finally, after Plaintiff’s trip to the emergency room, Dr. Swink appropriately relied upon
the opinions of specialist physicians, the surgeon and urologist at St. Mary’s Hospital, in
determining that Plaintiff’s post-surgery complications were normal and did not require further
off-site evaluation. Other courts have recognized that scrotal swelling can be a normal result of
hernia repairs. Thomas v. Fed. Bureau of Prisons, C.A. No. 15-209ERIE, 2018 WL 4636208, at
*5 n.3 (W.D. Pa. Sept. 27, 2018).
It is clear from the record that Plaintiff’s complications after hernia surgery were
consistently addressed by Dr. Swink even if Plaintiff was not always entirely satisfied with the
result. The Eighth Circuit has repeatedly held that “mere negligence or inadvertence does not rise
to the level of deliberate indifference.” Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017). Even if
it appears that Dr. Swink should have been more aggressive in treating Plaintiff’s Post-Surgery
Complications in retrospect, there is simply no evidence that Dr. Swink deliberately ignored
Plaintiff’s serious medical needs. Ultimately, “[p]hysicians are entitled to exercise their medical

11

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 12 of 23 PageID #: 3226

judgment.” White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988) (citing Noll v. Petrovsky, 828 F.2d
461, 462 (8th Cir. 1987) (per curiam)). Summary judgment in favor of Dr. Swink is warranted.
(2) RN Engle
RN Engle visited with Plaintiff a few times in late 2016 in response to Plaintiff’s MSRs
concerning the Post-Surgery Complications and once again in late 2017 for unrelated
dermatological issues. (Doc. 132 at ¶¶ 79-83, 95, 113; Doc. 144 at ¶¶ 123-125, 141). Plaintiff
alleges that RN Engle failed to prescribe adequate pain medication or refer Plaintiff to Dr. Swink
when medically necessary. In an affidavit before this Court, RN Engle claims that during her
encounters with Plaintiff in October 2016 she “observed no symptoms . . . which indicated that
[Plaintiff] needed to see a medical provider or needed additional pain medications on an urgent or
emergent basis.” (Doc. 133-4 at ¶ 11). When Plaintiff returned on December 2, 2016, she referred
Plaintiff to NP Sutton, who Plaintiff saw four days later. (Id. at ¶ 14).
This Court finds no basis in the record from which a reasonable factfinder could conclude
that RN Engle was deliberately indifferent to Plaintiff’s serious medical needs during these limited
interactions. RN Engle ordered Tylenol as necessary and ensured that referrals were made to Dr.
Swink and NP Sutton when appropriate in her medical judgment. (Doc. 133 at 169-178). During
this period, moreover, Plaintiff received treatment from NP Oaks and consulted with his surgeon
and a urologist. (Id. at 171-74). RN Engle’s role was to respond to MSRs during “nurse sick call,”
a “process in which patients are evaluated for referral to a Corizon medical provider, such as a
physician or nurse practitioner.” (Doc. 133-4 at ¶ 6). Her job as an RN did not include “formulating
treatment plans, referring patients for off-site care, or prescribing medications.” (Id. at ¶ 7). It is
apparent from the undisputed facts before this Court that RN Engle provided Plaintiff medical care
within the scope of her duties and made appropriate referrals to Corizon providers.
12

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 13 of 23 PageID #: 3227

(3) NP Sutton
As discussed above, Plaintiff visited NP Sutton on December 6, 2016 upon referral from
RN Engle. (Doc. 132 at ¶ 96; Doc. 144 at ¶¶ 142-43). NP Sutton also treated Plaintiff’s PostSurgery Complications on December 22, 2016 and February 28, 2017. (Doc. 132 at ¶ 98, 104).
During these encounters. NP Sutton advised Plaintiff as to an appropriate timeline for resuming
normal activities and ensured that Plaintiff did not have any further complications. (Doc. 133 at
194). Plaintiff alleges that NP Sutton was deliberately indifferent because she refused to prescribe
Neurontin for Plaintiff’s nerve pain (Doc. 144 at ¶¶ 142-45, 149).
The Eighth Circuit has consistently held that disagreement over treatment decisions
regarding pain medication does not rise to the level of deliberate indifference. Kenyon v. Dooley,
605 Fed. App’x 581 (8th Cir. 2015) (per curiam); Floyd v. Cabrerra, 559 Fed. App’x 603 (8th Cir.
2014) (per curiam); Steele v. Webber, 278 Fed. App’x 699 (8th Cir. 2008) (per curiam). Compare
Dadd v. Anoka Cty., 827 F.3d 749 (8th Cir. 2016) (finding deliberate indifference where no pain
medication was provided). As discussed above, Plaintiff’s outside urologist stated that the
providers “can trial Neurontin for nerve pain,” but otherwise would plan to observe. (Doc. 133 at
352). In an affidavit before this Court, NP Sutton has stated that Neurontin “was not medically
necessary to treat Plaintiff’s postoperative pain during the times [she] evaluated him” because
Plaintiff “did not exhibit symptoms of uncontrolled pain” during any of her encounters with
Plaintiff. (Doc. 133-3 at ¶ 17). NP Sutton also noted that Neurontin is a “potentially addictive
medication that carries a high concern for abuse via hoarding and trading in the correctional
setting.” (Id.). A reasonable factfinder could not conclude that NP Sutton was deliberately
indifferent in declining to prescribe Neurontin based on her medical judgment. 8
The discharge notes from St. Mary’s Hospital specifically discuss limiting intake of addictive narcotics after surgery
and instead replacing their use with over-the-counter medications. (Doc. 133-11 at 125-26).

8

13

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 14 of 23 PageID #: 3228

(4) NP Owens
NP Owens first saw Plaintiff on March 18, 2016, when she diagnosed Plaintiff’s hernia as
non-reducible and placed a referral for consultation with general surgery. (Doc. 132 at ¶ 32). On
April 18, 2016, after reviewing the records of Plaintiff’s telehealth appointment with Dr. Roberts,
the outside surgeon, NP Owens placed a request for hernia repair surgery. (Id. at ¶ 40). Over the
next few months, NP Owens worked to reschedule Plaintiff’s surgery, which had to be delayed
due to Plaintiff’s unrelated dental issues. (Id. at ¶¶ 44-49). After Plaintiff’s surgery, NP Owens
entered Dr. Swink’s orders for Norco, light duty, and a jock strap. (Id. at ¶ 61). Finally, in June
and July of 2017, NP Owens met with Plaintiff to discuss his back pain and Post-Surgery
Complications. (Id. at ¶¶ 109-110). As with NP Sutton, Plaintiff alleges that NP Owens was
deliberately indifferent for failing to prescribe Neurontin during these 2017 encounters. (Doc. 144
at ¶¶ 153-154). NP Owens’ notes from her June 2017 encounter with Plaintiff specifically state
that Plaintiff only complained of numbness, which he described as “not a pain just tingling
sensation.” (Doc. 133 at 214). 9
As to Plaintiff’s Pre-Surgery Treatment, it is clear from the facts admitted by Plaintiff that
NP Owens was not deliberately indifferent to Plaintiff’s serious medical needs. NP Owens
promptly placed a referral for surgery consultation after meeting with Plaintiff and proceeded to
request hernia repair surgery upon review of the notes from such consultation. (Doc. 133-5 at ¶¶
9-10). As to NP Owens declining to prescribe Neurontin, summary judgment is warranted for the
same reasons discussed above as to NP Sutton and because Plaintiff never informed NP Owens

NP Owens has provided additional support for her claim that Plaintiff did not suffer from excruciating pain. She
notes, for example, that Plaintiff “did not grimace or squirm in his chair, and his blood pressure readings were not
consistent with symptoms of uncontrolled pain.” (Doc. 133-5 at ¶ 17).
9

14

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 15 of 23 PageID #: 3229

that he was suffering from serious nerve pain, and he did not exhibit symptoms of uncontrollable
pain. (Doc. 133-5 at ¶¶ 16-18).
(5) NP Wallen
NP Wallen only met with Plaintiff once concerning the Post-Surgery Complications, on
September 6, 2017. (Doc. 132 at ¶ 115). The notes from this encounter reflect that Plaintiff
“complain[ed] of numbness in groin” but also “denie[d] changes since surgery.” (Doc. 133 at 229).
Plaintiff has not brought forth any evidence to suggest that NP Wallen was deliberately indifferent
to Plaintiff’s serious medical needs during this sole encounter. NP Wallen assessed Plaintiff as
having post-surgical numbness, provided education, and asked Plaintiff questions to ensure there
were no further complications. (Id.). This does not constitute deliberate indifference.
(6) Dr. Zakroff
On November 28, 2017, Plaintiff met with Dr. Zakroff concerning his chronic back pain,
and during this encounter Plaintiff mentioned his hernia surgery. (Doc. 132 at ¶ 117). Dr. Zakroff’s
notes reflect that Plaintiff requested Tylenol but declined certain other medications. (Doc. 133 at
250-51). It is apparent from the medical record that this encounter almost exclusively concerned
Plaintiff’s treatment for chronic back pain, which is not relevant to this case. As Dr. Zakroff
explained in her affidavit before this Court, “Plaintiff mentioned being sedentary as a result of
having previous hernia surgery, but he did not complain of pain or numbness in the groin to me at
that encounter or request any additional treatment related to his groin or testicles.” (Doc. 133-7 at
¶ 9). Plaintiff has not brought forth any evidence to suggest that Dr. Zakroff was deliberately
indifferent to Plaintiff’s Post-Surgery Complications, which were essentially not at issue during
his treatment by Dr. Zakroff.

15

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 16 of 23 PageID #: 3230

C. Corizon
A corporation cannot be held liable under 42 U.S.C. § 1983 on a theory of respondeat
superior. Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007). Instead, for Plaintiff to make a
claim against Corizon, he must “show that there was a policy, custom, or official action that
inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). A policy
is a “deliberate choice of a guiding principle or procedure made by the [ ] official who has final
authority regarding such matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 2009).
Construed liberally, Plaintiff’s First Amended Complaint alleges that Corizon (1) unnecessarily
delayed his hernia repair surgery; (2) delayed emergency post-surgery care by transporting him to
a distant emergency room; and (3) refused to prescribe necessary pain medication. As to each
claim, Plaintiff alleges that Corizon has an unconstitutional “policy to deny medical care
predicated upon the cost of the treatment or procedure.” (Doc. 79 at ¶ 96). Before delving into
Plaintiff’s specific arguments, this Court notes that Plaintiff cannot establish Corizon’s corporate
liability because “individual liability first must be found on an underlying substantive claim.”
Winebarger v. Corizon, LLC, No. 17-04072-CV-C-SRB, 2019 WL 1247514, at *4 (W.D. Mo.
Mar. 18, 2019) (quoting McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005)); see also
Jackson v. Douglas, 270 Fed. App’x 462, 463 (8th Cir. 2008) (per curiam) (“Because no
constitutional violation occurred in connection with [plaintiff’s] medical treatment, [plaintiff’s]
claims against [defendants] also fail.”).
(1) Delay of Hernia Repair Surgery
Delayed referral for surgery can, in certain circumstances, rise to the level of deliberate
indifference. See Buckley v. Correctional Med. Servs., Inc., 125 Fed. App’x 98 (8th Cir. 2005) (per
curiam). A required element of such a claim, however, is that Corizon “ignored an acute or
16

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 17 of 23 PageID #: 3231

escalating situation or that the delay adversely affected [Plaintiff’s] prognosis.” Grundy v. Norris,
26 Fed. App’x 588, 590 (8th Cir. 2001) (per curiam). Defendants argue that there is no verifying
medical evidence that Plaintiff suffered any harm as a result of his surgery being delayed until
June 2016. Plaintiff responds that he “was suffering from obvious physical symptoms” from early
2012 until his surgery over four years later.
On January 2, 2012, a Corizon provider gave Plaintiff a hernia truss and prescribed an antiinflammatory pain medication. (Doc. 132 at ¶ 12). After Plaintiff submitted an MSR regarding his
hernia pain later that year, he was seen by Dr. Mullen, who diagnosed the hernia as irreducible and
placed a referral for a CT scan, which occurred a few weeks later. (Id. at ¶¶ 16-20). Plaintiff
received follow-up care from a Corizon provider who ordered Salasate to treat Plaintiff’s pain. (Id.
at ¶ 21). Nurse Delarber, meanwhile, scheduled Plaintiff to have his hernia evaluated every six
weeks or upon request. (Id. at ¶ 22).
Over the next few years, Plaintiff consistently received treatment and medication for his
hernia pain. This Court has already dismissed NP Reinholdt, who provided such treatment on
October 30, 2014, specifically holding that NP Reinholdt “provided treatment in the form of a
physical examination.” (Doc. 127 at 7). Plaintiff apparently did not formally complain about his
hernia for the entire period from January 30, 2015 to March 9, 2016. (Doc. 132 at ¶¶ 29-30; Doc.
144 at ¶¶ 48-50). Over the years, the record reflects instances where Plaintiff’s hernia appeared
reducible or was not located during a physical exam. (Doc. 145 at 33, 39). Plaintiff filed an IRR
on March 18, 2016 seeking hernia surgery, was promptly referred to an off-site surgeon, and
proceeded to have hernia repair surgery on June 22, 2016. (Id. at ¶¶ 33-50). Plaintiff was actually
scheduled to have surgery on May 5, 2016, but it was delayed due to unrelated dental issues. (Id.
at ¶ 46).

17

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 18 of 23 PageID #: 3232

In similar circumstances, various courts have determined that delay in hernia repair surgery
did not amount to deliberate indifference. In McKinney v. Hemsley, the court considered a fouryear delay in performance of hernia repair surgery and determined that summary judgment in favor
of defendants was appropriate because “nothing in the record suggests that [plaintiff’s] hernia
significantly worsened in the roughly four-year period between [the] initial surgical
recommendation and [the surgery].” Civ. No. 14-3564 (KM) (JBC), 2019 WL 1293719, at *13
(D.N.J. Mar. 20, 2019). The court specifically noted that the physician regularly monitored the
plaintiff’s condition and prescribed pain medication. Id. at *14; see also Jackson v. Jackson, 456
Fed. App’x 813, 815 (11th Cir. 2012) (“The delay in receiving surgery was because the hernia
remained treatable without surgery and posed no risk to [plaintiff’s] health. Moreover, the delay
did not worsen [plaintiff’s] condition.”); Edmonds v. Corizon Med. Servs., No. 4:20-CV-946
SNLJ, 2020 WL 7695600, at *5 (E.D. Mo. Dec. 28, 2020), appeal filed No. 21-1093 (citations
omitted) (“Although plaintiff requested hernia surgery as early as August 2019 and it was not
recommended by a doctor until August 2020, ‘mere disagreement’ with the hernia treatment plan
and the denial of his requested course of treatment does not support a claim of deliberate
indifference.”).
The record unquestionably reflects that Plaintiff received substantial medical care from the
diagnosis of his hernia until surgery was performed in June 2016. Defendants performed physical
examinations, provided a truss, prescribed medications, and obtained CT scans as necessary. See
Shead v. Purkett, No. 4:07-CV-22 (CEJ), 2009 WL 5220155, at *4 (E.D. Mo. Dec. 31, 2009)
(“[T]here is no evidence that any defendant disregarded plaintiff’s hernia: he was examined on a
regular basis, was educated regarding the signs and symptoms of a worsening condition, and was
treated appropriately when the worsening occurred.”). Plaintiff did not complain of hernia pain for

18

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 19 of 23 PageID #: 3233

approximately 14 months from January 2015 to March 2016. He was subsequently scheduled for
surgery within three months of submitting an IRR and Offender Grievance. Plaintiff relies heavily
on Langford v. Norris, 614 F.3d 445 (8th Cir. 2010), in which the Eighth Circuit held that a delay
in treating painful medical conditions can constitute deliberate indifference. Unlike in Langford,
however, Plaintiff has not demonstrated more than mere disagreement with Defendants’ medical
decisions. Nor has Plaintiff provided evidence beyond his own assertions of a policy or custom of
denying necessary medical care due to cost. Finally, as discussed above, the Court again notes that
Plaintiff has not administratively exhausted his claims as to the Pre-Surgery Treatment. For each
of these reasons, summary judgment in favor of Corizon is warranted as to the Pre-Surgery
Treatment claims.
(2) Distant Emergency Room
On July 8, 2016, Plaintiff underwent an off-site ultrasound at Vista Imaging which revealed
decreased blood flow to the right testicle and partial testicular torsion; the radiologist
recommended that Plaintiff be sent to the emergency room. (Doc. 132 at ¶ 55; Doc. 144 at ¶ 72;
Doc. 133-1 at 153). Defendants chose to transport Plaintiff to St. Mary’s Hospital in Jefferson
City, Missouri, which is where Plaintiff had his hernia repair surgery. (Doc. 132 at ¶¶ 66-67; Doc.
144 at ¶¶ 75-81). The record clearly reflects, and Corizon does not deny, that it took approximately
four hours (if not longer) from the Vista Imaging radiologist’s diagnosis until Plaintiff was
admitted at St. Mary’s. (Doc. 144 at ¶¶ 75-81). Plaintiff also alleges, and Corizon does not dispute,
that the transport vehicle passed numerous other emergency departments on the way to St. Mary’s,
including one only a few minutes away. (Id. at ¶ 76). Corizon claims a decision was made to send
Plaintiff to the surgeon who performed the hernia surgery (Doc. 132 at ¶ 66), but it does not appear
that this surgeon (Dr. Roberts) was on call or even saw Plaintiff upon arrival.
19

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 20 of 23 PageID #: 3234

Delaying emergency medical care by purposefully selecting a distant hospital for treatment
can certainly amount to deliberate indifference. The purported reason for choosing the distant
emergency room and the consequences of the delay are both relevant to such an analysis.
Considering these factors, Plaintiff’s claim of deliberate indifference against Corizon cannot
succeed. First, Corizon determined in its medical judgment that it was appropriate for Plaintiff to
return to the hospital where he received his hernia repair surgery. This medical judgment, while
arguably problematic given the distance to St. Mary’s hospital, does not amount to deliberate
indifference. See Skinner v. Unknown Grandson, Civ. No. 05-CV-70556, 2009 WL 909635, at *14
(E.D. Mich. Mar. 31, 2009) (choice of farther emergency room appropriate where staff determined
hospital was more likely to have required resources and specialists).
Second, Plaintiff has not demonstrated that the delay caused any further harm. As discussed
above, a delay in treatment is only actionable under § 1983 if Corizon “ignored an acute or
escalating situation or that the delay adversely affected [Plaintiff’s] prognosis.” Grundy v. Norris,
26 Fed. App’x 588, 590 (8th Cir. 2001) (per curiam). Upon arrival at St. Mary’s Hospital, the
physician determined that Plaintiff had postoperative right inguinal hernia swelling with resulting
diminished blood flow, noting that this was a “normal postoperative finding” and Plaintiff could
be discharged as it was “not likely that [Plaintiff] had torsion.” (Doc. 132 at ¶ 70; Doc. 133 at 154;
Doc. 133-11 at 134, 136). There is no indication that the result would have been any different if
Plaintiff had been treated at a closer emergency room. When considering Plaintiff’s allegation that
the delay in arriving at the emergency violated his constitutional rights, this Court measures “the
objective seriousness of the deprivation . . . by reference to the effect of the delay in treatment.”
Jackson v. Riebold, 815 F.3d 1114, 1119 (8th Cir. 2016) (citations omitted). Because Plaintiff has

20

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 21 of 23 PageID #: 3235

offered no evidence indicating that he was harmed by Corizon’s decision to transport him to St.
Mary’s Hospital, there is no viable claim of deliberate indifference.
(3) Treatment of Post-Surgery Pain
Plaintiff alleges that Corizon “denied any reasonable and effective pain control” based “on
the costs of care, and not the serious need of the Plaintiff.” (Doc. 79 at ¶ 89). As discussed above,
however, this Court has determined that no Corizon provider acted with deliberate indifference in
declining to prescribe Neurontin. Relying on their medical judgment, the providers determined not
to prescribe Neurontin, which can be abused in the correctional environment, but instead offered
other methods of pain management. These decisions were consistent with post-surgery guidance
from St. Mary’s Hospital. (Doc. 133-11 at 124-25).
“In order for [corporate] liability to attach, individual liability first must be found on an
underlying substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005)
(citations omitted). Courts in this district have consistently rejected unsupported allegations that
necessary care was not provided due to unidentified cost-containment policies. See Roebuck v.
Glass, No. 4:18-CV-01498-SRC, 2020 WL 1557173, at *2 (E.D. Mo. Mar. 31, 2020) (Claim that
Corizon limited access to specialists to minimize costs “is a mere legal conclusion, unadorned by
any factual allegations from which the Court could reasonably infer the existence of such a
policy.”); Hardman v. Corizon Med. Servs., No. 1:19-CV-00209-JMB, 2020 WL 686025, at *4
(E.D. Mo. Feb. 11, 2020) (“Plaintiff’s assertion that Corizon is basing his treatment on financial
considerations amounts to an unsupported conclusion that requires the Court to speculate as to his
right to relief.”). There is no evidence in the record to suggest that any Corizon provider was
deliberately indifferent to Plaintiff’s alleged nerve pain and declined to prescribe necessary
medication pursuant to an unidentified cost-containment policy.
21

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 22 of 23 PageID #: 3236

V.

CONCLUSION
Over multiple years, Plaintiff received extensive medical care from numerous Corizon

providers for his hernia. Such care may not have always been perfect, and Plaintiff has disputed
numerous facts concerning the care he received. In order to defeat this Motion for Summary
Judgment, however, Plaintiff was required to bring forth evidence showing there is a genuine issue
of material fact for trial. Instead, Defendants have demonstrated that the evidence simply does not
support any of Plaintiff’s claims.
The record reflects that Plaintiff failed to administratively exhaust his claims as to the PreSurgery Treatment. When Plaintiff filed an IRR seeking hernia surgery, he was scheduled for
surgery within three months. Though Plaintiff disputes various portions of the medical records, a
reasonable fact finder could not conclude that any individual Defendant was deliberately
indifferent to Plaintiff’s serious medical needs as to the Pre-Surgery Treatment or Post-Surgery
Complications. Each individual Defendant provided reasonable care and made referrals to
specialists or other providers when medically indicated. Plaintiff has brought forth no evidence to
suggest that these providers had the sufficiently culpable state of mind required to establish a
deliberate indifference claim. Finally, a reasonable factfinder could not conclude that Corizon
inflicted actionable injury on Plaintiff pursuant to a policy or custom of denying necessary medical
care for cost-containment purposes. Corizon also cannot be held liable because there is no viable
constitutional claim against any individual provider.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (Doc. 130)
is GRANTED. A separate Order of Judgment will accompany this Memorandum and Order.

22

Case: 4:18-cv-00273-JAR Doc. #: 155 Filed: 03/04/21 Page: 23 of 23 PageID #: 3237

IT IS FURTHER ORDERED that Plaintiff’s Motions for Leave to File Out of Time
(Docs. 141, 149) are GRANTED.
IT IS FINALLY ORDERED that Plaintiff’s Motions to Appoint Counsel (Docs. 142,
151) are DENIED as moot.

Dated this 4th day of March, 2021.
________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

23