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Odom v. Talens

United States District Court, S.D. Indiana, Terre Haute Division

November 20, 2014

GLENN D. ODOM, II, Plaintiff,
DR. TALENS doctor, NURSE FLENER Nurse, KIM GRAY, Defendants.



Plaintiff Glenn Odom, a Kentucky state prisoner, filed this civil action alleging that the medical care he received while an inmate at the Wabash Valley Correctional Facility ("Wabash Valley"), an Indiana prison, was constitutionally inadequate. Defendants Alfred Talens, M.D., Sue Flener, L.P.N. and Kim Gray, R.N. seek resolution of this action through summary judgment. For the reasons explained below, the motion for summary judgment [dkt. 151] is granted in part and denied in part.

Following the recommendations of recent Seventh Circuit opinions, this Court recruited experienced and competent counsel to represent Odom pro bono in this civil rights action pursuant to Local Rule 4-6. See dkt. 84 and 85. After recruited counsel expended considerable effort on Odom's behalf, Odom determined that he would be better off proceeding pro se. An ex parte telephonic hearing was held on Odom's recruited counsel's motion to withdraw. Odom was specifically advised that the Court would not be appointing another counsel to represent him in this matter and he indicated that he understood. See dkt. 123. This is not a case where the prisoner plaintiff did not have access to legal counsel. Odom had court-recruited counsel but was unwilling to follow his lead. Counsel's appearance was withdrawn on December 20, 2013. See dkt. 125.

Standard of Review

A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).

The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003); see also Local Rule 56-1(h)(no duty to search record). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.

The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir.1999). When evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve "any doubt as to the existence of a genuine issue for trial... against the moving party." Celotex, 477 U.S. at 330.

Material Facts

Odom responded to the pending motion. That response included a statement of material facts in dispute. The statement however, does not set forth any facts supported by citations to admissible evidence as required by Local Rule 56-1. See dkt. 158. Local Rule 56-1(b) requires a brief in opposition to a motion for summary judgment to include a section labeled "Statement of Material Facts in Dispute" which responds to the movant's asserted material facts by identifying the potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment. These facts must be supported by appropriate citations to admissible evidence. See 56-1(e). Although pro se filings are construed liberally, pro se litigants are not exempt from procedural rules. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008); see also Greer v. Bd. of Educ., of the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001); Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (stating that procedural rules "apply to uncounseled litigants and must be enforced"). Further, the Seventh Circuit has "consistently and repeatedly upheld" district courts' discretion to require compliance with the local rules governing summary judgment. Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994)(collecting numerous cases). Although the statement of material facts in dispute was not considered, the Court did consider the plaintiff's declaration to the extent it contained admissible evidence. See dkt. 159 (declaration).

Odom's failure to properly oppose the motion for summary judgment with a statement of material facts in dispute supported by admissible evidence has a particular consequence, which is that he has admitted the truth of the defendant's statement of material facts for purposes of the court acting on the motion for summary judgment. See Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir. 1994). This is the result of Local Rule 56-1(f), of which Odom was notified. This does not alter the standard for assessing a Rule 56 motion, but does "reduc[e] the pool" from which the facts and inferences relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997). The undisputed material facts are as follows:

On February 12, 2011, Odom was beaten by three inmates with locks. Following the altercation, Alfred Talens, M.D. ("Dr. Talens") ordered Odom to be sent to the Sullivan County Community Hospital emergency department. The emergency room physician diagnosed injuries of a swollen right hand, a knot on the side of his head, backache, and an abrasion to his scalp. The emergency room physician read the x-ray as negative for a fracture (although it was later determined that Odom had an undisplaced fracture of the neck of the second metacarpal). The medical record does not reflect that Odom complained of his nose hurting or an injury to his nasal area. Odom's scalp abrasion was cleansed, did not require any stitches, and he was returned to Wabash Valley.

Upon his return, Nurse Sexton placed "buddy tape" on Odom's index and middle fingers and gave him Tylenol. Buddy taping a finger is a method of limiting movement by taping an injured finger to the adjacent finger. It slightly limits mobility while serving as a reminder to the patient to be cautious with his injury. This method is particularly appropriate for small, non-displaced fractures such as Odom's because the bone does not need to be held in a particular position. Additionally, this method still allows some movement of the injured finger, which can assist with maintaining range of motion in the joints of that finger.

On February 14, 2011, Sullivan County Community Hospital records were received at the Department of Correction. The radiology report from Sullivan County Community Hospital indicated that "[t]here is an undisplaced fracture of the neck of the second metacarpal without displacement... The rest of the bones are unremarkable." Dr. Talens reviewed the Sullivan County Community Hospital records, saw Odom for an unscheduled visit and ordered follow-up x-rays to be taken on March 22, 2011. Dr. Talens removed the buddy tape from Odom's finger stating, "its just a broke[n] bone. It won't kill you." See dkt. 160 at p 2. He refused to take x-rays of Odom's nose stating "there's nothing we can do for a broken nose." Dr. Talens then prescribed Odom Naprosyn (aka naproxen[1]) for ten days. Naprosyn is an anti-inflammatory and pain reliever.[2]

On February 15, 2011, Odom complained of an injury to his nose and requested to be seen. He was triaged by a nurse on February 16, 2011, who noted that he had moderate swelling and no sign of deviation and referred him for a physician appointment.

On February 24, 2011, Jacques LeClerc, M.D. saw Odom for pain and swelling in his nose. He noted that there was mild swelling, but no deviated septum and ordered an x-ray, which confirmed that there was a fracture "with no significant displacement or deformity." On March 7, 2011, Dr. LeClerc saw Odom for a follow-up regarding his injured finger. Dr. LeClerc applied a tongue-blade splint and ordered Vicodin for three days. A tongue-blade splint is comprised of a wooden tongue blade ...

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