United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT
William T. Lawrence, Judge United States District Court
James Fowler's claims in his Amended Complaint, as
screened by the Court in the Entry of March 17, 2015, are
that defendants Physician Assistant Alex Jastillano and Dr.
William Wilson exhibited deliberate indifference to his
serious medical need for treatment of back, neck, shoulder,
and arm pain. Fowler's claims are brought pursuant to the
theory recognized in Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971).
defendants move for summary judgment on Fowler's claims
and he has responded. For the following reasons, the motion
for summary judgment [dkt 105] is granted.
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." In ruling on a
motion for summary judgment, the admissible evidence
presented by the non-moving party must be believed and all
reasonable inferences must be drawn in the non-movant's
favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009) ("We view the record in
the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.").
"[a] party who bears the burden of proof on a particular
issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a
genuine issue of material fact that requires trial."
Hemsworth, 476 F.3d at 490. Finally, the non-moving
party bears the burden of specifically identifying the
relevant evidence of record, and "the court is not
required to scour the record in search of evidence to defeat
a motion for summary judgment." Ritchie v. Glidden
Co., 242 F.3d 713, 723 (7th Cir. 2001).
Background of Fowler's Injuries and Pain
was incarcerated at the United States Penitentiary in Terre
Haute, Indiana ("USP Terre Haute") from September
1, 2011 to October 7, 2013. During this time, Fowler
experienced pain in his back, neck, shoulder, and arm. He saw
BOP physician Dr. Roger Jones at Chronic Care Clinic on
September 15, 2011, shortly after he arrived at the prison.
Dr. Jones noted that Fowler had a history of "low back
pain for 20 years" and had been told that his lumbar
discs "were crushed." Fowler also reported a
compression fracture in his back from a diving accident,
injuries from a gunshot wound to the throat, and injuries
from a serious motor vehicle accident in 2008. Dr. Jones
prescribed Gabapentin and Ibuprofen for Fowler's chronic
pain and requested x-rays of Fowler's thoracic and lumbar
x-rays that Dr. Jones ordered were performed on September 21,
2011. Fowler's lumbar spine x-ray was
"negative." His thoracic spine x-ray was abnormal
and revealed: "[m]inimal [degenerative disc disease];
mild age-indeterminate compression deformity . . .; [and a]
metallic BB in [the] right lower neck/upper chest. . .
Fowler's Early Interactions with PA Jastillano
Jastillano examined Fowler for the first time a week after
the x-rays, on September 28, 2011. PA Jastillano reviewed the
September 21 x-rays, noted Fowler's history of back
trauma, and placed requests for Fowler to see a neurosurgeon.
PA Jastillano also updated Fowler's medical duty status
to note that he was cleared for food service but restricted
him from climbing, using ladders, and lifting more than 15
lbs. The next day, PA Jastillano made an administrative note
that Fowler could not yet be referred to a neurosurgeon
because Fowler first needed a CT of his thoracic spine. PA
Jastillano therefore placed a request for Fowler to have a CT
had a CT scan of his thoracic spine on November 21, 2011.
Based on his continuing complaints of pain, Fowler had a
cervical spine x-ray on February 9, 2012, which was
"[n]egative except for moderate degenerative disc
disease" and "narrowing of the neural foramina
bilaterally at ¶ 5/6." Fowler's lumbar spine
x-ray was performed on February 15, 2012.
February 10, 2012, PA Jastillano refilled Fowler's
Acetaminophen and requested a CT scan of Fowler's
cervical and thoracic spine. On February 28, 2012, Fowler had
a CT scan of his cervical spine.
saw Dr. Jones at Chronic Care Clinic on March 6, 2012. Dr.
Jones noted that the results from the February 28, CT scan
were still pending but that Neurontin was not controlling
Fowler's neck and back pain. Dr. Jones therefore added
Elavil (Amitriptyline) and Naproxyn to address Fowler's
neck and back pain. On March 14, 2012, in light of the CT
scan results, Dr. Jones placed a request for Fowler to see a
April 1, 2012, Fowler slipped and fell while working in the
USP Terre Haute kitchen. After the fall, Fowler was seen by
RN Haddix who noted that Fowler had an abrasion on his right
forearm and was complaining of "lower back pain, right
elbow/arm pain, and posterior neck pain." Fowler
reported that he had "chronic lower back pain and neck
pain" and was "receiving Naproxin [sic], Neurontin,
and Elavil." RN Haddix prescribed Acetaminophen and ice,
gave Fowler a 2-day medical idle, and instructed Fowler to
return to sick call in 12-24 hours.
16, 2012, based on Dr. Jones's request, Fowler saw Dr.
Pradeep Narotam, a neurosurgeon at Union Hospital in Terre
Haute. Dr. Narotam noted that "[i]n 1998 [Fowler] dived
into a river and sustained a T6 and T7 fracture." Fowler
"complain[ed] of numbness in his hands for 10 years,
worsening since June 2005, " "weakness in [his]
[upper extremities] for 5 years, with increasing hand
numbness, " and "chronic neck pain since 1998,
worsening since 2007." Dr. Narotam diagnosed Fowler with
nerve irritation in his neck and recommended surgery. Dr.
also recommended that Fowler receive "vicodin for pain
management until surgery" and noted that Fowler
"may need carpal tunnel release in addition to neck
surgery." On June 13, 2012, PA Jastillano reviewed Dr.
Narotam's report from Fowler's May 16 appointment. PA
Jastillano noted that the recommended surgery needed to be
approved by the Regional Office and placed a formal request
for the surgery. PA Jastillano also noted that Fowler needed
to see a neurologist for a test known as an
electromyogram/nerve conduction study ("EMG/NCS")
of his upper extremities. PA Jastillano requested the
neurology consultation, and indicated that Fowler may need
carpal tunnel surgery.
20, 2012, PA Jastillano saw Fowler. PA Jastillano noted that
Dr. Narotam had recommended that Fowler be placed on narcotic
pain medication while he was waiting for surgery. PA
Jastillano therefore prescribed Percocet (Oxycodone/
August 6, 2012, Fowler was admitted to Union Hospital in
Terre Haute for neck surgery. The surgery was performed on
August 8, 2012, and Fowler ...