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Fowler v. Jastillano

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

February 2, 2017

JAMES FOWLER, Plaintiff,
v.
ALEX JASTILLANO, et al, Defendants.

          ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT

          Hon. William T. Lawrence, Judge United States District Court

         Plaintiff James Fowler's claims in his Amended Complaint, as screened by the Court in the Entry of March 17, 2015, are that defendants Physician Assistant Alex Jastillano and Dr. William Wilson exhibited deliberate indifference to his serious medical need for treatment of back, neck, shoulder, and arm pain. Fowler's claims are brought pursuant to the theory recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

         The defendants move for summary judgment on Fowler's claims and he has responded. For the following reasons, the motion for summary judgment [dkt 105] is granted.

         Standard of Review

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.").

         However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490. Finally, the 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).

         Undisputed Facts

         A. Background of Fowler's Injuries and Pain

         Fowler was incarcerated at the United States Penitentiary in Terre Haute, Indiana ("USP Terre Haute") from September 1, 2011 to October 7, 2013. During this time, Fowler experienced pain in his back, neck, shoulder, and arm. He saw BOP physician Dr. Roger Jones at Chronic Care Clinic on September 15, 2011, shortly after he arrived at the prison. Dr. Jones noted that Fowler had a history of "low back pain for 20 years" and had been told that his lumbar discs "were crushed." Fowler also reported a compression fracture in his back from a diving accident, injuries from a gunshot wound to the throat, and injuries from a serious motor vehicle accident in 2008. Dr. Jones prescribed Gabapentin and Ibuprofen for Fowler's chronic pain and requested x-rays of Fowler's thoracic and lumbar spine.

         The x-rays that Dr. Jones ordered were performed on September 21, 2011. Fowler's lumbar spine x-ray was "negative." His thoracic spine x-ray was abnormal and revealed: "[m]inimal [degenerative disc disease]; mild age-indeterminate compression deformity . . .; [and a] metallic BB in [the] right lower neck/upper chest. . . ."[1]

         B. Fowler's Early Interactions with PA Jastillano

         PA Jastillano examined Fowler for the first time a week after the x-rays, on September 28, 2011. PA Jastillano reviewed the September 21 x-rays, noted Fowler's history of back trauma, and placed requests for Fowler to see a neurosurgeon. PA Jastillano also updated Fowler's medical duty status to note that he was cleared for food service but restricted him from climbing, using ladders, and lifting more than 15 lbs. The next day, PA Jastillano made an administrative note that Fowler could not yet be referred to a neurosurgeon because Fowler first needed a CT of his thoracic spine. PA Jastillano therefore placed a request for Fowler to have a CT scan.

         Fowler had a CT scan of his thoracic spine on November 21, 2011. Based on his continuing complaints of pain, Fowler had a cervical spine x-ray on February 9, 2012, which was "[n]egative except for moderate degenerative disc disease" and "narrowing of the neural foramina bilaterally at ¶ 5/6."[2] Fowler's lumbar spine x-ray was performed on February 15, 2012.

         On February 10, 2012, PA Jastillano refilled Fowler's Acetaminophen and requested a CT scan of Fowler's cervical and thoracic spine. On February 28, 2012, Fowler had a CT scan of his cervical spine.

         Fowler saw Dr. Jones at Chronic Care Clinic on March 6, 2012. Dr. Jones noted that the results from the February 28, CT scan were still pending but that Neurontin was not controlling Fowler's neck and back pain. Dr. Jones therefore added Elavil (Amitriptyline) and Naproxyn to address Fowler's neck and back pain. On March 14, 2012, in light of the CT scan results, Dr. Jones placed a request for Fowler to see a neurosurgeon.

         C. Fowler's Fall

         On April 1, 2012, Fowler slipped and fell while working in the USP Terre Haute kitchen. After the fall, Fowler was seen by RN Haddix who noted that Fowler had an abrasion on his right forearm and was complaining of "lower back pain, right elbow/arm pain, and posterior neck pain." Fowler reported that he had "chronic lower back pain and neck pain" and was "receiving Naproxin [sic], Neurontin, and Elavil." RN Haddix prescribed Acetaminophen and ice, gave Fowler a 2-day medical idle, and instructed Fowler to return to sick call in 12-24 hours.

         D. Neck Surgery

         On May 16, 2012, based on Dr. Jones's request, Fowler saw Dr. Pradeep Narotam, a neurosurgeon at Union Hospital in Terre Haute. Dr. Narotam noted that "[i]n 1998 [Fowler] dived into a river and sustained a T6 and T7 fracture." Fowler "complain[ed] of numbness in his hands for 10 years, worsening since June 2005, " "weakness in [his] [upper extremities] for 5 years, with increasing hand numbness, " and "chronic neck pain since 1998, worsening since 2007." Dr. Narotam diagnosed Fowler with nerve irritation in his neck and recommended surgery. Dr.

         Narotam also recommended that Fowler receive "vicodin for pain management until surgery" and noted that Fowler "may need carpal tunnel release in addition to neck surgery." On June 13, 2012, PA Jastillano reviewed Dr. Narotam's report from Fowler's May 16 appointment. PA Jastillano noted that the recommended surgery needed to be approved by the Regional Office and placed a formal request for the surgery. PA Jastillano also noted that Fowler needed to see a neurologist for a test known as an electromyogram/nerve conduction study ("EMG/NCS") of his upper extremities. PA Jastillano requested the neurology consultation, and indicated that Fowler may need carpal tunnel surgery.

         On June 20, 2012, PA Jastillano saw Fowler. PA Jastillano noted that Dr. Narotam had recommended that Fowler be placed on narcotic pain medication while he was waiting for surgery. PA Jastillano therefore prescribed Percocet (Oxycodone/ Acetaminophen).

         On August 6, 2012, Fowler was admitted to Union Hospital in Terre Haute for neck surgery. The surgery was performed on August 8, 2012, and Fowler ...


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