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Brock v. Wilson

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

March 9, 2017

MARK BROCK, Plaintiff,
WILLIAM WILSON, et al., Defendants.



         Entry Discussing Motion for Summary Judgment

         Plaintiff Mark Brock (“Mr. Brock”), a federal prisoner incarcerated at the Gilmer Federal Correctional Facility, in Glenville, West Virginia, brings this action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and the Federal Tort Claim Act (“FTCA”). He alleges that the defendants were deliberately indifferent to his serious medical condition of aggressive fibromatosis in violation of the Eighth Amendment and were negligent when they delayed treating his condition, which constituted medical malpractice. Defendants Dr. William Wilson, Dr. Roger Jones, Alex Jastillano, Dr. Allen, and the United States of America moved for summary judgment. The plaintiff filed a response in opposition and the defendants have replied. For the following reasons, the motions for summary judgment [Dkt. 136, 138] are granted. [1]

         I. Summary Judgment Standard

         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. 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.”). “When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” Fed. R. Civ. P. 56(e)(2). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Harney v. Speedway Super America, LLC., 526 F.3d 1099, 1104 (7th Cir. 2008). 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).

         II. Statement of Material Facts Not in Dispute[2]

         A. Background

          Mr. Brock was incarcerated at the Federal Correctional Institution - Terre Haute, Indiana, (“FCI-Terre Haute”) from August 30, 2007, until November 11, 2014. Mr. Brock alleges in his amended complaint that, beginning in 2007, he was treated for recurrences of aggressive fibromatosis. [Dkt. 89]. Fibromatosis (also known as desmoid tumors) is a rare condition that occurs when fibroblasts, the cells that provide structural support to, and protection of, the body's vital organs, undergo mutations and begin to grow uncontrollably. [Dkt. 136-5, ¶ 4]. They can be slow growing or extremely aggressive. [Dkt. 151-2, at p. 13]. The tumors associated with fibromatosis, however, do not metastasize (move from one part of the body to another). [Dkt. 136-5, ¶ 4]. Aggressive fibromatosis does not respond well to radiation or chemotherapy and is generally treated surgically. [Dkt. 151-2, at p. 3]. General surgeons do not like to operate on desmoid tumors and more specialized surgeons are often required. [Dkt. 136-5; 138-5; 151-2, at p. 3]. Genetics often determine whether a desmoid tumor is slow growing or aggressive in its growth. Initial treatment for a desmoid slow growing tumor is to monitor and observe. [Dkt. 151-2, at p. 4]. However, when a desmoid tumor causes pain or the tumor grows enough, surgery is necessary. [Dkt. 151-2, at p. 6].

         B. Terre Haute Medical Facility

         In March of 2011, Mr. Brock underwent surgery to remove a cyst on the left side of his rib cage. [Dkt. 151-2, at p. 17]. Defendant Dr. William Wilson is the clinical director at FCI-Terre Haute. As the clinical director, his job is half administrative and half clinical. [Dkt. 151-1, at p. 12]. The medical facility has approximately 5 physician assistants and Dr. Wilson must cosign their notes. If an inmate needs an outside referral, the process is conducted through the utilization review committee. [Dkt. 151-1, at p. 28]. NaphCare is a third-party entity that schedules outside consultations for the facility and is present during the utilization review committee meetings. NaphCare then sets up the outside consultations for the inmates. Dr. Wilson relies on NaphCare to make the outside appointments [Dkt. 150-1, at pp. 28, 30, 42].

         C. Tumor Growth

         On November 9, 2011, Mr. Brock saw Bureau of Prison (“BOP”) physician Dr. Roger Jones at the Chronic Care Clinic- FCI-Terre Haute. Dr. Jones summarized Mr. Brock's history of fibromatosis and noted that Mr. Brock had a chest wall mass and two ribs removed in March of 2011. Dr. Jones observed that Mr. Brock had a “new 2-3 cm nodule on [the] left anterior chest wall.” He submitted a request for Mr. Brock to see an oncologist. [Dkt. 136-6; 136-7, pp. 1, 6].

         Mr. Brock saw contract oncologist Dr. Ryan Gonzales on December 22, 2011. Dr. Gonzales ordered CT scans of Mr. Brock's chest, abdomen, and pelvis, and stated that Mr. Brock needed to follow up with Dr. Daniel Meldrum, the cardiothoracic surgeon at Methodist Hospital in Indianapolis who performed Mr. Brock's surgery in March of 2011. [Dkt. 136-6, ¶ 9; 136-8]. The CT scans ordered by Dr. Gonzales were performed five days later, on December 27, 2011. [Dkt. 136-6, ¶ 10; 136-9]. The CT scan revealed a deformity of the left upper anterior chest wall affecting the left second anterior rib. [Dkt. 136-8].

         On January 17, 2012, Mr. Brock had a follow up appointment for a recurrent soft tissue mass with Dr. Meldrum. [Dkt. 136-6, ¶ 11; 136-10].

         On February 10, 2012, Mr. Brock saw PA Alex Jastillano at the Chronic Care Clinic. Mr. Brock complained of a “recurring hard mass in his left chest area which he said had grown bigger.” PA Jastillano noted that Mr. Brock had recently been seen by Dr. Meldrum but the results of that consultation were not yet in the system. Mr. Brock stated that Dr. Meldrum told him that he would “need another surgery in the near future.” Because Dr. Meldrum was moving out of state, PA Jastillano placed a request for Mr. Brock to see a different cardiothoracic surgeon. [Dkt. 136-6, ¶ 12; 136-11]. PA Jastillano noted the mass measured approximately 1.5 centimeters in diameter. [Dkt. 136-11].

         On April 16, 2012, Mr. Brock saw cardiothoracic surgeon Dr. David Hormuth at Methodist Hospital in Indianapolis. After reviewing Mr. Brock's December of 2011, CT scan, Dr. Hormuth concluded that “there did not appear to be any significant masses” and the “soft tissue firmness” that Dr. Hormuth observed during his examination “may be related to radiation changes” or postsurgical scar tissue. Accordingly, Dr. Hormuth ordered additional CT scans and stated that after he reviewed the CT scans, if he felt that Mr. Brock needed further follow up, he would “contact [the prison] directly.” [Dkt. 136-6, ¶ 13; 136-12].

         On May 8, 2012, Mr. Brock saw BOP physician Dr. Klint Stander at the Chronic Care Clinic. Dr. Stander noted that Mr. Brock's chief complaint was “pain of the left rib cage, left shoulder, and left arm and hand.” Mr. Brock also complained about a 3 centimeter lump in the upper outer quadrant of the left breast area. Dr. Stander scheduled Mr. Brock for a chest CT. [Dkt. 136-6, ¶ 14; 136-13].

         Mr. Brock had the CT scan ordered by Drs. Hormuth and Stander on June 5, 2012. The CT scan revealed “enlargement of the left breast with a mass lesion” and the radiologist recommended “appropriate additional evaluation.” [Dkt. 136-6, ¶ 15; 136-14].

         PA Jastillano reviewed the report from the June 5, 2012, CT scan on June 22, 2012, and noted that there was “an enlargement of the left breast mass with a mass lesion.” Accordingly, PA Jastillano referred Mr. Brock to Dr. Nabil Mnayarji, a cardiothoracic surgeon in Terre Haute, for evaluation and a biopsy. [Dkt. 136-6, ¶ 16; 136-15].

         On August 8, 2012, BOP physician Dr. Tom Bailey saw Mr. Brock to evaluate his chest mass. Dr. Bailey noted that “over . . . the last 5 months [Mr. Brock] has developed another mass which has rapidly grown in size just below the site of the last tumor.” Dr. Bailey noted the mass will require excision and should be removed as soon as practicable and it caused Mr. Brock pain. Dr. Bailey noted the mass had grown to a size of approximately 4 x 10 centimeters. [Dkt. 136-6, ¶ 18; 136-17].

         On August 29, 2012, Mr. Brock saw cardiothoracic surgeon, Dr. Nabil Mnayarji. Dr. Mnayarji requested another CT scan to “evaluate the mass and location” and requested to review the “pathology report from the 2nd procedure which was done at Indiana University Medical Center.” Dr. Mnayarji stated that once the imaging was completed and the pathology report was reviewed, he would “re-evaluate the condition and recommend the appropriate treatment for [Mr. Brock].” [Dkt. 136-6, ¶ 19; 136-18].

         On September 14, 2012, Mr. Brock saw PA Jastillano at the Chronic Care Clinic. Mr. Brock was “anxious, with poor behavioral control” and PA Jastillano speculated that Mr. Brock was upset because his Gabapentin and Percocet had been discontinued in July after Mr. Brock was caught passing the medications to another inmate.

         On October 31, 2012, Mr. Brock asked BOP nurse Danna Dobbins whether he was scheduled for surgery. Nurse Dobbins reviewed Dr. Mnayarji's report which “suggested [a] CT of chest then follow up.” Nurse Dobbins ordered a chest CT and placed a request for Mr. Brock to see Dr. Mnayarji after the chest CT was completed. [Dkt. 136-6, ¶ 21; 136-20].

         On November 16, 2012, Mr. Brock saw Clinical Director Dr. William Wilson at the Chronic Care Clinic. Mr. Brock's primary issue that day was “a recurrence of [his] chest mass lesion left breast.” Although Mr. Brock had seen Dr. Mnayarji less than 2 months earlier, Mr. Brock insisted that he “need[ed]” to see Dr. Hormuth, the cardiovascular surgeon in Indianapolis. Initially, Dr. Wilson ordered a repeat chest CT and made a note to “get [Mr. Brock] to [cardiovascular] surgeon possibly who performed his last procedure in Indianapolis as soon as possible.” However, upon further review of the records, Dr. Wilson discovered that Mr. Brock already had an appointment scheduled with Dr. Mnayarji, so Dr. Wilson instructed the schedulers to keep that appointment and to schedule Mr. Brock for follow up with Dr. Wilson. [Dkt. 136-6, ¶ 22; 136-21].

         Four days later, on November 20, 2012, Mr. Brock had a chest CT which revealed a “new 3.5-4.3 cm soft tissue mass” in Mr. Brock's left breast. [Dkt. 136-22]. On or about December 18, 2012, Mr. Brock had another appointment with cardiothoracic surgeon Dr. Mnayarji. [Dkt. 136-6, ¶ 24]. After the appointment with Dr. Mnayarji, PA Jastillano noted that Dr. Mnayarji wanted Mr. Brock “followed up in house by the general surgeon.” [Dkt. 136-23].

         On December 21, 2012, Mr. Brock and Dr. Wilson discussed Dr. Mnayarji's recommendation that Mr. Brock follow up with the “general surgeon who comes inside the prison.” Dr. Wilson explained that he had placed a request for Mr. Brock to see someone in the Indianapolis surgical group that had performed Mr. Brock's March of 2011 surgery because “no local surgeons appear willing or able to perform further surgery.” [Dkt. 136-24].

         On February 27, 2013, Mr. Brock saw BOP Regional Medical Director Dr. Paul Harvey at the Chronic Care Clinic. Dr. Harvey concluded that Mr. Brock should be transferred to a BOP medical facility because no surgeons in ...

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