United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING MOTION FOR SUMMARY JUDGMENT
EVANS BARKER, JUDGE
considered the pleadings, the defendants' motion for
summary judgment and the materials associated with such
motion, the Court finds that the motion for summary judgment
must be granted.
Parties and Claim
plaintiff is Engai Maul-Bey, an Indiana prisoner. The
defendants are Corizon Health Services, Barbara (mistakenly
designated as “Jane”) Brubaker, N.P., Dr. Ross,
R. Moore, Vickie Poore, William Wolfe, M.D., Dr. Krembs, Dr.
Dannewitz, Dr. Jones, Jane Elliott, and Dr. M. Person.
Corizon Health Services contracts with the Indiana Department
of Correction to provide medical services to Indiana inmates.
The unopposed motion to dismiss defendant Rose Vaisvilas, who
passed away while this action was pending, was granted.
suit was removed to federal court from an Indiana state
court. The operative pleading setting forth Maul-Bey's
claim is the amended complaint filed on June 12, 2014.
Maul-Bey alleges that over a period of years, and while he
was incarcerated in various Indiana prisons, he was denied
constitutionally adequate medical care. The claim derived
from these allegations is that he was subject to cruel and
unusual punishment, in violation of the Eighth Amendment for
which he originally sought both injunctive relief and
damages. The claim for injunctive relief was dismissed as
moot when Maul-Bey was no longer under the medical care or
management of any of the defendants. This leaves for
resolution Maul-Bey's claim for monetary damages,
regarding which defendants seek summary judgment. Although
defendants Dr. Dannewitz, Dr. Jones, Jane Elliott, and Dr. M.
Person have not appeared in this action, each is identified
as a medical provider who had contact with Maul-Bey during
his incarceration. Maul-Bey has had ample opportunity to
outline the medical care he received. The motion for summary
judgment is therefore deemed to extend to these defendants as
well. See Malak v. Associated Physicians, Inc., 784
F.2d 277, 280 (7th Cir. 1986) ("Where one defendant
files a motion for summary judgment which the court grants,
the district court may sua sponte enter summary
judgment in favor of additional non-moving defendants if the
motion raised by the first defendant is equally effective in
barring the claim against the other defendants and the
plaintiff had an adequate opportunity to argue in opposition
to the motion.").
Summary Judgment Standard
court shall grant summary judgment 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.”
Fed.R.Civ.P. 56(a). A "material fact" is one that
"might affect the outcome of the suit."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over a “material fact” is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. The primary purpose of summary
judgment is to isolate and dispose of factually unsupported
claims.” Albiero v. City of Kankakee, 246 F.3d
927, 932 (7th Cir. 2001). “As stated by the Supreme
Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules
as a whole, which are designed to secure the just, speedy,
and inexpensive determination of every action.”
Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099,
1103 (7th Cir. 2008) (citations omitted).
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of 'the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp., 477
U.S. at 323. A factual issue is material only if resolving it
might change the outcome of the case under the governing law.
Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). A factual issue is genuine only if there is sufficient
evidence for a reasonable jury to return a verdict in favor
of the non-moving party on the evidence presented.
Anderson, 477 U.S. at 248. In deciding a motion for
summary judgment, the court “may not ‘assess the
credibility of witnesses, choose between competing reasonable
inferences, or balance the relative weight of conflicting
evidence.'” Bassett v. I.C. Sys., Inc.,
715 F.Supp.2d 803, 808 (N.D.Ill. 2010) (quoting Stokes v.
Bd. of Educ. of the City of Chicago, 599 F.3d 617, 619
(7th Cir. 2010)). Instead, it must view all the evidence in
the record in the light most favorable to the non-moving
party and resolve all factual disputes in favor of that
party. Anderson, 477 U.S. at 255.
plaintiff may not defeat the defendant's properly
supported motion for summary judgment without offering any
significant probative evidence tending to support the
complaint.” Tri-Gen Inc. v. Int'l Union of
Operating Engineers, Local 150, AFL-CIO, 433 F.3d 1024,
1038 (7th Cir. 2006). The key inquiry 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). "The nonmovant will successfully oppose
summary judgment only when it presents definite, competent
evidence to rebut the motion." Vukadinovich v. Bd.
of Sch. Trs., 278 F.3d 693, 699 (7th Cir. 2002)
(internal quotation and citation omitted); see
Fed.R.Civ.P. 56(c)(1)(A), (B) (both the party
"asserting that a fact cannot be," and a party
asserting that a fact is genuinely disputed, must support
their assertions by "citing to particular parts of
materials in the record," or by "showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact."). In this
case, Maul-Bey has opposed the motion for summary judgment,
but has proffered no additional evidentiary materials.
See Alexander v. Caraustar Indus., Inc., 930
F.Supp.2d 947, 957 (N.D.Ill. 2013) (stating that at summary
judgment, “[f]ailure to respond to an opposing
party's argument is not necessarily a waiver, but it is a
risky tactic, and sometimes fatal”).
applicable substantive law will dictate which facts are
material.” National Soffit & Escutcheons, Inc.,
v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir.
1996) (citing Anderson, 477 U.S. at 248). A moving
party is entitled to judgment as a matter of law where the
non-moving party “has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex,
477 U.S. at 323.
following facts are either undisputed or presented in the
light most favorable to Maul-Bey as the non-moving party with
respect to the motion for summary judgment. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
saga dates back to March 8, 2009, when custodial staff
persons at Wabash Valley reported to nursing staff persons
that Maul-Bey had been observed placing a cell phone into his
rectum. However, nursing staff notes indicate that
Maul-Bey's bowel sounds were normal, that Maul-Bey had no
complaints of abdominal pain and had not incurred any rectal
lacerations. A week later, Maul-Bey complained of anal
itching. Nursing notes related to this follow-up examination
reflect that there were no lesions, bleeding or skin tears to
the area. Dr. Rogan examined Maul-Bey the next day and
prescribed hydrocortisone ointment to treat the anal itching.
Maul-Bey was monitored during this time because he was on a
hunger strike. During the ensuing months, Maul-Bey was
treated for a rash on his right foot, was evaluated for
glasses, for shoulder pain and for an itchy anus. On July 14,
2009, Dr. Rogan again examined Maul-Bey, noting that he had
an external nonthrombosed hemorrhoid. Anusol was prescribed
to relieve the hemorrhoid. Dr. Rogan prescribed Anusol and
other medications following an examination a month later, on
August 18, 2009, and authorized a refill of these medications
on September 1, 2009. In documents filed with the complaint,
Maul-Bey attributes the cause of his rectal and other
ailments as the March 2009 violent search of his rectum to
locate the contraband as well as the splashing of toilet
water into his rectum. The persons performing that search
have not been named as defendants in this case.
was transferred to the Westville Correctional Facility on
September 17, 2009, where he was placed in the prison's
Chronic Care Clinic due to a major depressive disorder and
chronic joint pain at multiple sites on his body. Upon his
arrival at Westville, he promptly submitted a request for
healthcare. On September 23, 2009, nursing staff examined him
and recommended that he take stool softeners and increase
fluid intake to treat his hemorrhoids and take Ibuprofen as
directed to reduce his shoulder and knee pain. He was
examined by Dr. Ross on September 30, 2009, and by nursing
staff relative to other ailments on October 25, 2009.
submitted another request for healthcare on November 3, 2009.
On November 18, 2009, Dr. Ross examined him for complaints of
urinary hesitancy. His vital signs were determined to be
normal and his prostate, though not tender, was enlarged and
boggy, but without any masses. Dr. Ross diagnosed Maul-Bey
with Benign Localized Hyperplasia of the Prostate and
prescribed Cardura to assist him in urinating. She also
ordered a comprehensive metabolic panel.
staff examined Maul-Bey again on November 25, 2009, and
determined that his vital signs were stable. Further
healthcare was provided frequently during the ensuing months.
The Cardura prescription was replaced with Hytrin. Dr. Ross
examined Maul-Bey on April 26, 2010, found his vital signs
again to be normal, continued the current prescription for
Ibuprofin and prescribed Triamcinolone and an antifungal
ointment. Testing of a urine sample revealed trace amounts of
blood, protein, nitrates, and white blood cells. Dr. Ross
prescribed Bactrim DS, a broad spectrum antibiotic, on August
11, 2010. Also in August 2010, and again the following month,
Maul-Bey was seen for lower back pain. X-rays of his spine
were taken and found to be normal.
November 29, 2010, nursing staff evaluated Maul-Bey for
complaints of rectal bleeding, pain, and discomfort. The
nurse noted small open areas from his rectum to scrotum,
cleaned the area and applied ointment, and obtained an order
from Barbara Brubaker, N.P. for Septra D, an antibiotic.
Krembs submitted the proper paperwork to obtain the
non-formulary Triamcinolone cream. N.P. Brubaker prescribed
the Triamcinolone Acetonide cream on December 28, 2010.
Ross examined Maul-Bey in the Chronic Care Clinic on January
21, 2011 and again on February 11, 2011. On March 13, 2011,
Dr. Ross examined Maul-Bey for complaints of shortness of
breath, cough, and an upset stomach. Antibiotics were
April 26, 2011, N.P. Brubaker examined Maul-Bey in the
Chronic Care Clinic. He informed her that he believed he had
prostatitis and reported spasms in his penis, low back pain,
and dysuria, or painful urination. He requested a biopsy of
the head of his penis. His vital signs were normal. N.P.
Brubaker prescribed Cipro, an antibiotic, for possible
prostatitis and ordered (i) a prostate-specific antigen (PSA)
test, (ii) stool occult blood to check for hidden blood in
his stool, (iii) a thyroid panel, and (iv) a urinalysis.
Prostatitis is a swelling and inflammation of the prostate
gland and can result from a variety of causes. It is not
harmful in and of itself but can cause other difficulties
like impeded or painful urination. Based on the
recommendation of the Regional Medical Director, the PSA test
was delayed until the prostatitis resolved, to avoid a
skewing of the PSA results.
Ross left his medical post at Westville in mid-year 2011 and
had no further involvement with Maul-Bey's medical care.
Dr. Dannewitz and Nurse Elliott had also provided medical
care to Maul-Bey at Westville. In May 2011, Maul-Bey
submitted healthcare requests relating to his medications. On
June 1, 2011, Dr. Krembs examined Maul-Bey in the Chronic
Care Clinic, noting that his prostate was enlarged and
tender. Dr. Krembs suspected chronic prostatitis based on
Maul-Bey's medical history and prescribed a 12-week
course of Amoxil, an antibiotic. Two weeks, thereafter, on
June 16, 2011, Nurse Moore examined Maul-Bey for abdominal
pain and a burning sensation during urination. Maul-Bey
reported no relief from the antibiotics he had been given ...