United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO Judge United States District Court
detained in the Elkhart County jail, plaintiff Jackie Lee
Fisher slipped on a water leak in his cell and hit his head.
He was promptly tended to by a nurse, and a doctor gave
treatment directions by phone. The following week, he sought
additional treatment for continuing symptoms, but refused to
be treated unless the medical staff first agreed to waive the
$15 co-payment, which they did not. Several days later, Mr.
Fisher relented and sought treatment notwithstanding the
co-payment. He was evaluated by a nurse, who again consulted
with the doctor by phone, and he saw the doctor in person the
following week. Mr. Fisher alleges in this action that the
delay in seeing the doctor in person and the failure to waive
the co-payment caused him to endure unnecessary pain during
this period, in violation of his constitutional rights. The
defendants-the doctor, a nurse, and the company that provides
medical services at the jail-have now moved for summary
judgment, arguing that there is no evidence that they were
deliberately indifferent to Mr. Fisher's serious medical
needs. The Court agrees, and grants the motion for summary
April 26, 2014, plaintiff Jackie Lee Fisher was a pretrial
detainee in the Elkhart County jail. Early in the morning,
Mr. Fisher slipped on a water leak in his cell and fell and
hit his head. Another inmate in his cell used the call box to
notify jail staff that Mr. Fisher had fallen and was hurt.
Jail staff came to the cell and escorted Mr. Fisher to the
medical unit, where he was evaluated by nurses on duty. Mr.
Fisher had a cut on his head that was two inches long, but
not deep. He also reported a ringing and tenderness in his
ears. His vital signs were generally normal, though, and he
also performed well on tests designed to detect neurological
a.m., about an hour after the fall, a nurse called and spoke
to Dr. John Foster, the doctor employed by Correct Care
Solutions to provide treatment at the jail. The nurse told
Dr. Foster about Mr. Fisher's injury, and informed him
that Mr. Fisher was complaining of nausea, blurred vision,
and a pounding headache. She also provided Dr. Foster with
the neurological test results. Dr. Foster ordered an x-ray of
Mr. Fisher's skull, and also ordered that Mr. Fisher
receive Tylenol 975 mg., twice a day for two days. That
medication was in addition to an existing prescription Mr.
Fisher had for Mobic, a mild pain-reliever and
anti-inflammatory drug. Dr. Foster concluded based on the
information provided to him that Mr. Fisher was stable from a
neurological perspective and did not need to be sent to the
hospital. Mr. Fisher states that he was also vomiting at this
time, but he does not dispute that Dr. Foster was not given
that information. The x-ray was taken that same morning and
came back normal, showing no skull fracture. Either that
night or the following day, a nurse called Dr. Foster and
informed him that Mr. Fisher was fine, had no pain, no
blurred vision, and was ready to go back to his dorm, so Dr.
Foster released him back to the general population.
days later, on April 30, Mr. Fisher submitted a request to
see the medical department. An appointment was scheduled for
the following day, but when he was called for his
appointment, Mr. Fisher refused to go. Nurse Daniel Kinnear,
the nursing supervisor, asked to speak with Mr. Fisher about
why he was refusing treatment. Mr. Fisher alleges that
medical staff had told him he would have to pay a triage fee
of $15 in order to be seen. He believed that the fee was
contrary to Correct Care's policy, though, and also that
his injury was the jail's fault because of the leak, so
he refused to be triaged without being assured that he would
not be charged. Nurse Kinnear encouraged Mr. Fisher to be
triaged and advised him that he could be seen by the medical
staff at any time, but Mr. Fisher refused to be seen,
believing that he would be wrongfully charged for the
6, Mr. Fisher finally agreed to be seen despite the $15
charge. He was examined on May 8 by Nurse Kinnear. At that
time, Mr. Fisher's vital signs were normal and the cut on
his head was healing nicely, but he complained of headaches
and neck pain since his fall. Nurse Kinnear then called Dr.
Foster and discussed Mr. Fisher's complaints. Dr. Foster
ordered that Mr. Fisher receive Tylenol 975 mg. for seven
days. Nurse Kinnear also referred Mr. Fisher for an
appointment with Dr. Foster, which took place on May 15. On
that date, Dr. Foster examined Mr. Fisher in person for the
first time since the accident. Mr. Fisher reported a headache
that would come and go, and also reported that he was still
very tender in his lower neck and upper back. Dr. Foster
prescribed Flexeril, a muscle relaxant. He also ordered a
cervical spine x-ray, which was taken the next day and came
back normal. Mr. Fisher continued to seek and receive
treatment for over the next year, but only focuses in this
action on his treatment through May 15, so the Court need not
discuss the rest of his treatment history.
Fisher filed a pro se complaint in this case on June
18, 2014. Pursuant to 28 U.S.C. § 1915A, the Court
screened the complaint, and granted Mr. Fisher leave to
proceed on a deliberate indifference claim against eleven
individuals involved in his medical care, and against Correct
Care Solutions, the private company that contracted to
provide medical services at the jail and that employed Dr.
Foster and Nurse Kinnear. The Court also granted Mr.
Fisher's motion to recruit counsel, so he is now
represented. Mr. Fisher later stipulated to the
dismissal of five of the individual defendants. In addition,
following the remaining defendants' motion for summary
judgment, Mr. Fisher stipulated to the dismissal of four more
of the defendants, conceding that the record could not
support his claims against them. Accordingly, Mr.
Fisher's claims remain pending against Dr. Foster, Nurse
Kinnear, and Correct Care, each of which have moved for
STANDARD OF REVIEW
judgment is proper when 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 identified by the
substantive law as affecting the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine issue” exists with respect to
any material fact when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. Where a factual record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial, and
summary judgment should be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citing Bank of Ariz. v. Cities Servs. Co.,
391 U.S. 253, 289 (1968)). In determining whether a genuine
issue of material fact exists, this Court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable and justifiable inferences in that
party's favor. Jackson v. Kotter, 541 F.3d 688,
697 (7th Cir. 2008); King v. Preferred Tech. Grp.,
166 F.3d 887, 890 (7th Cir. 1999).
Fisher argues that Dr. Foster, Nurse Kinnear, and Correct
Care violated his constitutional rights by delaying his
treatment and by improperly charging him for that treatment.
At the time of these events, Mr. Fisher was a pre-trial
detainee at the jail. “Although the Eighth Amendment
applies only to convicted persons, pretrial detainees . . .
are entitled to the same basic protections under the
Fourteenth Amendment's due process clause. Accordingly,
[courts] apply the same legal standards to deliberate
indifference claims brought under the Eighth or Fourteenth
Amendment.” Minix v. Canarecci, 597 F.3d 824,
831 (7th Cir. 2010). A constitutional claim based on
inadequate medical care contains two elements: “(1) the
prisoner suffered an objectively serious harm that presented
a substantial risk to his safety, and (2) the defendants were
deliberately indifferent to that risk.” Id.;
Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016)
defendants do not contest the first element for these
purposes, but focus on the second element. That element
requires a dual showing that the defendant (1) had subjective
knowledge of a risk to the inmate's health, and (2)
intentionally disregarded that risk. Thomas v. Cook Cty.
Sheriff's Dep't, 604 F.3d 293 (7th Cir. 2010);
Minix, 597 F.3d at 831. “For a medical
professional to be liable for deliberate indifference to an
inmate's medical needs, he must make a decision that
represents ‘such a substantial departure from accepted
professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base
the decision on such a judgment.'”
Jackson, 541 F.3d at 697 (quoting Sain v.
Wood, 512 F.3d 886, 895 (7th Cir. 2008)). The Court
considers Mr. Fisher's claim against each defendant in