United States District Court, S.D. Indiana, Terre Haute Division
Jane Magnus-Stinson, Chief Judge
Anthony Collier brought this lawsuit pursuant to Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971),
alleging that Defendants, various medical and non-medical
employees at Federal Correctional Institution Terre Haute
(“FCI Terre Haute”), were deliberately
indifferent to his eye conditions during his
incarceration. [Filing No. 90.] Defendants now
move for summary judgment in their favor, arguing that the
undisputed evidence entitles them to judgment as a matter of
law. [Filing No. 164.] Because no reasonable
factfinder could find that Defendants were deliberately
indifferent to Mr. Collier's conditions, the Court
GRANTS Defendants' Motion for Summary
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, that the movant is
entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). As the current version of
Rule 56 makes clear, whether a party asserts that a fact is
undisputed or genuinely disputed, the party must support the
asserted fact by citing to particular parts of the record,
including depositions, documents, or affidavits. Fed. R.
Civ. P. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence
or presence of a genuine dispute or that the adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated. Fed.
R. Civ. P. 56(c)(4). Failure to properly support a fact
in opposition to a movant's factual assertion can result
in the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed. R.
Civ. P. 56(e).
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute,
summary judgment is appropriate if those facts are not
outcome determinative. Harper v. Vigilant Ins. Co.,
433 F.3d 521, 525 (7th Cir. 2005). Fact disputes
that are irrelevant to the legal question will not suffice to
defeat summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable factfinder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh
evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed. R. Civ. P. 56(c)(3), and the Seventh
Circuit Court of Appeals has “repeatedly assured the
district courts that they are not required to scour every
inch of the record for evidence that is potentially relevant
to the summary judgment motion before them, ”
Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against
the moving party. Ponsetti v. GE Pension Plan, 614
F.3d 684, 691 (7th Cir. 2010).
following factual background is set forth pursuant to the
standards detailed above. The facts stated are not
necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light most favorable to
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
Pre-Incarceration Medical History
Collier's history of eye troubles began long before his
periods of incarceration at FCI Terre Haute,  which ran from
August 8 to October 24, 2007, and from January 17, 2008, to
December 2, 2014. [Filing No. 164-2 at 1.] Sometime
in 1999, Mr. Collier suffered a retinal detachment in his
right eye. [Filing No. 164-28 at 15-16.] During the
procedure to reattach the retina, the surgeon removed the
lens from Mr. Collier's right eye. [Filing No. 164-28
at 17.] The retinal detachment reduced Mr. Collier's
vision in his right eye from 20/40 to 20/200.
[Filing No. 164-28 at 17.] Mr. Collier has
reported that his lost eyesight was due to boxing.
[Filing No. 164-3 at 1.]
Treatment During Incarceration
his period of incarceration, Mr. Collier saw several in-house
and outside medical professionals regarding his eye problems.
On October 23, 2008, Mr. Collier visited in-house PA Alex
Jastillano and relayed his concerns regarding his right eye.
[Filing No. 164-3 at 1.] PA Jastillano additionally
diagnosed Mr. Collier with refractive error in his left eye
(blurry vision) and requested an optometry appointment for
Mr. Collier. [Filing No. 164-3 at 2.] On November
14, 2008, Dr. Thomas Webster approved PA Jastillano's
request for an optometry appointment. [Filing No. 164-4
at 1.] On December 15, 2008, in-house optometrist Dr.
Cristian Radaneata performed a refraction examination and
ordered eyeglasses for Mr. Collier. [Filing No. 164-4 at
2, 2010, Mr. Collier saw in-house PA Amy McDonald,
complaining of worsening eye and vision problems. [Filing
No. 164-5 at 1.] PA McDonald noted that Mr. Collier last
had an optometry exam almost two years prior, and scheduled a
“vision consult” for him. [Filing No. 164-5
October 5, 2010, Mr. Collier saw Dr. Radaneata for another
in-house refraction examination and was ordered glasses.
[Filing No. 164-6 at 1.] Dr. Radaneata placed a
request for Mr. Collier to see an outside ophthalmologist for
“evaluation for aphatik [sic] rigid contact
lens.”[Filing No. 164-6 at 1.] That
request was approved on October 8, 2010. [Filing No.
164-7 at 1.]
December 14, 2010, Mr. Collier saw outside ophthalmologist
Dr. Padma Ponugoti, requesting a contact lens fitting for
rigid gas permeable lenses. [Filing No. 164-8.] Dr.
Ponugoti assessed Mr. Collier with 20/400 in the right eye
and 20/80 in the left eye. [Filing No. 164-8 at 3.]
Dr. Ponugoti noted the history of trauma to and surgery on
Mr. Collier's right eye. [Filing No. 164-8 at
3.] Dr. Ponugoti observed arcus (grey ring of
cholesterol) in each eye and “moderate cortical
changes” in the left eye. [Filing No. 164-8 at
3.] Dr. Ponugoti opined that Mr. Collier's left eye
was “within normal limits” and that his right eye
had “limited visual potential.” [Filing No.
164-8 at 3.] Dr. Ponugoti recommended that Mr. Collier
follow up with an optometrist for a rigid gas permeable
contact lens fitting and an eye exam. [Filing No. 164-8
April 6, 2011, Dr. Radaneata performed a funduscopic exam and
noted that Mr. Collier would need follow-up appointments for
a refraction test and contact lens fitting. [Filing No.
164-9 at 3.] On May 3, 2011, Dr. Radaneata saw Mr.
Collier for a refraction exam. [Filing No. 164-9 at
1.] Dr. Radaneata ordered glasses for Mr. Collier and
noted that Mr. Collier would follow up the next month for
“RGP” (rigid gas permeable) lens fitting.
[Filing No. 164-9 at 1.] On June 23, 2011, Dr.
Radaneata fitted Mr. Collier for rigid gas permeable contact
lenses. [Filing No. 164-10 at 1.]
April 24, 2012, Mr. Collier sent a form request to “A.
Rupska, RN/AHSA, ” complaining that
[a] few weeks ago while cleaning my contact lens it
fractured. I've spoken to medical staff . . . . I have
not heard whether the contact was ordered or not. I'm
blind in my right eye and my vision is very weak in my left
eye. Without the contact lens I can-not [sic] read or see
anything on the computer.
[Filing No. 164-11 at 1.] On May 1, 2012, RN Rupska
responded: “Your contact lens are [sic] on order but
you should be able to wear your glasses in the
meantime.” [Filing No. 164-11 at 1.] The
in-house eye doctor was unable to order a replacement gas
permeable contact lens for Mr. Collier's right eye, so,
on August 8, 2012, the BOP Health Services placed a request
for an ophthalmology appointment and new contact lens order.
[Filing No. 164-12 at 1.] On August 15, 2012, the
BOP approved the request to refer Mr. Collier to an
ophthalmologist. [Filing No. 164-13 at 1.]
February 22, 2013, Mr. Collier saw in-house optometrist Dr.
Donald Auxier and complained of vision problems and a broken
contact lens. [Filing No. 164-14 at 1.] Dr. Auxier
assessed Mr. Collier with blindness in one eye, directed
monthly follow-ups for two months, and directed Mr. Collier
to “see DR. Raednata [sic] for contact consult.”
[Filing No. 14 at 1.] On March 5, 2013, Dr.
Radaneata saw Mr. Collier and made a note to “order
contact lens.” [Filing No. 164-15 at 1.]
March 28, 2013, FNP Christopher Blila performed a
consultation encounter and noted as follows: “Schedule
for outside optometry visit (Vision Mart) to fit for contact
lens per Opthalmology [sic] request. Optometry office has
been calling and asking for an appointment to be
scheduled.” [Filing No. 164-16 at 1.]
19, 2013, Mr. Collier was seen by an outside eye doctor at
Vision Mart. [Filing No. 164-17 at 1.] As
noted by EMT Douglas Hanna after the appointment, Mr. Collier
“return[ed] with prescription for contact lens solution
and contact lens case for care and maintainence [sic] of
contact lens. [Mr. Collier] stated that he is supposed to go
back to be fitted for new contact lens. No orders sent
confirming this.” [Filing No. 164-17 at 1.] On
June 20, 2013, the day following Mr. Collier's outside
consultation, FNP Blila made the following note:
Apparently [Mr. Collier] is to return at some point to be
fitted for contact lens. However, we currently do not have
any paperwork . . . and do not know what kind of contact lens
will be ordered. Have discussed this with pharmacy. Once we
receive this information about what contact lens [Mr.
Collier] will be receiving we will place the appropriate NFR
[non-formulary request] for the solution that goes with the
[Filing No. 164-18 at 1.]
January 3, 2014, Mr. Collier saw RN Karl Norris, complaining
of left eye pain at a level 5 intensity out of 10.
[Filing No. 164-19 at 1.] RN Norris observed that
Mr. Collier's left eye was “extremely red.”
[Filing No. 164-19 at 1.] A doctor was notified of
RN Norris's findings and advised that Mr. Collier should
be sent to the emergency department. [Filing No.
164-19.] Mr. Collier was treated at the Union Hospital
emergency department by optometrist Dr. Matthew Keeler, who
diagnosed Mr. Collier with a corneal abrasion (“scratch
on the eye”). [Filing No. 164-20 at 1-2.] Mr.
Collier was discharged with an antibiotic ointment to guard
against infection. [Filing No. 164-20 at 2-4.] Upon
returning to FCI Terre Haute, Mr. Collier told the officers
who transported him that he was “still in pain, ”
but that he had to give his medication “time to
work.” [Filing No. 164-28 at 41-42.] RN Norris
made a notation indicating that he had a consultation with
Mr. Collier (which Mr. Collier denies occurred) and indicated
that Mr. Collier was “good now.” [Filing No.
164-21 at 1.]
in February or March 2014, Mr. Collier saw BOP physician Dr.
Thomas Bailey for a chronic care follow-up unrelated to his
eye difficulties. [Filing No. 164-28 at 29-30.]
Among other complaints, Mr. Collier complained of some
irritation in his left eye from the corneal abrasion and of
pain and floaters in his right eye. [Filing No. 164-28 at
30.] Mr. Collier told Dr. Bailey that he was supposed to
be seen by the optometrist for his right eye pain.
[Filing No. 164-28 at 30.] Dr. Bailey did not
examine Mr. Collier's eyes during Mr. Collier's
visit, [Filing No. 164-28 at 71], but prescribed
ophthalmic ointment for Mr. Collier's left eye,
[Filing No. 164-28 at 30]. Dr. Bailey is neither an
optometrist nor an ophthalmologist. [Filing No. 164-28 at
71.] Dr. Bailey informed Mr. Collier that he would be
scheduled to see an eye specialist. [Filing No. 164-28 at
72-73.] According to Mr. Collier, shortly after the
appointment he was scheduled to be seen by the in-house
optometrist, but that appointment was later cancelled.
[Filing No. 164-28 at 71-72.] Mr. Collier does not
recall seeing Dr. Bailey at any other time. [Filing No.
264-28 at 36-37.]
March 3, 2014, Mr. Collier saw RN Matthew Worthington in BOP
Health Services for a follow up on a left eye ulcer diagnosed
in January. [Filing No. 164-22 at 1.] Mr. Collier
stated that he had a contact lens stuck on his eye which
formed an ulcer. [Filing No. 164-22 at 1.] Mr.
Collier complained of “[n]agging pain.”
[Filing No. 164-22 at 1.] RN Worthington scheduled a
follow-up sick call appointment and stated that Mr. Collier
would be “[p]laced on [c]allout.” [Filing No.
164-22 at 1.]
April 1, 2014, Mr. Collier saw in-house PA Genevieve
Daugherty for a follow up from his January 2014 emergency
room visit. [Filing No. 164-23 at 1.] Mr. Collier
complained of vision problems, explaining that he was blind
in his right eye and that his left eye was weak. [Filing
No. 164-23 at 1.] Mr. Collier said that he was told that
the only way to improve his left eye was to have his special
contact lens properly fitted. [Filing No. 164-23 at
1.] Mr. Collier reported that one of his contacts tore
and that he did not wear the other one because it slips
around his eye. [Filing No. 164-23 at 1.] Mr.
Collier reported that he was to follow up with ophthalmology
for a fitting, but that the fitting never happened.
[Filing No. 164-23 at 1.] PA Daugherty took the
ill-fitting lenses from Mr. Collier and instructed him to
instead wear glasses until he could be seen by the
ophthalmologist. [Filing No. 164-28 at 80-81;
Filing No. 164-23 at 2.] PA Daugherty requested an
ophthalmology appointment for Mr. Collier. [Filing No.
164-23 at 2.] PA Daugherty's request for an outside
ophthalmologist appointment was approved on April 2, 2014.
[Filing No. 164-24 at 1.]
Collier was scheduled to see outside ophthalmologist Dr.
Chirag Patel on June 23, 2014, but Dr. Patel was unavailable.
[Filing No. 164-1 at 6; Filing No. 164-25 at
1.] Mr. Collier's appointment was rescheduled for
July 2, 2014, but for some unknown reason he was marked
“no show” on that date, and the appointment was
again rescheduled. [Filing No. 164-1 at 6;
Filing No. 164-25 at 1.] Finally, Mr. Collier saw
Dr. Patel on August 29, 2014. [Filing No. 164-26 at
2-4.] Mr. Collier reported his vision difficulties and
sought contact lenses, which he said corrected his left eye
vision to 20/40. [Filing No. 164-26 at 2.] Dr. Patel
diagnosed Mr. Collier with keratoconus (bulging cornea
causing blurred vision), worse in the right eye than the
left. [Filing No. 164-26 at 4.] Dr. Patel noted no
pain in the right eye, but, “given slight [light
perception in right eye] would recommend trying to get the
[intraocular pressure] down.” [Filing No. 164-26 at
4.] Dr. Patel did not prescribe any medication or
particular treatment for the intraocular pressure.
[See Filing No. 164-26 at 4.] Dr. Patel
concluded that Mr. Collier needed an evaluation with a cornea
specialist to address his keratoconus and that he would
likely need rigid gas permeable lenses. [Filing No.
164-26 at 4.] Dr. Patel instructed Mr. Collier to
“use glasses for protection” until he could get
fitted for lenses. [Filing No. 164-26 at 4.]
follow up to Dr. Patel's report, Dr. William Wilson
placed a request for another outside evaluation on September
3, 2014, stating, “[A]waiting consult note from
ophthmologist [sic][.]” [Filing No. 174-4 at
1.] Records show that the “date received”
for the consultation request was November 3, 2014, and the
appointment was scheduled for December 3, 2014. [Filing
No. 174-5 at 1.] Mr. Collier was not again seen by an
eye specialist prior to his release from FCI Terre Haute on
December 2, 2014. [Filing No. 164-2 at 1.]