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Dailey v. Corizon Health

United States District Court, S.D. Indiana, Indianapolis Division

December 12, 2017

TOMMY A. DAILEY, Plaintiff,



         Before the Court are the cross-motions for summary judgment of plaintiff Tommy A. Dailey and defendant Corizon, LLC. Mr. Dailey commenced this action on May 26, 2016, asserting a number of claims against a variety of individuals and entities for conduct occurring following an injury he suffered on February 15, 2015. Because Mr. Daily is a prisoner, his pro se complaint was screened pursuant to 28 U.S.C. § 1915A, and a single claim was allowed to proceed against Corizon, the contracted provider of health services for the Indiana Department of Correction. Dkt. 4. The operative claim contends that Corizon was deliberately indifferent to Mr. Dailey's post-operative pain because of “systemic and gross deficiencies in staffing, facilities, equipment, or procedures” that caused it to run out of or not provide certain pain medications. Mr. Dailey was deprived of pain medication Tylenol #3 for about twenty-five hours and ibuprofen for about four days. For the reasons explained below, the Court finds that as to the claim concerning Tylenol #3, Corizon's practices do not demonstrate a systemic and gross deficiency in equipping the prison infirmary with that medication for one day. As to Mr. Dailey's claim concerning the five-day delay in obtaining ibuprofen, fact issues preclude summary judgment on the issue.

         I. Summary Judgment Standard

         Federal Rule of Civil Procedure 56 provides that summary judgment should be granted when the evidence establishes 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party. See Id. at 255. However, neither the “mere existence of some alleged factual dispute between the parties, ” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., 209 F.3d 687, 692 (7th Cir. 2000).

         Courts often confront cross motions for summary judgment because Rules 56(a) and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to move for such relief. In such situations, courts must consider each party's motion individually to determine if that party has satisfied the summary judgment standard. Kohl v. Ass'n. of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998). Here, the Court has considered the parties' respective memoranda and the exhibits attached thereto and has construed all facts and drawn all reasonable inferences therefrom in the light most favorable to the respective nonmovant. Matsushita, 475 U.S. at 574. The parties, by filing cross motions, each contend that there are no material facts in controversy and that their dispute is ripe for decision on summary judgment. Material facts regarding the Tylenol #3 claim are not in dispute. As to Mr. Dailey's ibuprofen claim, however, there are material facts in dispute that preclude the entry of summary judgment.

         II. Material Facts Not in Dispute

         On February 15, 2015, while incarcerated at Indiana's New Castle Correctional Facility (“New Castle”), Mr. Dailey was playing basketball when he injured his left knee. Surgery was performed on February 27, 2015, and Mr. Dailey was for a while thereafter in the New Castle infirmary. On March 1, 2015, the infirmary ran out of Tylenol #3, a narcotic pain medication that had been prescribed for Mr. Dailey both pre- and post-surgery. He missed three doses of the narcotic until it was resupplied and he received a dose twenty-five to twenty-nine hours after his last dose. About two weeks later, after the Tylenol #3 had been discontinued in favor of ibuprofen to control pain and swelling, there was a five-day period in which Mr. Dailey was not given ibuprofen. From March 12 to March 16, 2015, Mr. Dailey's ibuprofen, although in stock and present in the facility, was not given to him because the regional medical director's approval of the ibuprofen order had not been attached to the original order. See Dkt. 26-1, ¶ 23 (Affidavit of Bruce Ippel, M.D.).

         III. Discussion

         One ground for relief was screened to proceed - whether Corizon is liable to Mr. Dailey for having “systemic and gross deficiencies in staffing, facilities, equipment, or procedures in a detention center's medical care system” such that there were delays in providing him prescribed pain medication. Dkt. 4, pp. 4-5 (citing Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016). Plaintiff's pain medication contentions concern first, to a great extent, the day he was without Tylenol #3, and second, the five-day period he was without ibuprofen. The Court addresses these two pain medication issues separately.

         A. Tylenol #3

         There are many disputed facts concerning the day that Mr. Dailey was deprived of Tylenol #3, such as whether he reported being in pain and whether alternative pain medication was offered. But these are of no moment because a one-day deprivation of pain medication, under these circumstances, cannot meet the constitutional deliberate indifference standard.

         In Burton v. Downey, 805 F.3d 776 (7th Cir. 2015), Burton entered a jail while having a prescription for several medications including pain control medications. Due to the jail intake policies and procedures, all of his medications were confiscated and had to be re-authorized by jail medical personnel. It took two days before his pain medications were started, and Burton brought a Section 1983 action for that delay. He contended the procedures used to approve medications were flawed and the resulting two-day delay in pain medication was deliberate indifference to his serious medical needs. The Seventh Circuit did not agree.

In considering whether a two-day delay in receiving medication implicates the Constitution, we must keep in mind that “the infliction of suffering on prisoners can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the criminal law sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985), abrogated on other grounds; see also Wilson v. Seiter, 501 U.S. 294, 297 (1991) (“[O]nly the unnecessary and wanton infliction of pain implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege deliberate indifference to his serious medical needs.” (Internal citation and quotation marks omitted)). “Negligence, gross negligence, or even ‘recklessness' as that term is used in tort cases, is not enough.” Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir.1987).
Here, Burton does not claim, or present any evidence that would support a claim, that defendants deliberately or even recklessly delayed the distribution of his pain medication. Although we recognize the importance of prompt medical aid for a patient's necessary medical treatment when he is detained or incarcerated, without evidence that defendants acted with the requisite bad intent in delaying the dispensation of his medication, Burton's allegations are insufficient to sustain a deliberate indifference claim. Put simply, a two-day delay is not enough, standing alone, to show a culpable mental state. The delay ...

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