United States District Court, S.D. Indiana, Indianapolis Division
TOMMY A. DAILEY, Plaintiff,
CORIZON HEALTH, Defendant.
ENTRY DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND DIRECTING
EVANS BARKER, JUDGE
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
Summary Judgment Standard
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).
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.
Material Facts Not in Dispute
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.).
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.
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.
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 ...