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Swisher v. Porter County Sheriff's Department

United States District Court, N.D. Indiana, South Bend Division

March 20, 2018

RANDY M. SWISHER, Plaintiff,


          Michael G. Gotsch, Sr. United States Magistrate Judge

         Randy M. Swisher, pro se, submitted a complaint under 42 U.S.C. § 1983 while he was incarcerated.[1] He was granted leave to proceed against Dr. Madir H. Al-Shami, Sheriff David Lain, and Warden John Widup in their individual capacities for compensatory and punitive damages for denying him medical treatment for his hernia, back pain, sinus headaches, foot pain, and post-traumatic stress disorder caused by his reaction to skin cancer and surgeries while he was housed at the Porter County Jail in violation of the Fourteenth Amendment. He was also granted leave to proceed against the Porter County Sheriff's Department and Advanced Correctional Healthcare Corporation for compensatory and punitive damages for having policies which preclude treatment of a non-life-threatening hernia, treatment of inmates by non-jail doctors, prescription of over-the-counter pain medications, and issuing two mattresses to an inmate while he was housed at the Porter County Jail in violation of the Fourteenth Amendment. Sheriff David Lain, Warden John Widup, and Porter County Sheriff's Department (Porter County Defendants) filed a motion for summary judgment. (ECF 338.) Dr. Madir H. Al-Shami and Advanced Correctional Healthcare Corporation (Medical Defendants) have also filed a motion for summary judgment. (ECF 331.) Both summary judgment motions were accompanied by notices (ECF 333 and 340), as required by N.D. Ind. L.R. 56.1(f), which informed Swisher of the importance of responding. Swisher has responded to each of the motions, and the defendants have replied. For the following reasons, the court grants both summary judgment motions.

         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “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). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in his or her own pleading, but rather must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party does not establish the existence of an essential element on which that party bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Summary judgment “is the put up or shut up moment in a lawsuit ....” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).


         On January 1, 2008, Swisher suffered a gunshot wound in an incident that led to his arrest. (ECF 339-2 at 37.) He was immediately taken to Porter Hospital in Valparaiso, Indiana, for medical treatment. (Id.) The hospital discharged Swisher on January 15, 2008. (ECF 339-2 at 38.) Swisher does not recall receiving any instructions regarding his care and treatment at that time. (ECF 339-2 at 37.) Following his discharge, Swisher was booked into the Porter County Jail. (ECF 339-2 at 37; ECF 339-4 at 2.) Swisher remained at the Porter County Jail from January 2008 until September 30, 2008. (ECF 262 at ¶ 9.)

         During the intake and booking process, Swisher reported that he had a “mini stroke” in August, which caused him to fall into a pillar and knock out his teeth. (ECF 339-2 at 39.) He was never diagnosed with a stroke, but that is what Swisher believes happened. (ECF 339-2 at 39-40.) He also reported that he previously had cancer. (ECF 339-2 at 40.) And, Swisher reported that he is “mostly blind, ” or legally blind, without his glasses. (ECF 339-2 at 39-40.) He does not recall whether he indicated to any booking officer that he was taking medications prior to his arrest. (ECF 339-2 at 41.) Swisher did not report any other medical problems at the time of his intake and booking. (ECF 339-2 at 39.)

         The day after Swisher arrived at the Porter County Jail, he was seen by a doctor[2]for treatment and examination of his gunshot wound. (ECF 339-2 at 49.) He was prescribed Tylenol, Ibuprofen, and two different antibiotics. (ECF 332-1 at ¶ 6; ECF 332-2 at 5.) Swisher has no complaints regarding his medical treatment on January 16, 2008. (ECF 339-2 at 50.) Although he does not specifically remember it, Swisher believes that his wound was cleaned by nursing staff in the days following his arrival at the jail. (Id.)

         The Porter County Jail received Swisher's records from his hospital stay on January 23, 2008. (ECF 332-2 at 7-180.) The records showed that he had a history of medication abuse and skin cancer. (ECF 332-1 at ¶ 7; ECF 332-2 at 7-180.) The records also showed that a psychiatric evaluation was performed, but he did not have a specific mental health diagnosis. (Id.)

         Swisher sought medical care in February for surgical pain and hypoglycemia, and saw Dr. Nadir Al-Shami[3] on February 25, 2008. (ECF 339-2 at 53; ECF 339-4 at 4-8.) Dr. Al-Shami ordered that his blood sugar be tested twice a day for three days, and that his blood pressure be checked for three days. (ECF 332-1 at ¶ 8; ECF 339-4 at 8.) Swisher's complaints regarding his blood sugar were addressed and he has no complaints about how this was handled. (ECF 339-2 at 53.)

         On March 2, 2008, Swisher submitted a Medical Request Form asking to see a chiropractor for back pain that was worsening and affecting his sleep. (ECF 339-2 at 54-55; ECF 339-4 at 10.) The Porter County Jail did not have a chiropractor on staff. (ECF 339-3 at ¶ 9.) Nurse Cheryl Casko informed Swisher that he would need to speak with his attorney to get a court order for his family to take him to a chiropractor.[4] (ECF 339-4 at 10.) Swisher was representing himself and did not seek a court order. (ECF 339-2 at 55.) Swisher's March 2, 2008, request was never brought to Dr. Al-Shami's attention. (ECF 332-1 at ¶ 10.) Swisher does not recall making any other written requests for care regarding his back pain. (ECF 339-2 at 56.) He does claim, however, that he spoke with Dr. Al-Shami regarding his back pain during later visits.[5] (ECF 339-2 at 56.)

         Within a month after submitting his March 2, 2008, Medical Request Form, Swisher spoke with Warden Widup regarding his request to see a chiropractor and was told: “‘We can't get specialists in here' type thing. They won't have specialists come to the jail.” (ECF 339-2 at 57-58.) Warden Widup also told Swisher that he would talk to “medical” regarding Swisher's complaint. (ECF 339-2 at 58.) Swisher was left with the impression that it was against policy to allow specialists to come to the jail. (ECF 342 at 2.)

         On April 4, 2008, Swisher submitted a Medical Request Form stating that, “medical problems have developed since my last request.” (ECF 339-2 at 62; ECF 339-4 at 12.) He complained of an infection and foot pain. (Id.) He wrote that “I will soon need a pair of crutches because my feet are becoming incapable of supporting my weight.” (Id.) Swisher explained at his deposition that, “at that point [his] feet were hurting so bad [he] couldn't hardly walk on ‘em.” (ECF 339-2 at 62.) Dr. Al-Shami saw Swisher on April 7, 2008. (ECF 339-2 at 62-63; ECF 339-4 at 14.) Swisher does not recall the specifics of this appointment. (ECF 339-2 at 63.) At his deposition, Swisher stated that he believes his foot problems were discussed, but Dr. Al-Shami did not prescribe anything. (ECF 339-2 at 63.) In his response to the summary judgment motion, Swisher asserts that he also told Dr. Al-Shami about his back and head pain at the April 7, 2008, appointment. (ECF 341 at 1.) Furthermore, Swisher claims that Dr. Al-Shami did not provide any treatment and refused to allow him to see specialists for his ailments.[6] (ECF 339-2 at 56-57, 63; ECF 341 at 1.) It is undisputed that Dr. Al-Shami never observed Swisher having difficulty ambulating. (ECF 332-1 at ¶ 17.) Although the time-line is not clear, Swisher testified that he spoke with Warden Widup about his foot pain and need to have arch supports made at some point. (ECF 339-2 at 90.)

         On either March 4, 2008, or April 16, 2008, Swisher was seen by a nurse for a comprehensive medical examination and history. (ECF 339-2 at 64-65; ECF 339-4 at 15.) Swisher reported having sinusitis and headaches, previous skin cancer, and a diagnosis of hypoglycemia in 1982. (ECF 339-4 at 15.) He also indicated that he needed arch supports from a podiatrist and he needed to see a chiropractor for a back injury. (Id.)

         On April 27, 2008, Swisher submitted a Medical Request Form that indicated he needed to see the doctor as soon as possible, but did not indicate the nature of his concern. (ECF 339-4 at 17.) Swisher received a response the following day that he would be placed on the doctor's list. (ECF 339-2 at 67; ECF 339-4 at 17.)

         Swisher was seen by Dr. Al-Shami on May 5, 2008. (ECF 339-2 at 68; ECF 339-4 at 19.) Swisher's primary complaint at that time was an abdominal frontal hernia. (ECF 339-2 at 68-69; ECF 332-1 at ¶ 13.) Swisher claims he looked like he was eight or nine months pregnant, although Dr. Al-Shami's notes indicate the hernia measured 5 centimeters by 5 centimeters. (ECF 339-2 at 68-69; ECF 339-4 at 19; ECF 341 at 2.) The hernia was reducible and therefore not at risk for strangulation or incarceration. (ECF 332-1 at ¶ 13.) A reducible hernia is one that goes back into the hole on its own when the patient lays flat or one that can be easily pushed back into the hole.[7] (Id.) A reducible hernia is not at risk for becoming incarcerated or strangulated, or where the hernia tissue becomes trapped in the hernia sack. (Id. at ¶¶ 13, 22.) A hernia is non-strangulating or not incarcerated if it can be easily manipulated and does not impede bowel movement or function or affect other organs. (Id. at ¶ 22.) Hernias that are incarcerated or strangulated need to be surgically repaired. (Id. at ¶ 13.) Hernia surgery is generally elective. (Id. at ¶ 22.) Hernias that are not strangulating or incarcerated and are reducible can be and are frequently safely managed with conservative care. (Id. at ¶¶ 13, 22.) Conservative care consists of monitoring the size of the hernia, a hernia belt or bandage/wrap, pain management if necessary, and possible activity restriction. (Id. at ¶ 22.) Dr. Al-Shami did not order surgery for Swisher's hernia. (ECF 339-2 at 70; ECF 339-4 at 19; ECF 332-1 ¶ 13.) Swisher was, however, prescribed an ACE bandage to wrap around his stomach and Tylenol. (ECF 339-2 at 70-71; ECF 339-4 at 19.) The bandage was ordered on May 7, 2008, and provided to Swisher on May 29, 2008. (ECF 332-2 at 192.) According to Swisher, Dr. Al-Shami said that it was against policy to surgically repair the hernia unless it was life threatening. (ECF 341-1 at ¶ 10.) Further, Swisher's request to get a second opinion was denied. (ECF 339-2 at 48, 69.)

         Immediately following Swisher's appointment with Dr. Al-Shami on May 5, 2008, Swisher spoke with Ian Widup, a jail deputy, about the doctor not providing Swisher with treatment[8] for his hernia and Ian Widup responded that he would talk to his father, Warden Widup, and “get it straightened out.” (ECF 339-2 at 47-48, 72, 92-93.) Later on - he does not know how many days - he spoke with Warden Widup personally, showed him his stomach, and told him that his hernia was not being treated. (ECF 339-2 at 72, 93; ECF 341-1 at ¶ 6.) Swisher also asserts that his sister, Bonnie Work, notified Warden Widup of his hernia and need for treatment, and she later confirmed that she talked with the warden. (ECF 339-2 at 72; ECF 341-1 at ¶ 6.)

         Medical records indicate that Dr. Al-Shami examined Swisher on June 2, 2008.[9](ECF 339-4 at 21; ECF 332-2 at 193; ECF 332-1 at ¶ 14.) Swisher denies this, but the dispute is not material. (ECF 341 at 1.) Whether Swisher saw Dr. Al-Shami or not, it is undisputed that Dr. Al-Shami ordered an abdominal belt for Swisher on June 2, 2008. (ECF 339-4 at 21; ECF 332-1 at ¶ 14.) The abdominal belt was ordered to keep the Ace bandage in place, because Swisher said it rolled.[10] (Id.) The belt was provided that day. (ECF 332-2 at 193, 201-02; ECF 339-2 at 73; ECF 339-4 at 21.) Dr. Al-Shami instructed the nursing staff to check each day to see if Swisher was wearing the belt, and to vary the times they checked. (ECF 332-1 at ¶ 14.) Swisher wanted the hernia belt, and he wore a hernia belt for the next seven years in each of the subsequent correctional facilities where he was housed. (ECF 339-2 at 74-76.)

         On June 2, 2008, Swisher filed an Emergency Petition for Bond Reduction in Porter Superior Court. (ECF 342-1.) That motion sets forth numerous medical problems including pain management for skin cancer surgeries, sinusitis, chronic back pain, foot pain, hypoglycemia, dental problems, and vision problems. (Id.) The Emergency Petition for Bond Reduction makes no mention of Swisher's hernia. (Id.)

         On June 22, 2008, Swisher sent a Notice of Tort Claim by certified mail to the Porter County Jail, naming “Porter Co. Sheriff, Physician, Head Nurse, Warden, and Day Shift Commander-Captain” as defendants. (ECF 342-1 at 3.) For reasons that are not clear, Swisher withheld the names of the defendants for “security reasons” but offered to “disclose by court order if I decide to pursue with litigation.” (ECF 342-1 at 3.) The Notice of Tort Claim does not describe any particular medical issues. Instead, it references “ongoing refusal of medical treatment and supplies, ” a lack of access to necessary specialists, and incompetence on the part of the jail doctor. (Id.)

         On August 19, 2008, Swisher submitted a request to see the doctor regarding his stomach. (ECF 339-2 at 78; ECF 339-4 at 23.) Medical records demonstrate that Swisher was seen by Dr. Al-Shami on August 25, 2008.[11] (ECF 339-2 at 79-80; ECF 339-4 at 25.) Swisher does not recall any specifics about his complaints at this appointment, although he speculates it was about the hernia belt and pain from the hernia. (ECF 339-2 at 80.) According to Dr. Al-Shami, Swisher complained of sinus headaches and asked about a specific medication for his sinus headaches.[12] (ECF 332-1 at ¶ 15.) Swisher was prescribed Tylenol, Ibuprofen, and Benadryl for sinus headaches. (ECF 332-1 at ¶¶ 15, 17; ECF 339-4 at 25.) And, according to Dr. Al-Shami, at the August 25, 2008, appointment Swisher asked why he could not have his hernia repaired. (ECF 332-1 at ¶ 15; 339-4 at 25.) Dr. Al-Shami explained that Swisher's hernia did not need to be surgically repaired, but if it became non-reducible and at risk of strangulation or incarceration, surgery would be needed. (ECF 332-1 at ¶ 15.) Swisher does not recall discussing his medical complaints with anyone at the jail after this visit. (ECF 339-2 at 82.)

         At no point did Swisher inform Dr. Al-Shami that he had been diagnosed with post-traumatic stress disorder. (ECF 332-1 at ¶ 17.) In fact, Swisher testified that, prior to his arrest, he had not ever had a mental health diagnosis of any kind. (ECF 339-2 at 33.) Dr. Al-Shami did not diagnose Swisher with post-traumatic stress disorder and did not see Swisher exhibit signs or symptoms of post-traumatic stress disorder. (ECF 332-1 at ¶ 17.)

         During the course of his treatment of Swisher, Dr. Al-Shami, an experienced physician, based his diagnoses and treatment decisions on Swisher's subjective complaints, objective conditions, and his reasoned medical judgment. (ECF 332-1 at ¶ 18.) Dr. Al-Shami's treatment decisions regarding Swisher were not based on any policy, practice, procedure or custom of Advanced Correctional Healthcare or the Porter County Sheriff. (ECF 332-1 at ¶ 21.) Dr. Al-Shami's treatment decisions regarding Swisher had nothing to do ...

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