United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge
Kyle Ellison is a federal inmate. He filed this civil action
against the United States of America under the Federal Tort
Claims Act (FTCA). Ellison contends that, during his
incarceration at the Federal Correctional Institution in
Terre Haute, Indiana (FCI-Terre Haute), he received negligent
medical care. The United States argues that it is entitled to
judgment as a matter of law because it was not negligent with
respect to Ellison's medical care and there is no
evidence that any negligence caused him injury. This Court
recruited counsel to assist Ellison in responding to the
motion for summary judgment. The United States replied and
subsequently sought to exclude Ellison's witness's
opinions at trial. The United States' motion to exclude
the opinions of Dr. Rebecca De La Rosa, dkt , is
denied for the reasons set forth in a
separate Entry issued this same day.
reasons explained below, the United States' motion for
summary judgment, dkt , is granted in part and
denied in part.
Summary Judgment Standard
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, 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).
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. Gekas v. Vasilades, 814 F.3d
890, 896 (7th Cir. 2016). The moving party is entitled to
summary judgment if no reasonable fact-finder 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. Skiba v. Illinois Cent. R.R. Co.,
884 F.3d 708, 717 (7th Cir. 2018) (emphasis added). It cannot
weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder.
Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir.
2014). 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).
Statement of Material Facts
the standards set forth above, the following statement of
facts give Ellison, as the non-moving party, the benefit of
all reasonable inferences.
in custody at FCI-Terre Haute in May or June of 2014, Ellison
injured his forehead on a metal soap dish in the shower.
Believing that the subsequent pain and swelling on his
forehead would subside over time, Ellison initially treated
his injury without seeking medical assistance by applying
couple weeks following his injury, Ellison mentioned the lump
on his forehead to a BOP doctor treating his diabetes. The
doctor advised Ellison to give his lump a few more weeks to
heal and then to return if the situation did not improve.
waiting a few weeks, Ellison put in for sick call since the
lump on his forehead had not improved. He saw a registered
nurse on August 27, 2014. The registered nurse who saw
Ellison on that date recorded that Ellison's pain was a
“7” on the Pain Scale and that it was aching. The
nurse placed Ellison on call-out to be examined by a
medical providers did not see Ellison again for the lump on
his forehead until October 17, 2014. On that day, Ellison was
examined by Dr. Joseph Bergeron and Dr. Bailey at Health
Services. They estimated his lump to be approximately one
inch by one inch in size, and recorded that Ellison's
pain was a “1” on a scale from 1 to 10 at that
time. Additionally, they recorded that the lump was
consistent with his prior contusion and identified it as a
“possible consolidated hematoma, seroma, [or] lipoma .
. . .” Because the conditions indicated the lump could
likely resolve on its own without surgery, Dr. Bergeron
recommended a six-month period of observation, after which a
surgical consultation could be considered. In the meantime,
Dr. Bergeron advised Ellison to present to Health Services if
his condition worsened.
continued to suffer from headaches of varying severity.
Ellison believed the lump was causing his headaches and
Bailey evaluated Ellison for a Chronic Care encounter on
January 8, 2015. There is no indication in the medical record
that Ellison complained about any bump or contusion on his
forehead at that time.
March 5, 2015, Ellison sent an electronic message to Health
Services, stating that he had been told to follow up in six
months, was having headaches and dizziness, and would like a
consultation. Ms. Dautherly, a BOP employee, responded to
Ellison's message by informing him that he needed to sign
up for sick call and that he was scheduled to see Dr. Bailey
again in July.
Registered Nurse (“R.N.”) Matthew Worthington
treated Ellison at sick call on March 9, 2015. R.N.
Worthington recorded that Ellison's chief complaint was
pain in the front part of his scalp at a pain level of
“4” on a scale of 1 to 10. He further recorded
that the pain quality was “[a]ching” and that it
had lasted for “6-12 [m]onths.” On March 17,
2015, Ellison was evaluated at Health Services by Certified
Family Nurse Practitioner (“FNP”) Christopher
Blila. FNP Blila noted that Ellison reported that he had
developed a knot on his forehead that would not go away and
“problems with constant headaches in the area of the
injury since.” FNP Blila noted further that the
“3 cm x 3 cm” lump on Ellison's forehead was
“most likely” a fatty lipoma. A lipoma is a
benign condition of the subcutaneous tissue. This was the
first time since his injury that any BOP medical provider
informed Ellison that his knot might be a lipoma. FNP Blila
placed a request for Ellison to receive a General Surgery
consultation to evaluate the lipoma and the possibility of
Ellison's complaints that the lipoma was causing chronic
headaches, dizziness, and was growing, the BOP's
Utilization Review Committee (“URC”) denied the
consultation request made by FNP Blila on March 18, 2015, as
Ellison's symptoms persisted, he returned to sick call on
April 6, 2015. Certified Physician Assistant
(“PA”) Genevieve Daugherty recorded that
Ellison's pain on that visit was a “7” on a
scale from 1 to 10. PA Daugherty further noted that Ellison
reported intermittent pain at the site of his lipoma.
Finally, PA Daugherty indicated that Ellison's lipoma had
grown from “3 cm x 3 cm” to a size of “4 cm
x 3.5 cm” in a matter of only twenty (20) days. PA
Daugherty again requested that Ellison receive a General
Surgeon consultation to assess his lipoma. The URC approved
the second request for Ellison to receive a General Surgeon
consultation on April 8, 2015.
April 10, 2015, Ellison complained to the Assistant Warden
that he did not feel like enough was being done to address
his condition. The Assistant Warden contacted Christopher
McCoy, the Assistant Health Services Administrator
(“AHSA”), who met with Ellison on April 13, 2015.
During this meeting, Ellison claimed that nothing was being
done to address his lipoma. Ellison questioned why, after
numerous medical assessments over the course of several
months, Health Services had not taken an MRI, x-ray, or
otherwise run any tests on the lump on his forehead. R.N.
McCoy agreed to have another clinician examine Ellison during
mainline on April 13, 2015, but Ellison was not able to
attend mainline due to missing his “move” while
12, 2015, Ellison had his General Surgery consultation with
Dr. Brett Guinn, a contract surgeon not employed by the
Dr. Guinn confirmed that Ellison had a lipoma and recommended
surgical removal given Ellison's symptoms relating to the
lipoma. The medical records memorialize that Dr. Guinn
discussed with Ellison “the risks of poor scarring,
poor cosmetic result, [and] nonresolution of his
headaches” and that Ellison understood and agreed to
proceed. Ellison asserts that contrary to the medical
records, these risks were not discussed with him. Ellison
agreed to the excision of his lipoma, and Dr. Guinn submitted
requests for an offsite general surgery appointment and an
onsite general surgery follow-up appointment.
21, 2015, Dr. Guinn removed the lipoma at the Wabash Valley
Surgery Center. To close the wound, Dr. Guinn used black,
interrupted 3-0 nylon vertical mattress and simple skin
sutures near Ellison's hairline.
the surgery, Ellison was provided with discharge instructions
that advised Ellison- among other directions-that the
“[s]utures need to be removed in 10 days at Health
Services” and that he needed to “[c]hange
dressing as needed, ” “[p]lace Neosporin on
wound, ” and “cover with gauze daily.” In
order to assist Ellison with managing pain following the
excision of his lipoma, Dr. Guinn prescribed him “5
mg” doses of “acetaminophen- HYDROcodone 325 mg -
10 mg oral tablet” (“Hydrocodone”) to take
every four (4) hours on an as-needed basis.
his return to FCI-Terre Haute that same day, Ellison was seen
at Health Services, voicing “no complaints at this
time.” R.N. Stephen Mize, purportedly following verbal
orders from PA Daugherty, disregarded Dr. Guinn's
direction to provide Ellison with Hydrocodone to treat his
pain and instead provided him with ibuprofen. R.N. Mize noted
that Ellison's sutures were to be removed in ten (10)
days. He instructed Ellison to follow-up with Sick call if he
had any additional issues in the interim.
the surgery, the tissue that was removed was tested,
confirming that it was indeed a lipoma and not cancerous.
Removal of Sutures
ninth day following his surgery, Ellison reported to Health
Services to determine what time they wanted him to return on
July 31, 2015, to have his sutures removed. He spoke with
R.N. Worthington, who informed him that he needed to return
that same afternoon, July 30, 2015, to have his sutures
removed and not on the following day. According to R.N.
Worthington, inmates from a different part of the prison
would be visiting on July 31, 2015, making it too busy for
the health care providers to see Ellison.
returned as R.N. Worthington had instructed him. When Ellison
arrived at Health Services, R.N. Worthington was eating. R.N.
Worthington asked Ellison to give him a few minutes, but
Licensed Practical Nurse (“LPN”) Nicole
Clingerman offered to remove the sutures for R.N.
Worthington. Ellison, R.N. Worthington, LPN Clingerman, and
Dental Hygienist Kimberly Rhoads joked about R.N.
Worthington's hands being too large to remove the sutures
from Ellison's forehead.
stated that she would remove Ellison's sutures, but
Ellison took her statement as a joke. Ellison believed that
LPN Clingerman would be the one to remove his sutures, but he
started to get apprehensive when it seemed Rhoads was going
to proceed. Ellison questioned Rhoads' qualifications to
remove his sutures. Rhoads responded by telling Ellison to
“stop being scared” and that she takes stitches
out of smaller places like mouths. Still believing that LPN
Clingerman would be the one to remove his sutures, Ellison
continued to joke with Rhoads about her removing his sutures.
LPN Clingerman returned with a tray to remove Ellison's
sutures, she told Rhoads that Clingerman could handle the
removal. But Rhoads insisted that she would remove
Ellison's sutures, called two (2) dental assistants into
the room with her, and proceeded to remove the sutures.
Neither LPN Clingerman nor ...