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Lemond v. Talbot

United States District Court, S.D. Indiana, Terre Haute Division

June 12, 2018

BILLY J. LEMOND, Plaintiff,


          Hon. William T. Lawrence, Judge

         Plaintiff Billy J. Lemond filed this civil action pursuant to 42 U.S.C. § 1983 against Dr. Paul Talbot and Health Service Administrator Aleycia McCullough alleging they are liable to him for providing inadequate medical treatment. Specifically, Mr. Lemond alleges that while he was incarcerated at Pendleton Correctional Facility, he was denied necessary medical treatment following his August 24, 2015, lower back surgery at Ball Memorial Hospital in Muncie, Indiana. He asserts that Defendants failed to provide him with the pain medication prescribed by Neurosurgeon Dr. Gautam Phookan and failed to order needed physical therapy for eight months. As a result, Mr. Lemond allegedly suffered unnecessary pain and loss of mobility.

         Defendants seek resolution of the remaining claims through summary judgment. For the reasons explained below, Ms. McCullough is entitled to judgment in her favor on all claims while the claims against Dr. Talbot cannot be resolved through summary judgment. Accordingly, the motion for summary judgment, Dkt. No. 27, is granted in part and denied in part.

         I. Summary Judgment Standard

         Summary judgment is appropriate when the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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).

         A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).

         II. Eighth Amendment

         “The applicable substantive law will dictate which facts are material.” National Soffit & Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing Anderson, 477 U.S. at 248). Mr. Lemond's claims are based on the theory that Defendants were deliberately indifferent to his serious medical needs. At all times relevant to Mr. Lemond's claims, he was a convicted offender. Accordingly, his treatment and the conditions of his confinement are evaluated under standards established by the Eighth Amendment's proscription against the imposition of cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”).

         To prevail on an Eighth Amendment deliberate indifference medical claim, a plaintiff must demonstrate two elements: (1) he suffered from an objectively serious medical condition; and (2) the defendant knew about the plaintiff's condition and the substantial risk of harm it posed, but disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Pittman ex rel. Hamilton v. County of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014).

         “[C]onduct is ‘deliberately indifferent' when the official has acted in an intentional or criminally reckless manner.” Board v. Freeman, 394 F.3d 469, 478 (7th Cir. 2005). The Seventh Circuit recently tackled this issue in Petties, writing:

To determine if a prison official acted with deliberate indifference, we look into his or her subjective state of mind. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) (citing Farmer, 511 U.S. at 842, 114 S.Ct. 1970). For a prison official's acts or omissions to constitute deliberate indifference, a plaintiff does not need to show that the official intended harm or believed that harm would occur. Id. at 992. But showing mere negligence is not enough. Estelle, 429 U.S. at 106, 97 S.Ct. 285 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Deliberate indifference is not medical malpractice.”). Even objective recklessness-failing to act in the face of an unjustifiably high risk that is so obvious that it should be known-is insufficient to make out a claim. Farmer, 511 U.S. at 836-38, 114 S.Ct. 1970. Instead, the Supreme Court has instructed us that a plaintiff must provide evidence that an official actually knew of and disregarded a substantial risk of harm. Id. at 837, 114 S.Ct. 1970. Officials can avoid liability by proving they were unaware even of an obvious risk to inmate health or safety. Id. at 844, 114 S.Ct. 1970.

Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016). There is no doubt that this is a high standard for any plaintiff to meet. However, to survive summary judgment the plaintiff need not prove his case. Instead, the plaintiff is only required to present “evidence from which a reasonable jury could infer a doctor knew he was providing deficient treatment.” Id. at 726.

         In this case, Defendants do not dispute that Mr. Lemond's lumbar issues constitute an objectively serious medical need. The issue is whether either Defendant knew of Mr. Lemond's condition and the substantial risk of harm it posed, but disregarded that risk by denying adequate pain medications and delaying physical therapy.

         III. Dr. Talbot

         The Court must accept the facts in the light most favorable to the non-moving party and all reasonable inferences must be drawn in the non-movant's favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). The facts material to the claims against Dr. Talbot are discussed below.

         A. Undisputed Background Facts

         Dr. Talbot is a physician licensed to practice medicine in Indiana as a General Practitioner. He was employed as the Medical Director at Pendleton Correctional Facility (“Pendleton”) between 2014 and March 30, 2017.

         On August 24, 2015, Dr. Gautam Phookan performed an L3 to L5 decompressive laminectomy (surgery on the lumbar spine to relieve pressure on the spinal cord or nerves) on Mr. Lemond. The surgery was uncomplicated. After the operation, Mr. Lemond reported his leg pain had resolved. His back pain was also well controlled with intravenous and oral narcotics. Mr. Lemond received physical therapy for ambulation and performed well.

         Dr. Phookan prescribed Norco (hydrocodone-acetaminophen, a narcotic pain medication) as needed for mild to moderate pain and noted Mr. Lemond could resume his Lipitor (a medication that treats high cholesterol) and Gabapentin (or Neurontin, its brand name, a medication that treats nerve pain). See Dkt. No. 29-2 at 59. Dr. Phookan noted an equivalent medication substitution for Norco could be used. See Dkt. ...

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