United States District Court, S.D. Indiana, Terre Haute Division
BILLY J. LEMOND, Plaintiff,
PAUL TALBOT, ALEYCIA MCCULLOUGH, Defendants.
ENTRY DISCUSSING DEFENDANTS' AMENDED MOTION FOR
William T. Lawrence, Judge
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.
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
Summary Judgment Standard
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).
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).
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
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).
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
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.
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.
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
Undisputed Background Facts
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.
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
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. ...