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Muhammad v. Rupska

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

June 26, 2018

ABDUL-AZIZ RASHID MUHAMMAD, Plaintiff,
v.
A. RUPSKA, LCDR KIMBERLY KLINK, LIEUTENANT CHRISTOPHER BLILA, HEATHER ATTERBURY, KAYLA MILLER, TIMOTHY TABOR, T. BAILEY, Defendants.

          ENTRY DISCUSSING PLAINTIFF'S AND FEDERAL DEFENDANTS' CROSS MOTIONS FOR SUMMARY JUDGMENT

          Hon. Jane Magnus-Stinson, Chief Judge United States District Court Southern District of Indiana

         Plaintiff Abdul-Aziz Rashid Muhammad filed this civil action alleging that he was denied constitutionally adequate medical care while incarcerated at the federal prison in this district between November 20, 2012, and October 21, 2013. Claims against seven defendants remain for resolution.[1] Muhammad alleges that defendants Andrew Rupska, Kimberly Klink, Christopher Blila, Timothy Tabor, and Thomas Bailey were deliberately indifferent to Muhammad's serious medical needs. Muhammad suffers from hepatitis C, a torn rotator cuff in his shoulder, artery disease of his legs and feet (with associated neuropathy), and damaged vertebrae in his neck and back. In addition, Muhammad alleges that Heather Atterbury and Kayla Miller were deliberately indifferent to Muhammad's serious medical need for orthopedic shoes to treat neuropathy and artery disease in his feet. All other claims and defendants have been dismissed.[2]

         Each party seeks resolution of this action through the entry of summary judgment. On December 4, 2017, Muhammad filed motion for summary judgment and brief in support. Muhammad argues that the undisputed record reflects that the defendants were deliberately indifferent to his serious medical needs. In response, on January 23, 2018, Defendants Kimberly Klink, Christopher Blila, Andrew Rupska, Heather Atterbury, Kayla Miller, Timothy Tabor, and Thomas Bailey (collectively, the “federal defendants”) filed a cross motion for summary judgment, brief in support and response to plaintiff's motion for summary judgment, and the notice required by Local Rule 56-1. They argue that Klink and Blila, commissioned officers of the United States Public Health Service, are entitled to absolute immunity; that claims arising before July 27, 2013, are barred by the applicable statute of limitations, and that Muhammad cannot establish deliberate indifference against the remaining federal defendants. The cross motions are now fully briefed.

         For the reasons explained below, Muhammad's motion for summary judgment, dkt [111], is denied and the federal defendant's motion for summary judgment, dkt [116], is granted.

         I. Standard of Review

         A 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). 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). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On 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). 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). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to “scour every inch of the record” for evidence that is potentially relevant to the summary judgment motion before them.[3] Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). 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).

         The existence of cross-motions for summary judgment does not imply that there are no genuine issues of material fact. R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local Union 150, AFL-CIO, 335 F.3d 643, 647 (7th Cir. 2003). Cross-motions for summary judgment are treated separately. McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 504 n. 4 (7th Cir. 2008). When cross-motions for summary judgment are filed, courts “look to the burden of proof that each party would bear on an issue of trial; [courts] then require that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact.” Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).

         II. Undisputed Facts

         The following material facts are undisputed.

         A. Muhammad

         From November 20, 2012, through October 21, 2013, Muhammad was incarcerated at FCI Terre Haute, which is the medium security facility within the Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”).

         B. Kimberly Klink

         Kimberly Klink is commissioned as a Commander with the United States Public Health Service (“PHS”). At all times relevant to the allegations in Muhammad's Complaint, she served as the Assistant Health Services Administrator (“AHSA”). Klink has been the AHSA at FCI Terre Haute since May 2012. Any and all actions that Klink took with respect to Muhammad and the allegations in this lawsuit were undertaken within the scope of her employment with the Bureau of Prisons (“BOP”) and in accordance with applicable federal laws and BOP policy. As AHSA, Klink was responsible for the administrative aspects of the Health Services Department and her duties included coordinating physical maintenance of the department, addressing personnel and human relations matters, handling fiscal and budgetary related matters, supervising non-clinical staff, and ensuring records retention within applicable policies. As such, Klink was not responsible for the clinical treatment of inmates and did not provide medical treatment to Muhammad.

         C. Chrisptoher Blila

         Christopher Blila is commissioned as a Lieutenant Commander with the PHS and has been employed by PHS since October 23, 2006. From October 23, 2006, through December 29, 2017, Blila was assigned to FCC Terre Haute. Blila has been a licensed Family Nurse Practitioner

         (“FNP”) since May 2011. Any and all actions that Blila took with respect to Muhammad and the allegations in this lawsuit were undertaken within the scope of his employment with the BOP.

         D. Andrew Rupska

         From April 7, 2013, through November 26, 2017, Andrew Rupska was the Health Services Administrator (“HSA”) for FCC Terre Haute. In his capacity as HSA, Ruspka did not provide direct medical care to inmates unless a medical emergency arose. Rather, he was responsible for implementing and directing the administration of the Health Services Department. Accordingly, his duties included supervising administrative personnel and overseeing staff scheduling, fiscal management, and records management.

         Prior to becoming HSA, Rupska was the AHSA at FCI Terre Haute from July 2000 to April 7, 2013. In his prior role as AHSA, Rupska was responsible for the administrative aspects of the Health Services Department. His duties included coordinating physical maintenance of the department, addressing personnel and human relations matters, handling fiscal and budgetary related matters, supervising non-clinical staff, including the Health Services Assistants, and ensuring records retention within applicable policies. As such, as AHSA, Rupska was not responsible for the clinical treatment of inmates and did not provide medical treatment to Muhammad.

         E. Heather Atterbury and Kayla Miller

         Heather Atterbury has been employed by the BOP since January 17, 2012, while Kayla Miller has been employed by the BOP since February 11, 2013. At the time of the allegations made in Muhammad's Complaint, Atterbury and Miller were employed as Health Services Assistants at FCC Terre Haute.

         As Health Services Assistants, Atterbury and Miller are responsible for assisting with the maintenance of budgeting data for the Health Services Department, scheduling inmates for in-house appointments with community hospital and contract consultants, assisting with the resolution of billing discrepancies, and supporting the HSA and AHSA. The position of Health Services Assistant is considered a non-clinical position, and Health Services Assistants are not involved in clinical decisions made by clinical staff. Thus, neither Atterbury nor Miller were involved in the clinical decisions regarding Muhammad's treatment. The Health Services Assistants order supplies and equipment, but they are not permitted to do so unless a clinician finds such items medically necessary and issues an order for their purchase.

         F. Muhammad's Medical Care at FCI Terre Haute after July 27, 2013

         On July 31, 2013, Muhammad was seen off-site by Dr. Pradeep Narotam at Union Hospital Neuroscience, who diagnosed him with lumbar stenosis and recommended L2-S1 transfacet fixation surgery.

         Muhammad was seen by Dr. Orman, a cardiologist, on August 7, 2013. Muhammad also underwent a rest/stress single isotope PET myocardial perfusion imaging on this day.

         Timothy Tabor, a Physician Assistant (“PA”), evaluated Muhammad at a Sick Call Encounter on August 13, 2013; Muhammad was complaining of breakdown of bilateral shins, varicose veins of bilateral legs, and not yet receiving medical shoes for neuropathy. PA Tabor submitted consultation requests for podiatry to have Muhammad scheduled for a LEAP foot exam and evaluation of bilateral foot neuropathy, for “Specialty Procedure - In house” to have him scheduled for a bilateral Ankle-Brachial Index (“ABI”), and for vascular surgery for surgical evaluation of bilateral varicose veins. On August 14, 2013, the Utilization Review Committee (“URC”) approved Muhammad for a consultation with “specialty, ” but denied a consultation with podiatry, determining that a review of his condition by a podiatry consultant was not warranted at that time.

         Muhammad submitted an electronic message to Kayla Miller, Health Services Assistant, on August 19, 2013, asking about medical shoes and stockings. Miller responded the same day, telling him that she had not heard about the medical shoes and addressing his inquiry regarding stockings.

         On August 19, 2013, after receiving the faxed documents regarding Muhammad's recent cardiac stress test, FNP Blila submitted a cardiology consultation request to schedule cardiac catheterization. Blila changed this consultation request to in-house follow up to determine if the cardiologist wanted to proceed with a heart cath on September 4, 2013. The URC approved the consultation request with cardiology on September 11, 2013.

         Muhammad was seen at Sick Call on September 6, 2013, complaining that his medical shoes had worn out and were causing foot problems. Dr. Roger Bailey evaluated Muhammad on September 19, 2013, agreeing that one of Muhammad's diagnoses included peripheral neuropathy and indicating that he felt Muhammad had a medical need for medical shoes.[4]

         On September 23, 2013, FNP Blila submitted a neurosurgery consultation request to schedule for L2-S1 transfacet fixation, DLL L2-L4. The URC referred this request to the North Central Regional Office for approval or denial on September 26, 2013.

         Muhammad was seen in-house for an ABI test on September 25, 2013. On October 3, 2013, Physical Therapist Ashley Matchett evaluated Muhammad to reassess his need for medical shoes. Upon examination, PT Matchett determined that Muhammad did have some risk factors for skin ulceration so medical shoes appeared indicated. The results from the ABI test, which were faxed on October 7, 2013, indicated that Muhammad's left ABI was normal and his right ABI was in rest pain range; it was recommended that MRA[5] or CTA[6] correlation be considered.

         On October 7, 2013, Muhammad was seen in house by Dr. Orman, a cardiologist, for follow up. Dr. Orman recommended follow up in six months, and a consultation request for cardiology was submitted. The next day, Dr. Orman indicated that Muhammad was clear for travel. The URC approved the cardiology consultation request on October 9, 2013.

         Muhammad was evaluated by Dr. Ulrich, an orthopedist, for right shoulder pain on October 10, 2013. Dr. Ulrich recommended right shoulder arthroscopy and follow up afterward; a ...


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