United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PLAINTIFF'S AND FEDERAL
DEFENDANTS' CROSS MOTIONS FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge United States District Court
Southern District of Indiana
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. 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.
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.
reasons explained below, Muhammad's motion for summary
judgment, dkt , is denied and the
federal defendant's motion for summary judgment, dkt
, is granted.
Standard of Review
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).
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).
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. 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).
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).
following material facts are undisputed.
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”).
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.
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
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.
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.
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.
Heather Atterbury and Kayla Miller
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.
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
Muhammad's Medical Care at FCI Terre Haute after July 27,
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.
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.
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.
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.
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.
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.
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.
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 or CTA correlation be considered.
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.
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