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Rowe v. Coomer

United States District Court, S.D. Indiana, Indianapolis Division

July 10, 2018

JEFFREY ALLEN ROWE, Plaintiff,
v.
ALICIA D. COOMER Nurse, et al. Defendants.

          ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENT

          SARAH EVANS BARKER, JUDGE.

         Plaintiff Jeffrey Allen Rowe brought this civil rights action pursuant to 42 U.S.C. § 1983 alleging claims of constitutionally inadequate medical care, and supplemental state medical malpractice, negligence, and breach of contract claims based on the treatment he received for an injured right thumb while at the New Castle Correctional Facility (“NCCF”). The claims currently pending in this action are as follows:

• Eighth Amendment deliberate indifference claims for failing to care for his right thumb injury against Nurse Alicia Coomer, Nurse Barbara Brubaker, Dr. Bruce Ippel, Nurse Melissa S. Wehrley, Nurse Megan Miller, Health Services Administrator Amber Dillow, Nurse Doug Beitler, and Nurse Jeffery Glover;
• Eighth Amendment policy, practice or custom claim against Corizon;
• Indiana state law claims of negligence against Nurse Beitler, Nurse Coomer, and Nurse Dillow for failing to timely see or schedule Rowe for a medical visit;
• Indiana state medical malpractice claims against Dr. Ippel, Nurse Brubaker, and Nurse Glover for failing to provide treatment for his right thumb injury; and
• A third party beneficiary claim that Corizon breached its contract with the Indiana Department of Correction (“IDOC”).

         Now before the Court are cross motions for summary judgment filed by Rowe and the defendants. Rowe seeks summary judgment in his favor as to: (1) his deliberate indifference claims against Nurse Wehrley, Nurse Beitler, Dr. Ippel, HSA Miller, Nurse Coomer and Nurse Dillow; (2) his negligence claims against Nurse Beitler, Nurse Coomer and Nurse Dillow; and (3) his claim that Corizon breached its contract with the IDOC. See dkt. 77. The defendants seek summary judgment on all the claims alleged against them. Dkt. 79.

         I. Summary Judgment Legal 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).

         Courts often confront cross motions for summary judgment because Rules 56(a) and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to move for such relief. In such situations, courts must consider each party's motion individually to determine if that party has satisfied the summary judgment standard. Indiana Civil Liberties Union Found., Inc. v. Indiana Sec'y of State, 229 F.Supp.3d 817, 821 (S.D. Ind. 2017) (citing Kohl v. Ass'n. of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998)).

         Local Rule 56-1 requires that a party seeking summary judgment “include a section labeled ‘Statement of Material Facts Not in Dispute' containing the facts: (1) that are potentially determinative of the motion; and (2) as to which the movant contends there is no genuine issue.” Id. A party opposing a summary judgment motion must “include a section labeled ‘Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment.” Id. Due to the voluminous filings in this matter, only those material facts included in the appropriate section of the parties' brief will be considered despite any assertions that additional facts included in the argument section are incorporated into the statement of facts. See Smith v. Corizon Med. Servs., No. 1:12-cv-1208-SEB-MJD, 2013 WL 2458461, at *1 (S.D. Ind. May 30, 2013) (“[d]istict courts have discretion to strictly enforce their local rules even against pro se litigants.”) (citations omitted); Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (“[I]t is [ ] well established that pro se litigants are not excused from compliance with procedural rules.” (citation omitted)).

         II. Material Facts

         Consistent with the foregoing, the following facts were evaluated pursuant to the standards set forth above.

         A. Facts Regarding Rowe's Medical History and Right Thumb Injury

         At all times relevant to the claims in this action, Rowe was incarcerated at NCCF. Corizon was the corporate entity contracted by the IDOC to provide medical services to NCCF until March 31, 2017. All of the individual defendants in this action were employed by Corizon during the relevant time period.

         On August 4, 2016, Rowe got into a fight with another inmate, and while blocking a punch with his right hand, his right thumb was injured. Dkt. 78-1 at 3. Shortly after sustaining the injury, Nurse Wehrley saw Rowe. Dkt. 80-11 at 1-3; dkt. 78-1 at 140-142. Rowe reported that he had been in an altercation with another inmate and had injured his right thumb at the knuckle. Id. On exam, Rowe had an active range of motion, no significant tenderness, no swelling, no bruising, and no signs of displacement. Id. Nurse Wehrley applied an Ace wrap to Rowe's right hand, which, according to Rowe, provided “immediate improvement in comfort.” Id. She told Rowe to file a Request for Healthcare (“RFHC”) form if the pain did not resolve itself. Nurse Wehrley testifies she provided Rowe with Tylenol pursuant to Dr. Ippel's telephone order, id. at 1, but Rowe disputes that he received any Tylenol during this appointment, dkt. 78-1 at 4. Nurse Wehrley did not see Rowe again.

         On or about August 5, 2016, Rowe submitted RFHC # 329158, which stated:

I saw the nurse yesterday about an injury (possible fracture) to my right thumb from a physical altercation that occured [sic] between myself and my former Bunkie. She said if my finger bruises, or changes colors, to submit a Health Care Request for a follow up. My hand/thumb is very bruised (purple) and it hurts a lot, and I can't move it! I need to be seen and given something for my pain ASAP! Thanks!

Dkt. 80-11 at 4. On the form, a notation in the middle section on the left-hand side indicated that the form was triaged on August 8, 2016, and Rowe was referred to nursing sick call. Id. Rowe testifies that Nurse Bill Smith told Rowe that he put Rowe's RFHC in the Nurse Sick Call Stack (that Nurse Doug Beitler “handled”) on August 8, 2016. Dkt. 86 at 7-8. Defendants indicate that they are unsure who put Rowe's RFHC in the Nurse Sick Call Stack. See dkt. 80 at 8; dkt. 80-2, ¶ 7. Nurse Beitler did not review Rowe's RFHC form until August 29, 2016. Id. Nurse Beitler wrote “Resubmitt [sic] if present, ” and returned the form to Rowe. Resubmit if present apparently were instructions to Rowe to resubmit a RFHC if his symptoms were still present. Rowe testifies he was not sent a copy of the response. Dkt. 78 at 5.

         Rowe testifies that between August 8, 2016, and late September 2016, he submitted at least five RFHC, two letters, and a grievance to Dr. Ippel requesting to be seen and treated for his right thumb injury. Dkt. 78 at 6; dkt. 78-1 at 173. In contrast, Nurse Beitler testifies that Rowe did not send any RFHCs relating to his right thumb between August 5, 2016, and August 29, 2016, and that Rowe never resubmitted his RFHC. Dkt. 80-2, ¶ 7.

         Rowe also testifies that between August 10, 2016, and late September 2016, Rowe sent Megan Miller, the NCCF Health Care Service Administrator, at least three letters informing her of his right thumb injury and asking for her help to be seen. Dkt. 78 at 6; dkt. 78-1 at 173.

         On October 3, 2016, HSA Miller saw Rowe and referred him to Dr. Ippel. Dkt. 78 at 6. On October 3, 2016, Dr. Ippel saw Rowe regarding his complaints about his right thumb pain. Dkt. 80-11 at 6-9. Rowe reported that he had injured his right thumb about two months prior in an altercation and that he had been in restricted housing and unable to use ice. Id. Rowe reported that while in restricted housing, he had “tried to ignore it.” Id. Rowe stated that his thumb had “mostly gotten better, but remain[ed] sore and somewhat stiff and a little swollen” and he wondered what was going on. Id. Dr. Ippel examined the right thumb, which was tender to palpation and Rowe had mild, decreased range of motion. Id. Dr. Ippel obtained an x-ray, which did not reveal a fracture, dislocation, or other abnormality. Id. Dr. Ippel instructed Rowe to apply heat for any discomfort. Id. Heat is a pain management tool for chronic pain. Dkt. 80-3, ¶ 5. Heat also helps with stiffness, which Rowe had on exam. Id. Dr. Ippel instructed Rowe to notify him if the heat failed to improve his condition. Dkt. 80-11 at 6. During the examination, Dr. Ippel said Rowe definitely has a soft tissue injury and may never regain full range of motion. Dkt. 78 at 6; dkt. 78-1 at 5. Although Rowe requested pain medication, during this appointment, he did not receive even Tylenol from Dr. Ippel. Dkt. 78 at 6; dkt. 78-1 at 5.

         Between about October 10, 2016, and early February 2017, Rowe submitted at least five additional RFHC and letters to Dr. Ippel to report that heat was not helping with his pain. Dkt. 78 at 6; dkt. 78-1 at 173. Dr. Ippel did not see Rowe again after the October 3, 2016, appointment. Between October 3, 2016, and the middle of February 2017, Rowe sent at least five letters to HSA Miller to inform her that heat treatment was not helping with his thumb injury and asking to be seen. Dkt. 78 at 7; dkt. 78-1 at 173. Rowe never received a response. Dkt. 78 at 7. In October 2016, in response to Rowe's grievance about his thumb injury, HSA Miller notified the grievance specialist that Rowe had been evaluated for his thumb injury on October 3, 2016, and was instructed to start the heat program. Dkt. 80-8, ¶ 7. Rowe had also been instructed to submit a RFHC form if the heat treatment was not effective. Id.

         Between October 4, 2016, and about the middle of January 2017, Rowe submitted five RFHCs to Nurse Coomer about being seen for his right thumb injury, but she failed to take any action. Dkt. 78 at 7.

         Rowe knew how to properly submit RFHCs, and had previously received prompt responses to those RFHCs. On October 1, 2016, Rowe submitted RFHC # 334123 regarding a refill for his prescription for Prilosec, a medication needed for his acid reflux. Dkt. 80-11 at 5. Nurse Coomer responded that his Prilosec had been ordered. Id. On October 29, 2016, Rowe submitted RFHC # 338762 again asking for a refill of his Prilosec. Id. at 10. Nurse Coomer responded that it had been ordered. Id. On November 28, 2016, Rowe submitted RFHC # 334122, again asking for a refill of his Prilosec. Id. at 11. One of his medical providers ordered the medication. Id. On December 2, 2016, Rowe submitted RFHC # 326572, requesting to see a dentist. Id. at 12. The dentist saw Rowe on December 23, 2016. Id. On January 21, 2017, Rowe submitted RFHC # 344176 regarding his thumb pain:

I seen Dr. Ippel back in September or October 2016 about my thumb. It is still hurting really bad. I need to see him again and I need something for the pain. I've put in several requests lately (over the last 2 months) and haven't heard back from you. Thanks!

Dkt. 80-11 at 13. That same day, nursing staff referred Rowe to Nursing Sick Call. Id.

         On January 23, 2017, Nurse Coomer evaluated Rowe in Nursing Sick Call. Id.; dkt. 80-11 at 14-16. On exam, there was some swelling noted to the right thumb area and Rowe had limited range of motion in the thumb, but there was no weakness. Id. The area was tender to touch and Rowe complained of pain with movement. Id. There was no discoloration or heat noted. Id. Rowe also denied spasms, tingling, and numbness. Id. His vital signs were also normal. Id. Nurse Coomer instructed Rowe to apply heat for discomfort. Id. She also instructed Rowe to put in a RFHC for sick call if his symptoms did not subside or they became more severe. Id. Nurse Coomer referred Rowe to the provider for the Chronic Care Clinic and to follow-up on his complaints of thumb pain via email to the Chronic Care Clinic scheduler, Amber Dillow. Id.

         Nurse Coomer failed to provide Tylenol for Rowe's complaints of pain. Dkt. 78 at 7. Nurse Coomer testifies she did not call the provider for same-day orders because Rowe's thumb pain was chronic in nature, and he had previously been seen for the injury by Dr. Ippel and the x-ray taken in October 2016 was normal. Dkt. 80-4, ¶ 11. If the heat therapy did not work, Rowe could have submitted another RFHC for sick call. Id. Additionally, Rowe could have purchased over-the-counter pain relievers from the commissary, which would be appropriate for chronic pain. Id.

         IDOC Healthcare Services Directive 2.17 states that over-the-counter medications should be purchased by the inmate from the commissary, unless the condition is deemed a “serious health condition, ” a determination made by a medical professional. Id., ¶ 12; id. at 11-45. The Directive further states that “when an offender has trouble obtaining OTCs due to indigence, the issue will not be addressed by healthcare staff.” Id., ¶ 12. Rather, Facility Heads shall have the authority to provide or withhold these items in much the same way that other hygiene items are managed.” Id.

         On January 24, 2017, Nurse Dillow received an email from Nurse Coomer with a list of patients that needed to be scheduled to see the provider for the Chronic Care Clinic or non-urgent medical complaints. Dkt. 80-5, ¶ 7. Nurse Coomer put Rowe on the list for Chronic Care Clinic for complaints of thumb pain. Id.

         On February 2, 2017, Rowe submitted RFHC # 3248118, requesting more Prilosec because he was experiencing pain. Dkt. 80-11 at 17. Prilosec was ordered. Id. He repeated the same request with success on March 2, 2017, id. at 18, and March 11, 2017, id. at 19.

         On March 2, 2017, Nurse Coomer met with Rowe for his annual wellness visit. Dkt. 80-4, ¶ 13; Dkt. 78-11 at 156-160. Rowe had no complaints and his vitals were normal. Nurse Coomer assessed Rowe's tuberculosis exposure and performed a suicide risk assessment, both were negative. Id. Nurse Coomer provided education on testicular self-examination. Id. There was no follow-up or referral required. Id.

         On March 17, 2017, Nurse Dillow sent an email to Nurse Coomer with a list of patients who had various medical appointments scheduled for March 20, 2017. Dkt. 80-4, ¶ 14; dkt. 80-4 at 8.

         Rowe was on the schedule for March 20, 2017, which was the first opportunity for a provider to evaluate him after Nurse Coomer referred him to the provider on January 24, 2017. Dkt. 80-4, ¶ 14.

         Rowe was housed in a special unit called the Annex, which is physically separate from the main part of the prison. Dkt. 80-5, ¶ 6. The Annex is comprised of the M and O buildings, which are physically separate from each other and have separate offices for medical staff to evaluate and see patients. For security reasons, patients housed in the M and O buildings did not go to the main medical unit for Chronic Care Clinic appointments or provider appointments, unless there was an emergency or some other reason that would require movement to the main medical unit. Id. A provider (i.e., physician or nurse practitioner) would go to the Annex for Chronic Care Clinic appointments and to see patients for non-urgent medical complaints approximately twice a week. Id. At the time Nurse Dillow scheduled Rowe's appointment, he was housed in the O building, but he was moved to the M building just prior to the appointment and thus was not seen by a provider for chronic care on March 20, 2017. Id., ¶¶ 7-8.

         On March 27, 2017, Rowe submitted RFHC # 355628 and requested to know his blood type. Dkt. 80-11 at 20. Nurse Coomer responded explaining that medical does not test for blood type unless a patient needs a blood transfusion. Id. This is the last time Nurse Coomer had any involvement with Rowe's medical care and treatment relevant to this lawsuit. Dkt. 80-4, ¶ 15.

         On April 19, 2017, Nurse Wigal evaluated Rowe in response to several RFHC forms regarding a variety of complaints, including thumb pain. Dkt. 80-11 at 21-29. Rowe reported that he had injured his thumb several months prior and had been evaluated by Dr. Ippel. Id. He also reported that he had been using heat with mild relief of symptoms. Id. Nurse Wigal referred Rowe to a provider for further evaluation. Id.

         Nurse Dillow was not aware that Rowe had not been seen in the Chronic Care Clinic in March 2017 until Nurse Wigal referred Rowe to the provider on April 19, 2017. Dkt. 80-5, ¶ 9. Nurse Dillow scheduled Rowe to see the provider for the Chronic Care Clinic and complaints of thumb pain on May 4, 2017, which was the first available provider opening after Nurse Wigal referred Rowe to a provider. Id.

         On May 4, 2017, Nurse Glover evaluated Rowe at the Chronic Care Clinic. Dkt. 80-7, ¶ 10; dkt. 80-11 at 30-33. Rowe was enrolled in the Chronic Care Clinic program for gastroesophageal reflux disease (GERD). Dkt. 80-7, ¶ 10. Inmates in the Chronic Care Clinic program are typically evaluated every 90 days for their chronic conditions. Id. Chronic Care Clinic appointments are limited and are designed to address only chronic problems and adjust medications and other treatments if necessary. Id. If an offender has non-chronic problems that need to be addressed, those issues will be addressed when the offender is evaluated by the provider during the provider's sick-call schedule. Id. However, during this appointment, Nurse Glover did evaluate Rowe for his complaints of a lump on his left testicle that he had already had for one year, but which was getting bigger and more painful. Nurse Glover also evaluated Rowe's chronic right thumb pain, and documented that the thumb pain was due to Rowe “stubbing” his thumb several months ago while playing basketball. Id. Rowe disputes that he stated that he hurt his thumb while playing basketball. Dkt. 91 at 4. Rowe described the pain as being in the right palmar area of the right thumb. Dkt. 80-7, ¶ 10. A review of Rowe's previous x-ray report indicated that there was no fracture. Id. On exam, Rowe had a lesion on his left testicle, but his genitourinary system was otherwise normal. Id. There was no indication of a hernia based on Nurse Glover's physical exam of the abdomen and pelvis. Id. Nurse Glover ordered a testicular ultrasound. Id. Nurse Glover also prescribed Tylenol for Rowe's thumb pain because Rowe reported that Tylenol had provided relief of his symptoms. Id. Nurse Glover had no other involvement in Rowe's medical care related to his complaints of right thumb pain. Id.

         Dr. Ippel was not aware of, and did not receive, any letters or RFHCs submitted by Rowe from August 4, 2016 through October 3, 2016. Dkt. 80-3, ¶ 9. Dr. Ippel was not aware that Rowe was not receiving any benefit from the heat program. Id., ¶ 10.

         Nurse Brubaker was not aware of any email correspondence in January 2017 (or any other time period) between Nurse Coomer and Nurse Dillow regarding Rowe's Chronic Care Clinic appointments. Dkt. 80-6, ¶ 7. Nurse Brubaker did not review Rowe's medical records in January or February 2017. Id., ¶ 9.

         It was Nurse Coomer's practice to document her review of RFHC forms by affixing her signature or initials to the document. Dkt. 80-4, ¶ 16. If her signature or initials are not on the document, she did not review it. Id. From August 5, 2016 through May 11, 2017, Rowe submitted a total of sixteen (16) RFHC forms. Id., ¶ 17. Only three of the sixteen complained of thumb pain. Id. From October 4, 2016 through January 2017, Rowe submitted four RFHC forms. Id., ¶ 18. Only one complained of thumb pain. Id. Nurse Coomer reviewed three of these forms; two regarding the Prilosec prescription and one regarding thumb pain. Id. Nurse Coomer is not aware of any other RFHC forms Rowe submitted during this time period. Id.

         Nurse Brubaker and Nurse Glover had no involvement in scheduling Chronic Care Clinic appointments for patients, including Rowe. Dkt. 80-6, ¶ 8; dkt. 80-7, ¶ 8. Nurse Brubaker had no personal involvement in Rowe's medical care and treatment regarding his right thumb injury and complaints of pain. Dkt. 80-6, ¶ 5.

         Nurse Wehrley did not prescribe medication for patients and did not diagnose patients or determine what medical treatment was appropriate. Dkt. 80-1, ¶ 3.

         Nurse Wehrley did not-and could not-make treatment decisions for Rowe. Id. HSA Miller had no involvement in scheduling patients for the Chronic Care Clinic or provider appointments and she did not supervise the nurses and doctors treating Rowe. Dkt. 80-8, ¶ 6. As the HSA, patients would sometimes address RFHC forms to her; however, that did not mean that she would receive them or that she was aware that a patient had addressed a RFHC form to her. Id. RFHC forms are submitted to the medical department and responded to by nursing staff. Id. As an administrator, HSA Miller did not typically review and respond to RFHC forms. Id.

         Douglas Beitler, Alicia Coomer, and Amber Dillow did not-and could not-make treatment decisions for Rowe. Dkt. 80-2, ¶ 5; dkt. 80-4, ¶ 5; dkt. 8-5, ¶ 5. Only a provider could do that. Nurse Beitler was not “in charge” of nurse sick call in the Annex in August 2016, or any other time. Dkt. 80-2, ¶ 3. There were other nurses who worked in the Annex. Id.

         B. Expert Opinion of Dr. Kevin Krembs

         Kevin Krembs, M.D. is a licensed physician in the state of Wisconsin. See Dkt. 80-10. Dr. Krembs obtained his medical degree in 2002 from the National University of Ireland in Cork, Ireland. Dr. Krembs was licensed to practice medicine in the state of Indiana from 2006 to 2015. Id. Dr. Krembs worked as a treating physician at the Westville Correctional Facility in Indiana from 2010 to 2014. Id., ¶ 4. Since 2014, Dr. Krembs has worked for the State of Wisconsin as a physician and Medical Director at the Racine Correctional Institute in Sturtevant, Wisconsin. Id.

         Dr. Krembs was retained by the defendants to review Rowe's IDOC medical records. Id., ΒΆ 5. Specifically, Dr. Krembs reviewed the records pertaining to the medical care and treatment provided by Nurse Melissa Wehrley, Dr. Bruce Ippel, Nurse Barbara Brubaker, Nurse Jeffrey Glover, Nurse Alicia Coomer, Nurse Amber Dillow, Nurse Douglas ...


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