United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S PARTIAL MOTION
FOR SUMMARY JUDGMENT
EVANS BARKER, JUDGE.
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
• Eighth Amendment policy, practice or custom claim
• 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
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.
Summary Judgment Legal 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).
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.
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)).
with the foregoing, the following facts were evaluated
pursuant to the standards set forth above.
Facts Regarding Rowe's Medical History and Right Thumb
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
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
about August 5, 2016, Rowe submitted RFHC # 329158, which
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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,
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.
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.
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.
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.
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.
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.
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.
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
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.
Wehrley did not prescribe medication for patients and did not
diagnose patients or determine what medical treatment was
appropriate. Dkt. 80-1, ¶ 3.
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.
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.
Expert Opinion of Dr. Kevin Krembs
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.
Krembs was retained by the defendants to review Rowe's
IDOC medical records. Id., ¶ 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