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Perez v. Marandet

United States District Court, N.D. Indiana, South Bend Division

August 29, 2018

JEFFREY D. PEREZ, Plaintiff,
NOE MARANDET, et al., Defendants.



         Jeffrey D. Perez, a prisoner without a lawyer, was granted leave to proceed against Dr. Noe Marandet and Nurse Lee Ann Ivers in their individual capacities for preventing him from receiving medical treatment and surgery for his feet from August 2014 until March 2015, in violation of the Eighth Amendment.[1] (ECF 9.) Dr. Marandet and Nurse Ivers filed a motion for summary judgment. (ECF 42.) The summary judgment motion was accompanied by a notice (ECF 44), as required by N.D. Ind. L.R. 56-1(f), which informed Perez of the importance of responding. Perez has responded to the motion, [2] and the defendants have replied. For the following reasons, the court denies the summary judgment motion.

         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. In deciding whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in his or her own pleading, but rather must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party does not establish the existence of an essential element on which that party bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Summary judgment “is the put up or shut up moment in a lawsuit ....” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).


         Perez has been incarcerated since 2006. (See ECF 47-2 at 2.) He has a history of congenital talipes equinovarus, commonly known as clubfoot, and has had multiple bilateral foot surgeries. (ECF 44-1 at ¶ 7.) Clubfoot is a birth defect where one or both feet are rotated internally at the ankle. (See ECF 44-1 at ¶ 7; Orthopedic surgeons are generally in agreement that the initial treatment for clubfoot should be nonoperative and “should begin in the first days of life to take advantage of the favorable fibroelastic properties of the foot's connective tissues.” (Id.) In infants, a series of casts is commonly applied over a period of months, which aligns the foot. (Id.) When surgery is required, the condition is usually severe and not completely correctable, although improvements are possible. (Id.)

         Clubfoot is much more difficult to treat in an adult. Much of the research on treating neglected clubfoot in adults comes from third world countries where early childhood intervention may not be available. (See ECF 44-1 at ¶ 7; A neglected clubfoot is one that has either not been treated or has been inadequately treated. (Id.) Without treatment, the deformity is made worse over the years by weight-bearing on the lateral side or dorsum of the foot, which exaggerates the abnormal shape of the foot and causes further deformation. (Id.)

         There is a progression in treatment of clubfoot beginning with manipulation and casting in young patients (under age four), to soft tissue surgery, to soft tissue surgery combined with midfoot osteotomies (cutting foot bones to change their alignment), to osteotomies alone, and then, if all else fails, to arthrodesis (fusion of foot bones). (See ECF 44-1 at ¶ 7; Although generally considered a last resort, arthrodesis remains a common operation in low-income countries as a final attempt to achieve some measure of stability for a painful, rigid clubfoot in a skeletally mature individual. (Id.) Surgeons generally try to avoid these type of fusions, but sometimes pain and deformity reach the point where this procedure offers a chance of producing a better aligned and less painful foot. (See ECF 44-1 at ¶ 7;

         Both of Mr. Perez's feet are severely deformed and significantly smaller than expected for a man of his size. (Id. at ¶ 9.) Perez's foot deformities affect his mobility and cause him discomfort. (Id.) He has underwent numerous surgeries throughout his lifetime in an attempt to correct his condition, but none have been completely successful. (ECF 44-1 at ¶ 9; ECF 47-3 at ¶ 3.) And, his condition has deteriorated since his incarceration in 2006. (ECF 47-2 at 2.) Although it is unclear what treatment Perez received for his clubfoot condition prior to incarceration, Perez has received extensive treatment while incarcerated. (ECF 44-1 at ¶ 8.) Because there is no cure or surgical fix, treatment throughout his incarceration has focused on managing his symptoms and assisting with ambulation. (Id. at ¶ 10.) While incarcerated, he has been prescribed canes, crutches, a wheelchair, and orthopedic shoes to assist him in ambulating. (Id. at ¶ 9.) A surgery was performed in April of 2013, while Perez was housed at Indiana State Prison (ISP), but it left him in more pain. (Id. at 16.)

         On June 3, 2014, Perez was transferred from ISP to Miami Correctional Facility. (Id. at ¶ 11.) On intake, he complained of pain to Lisa M. VanOuse, LPN. (ECF 47-3 at ¶ 8.) Orders for a wheelchair, orthopedic shoes, and crutches/cane were entered as a continuing order from Perez's prior facility. (ECF 44-1 at ¶ 11.) Nurse Lee Ann Ivers, R.N., the Director of Nursing at MCF, completed a disability classification form on June 6, 2014, classifying Perez as disabled. (ECF 47-1 at 2; ECF 47-3 at ¶ 9.) As the Director of Nursing at MCF, Nurse Ivers was responsible for supervising the nursing staff in the facility, ensuring that physicians' orders were being followed by nursing staff, and ensuring that nursing staff observed all policies and protocols. (ECF 44-3 at ¶ 6.) In that position, she did not normally see patients unless an emergency or special situation called for her involvement. (Id.)

         On June 18, 2014, Perez was seen by Timothy Neff, a member of the nursing staff, for his complaints of pain in both feet related to his clubfoot condition. (ECF 44-1 at ¶ 12; ECF 44-2 at 205-06.) He was referred to a medical provider for further assessment. (Id.)

         Dr. Marandet first saw Perez the next day, on June 19, 2014. (ECF 44-1 at ¶ 13; ECF 44-2 at 203-04.) He noted that multiple surgeries had been performed on Perez's clubbed feet while he was incarcerated at ISP. (Id.) He had been issued a pair of orthopedic shoes while at ISP, but Perez said they must have gotten lost during his transfer. (Id.) Perez told Dr. Marandet that he had contacted the Health Services Administrator at MCF about replacing the shoes. (Id.) Dr. Marandet noted that he would check to see if the orthopedic shoes could be located. (Id.) Perez claims he explained his past surgeries and the extent of his pain and suffering to Dr. Marandet in great detail at this meeting, and that he requested a consultation with a podiatrist. (ECF 47-2 at 2; ECF 47-3 at ¶ 11.) Even though Perez indicated he needed help “now, ” he received neither pain medication nor a referral to see a podiatrist. (ECF 44-2 at 203-04; ECF 47-2 at 2; ECF 47-3 at ¶ 11.)

         On August 7, 2014, Perez was again seen by Nurse Neff for complaints of continuing foot pain related to his surgery the year before. (ECF 44-1 at ¶ 14; ECF 44-2 at 199-200.) He reported moderate pain in both feet with motion. (Id.) He requested to be seen by the surgeon who had performed his foot surgery. (Id.) Prednisone and Tylenol were prescribed. (ECF 44-2 at 199-200.)

         On August 21, 2014, Dr. Marandet saw Perez for a chronic care visit. (ECF 44-1 at ¶ 16; ECF 44-2 at 190-94.) Perez continued to report pain in both feet as a result of his foot surgery in April of 2013. (Id.; ECF 47-3 at ¶ 12.) No. pain medication was prescribed, but Dr. Marandet submitted a consultation request that Perez be further evaluated by a podiatrist. (ECF 44-1 at ¶ 16; ECF 44-2 at 190; ECF 47-3 at ¶ 12.) In the consultation request, Dr. Marandet noted that Perez had undergone surgery for repair of bilateral clubfoot in April of 2013 and that Perez stated his feet were in worse shape after surgery. (ECF 44-1 at ¶ 16; ECF 44-2 at 190.) Dr. Marandet noted that Perez's toes were deformed and that Perez had been wheelchair-bound for years. (Id.) Although Perez had been seen multiple times by podiatrists for treatment of his clubfoot condition, Dr. Marandet believed that another podiatry consultation might be of value in determining a future course of treatment. (ECF 44-1 at ¶ 16.) Perez's medical records do not reflect a response to the request for podiatry consultation dated August 21, 2014. (Id.) Defendants speculate that the response was misplaced or took “longer than usual.” (ECF 43 at 16.)

         On August 28, 2014, Perez filed a formal grievance. (ECF 47-3 at ¶ 13; 43-1 at 3.) In his grievance, Perez indicated that the doctor “put in for [him] to see podiatrist” but he had not yet seen the podiatrist. He explained further:

D.O.C. sent me to a podiatrist because of my club feet about a year ago. In that time I've had three operations done on both feet. I've been having problems for awhile now since them operations. My left foot my toes are bending to the side on top of each other (they look broke) and my right foot my toes are bending under my foot. I seen the Dr. here at this facility because of this and he seen how messed up my feet are and right there he put me in to see the Podiatrist who work on me. This is a real problem. I'm in pain all the time. If something is not done it will get worse. I'm now in a wheelchair because of this where I was not before the operations.

(ECF 47-1 at 3.) He again requested that he be seen by the podiatrist that did his operations. (Id.) At the time Perez filed the grievance, he had already tried to resolve the issue informally by speaking with Dr. Marandet. Perez indicated in the grievance that Dr. Marandet said he did not know what happened but he would resubmit the request. (ECF 47-1 at 3.) Medical records do not demonstrate that the consultation request was resubmitted.

         Nurse Ivers, whose duties included assisting the grievance coordinator at MCF in responding to inmate grievances regarding medical care, was contacted in response to Perez's August 28, 2014, grievance. (Id. at ¶ 9; ECF 44-3 at ¶ 6.) In investigating a medical grievance, Nurse Ivers would review the inmate's medical records, including any consultation requests. (ECF 44-2 at ¶ 6.) She would then submit a response to the grievance coordinator based on the inmate's medical records and any input from the medical provider. (Id.) She did not have authority to change or interfere with a prescribed medical treatment or a consultation request. (Id.)

         On September 6, 2014, Perez had not yet received a response to his grievance, and he wrote Nurse Ivers. (ECF 47-3 at ¶ 14.)

On 8-7-14[3] I seen facility Dr. (here at MCF) because my toes on my left foot are bent over each other it looks [like] it's out of socket or broken, and my toes on my right foot are bent down almost under my foot. (And this is after the surgeries I had on both feet in the past year and a half)[.] When I showed the Dr. my feet he said he will send me for X-rays and it still hasn't happened. There is something really wrong and I'm in a lot of pain.
I'm really tired of this INADEQUATE medical care, and want to know what's going on with those X-RAYS.

(ECF 47-1 at 6.)

         Nurse Ivers responded by indicating that:

The provider did not order an Xray. He did put a consult for you to see a specialist. Awaiting approval. I will email provider consult again today 9/15/14.


         On September 24, 2014, Grievance Executive Assistant R. Bynun responded to Perez's formal grievance as follows:

While investigating this grievance, Ms. Ivers in the medical department was contacted. Dr. Marandet has submitted a consultation form in regards to you being re-evaluated by the provider who performed your surgery. The Regional Medical Director approves all consults, and is requesting records from the surgeon. You will be called to the medical department to sign medical release forms. In order for Corizon to obtain these records you must sign the release forms. This is a process and takes time. We are making all efforts in getting you back to your surgeon. We apologize for the inconvenience. It appears that you are receiving the appropriate medical care, and your grievance is addressed.

(ECF 47-1 at 5.)

         Although Nurse Ivers does not recall if she personally contacted the medical records department regarding obtaining a signed release, there is a medical records release dated October 4, 2014, in Perez's medical records. (ECF 44-3 at ¶ 9.) Nurse Ivers' only involvement in the grievance process was to inform the inmate, through a grievance report, of the status of his medical treatment. (Id.) She was not ...

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