United States District Court, S.D. Indiana, Terre Haute Division
JOHN P. GEARNHARDT, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
R. SWEENEY II, JUDGE
John P. Gearnhardt, a former federal inmate, alleges that he
is entitled to monetary relief because he received inadequate
medical treatment following cervical fusion surgery in April
2016. He contends that Bureau of Prison (BOP) medical
providers left his surgical staples in his neck beyond the
timeframe in which they were instructed to remove the staples
and failed to change the dressing on his wounds, leading to
an infection, pain, disfigurement, and scarring of his neck.
The United States of America is allegedly liable under the
Federal Tort Claims Act (FTCA) based on the theory that
medical personnel at the Federal Correctional Complex in
Terre Haute, Indiana (FCI Terre Haute), provided Mr.
Gearhardt with inadequate medical treatment.
United States seeks resolution of the claims alleged against
it through summary judgment. The United States argues that
Mr. Gearnhardt cannot establish that the United States was
negligent with respect to his medical care. For the reasons
explained below, the United States' 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). As the current version of Rule 56 makes clear, 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).
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). 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 Court must view the facts in the light most favorable to
the non-moving party and all reasonable inferences are drawn
in the non-movant's favor, the following facts are not
necessarily objectively true, but are construed in favor of
Mr. Gearnhardt for the purposes of resolving the pending
motion for summary judgment.
time of the medical treatment at issue in this action, Mr.
Gearnhardt was incarcerated at the Federal Correctional
Institution in Terre Haute, Indiana, (“FCI Terre
Haute”). On July 31, 2014, upon Mr. Gearnhardt's
arrival at FCI Terre Haute, RN David Decker performed a
health screen of Mr. Gearnhardt in which Mr. Gearnhardt
reported “L/S pain x 10 years.” Dkt. 29-3. Mr.
Gearnhardt's medical records reveal that Mr.
Gearnhardt's condition has required extensive treatment
since his arrival at FCI Terre Haute including an MRI of his
cervical spine and a cervical epidural steroid injection in
March 2015, and an anterior cervical discectomy and fusion at
¶ 4-5 and C5-6 performed at Union Hospital in August
2015. Dkts. 29-5 through 29-8, 29-12.
the surgery performed in August 2015 initially relieved Mr.
Gearnhardt's symptoms, he experienced increased pain and
weakness in his left arm in January 2016. Dkts. 29-13 &
14. On February 10, 2016, Dr. Narotam, Mr. Gearnhardt's
neurosurgeon, diagnosed Mr. Gearnhardt with cervical
radiculopathy and recommended that he undergo surgery. Dkt.
Narotam performed the surgery on April 21, 2016. Dkt. 29-50.
Mr. Gearnhardt's posterior cervical incision was closed
with surgical staples and he had a staple placed in his left
scalp. Id. He remained in the hospital until April
25, 2016, when he was discharged and returned to FCI Terre
Haute. Dkt. 29-23.
patient copy of the Union Hospital Discharge Instructions as
maintained in the BOP records contains, among other
instructions, a handwritten note, stating, “Has a
staple in L side of his head (just one) it can be removed in
10-14 days. per Dr. Koj.” Dkt. 29-22. The discharge
instructions, as subpoenaed directly from Union Hospital,
contain typewritten instructions that differ from the
handwritten instructions found in FCI Terre Haute's
records. The instructions produced by Union Hospital state:
“remove dressing, shower and pat dry and apply clean
dressing. Wear soft collar for comfort. [S]taples out 10 to
14 days, dont [sic] forget the 1 staple on the left side of
his head.” Dkt. 29-50.
discharge instructions do not indicate whether the staples
should be removed 10-14 days after surgery or 10-14 days
after discharge. Mr. Gearnhardt testified at his deposition
that someone at the hospital told him the staples should be
removed either 6-7 or 7-10 days after discharge. This date
range would match up with an instruction to remove the
staples 10-14 after surgery because he was discharged 4 days
after surgery. The United States argues that this statement
by Mr. Gearnhardt is hearsay and therefore inadmissible. But
even if it were admissible, it would not change the discharge
instructions received by FCI Terre Haute medical staff which
stated that the staples were to be removed within 10-14 days.
Mr. Gearnhardt acknowledges, under penalty of perjury in his
response brief, that the treating physician's orders were
to remove the staples within 10-14 days. Dkt. 40, p.5.
Mr. Gearnhardt's return to FCI Terre Haute, he was seen
by RN Sarah Walters Dkt. 29-23. RN Walters noted:
Paperwork received: follow up with DR. [sic] Narotam in 1
month. EMG in 6 weeks post op @ june [sic] 2nd. Follow up
with Dr. Wilson at FBOP. Activity: no lifting greater than 10
pounds. Limitations: no bending or twisting of the spine
neck. Remove dressing, shower and pat dry and apply clean
dressing. Wear soft collar for comfort. Has staple in left
side of his head (just one). It can be removed in 10-14 days
per Dr. Koj. Recommend hydrocodone. Inmate complains of ...