United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
JANE MAGNUS-STINSON, CHIEF JUDGE
Houston Harper, an Indiana prisoner, brought this civil
rights action pursuant to 42 U.S.C. § 1983 against
defendant Nurse Susan Leturgez for failing to properly treat
his dislocated shoulder. He also asserts that Corizon Health,
Inc. has a widespread custom, practice, and policy of not
meeting the emergency medical needs of inmates at Wabash
Valley Correctional Facility (WVCF). Dkt. 1. The Court
screened the complaint and permitted Mr. Harper's Eighth
Amendment deliberate indifference claim and state law
emotional distress claim to proceed against both defendants,
and his state law breach of contract claim to proceed against
defendant Corizon. Presently pending before the Court is the
defendants' motion for summary judgment. For the reasons
explained below, the motion for summary judgment, dkt. ,
Summary Judgment Legal Standard
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). On 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).
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. 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).
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 v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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). Local Rule 56-1(e)
requires that facts asserted in a brief must be supported
“with a citation to a discovery response, a deposition,
an affidavit, or other admissible evidence.”
Id. In addition, the Court will assume that the
facts as claimed and supported by admissible evidence by the
movant are admitted without controversy unless “the
non-movant specifically controverts the facts in that
party's ‘Statement of Material Facts in
Dispute' with admissible evidence” or “it is
shown that the movant's facts are not supported by
admissible evidence.” Local Rule 56-1(f). The Court
“has no duty to search or consider any part of the
record not specifically cited in the manner described in
subdivision (e).” Local Rule 56-1(h); see
Kaszuk v. Bakery and Confectionery Union and Indus. Intner.
Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986)
(“The court has no obligation to comb the record for
evidence contradicting the movant's affidavits.”);
Carson v. E.On Climate & Renewables, N.A., 154
F.Supp.3d 763, 764 (S.D. Ind. 2015) (“The Court gives
Carson the benefit of the doubt regarding any disputed facts,
however, it will not comb the record to identify facts that
might support his assertions.”).
following statement of facts was evaluated pursuant to the
standard set forth above. That is, this statement of facts is
not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light reasonably most favorable
to Mr. Harper as the non-moving party with respect to the
motion for summary judgment. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
Mr. Harper's Complaint
complaint, Mr. Harper alleged that when he dislocated his
shoulder on October 1, 2016, Nurse Leturgez refused to see
him or provide him with pain medication because she was too
busy with other tasks. He alleged that he put his own
shoulder back into its socket, but that it separated again
later that night. Mr. Harper states that he was taken back to
the infirmary, seen by a doctor, and given ice, a shot of
something, and some Tylenol. His shoulder causes him moderate
to extreme pain to this day, he alleges, and Corizon has not
provided him proper pain medication or an x-ray to treat the
condition. See dkt. 1.
October 1, 2016, Shoulder Injury
Harper's medical records reflect that he injured his
right shoulder while playing basketball on October 1,
2016. Dkt. 35-1 at 4; Dkt. 35-2 at 13-18.
Although the medical records reflect that Nurse Leturgez
briefly saw Mr. Harper in the waiting area of the clinic, Mr.
Harper asserts that Nurse Leturgez never talked to him or
examined him. Rather, according to Mr. Harper, Lt. Ewers
spoke to Nurse Leturgez in the back of the infirmary, but
Nurse Leturgez stated that she was too busy doing other
things, such as handing out medication to other inmates, and
refused to give Mr. Harper any pain medication in the
meantime. Dkt. 1 at 5, Dkt. 51-1 at 1-2. Mr. Harper's
version of the events is supported by a declaration by Stacey
Huddleston, another inmate at WVCF. Dkt. 51-1 at 3-4.
Mr. Harper had waited for about an hour, the custody officers
who accompanied Mr. Harper into the clinic witnessed Mr.
Harper (who had experienced a dislocated shoulder at least
once in the past) place his right shoulder back into proper
alignment. He then informed the custody officers that he did
not want to wait for any medical treatment in the clinic and
requested to be returned to his cell. Dkt. 1 at 5-6; Dkt.
35-3 at 2.
that night, around 5am, Mr. Harper asserts that his shoulder
became dislocated again. However, Dr. Ippel asserts that it
would be highly unusual for a shoulder to dislocate during
sleep as a substantial amount of force is required to
dislocate the shoulder joint and it is difficult to imagine
how the shoulder could dislocate without discrete trauma.
Dkt. 35-1 at 6, n.2. Taking the evidence in the light
reasonably most favorable to Mr. Harper, the Court will
assume that Mr. Harper's shoulder became dislocated again
Harper was seen the next day, October 2, 2016, at around 5:39
am, by medical staff. Dkt. 1 at 6; dkt. 35-1 at 6; dkt. 35-2
at 7-12. Although he reported pain in his shoulder, there is
no indication (and Mr. Harper does not claim) that the
shoulder was dislocated at the time he was examined by
medical staff in the facility clinic on October 2, 2016. His
physical examination reflected no swelling or discoloration
of the shoulder area. Mr. Harper reported no numbness or
tingling, but stated he was experiencing pain in his shoulder
with movement. Mr. Harper was given ice compresses, a
Ketorolac (Toradol) injection (a strong, short-term analgesic
used to relieve moderate to severe pain) and acetaminophen to
take as needed. He was also given an ace wrap and sling to
immobilize the right arm and shoulder. The medical records
reflect that no x-ray of the shoulder was prescribed.
However, Mr. Harper asserts that an x-ray was ordered for his
shoulder. Dkt. 1 at 6. On January 6, 2017, Mr. Harper was
seen by Dr. Mary Ann Chavez in response to his health care
request form that he was continuing to experience left
shoulder pain and he believed an x-ray of his shoulder had
been prescribed after his October 1, 2016, shoulder
dislocation. Dkt. 35-2 at 5-6, 25. Dr. Chavez had previously
treated Mr. Harper's dislocated left shoulder on July 7,
2016. Dkt. 35-2 at 42-43. During her physical examination on
January 6, 2017, Dr. Chavez informed Mr. Harper that no x-ray
had been prescribed. She further noted that Mr. Harper was
continuing with his previously prescribed home exercise
program (HEP) to increase strength and flexibility in his
left shoulder. She observed that Mr. Harper was able to touch
the top and back of his head. He had full range of motion and
his strength in his left arm was almost equal to that in his
right arm. The only pain he noted was minimal pain along
border of his left latissimus dorsi (large muscle in back).
Dr. Chavez encouraged Mr. Harper to continue with his
shoulder strengthening and flexibility exercises. Based on
her physical examination of Mr. Harper, no x-ray,
prescription level pain medication, or further treatment was
prescribed by Dr. Chavez. Id.
February 13, 2017, Mr. Harper again submitted a request for
health care stating that he had not received a shoulder x-ray
which he believed had been prescribed. Dkt. 35-2 at 4, 24. He
did not identify which shoulder he believed should be
x-rayed. He was informed by nursing staff that, based on his
recent physical examination and reported symptoms, no x-ray
had been ordered. He was encouraged to continue with his home
exercise program and take over- the-counter pain medication
as needed. Id.
11, 2017, Mr. Harper submitted a request for health care
stating that he was having pain in his shoulder, but again
failed to specify which shoulder was in pain. Dkt. 35-2 at
23. During his visit with the nurse, Mr. Harper requested an
x-ray for his shoulder, so x-ray for both shoulders was
ordered. Id. at 3, 23. Mr. Harper received the x-ray
of both shoulders on May 13, 2017. Dkt. 35-2 at 21. No.
different or additional treatment was recommended by his
medical providers after Mr. Harper received his requested
x-ray and he has filed no further requests for health care
regarding shoulder pain for either shoulder. Dkt. 35-1 at 8.
results of Mr. Harper's May 13, 2017, x-ray were similar
to his earlier July 7, 2016, x-ray, dkt. 35-1 at 20. There
was no acute fracture or dislocation in either of his
shoulders. The chronic conditions noted in both the right and
left shoulder x-rays are typical for an active man in his
mid-fifties and do not indicate, without further physical
limitations, the need for surgery, prescription level pain
medication, or any other treatment besides the
over-the-counter pain medication and strengthening exercises
that had been recommended by his medical providers. Dkt. 35-1
Ippel, a physician employed first by Corizon, LLC, and later
by Wexford of Indiana at the New Castle Correctional
Facility, submitted an affidavit based on his review of Mr.
Harper's medical records. Dr. Ippel's affidavit
regarding shoulder dislocations is consistent with reputable
literature. Dr. Ippel opined that it is not certain what type
of shoulder dislocation was experienced by Mr. Harper on
October 1, 2016, because he reduced the dislocated shoulder
himself (“self-reduction”) and left the clinic
before he could be examined by medical staff. Dkt. 35-1 at 4.
However, Dr. Ippel believes that as anterior dislocations
account for as many as 95% of shoulder dislocations, Mr.
Harper's October 1, 2016, injury was most likely an
anterior shoulder dislocation. Id.; see
Treatment of an anteriorly dislocated shoulder involves
placing the dislocated shoulder back into alignment. Severe
pain stops almost immediately once the shoulder joint is back
in place. With multiple shoulder dislocations, there is
recurrent shoulder instability and greater likelihood of
future dislocations. See
Self-reduction for an anteriorly dislocated shoulder has a
high success rate and generally provides immediate pain
relief once the dislocated shoulder is reduced. See
a shoulder dislocation can certainly be painful, unless the
dislocation results from a severe traumatic event causing
additional injury, it does not generally require the
immediate triage that a life-threatening condition would
require. As Dr. Ippel opines, in the prison setting, as in
the outside world, there may be some component of waiting
when an injury or condition is painful but does not rise to
the level of an acute injury or illness that poses an
immediate risk to a person's life or long-term health.
Dkt. 35-2 at 5.