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Harper v. Corizon Health Inc.

United States District Court, S.D. Indiana, Terre Haute Division

November 16, 2018

CORIZON HEALTH INC., et al. Defendants.



         Plaintiff 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. [34], is granted.

         I. Summary Judgment Legal Standard

         A 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).

         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 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.”).

         II. Factual Background

         The 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).

         A. Mr. Harper's Complaint

         In his 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.

         B. October 1, 2016, Shoulder Injury

         Mr. Harper's medical records reflect that he injured his right shoulder while playing basketball on October 1, 2016.[1] 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.

         After 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.

         Later 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 around 5am.

         Mr. 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.

         On 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.

         On May 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.

         The 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 at 8.

         C. Shoulder Dislocations

         Dr. 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 also 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 pmc/articles/PMC5882288/.

         Although 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.

         III. ...

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