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Gaines v. Health

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

November 26, 2018

DEANGELO GAINES, Plaintiff,
v.
CORIZON HEALTH, LOLIT JOSEPH, BRYAN BULLER, ALEXANDREA WARREN, MIKE NATALIE, FARRAH BUNCH, KAYLA MCDERMIT, GRAHAM MOORE, DEBORAH WHITE, KATHY EDRINGTON, JESSICA HIRT, NICHOLAS OSBORNE, MICHAEL ALUKER Dr., TAMMY OWEN, BARRY CLEVELAND, KARI PIERCE, CASSANDRA FELIX, INDIANA DEPARTMENT OF CORRECTION, PEGGY MCWHIRTER, Defendants.

          ENTRY GRANTING DEFENDANTS' UNOPPOSED MOTION FOR SUMMARY JUDGMENT

          JAMES R. SWEENEY II JUDGE

         For the reasons explained in this Entry, the unopposed motion for summary judgment filed by defendants Corizon, LLC (“Corizon”), Lolit Joseph, M.D., Mike Natalie, Farrah Bunch, Kayla McDermit, Graham Moore, Kathy Edrington, Jessica Hirt, Tammy Owen, Barry Cleveland, Kari Pierce, Cassandra Felix, Peggy McWhirter, Nicholas Osborne, and Deborah White (collectively “Defendants”), [dkt. 230], is granted. The claims against all other defendants have been resolved through screening of the amended complaint, voluntary dismissal, summary judgment, or settlement.

         I. Background

         Plaintiff Deangelo Gaines filed this civil rights action on April 25, 2016. At the time of filing, he was incarcerated at the Putnamville Correctional Facility (“Putnamville”). He filed an amended complaint on July 5, 2016. Dkt. 10. The Court screened the amended complaint and allowed claims of deliberate indifference to proceed against the Defendants. Mr. Gaines seeks compensatory, punitive, and nominal damages.

         The Defendants have provided medical records, affidavits, and argument relating to incidents dating back to January 2013, when Mr. Gaines arrived at Putnamville. The Court construes this as a waiver of any statute of limitations defense. See Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013) (Indiana's two-year personal injury statute of limitations applies to section 1983 claims).

         II. Summary Judgment Standards

         The purpose of summary judgment is to “pierce the pleadings and to assess the proof to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary 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. 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).

         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).

         The Defendants' motion for summary judgment, brief in support, and Local Rule 56-1 notice were served on Mr. Gaines on or about March 14, 2018. Dkt. nos. 230, 231, 232, 233. As noted, even though Mr. Gaines requested one extension of time, no response has been filed, and the deadline for doing so has long passed.

         The consequence of Mr. Gaines' failure to respond is that he has conceded the Defendants' version of the facts. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated by the local rules results in an admission.”); see S.D. Ind. Local Rule 56-1 (“A party opposing a summary judgment motion must . . . file and serve a response brief and any evidence . . . that the party relies on to oppose the motion. The response must . . . identif[y] the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment.”). This does not alter the standard for assessing a Rule 56(a) motion, but does “reduc[e] the pool” from which the facts and inferences relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).

         III. Discussion

         A. Plaintiff's Claims

         As outlined in the Court's Entry screening the amended complaint, dkt. 11, Mr. Gaines' remaining claims are as follows:

1) Corizon has a policy or practice of: a) not providing seizure helmets to inmates with seizure disorders, b) preventing inmates with seizure disorders from being housed on the ground floor at Putnamville, and c) denying elevator passes to inmates with seizure disorders.
2) Defendants Kathy Edrington, Dr. Lolit Joseph, Nicholas Osborne, Mike Natalie, Farrah Bunch, Nurse Kayla McDermit, Nurse Graham Moore, L.P.N. Deborah White, Jessica Hirt, Peggy McWhirter, Tammy Owen, Barry Cleveland, Kari Pierce, and Cassandra Felix were deliberately indifferent to his serious medical needs by denying his requests for a seizure helmet.
3) Defendants Kathy Edrington and Farrah Bunch were deliberately indifferent to his serious medical needs when they denied him a permit to be housed on the ground floor.
4) Defendant Farrah Bunch was deliberately indifferent to his serious medical needs when she denied him access to the elevator.

         B. Undisputed Facts

         The following facts, unopposed by Mr. Gaines and supported by admissible evidence, are accepted as true for purposes of the motion for summary judgment:

         At all times relevant to the amended complaint, Mr. Gaines was an inmate at Putnamville. Mr. Gaines was released from prison on or about December 6, 2017.

         There are two medical providers among the many Defendants. Defendant Lolit Joseph is a physician licensed to practice medicine in Indiana. When Mr. Gaines filed his amended complaint, Dr. Joseph was employed at Putnamville by Corizon, a private company that previously contracted with the Indiana Department of Correction to provide healthcare to Indiana prisoners. Dr. Joseph's employment with Corizon ended on September 4, 2014.

         Defendant Nicholas Osborne is an advanced practice nurse (“APN”) licensed in Indiana. An APN is also referred to as a nurse practitioner (“NP”). An NP is considered a provider and can diagnose patients, prescribe medications, and make treatment plans for patients just like a physician. At all times relevant to Mr. Gaines' amended complaint, Nicholas Osborne was employed by Corizon at Putnamville. NP Osborne is familiar with Mr. Gaines and his medical condition and treatment, however, he was not personally involved in Mr. Gaines' medical care and treatment related to his seizure disorder. From the medical records, it appears that NP Osborne was the provider of record on a few occasions in which Mr. Gaines received a flu shot, had his blood drawn, or was assessed by other nursing staff. That means that his name appears on the medical record as the provider, but does not mean he actually saw the patient that day.

         Defendants Barry Cleveland, Peggy McWhirter, and Graham Moore are registered nurses (“RN”) in Indiana. At all times relevant to Mr. Gaines' amended complaint, they were employed at Putnamville by Corizon. As nurses, RN Cleveland, RN McWhirter, and RN Moore provided patient care, which included, but was not limited to, assessing patients, obtaining vital signs, applying splints, reporting their findings to the provider (i.e., a physician or nurse practitioner), and following the providers' orders, such as administering and dispensing medications. As nurses, RN Cleveland, RN McWhirter, and RN Moore did not prescribe medications, diagnose patients, develop a treatment plan for patients, or dictate a patient's medical care-only a provider (i.e., physician or nurse practitioner) can do that.

         Defendant Farrah Bunch is an RN in Indiana. At all times relevant to Mr. Gaines' amended complaint, RN Bunch was employed as the Health Services Administrator (“HSA”) by Corizon. RN Bunch's role as the HSA was administrative; she did not perform nursing duties. As both an RN and HSA, Bunch did not have the authority to order diagnostic testing, outside provider consults, or medications, as those are functions of the provider. Her job as the HSA at Putnamville was to order medical supplies for the facility, hire medical staff, maintain the nursing staff schedule, respond to offender grievances regarding medical issues, and deal with human resources issues for the medical staff. As the HSA, patients would sometimes address Request for Healthcare (“RFHC”) forms to her, but that does not mean that she received the form or that she was aware a patient had addressed the form to her. RFHC forms are submitted to the medical department and responded to by nursing staff. As an administrator, she typically did not review and respond to RFHC forms.

         From July 23, 2012, to November 1, 2013, Mike Natalie was the HSA at Putnamville. From January 1, 2014, to April 1, 2014, he was the interim HSA at Putnamville. At all times relevant to this lawsuit, Mr. Natalie was employed by Corizon. Mr. Natalie had no personal involvement in the delivery of Mr. Gaines' medical care and treatment, as he is not a medical provider of any kind. He did not treat offenders and has never treated Mr. Gaines. His role as the HSA was solely administrative. As the HSA, he did not-and could not-prescribe medication or medical devices, including a seizure helmet. Additionally, as the HSA, Mr. Natalie did not-and could not-make any diagnoses or decisions regarding what medical treatment Mr. Gaines needed, including a seizure helmet. Only a provider can make decisions regarding medication, diagnoses, and treatment, including a seizure helmet. As the HSA, it was not within Mr. Natalie's purview to order a bottom floor assignment or an elevator pass. Those orders had to be issued by a provider (i.e., physician or nurse practitioner).

         Defendant Kayla McDermit is an RN in Indiana. At all times relevant to Mr. Gaines' amended complaint, RN McDermit was employed by Corizon. From November 2014 to July 2015, RN McDermit was a staff nurse at Putnamville. In July 2015, RN McDermit was promoted to Director of Nursing (“DON”). In her role as a staff nurse, McDermit provided patient care, which included, but was not limited to, assessing patients, obtaining vital signs, reporting her findings to the provider, and following the providers' orders, such as administering and dispensing medications. Her role as the DON was mostly administrative, but she did sometimes perform nursing duties when needed. As an RN, she was able to enter the providers' orders into the respective computer systems. Additionally, she was able to request outside provider consults at the direction of the provider. As the DON, RN McDermit would sometimes respond to informal grievances. Neither of these roles allowed her to prescribe medications, diagnose patients, develop a treatment plan for patients, or dictate a patient's medical care-only a provider can do that.

         Defendant Kari Pierce is a medical assistant (“MA”). At all times relevant to Mr. Gaines' amended complaint, MA Pierce was employed at Putnamville by Corizon. As an MA, Pierce followed the direction of the doctors and nursing staff regarding what to do with a particular patient. MA Pierce did not-and could not-prescribe medication or medical devices, including a seizure helmet, for Mr. Gaines. Additionally, as an MA, she did not-and could not-make any diagnoses or decisions regarding what medical treatment Mr. Gaines needed, including a seizure helmet. Only a provider can make decisions regarding medication, diagnoses, and treatment, including a seizure helmet. It was not within her scope of practice to order a bottom floor assignment, a no-stairs pass, or an elevator pass. Those orders had to be issued by a provider.

         Defendants Cassandra Felix, Tammy Owen, Kathy Edrington, Jessica Hirt, and Deb White are licensed practical nurses (“LPN”) in Indiana. As LPNs, they do not prescribe medication for patients, make diagnoses, or determine what medical treatment is appropriate. They assess the patient, relay the information to the provider (i.e., physician, physician's assistant, or nurse practitioner) and carry out the provider's orders regarding medication or treatment. Because they are LPNs, they did not-and could not-prescribe medication or medical devices, including a seizure helmet, for Mr. Gaines. Additionally, as LPNs, they did not-and could not-make any diagnoses or decisions regarding what medical treatment Mr. Gaines needed, including a seizure helmet. As LPNs, it was not within their scope of practice to order a bottom floor assignment, a no-stairs pass, or an elevator pass for any inmate. Those orders had to be issued by a provider. Part of their job duties at the prison was to ...


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