United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING DEFENDANT COMMISSIONER'S MOTION
FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT, AND DIRECTING FURTHER
William T. Lawrence, Senior Judge
William Robert McCormick filed this 42 U.S.C. § 1983
action while he was an inmate in the Indiana Department of
Correction (IDOC). He contends that his medically prescribed
leg braces were confiscated from him upon his arrival at the
Reception Diagnostic Center (RDC), and that the defendant
Commissioner's policy to confiscate the braces, and
defendant Trivett's (a nurse employed by the IDOC's
medical contractor) refusal to provide braces following a
prison doctor's order prescribing braces, violated his
Eighth Amendment rights. Defendants asserted the affirmative
defense that Mr. McCormick failed to exhaust his
administrative remedies as required by IDOC policy and the
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e,
and this action was stayed pending the development of that
defense. The Commissioner has moved for summary
judgment on this defense. Nurse Trivett has not. Mr.
McCormick has not responded to the Commissioner's motion,
but instead filed his own motion for summary judgment on the
merits of the action. For the reasons explained below, the
Commissioner's motion for summary judgment, dkt. 43, is
granted and he is dismissed
from this action. Mr. McCormick's motion for summary
judgment, dkt. 46, is denied as premature
and in violation of the stay entered by the scheduling order
of June 20, 2018.
McCormick's amended complaint asserts that on January 8,
2016, he entered the IDOC to serve a prison sentence. During
his intake examination at the RDC, a correctional officer
confiscated Mr. McCormick's leg braces, which Mr.
McCormick wore because of a physical impairment. The leg
braces had been custom-made for Mr. McCormick by the Veterans
Administration Medical Center in Portland, Oregon. The
correctional officer was informed of Mr. McCormick's
medical need for the leg braces, but he refused to allow Mr.
McCormick to have them, allegedly stating, “If the
Commissioner of the Indiana Department of Correction wanted
[Mr.] McCormick to have leg braces, he would make or supply
them for [Mr.] McCormick.” After a long delay to see a
prison physician, Mr. McCormick saw Dr. Palar on July 4,
2016. Dr. Palar agreed that Mr. McCormick needed his leg
braces and authorized Mr. McCormick's daughter to send
the braces to him. Nurse Rebecca Trivett refused the
doctor's authorization and declined to allow the leg
braces to be given to Mr. McCormick. Mr. McCormick filed this
42 U.S.C. § 1983 action against the Commissioner for
enforcing a policy that was deliberately indifferent to his
serious medical needs, and against Nurse Trivett for being
deliberately indifferent to his serious medical needs.
Commissioner moves for summary judgment because, he contends,
Mr. McCormick did not exhaust his administrative remedies
within the IDOC before filing this lawsuit as the PLRA
requires. 28 U.S.C. § 1997e(a).
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). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Williams v.
Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other
words, while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not
outcome-determinative. Montgomery v. American Airlines
Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes
that are irrelevant to the legal question will not be
considered. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
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). 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).
existence of cross-motions for summary judgment does not
imply that there are no genuine issues of material fact.
R.J. Corman Derailment Servs., LLC v. Int'l Union of
Operating Engineers, Local Union 150, AFL-CIO, 335 F.3d
643, 647 (7th Cir. 2003).
times relevant to his Amended Complaint, Mr. McCormick was
confined by the IDOC at the RDC. The IDOC has an Offender
Grievance Process which is intended to permit inmates to
resolve concerns and complaints relating to their conditions
of confinement prior to filing suit in court. As an inmate at
RDC, Mr. McCormick had access to the Offender Grievance
Process. All offenders are made aware of the Offender
Grievance Process during orientation and a copy of the
Grievance Process is available in various locations within
the prisons, including the law library. Dkt. 43-2 (IDOC
grievance policy and procedure).
Grievance Process consists of three steps. It begins with the
offender contacting staff to discuss the matter or incident
subject to the grievance and seeking informal resolution. If
the offender is unable to obtain a resolution of the
grievance informally, he may submit a formal grievance to the
Grievance Officer of the facility where the incident
occurred. If the formal written grievance is not resolved in
a manner that satisfies the offender, he may submit an
appeal. Exhaustion of the grievance procedure requires