United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DIRECTING ENTRY OF FINAL JUDGMENT
R. Sweeney II, Judge
Daniel A. Troya is a federal inmate currently incarcerated in
the Special Confinement Unit (SCU) of the Federal
Correctional Complex in Terre Haute, Indiana (“FCC
TH”). On April 10, 2017, Mr. Troya filed this action
again various FCC TH employees, including Dr. William Wilson,
Andrew Rupska, Heather Mata, Susan Porter, and Cindy
McGee, alleging that, in violation of the Eighth Amendment,
the defendants were deliberately indifferent to his serious
medical needs from constipation after his hemorrhoidectomy in
April 2016. Mr. Troya's action is brought pursuant
to the theory recognized in Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971).
pending before the Court is the defendants' motion for
summary judgment. For the reasons explained below, the motion
for summary judgment, dkt. , is granted.
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).
General Comments about the Parties' Briefing
parties raise several concerns in their respective briefing
that the Court will address separately here. Issues related
to factual disputes possibly precluding summary judgment are
discussed in the Factual Background, Section III, below.
13, 2018, the defendants filed a motion for summary judgment.
Dkt. 72. In support, they included testimony from Mr. Troya
from his March 12, 2018, deposition. See dkt. 72-1.
October 4, 2018, Mr. Troya filed his response in opposition.
Dkt. 86. Mr. Troya included affidavits from two other
inmates, Leamond C. Mitchell, dkt. 86-1, and Wesley I.
Purkey, dkt. 86-2, and himself, dkt. 86-3. Mr. Troya also
requested that the Court strike all references to his
deposition because he was denied counsel to represent him in
the deposition. He also felt threatened by the
defendants' counsel's questions, was in a lot of
distress, and suffered from a lack of sleep the day of his
deposition. See dkt. 86 at 31; dkt. 86-3 at 1.
reply, the defendants argue that the Court should not
consider the declarations of Mitchell and Purkey because they
were not disclosed as witnesses. Dkt. 89 at 2-5. The
defendants also ask that the Court consider Mr. Troya's
deposition and credit it over any contradictory statements in
his declaration or verified Complaint. Id. at 5-7.
surreply, Mr. Troya argues that the defendants' reply
brief should be stricken in its entirety because it is over
the page limit by 10 pages, his affidavits are appropriate,
the disclosure of witnesses does not apply to him because of
Fed. R. Civ. P. 26(a)(1)(B), and his
deposition testimony should be stricken in its entirety.
Reply Brief Page Limit
Troya argues that the defendants' reply brief should be
stricken in its entirety because it is over the page limit by
10 pages. Dkt. 90 at 1-2. Mr. Troya is mistaken.
Defendants' reply brief is 20 pages, which is within the
limits set by Local Rule 7-1(e). See dkt. 89.
Disclosure of Witnesses
the disclosure of witnesses, on September 12, 2017, the Court
issued a Pretrial Schedule that required the parties to
exchange a list of potential witnesses. See dkt. 26
at 1. That list was to be updated as needed and the Court
specifically noted that a party may be prevented “from
using evidence that it has not shared with the other
side.” Id. at 2. On at least two
occasions-including, for example, an actual “Disclosure
Pursuant to F.R.Civ.P. 26(a)(1) and (2) (dkt. 89-1)-Mr. Troya
disclosed a witness list, but failed to identify Mitchell or
Purkey. Because Mitchell and Purkey were never disclosed as
witnesses to the defendants, the defendants argue that the
Court should not consider their declarations. Despite having
previously disclosed witnesses in compliance with Fed. R.
Civ. P. 26(a)(1)(A), (dkt. 89-1), Mr. Troya argues that
he is exempt from disclosing witnesses because Fed. R.
Civ. P. 26(a)(1)(B) exempts actions filed by pro
se inmates from initial disclosures. See dkt.
90 at 2-3.
R. Civ. P. 26(a)(1)(B) provides that in actions filed by
pro se inmates, the initial disclosure requirements
set forth in Fed. R. Civ. P. 26(a)(1)(A) do not
apply. However, although Mr. Troya is proceeding pro
se, he must still comply with Court orders. See
McMasters v. United States, 260 F.3d 814, 818 (7th Cir.
2001); McNeil v. United States, 508 U.S. 106, 113
(1993) (“We have never suggested that procedural rules
in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without
counsel.”). The Court's Pretrial Schedule made
clear that the parties were to exchange a list of potential
witnesses and to update the list as needed. Yet, as noted
above, although Mr. Troya has on several occasions previously
disclosed witness lists, he did not specify Mitchell or
Purkey in those disclosures. If a party fails to disclose a
witness as required, that “party is not allowed to use
that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1). Mr. Troya, and not the defendants,
carries the burden of showing his nondisclosure was either
substantially justified or harmless. Finley v. Marathon
Oil Co., 75 F.3d 1225, 1230 (7th Cir.
Troya has set forth no justification for the failure to
disclose. The Court notes that the failure to disclose Purkey
as a fact witness may be considered harmless because the
defendants knew that Purkey was providing substantial
assistance to Mr. Troya, including preparing Mr. Troya's
complaint. However, paragraphs 1-6, 8-10 of Purkey's
declaration and certain exhibits relate to health problems
Purkey experienced in July and August 2018, unrelated to Mr.
Troya's complaints. See dkt. 86-2 at 1-5, 8-12.
The Court takes judicial notice that Wesley Purkey has
incurred three “strikes” within the meaning of 28
U.S.C. § 1915(g), and therefore Purkey is unable to
proceed in forma pauperis in his own actions in this
Court. Purkey v. Marbery et al., No. 09-1843 (7th
Cir. Jan. 15, 2010). Mr. Purkey cannot piggyback onto Mr.
Troya's litigation to present his own medical care
claims. Because paragraphs 1-6 and 8-10 of Purkey's
declarations are irrelevant and do not present facts
“of consequence in determining the action, ”
pursuant to Fed. R. Evid. 401, the Court will not
consider those paragraphs of Purkey's declarations.
Moreover, the Court will not consider Mitchell's
declaration because Mitchell was not properly disclosed as a
witness to the defendants.
Mr. Troya's Deposition Testimony
Troya requests that the Court strike his deposition testimony
in its entirety “because he was denied counsel to
represent him during such proceedings, and because of the
acute stress and distress he was under at that time.”
Dkt. 90 at 5. He also alleges he felt threatened by the
defendants' counsel. Despite his request, he requests
that the Court should “use ‘a scalpe[l], not a
butcher knife.'” Id. at 6. But Mr. Troya
may not ignore his prior testimony simply because he now
regrets those answers.
in federal civil cases do not have a constitutional or
statutory right to court-appointed counsel. Walker v.
Price, 900 F.3d 933, 938 (7th Cir. 2018). Moreover, the
Court has repeatedly found Mr. Troya to be competent, noting
the quality of his legal filings. See, e.g., Dkt.
84. Thus, the lack of counsel during his deposition does not
preclude his ability to testify truthfully regarding his
knowledge in a deposition.
Troya argues that he felt threatened by the defendants'
counsel's questions about the manila folder he brought to
the deposition. Dkt. 86-3 at 1. He states that at the
inception of the deposition, Ms. Shields, defendants'
counsel, stated “I would like to see the legal
materials that you plan to use during the deposition that
might be relevant to such.” Id. When he
explained that he wanted to present the material to
straighten the record out, she responded “this in't
[sic] the time to straighten the record out, because you will
have an opportunity to do that at a later date and
time.” Id. The deposition record reflects that
the conversation with Ms. Shields occurred at the end of the
Q.· Mr. Troya, you understand you are still under
A.· Yes, ma'am.
Q.· The question I asked you before the break was is
there anything you have not told me that is important to your
claim in this case?
A.· I don't know kind of how to answer that, but I
did have some documents that I wanted to go over that were in
discovery that you sent me that I felt weren't
accurate.· I don't know if this is the time to do
Q.· It's not.
Q.· If you have objections to what you produced in
discovery or how you responded, you can write me a letter,
and then I'll respond.
A.· It's not so much that I object to them just
being there.· They were untruthful or misleading in
nature, some of the things, and I just pulled out what I felt
was relevant in that.· But if you say this isn't
the avenue to do that, then I guess we can do it in another
Q.· I would prefer -- well, in terms of the record,
this is not the appropriate time to do it, but we can talk a
little bit more about it off the record. So is that -- is
that what those documents are, what I produced to you?
A.· Yeah.· These are things that I just went
Q.· And then what is in the manila folder?
A.· This is my complaint, Exhibit --
Q.· The written version of it?
A.· No, no.· This is just some notes that I had
taken, but they're unrelated to this portion of the --
it's just the complaint and I had some notes.
Q.· Can I see them?
A.· Not really.· But I mean they're
immaterial to my testimony.
Q.· Are they relevant to this case?
A.· No, not really.· It's just reminders of
how this proceeding is -- how the proceeding goes.
Q.· Okay.· Is there anything relevant to this
case in your folder?
A.· Just Exhibit 1.
Q.· Okay.· So the notes that you took are not
relevant to this case?
A.· No, ma'am.
Dkt. 89-2 at 42-44. Whether based on Mr. Troya's version
of Ms. Shield's questioning or based on the deposition
transcript, the Court finds that the questioning was,
objectively speaking, not threatening in any manner.
Objective questions about documents brought to a deposition
in a manila folder, either at the beginning or end of the
deposition, in the manner asked would not terrify a litigant
into not testifying truthfully. Thus, the Court does not
credit Mr. Troya's allegation that he felt
“threatened.” Nor should Mr. Troya's
deposition testimony be excluded because of Mr. Troya's
allegation that he did not sleep well due to stress from his
capital habeas case and was in a lot of distress. During his
deposition, he denied that there was “anything that
would interfere with [his] ability to give honest, complete,
and accurate answers” to the depositions questions or
that there was any reason to think that it was a bad day for
a deposition. Dkt. 89-2 at 5 (Troya Dep. 6:13-20).
sworn to tell the truth under oath, id. (Troya Dep.
6:21-25), Mr. Troya cannot now submit a declaration in the
hopes of erasing his prior testimony in its entirety. See
Dunn v. Menard, Inc., 880 F.3d 899, 910 (7th Cir. 2018)
(citing Buckner v. Sam's Club, Inc., 75 F.3d
290, 292 (7th Cir. 1996)) (“As a general rule, the law
of this circuit does not permit a party to create an issue of
fact by submitting an affidavit whose conclusions contradict
prior deposition or other sworn testimony.”).
where statements in Mr. Troya's declaration or complaint
(which was prepared by Purkey, dkt. 89-2 at 32-34 (Troya Dep.
113:22-115:18)) conflict with his deposition testimony, the
Court will disregard the contradictory statements and instead
credit the deposition testimony. Dunn, 880 F.3d at
910 (quoting Russell v. Acme-Evans Co., 51 F.3d 64,
67-68 (7th Cir. 1995)) (“where deposition testimony and
an affidavit conflict, ‘the affidavit is to be
disregarded unless it is demonstrable that the statement in
the deposition was mistaken ….'”).
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. Troya 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).
Troya is currently serving a death sentence for murder, armed
carjacking, being a felon in possession of a firearm
resulting in death, and other convictions. Dkt. 72-1 at 6-7
(Troya Dep. 14:17-15:9). He has been incarcerated in the SCU
at FCC TH since approximately July of 2009. Id. at
5-6 (Troya Dep. 13:23-14:4). Mr. Troya's claims relate to
his medical care at FCC TH after his hemorrhoidectomy on
April 11, 2016.
Rupska is currently employed by the BOP as an Assistant
Warden at the Federal Correctional Complex in Butner, North
Carolina. Dkt. 72-2 at ¶ 1. From April 7, 2013, through
November 26, 2017, Mr. Rupska was the Health Services
Administrator (“HSA”) for FCC TH. Id. at
¶ 2. In his capacity as HSA, Mr. Rupska did not provide
direct medical care to inmates unless a medical emergency
arose. Id. at ¶ 5. Rather, he was responsible
for implementing and directing the administration of the
Health Services Department, which included supervising
administrative personnel and overseeing staff scheduling,
fiscal management, and records management. Id.
During the relevant time period of the events in the
Complaint, Mr. Rupska did not provide direct medical care to
Mr. Troya, did not make any decisions regarding Mr.