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Troya v. Wilson

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

February 11, 2019

DANIEL A TROYA, Plaintiff,


          James R. Sweeney II, Judge

         Plaintiff 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[1], 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.[2] Mr. Troya's action is brought pursuant to the theory recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

         Presently pending before the Court is the defendants' motion for summary judgment. For the reasons explained below, the motion for summary judgment, dkt. [72], 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).

         II. General Comments about the Parties' Briefing

         The 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.

         On July 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.

         On 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.

         In 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.

         In his 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.

         A. Reply Brief Page Limit

         Mr. 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.

         B. Disclosure of Witnesses

         Regarding 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.

         Fed. 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. 1996).[3]

         Mr. 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.

         C. Mr. Troya's Deposition Testimony

         Mr. 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 dis[]tress 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.

         Litigants 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.

         Mr. 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 deposition:

Q.· Mr. Troya, you understand you are still under oath, correct?
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 that.
Q.· It's not.
A.· Okay.
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 avenue.
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 over.
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).

         Having 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.”).

         Accordingly, 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 ….'”).

         III. 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. 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).

         D. The Parties

         Mr. 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.

         Andrew 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. ...

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