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Perry v. Sims

United States District Court, S.D. Indiana, Indianapolis Division

March 12, 2019

JASON SETH PERRY, Plaintiff,
v.
MARY RUTH SIMS Ph.D., HSPP, et al., Defendants.

          ORDER DISCUSSING CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Hon. Jane Magnus-Stinson, Chief Judge

          Plaintiff Jason Perry, an inmate of the Indiana Department of Correction (IDOC), brought this action pursuant 42 U.S.C. § 1983 because he was subjected to involuntary injections of an anti-psychotic medication known as Haldol. He sues the medical professionals he believes were responsible for this decision, Daniel Rippetoe, Mary Ann Chavez, Mary Ruth Sims, Lisa Robtoy, [1]and Brion Bertsch, and the prison official who reviewed the decision, Michael Mitcheff. Mr. Perry contends that the decision to involuntarily medicate him violated his Fourteenth Amendment right to due process. He further contends that the defendants exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment because he experienced an allergic reaction to the medication. Mr. Perry and the defendants seek summary judgment on these claims.[2] For the following reasons, Perry's motion for summary judgment is denied and the defendants' motions for summary judgment are granted.

         I. Summary Judgment 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). As 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. 56(e).

         In 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).

         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). The Court 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).

         The 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).

         II. Facts

         The following statement of facts has been gathered from the parties' cross-motions for summary judgment. These facts are considered to be undisputed for purposes of the motions for summary judgment except where the Court has identified disputes of fact.

         IDOC Policy on Involuntary Administration of Anti-Psychotic Medications

         The procedure for administering involuntary anti-psychotic medications is set forth in IDOC Health Care Service Directive 4.10, “Involuntary Psychotropic Medication Administration.” See Dkt. 175-7, ¶ 9; Dkt. 175-4. The stated purpose of this policy is to provide “the procedures for administration of psychotropic medications without the offender's consent when the offender is either gravely disabled or poses a likelihood of serious harm to self or others due to a mental disorder.” Dkt. 175-4. An inmate “has a right to refuse psychotropic medications unless . . . A psychiatrist has determined that:

• [t]he individual suffers from a mental illness or disorder and
• the medication is in the best interest of the individual for medical reasons and
• the individual is . . . gravely disabled or exhibits severe deterioration in routine functioning or poses a likelihood of serious harm to himself or others or the property of others.”

Id. Gravely disabled, mentally disordered offenders who require non-emergency medication to prevent severe deterioration in routine functioning and do not consent to treatment will be provided a due process hearing before the medication is administered. Id. This hearing will be conducted by a Medical Treatment Review Committee to review the documentation which explains the need to initiate and/or continue involuntary psychotropic medication orders. Id.

         The medical treatment review committee panel is comprised of three or more members. Id. The facility's lead psychologist shall serve as chairperson of the committee. Id. At least two of the members must be physicians (one of whom must be a psychiatrist). Id. The committee members must not have been the treating psychiatrist who prescribed the proposed medication. Id. Members are not disqualified from sitting on the committee if they have treated or diagnosed the offender in the past. Id.

         “The offender has the right to attend the hearing, to present evidence, including witnesses, and to cross-examine staff witnesses unless the offender's attendance at the hearing poses a substantial risk of serious physical or emotional harm to self or poses a threat to the safety of others. The assisting staff member will appear at the hearing on the offender's behalf …. The assisting staff member will specifically ask (at least) the following questions:

1 Please summarize the evidence for serious mental illness, including the specific psychiatric disorder thought to be present:
2 Please explain why the psychiatrist believes that the recommended medication is in the patient's best interest, including specific goals for treatment:
3 Please summarize the evidence for grave disability; severe deterioration in routine functioning; or the likelihood of serious harm to self, others, or property of others.
4 Please describe what other interventions might serve to treat this patient.

Id. Before the hearing, the inmate and his assisting staff member may request in writing that certain staff witnesses be present at the hearing or that specific questions be asked outside of the hearing and that certain information be available at the hearing. Id. At the hearing the offender will be assisted by the appointed staff member and may make statements and present relevant documents. Id. They may also direct relevant questions to staff witnesses. Id.

         Perry's Mental Health Background

         Perry's medical records reflect that he was evaluated on May 21, 2014, at the Reception Diagnostic Center (RDC) in Plainfield, Indiana after his most recent conviction and 70-year sentence on a charge of murder. Dkt. 175-5, ¶ 12. RDC is an intake facility where inmates are interviewed and evaluated for classification and housing. Upon his entry into RDC, Perry was examined by Rippetoe for an initial intake psychiatric evaluation. Dkt. 175-5, ¶ 8. Perry stated that he had attempted suicide two times in 2013 when he was about to be arrested for the crime for which he is currently incarcerated. Id. He reported that since age seventeen he had experienced hearing voices. He also stated that he believed the television was talking about him and that other people knew what he was thinking. Id. He stated that he continued to hallucinate, but that the voices did not bother him. Id. He stated that he had been hospitalized at age thirteen at Bloomington Meadows Hospital for disorganized thinking. Id. He stated that he had been diagnosed with paranoid schizophrenia and depression. Id. His past medications included Haldol (haloperidol) (an anti-psychotic), Celexa (an anti-depressant), Risperdal (an anti-psychotic), Thorazine (an anti-psychotic), Wellbutrin (an anti-depressant), Zyprexa (olanzapine) (an anti-psychotic), Zoloft (an anti-depressant), and Paxil (an anti-depressant). Id. Perry states that Dr. Rippetoe told him the he did not need to take medications. Dkt. 196, ¶ 29.

         Haldol

         Haloperidol, marketed under the trade name “Haldol” among others, is an anti-psychotic medication that works by helping to restore the balance of certain natural substances in the brain (neurotransmitters). Dkt. 175-1, ¶ 31. It may be used by mouth, as an injection into a muscle, or intravenously. Id. Haldol can be prescribed to treat certain mental/mood disorders such as schizophrenia and related disorders. Id. It can also help prevent suicide in people who are likely to harm themselves. Id. A long-acting formulation of Haldol may be used as an injection for people with schizophrenia or related illnesses, who either forget or refuse to take the medication by mouth. Id. It is the most commonly used anti-psychotic. Id. Signs of an allergic reaction include rash, itching, swelling, difficulty breathing, and severe dizziness. Id. Many cases of a reported “allergy” to Haldol are actually complaints regarding common side effects of the drug such as dystonia (spasms and muscle contractions), akathisia (motor restlessness), parkinsonism (characteristic symptoms such as rigidity), bradykinesia (slowness of movement), tremor, and tardive dyskinesia (irregular, jerky movements). These symptoms are collectively referred to as extrapyramidal symptoms (“EPS”). Id. Commonly used medications to address EPS are benztropine (Cogentin), or diphenhydramine (Benadryl). These medications reverse the symptoms of EPS and are often prescribed along with Haldol. Id.

         Perry states that Haldol was listed as an allergy on his medical records. Dkt. 168, ¶ 4. He states that he was never given an allergy test. Dkt. 196, ¶ 20. According to the defendants, the listing of Haldol as an allergy in Perry's medical records while he was at Wabash Valley was based on his self-reporting that he was allergic to that medication. Dkt. 175-1, ¶ 68. They assert that mental health professionals are accustomed to patients stating that they are “allergic” to certain medications when they are actually experiencing unpleasant side effects. Id.

         Recommendation to Medicate Perry with Haldol

         On May 20, 2016, Perry was seen by a mental health provider at Wabash Valley for reported mental health concerns while he was in restrictive housing. Dkt. 175-1, ¶ 15; Dkt. 175-2, pg. 1. He expressed paranoia, stating he believed that his legal mail was being thrown away. Id. He denied thoughts of suicide but admitted passive thoughts of self-harm due to being placed in segregation for a behavioral write-up. Id.

         On May 23, 2016, Perry was moved from the restrictive housing unit at Wabash Valley to the Closed Custody Unit (CCU). Dkt. 175-1, ¶ 16; Dkt. 175-2, pg. 3. On June 7, 2016, Perry was seen by Dr. Mannarino to assist in appropriate housing placement. Dkt. 175-1, ¶ 17. Perry stated that he understood that his request for protective custody had been denied by IDOC custody staff and that his claims regarding his reasons for requesting protective custody had not been substantiated. Id. Dr. Mannarino referred Perry to the staff psychiatrist. Id.

         On June 14, 2016, Perry refused to be seen for his psychiatric referral. Id., ¶ 18; Dkt. 175-2, pg 17-23. On June 20, 2016, Perry again refused to be seen for his psychiatric referral. Id.

         On June 28, 2016, Perry was seen for a medication management visit by Dr. Mannarino. Dkt. 175-1, ¶ 19. Dr. Mannarino noted that there were no apparent mental health contra-indications for Perry to be housed in the restricted housing area.

         On June 28, 2016, Perry was seen by Bertsch for a medication management visit. Dkt. 175-1, ¶ 20; Dkt. 175-2, pg. 31-34. Bertsch noted Perry had been prescribed Nortriptyline, an anti-depressant, but Perry stated, “It doesn't work, I bet I don't even take it 96% of the time.” Id. Bertsch reminded Perry that a medication has to be taken consistently as prescribed before it can be said that it does not work. Id. Perry asked specifically to be prescribed bupropion (Wellbutrin), a different anti-depressant. Id. Bertsch informed him that he had exhibited symptoms of anxiety which contra-indicated bupropion. Perry then became agitated and began speaking of a conspiracy against him since he had arrived at Wabash Valley. Id. He believed he had been singled out for behavior violation write-ups and stated, “that just goes to show that you want to put me on a drug that will slow me down and make me vulnerable to attack, you're trying to get me killed.” Id. Bertsch discussed symptoms and treatment for paranoia with Perry. Id. He recommended a trial of the anti-psychotic ziprasidone (Geodon) which Perry refused. Id. Perry also requested that his Nortriptyline be discontinued as he was not taking it. Id. Bertsch noted Perry to be defensive, anxious, mistrustful and demanding with poor insight, poor judgment, and making minimal progress in addressing his mental health diagnoses. Id.

         On July 1, 2016, Rippetoe interviewed Perry by teleconference. Dkt. 175-5, ¶ 11; Dkt. 175-2, pg. 35-37. Rippetoe noted that Perry was serving a 70-year sentence on a murder conviction and believed his victim's mother was trying to “get to him” while he was incarcerated. Id. He stated he also believed other inmates were following him on Facebook. Id. He did not want to be on anti-psychotic medication even though he admitted he had a past schizophrenia diagnosis. Id. Perry was agitated and demanded to be given Remeron, an anti-depressant. Id. Perry indicated he was allergic to Haldol. Id. Rippetoe did not prescribe mental health medication, but he noted that he would discuss Perry's condition with the on-site mental health team at Wabash Valley and refer Perry to the on-site psychiatrist about safety concerns which might indicate involuntary medications. Id.

         On July 5, 2016, Perry's mother, Kelley Schneider, called Wabash Valley and spoke with Sims. Dkt. 175-1, ¶ 22; Dkt. 175-1, pg. 38-39. Ms. Schneider reported that Perry had written her that he would kill himself if he did not receive protective custody status from the IDOC. Id. After obtaining a signed release from Perry, Sims spoke with Ms. Schneider who reported that she believed her son was “paranoid schizophrenic because he ‘always thinks people are after him' and ‘he talks to people not there.'” Id. She said he had exhibited these symptoms since age 16 or 17. Id.

         On July 6, 2016, Perry submitted a Request for Health Care (“RFHC”) stating that he wanted to be placed back on Celexa for depression. Dkt. 175-2, pg. 473. In the RFHC, he stated that he “fights suicide daily” and that he believed his mental health treatment was being neglected. Id. On July 7, 2016, Perry again ...


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