United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISCUSSING CROSS-MOTIONS FOR SUMMARY
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, 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. For the following reasons, Perry's
motion for summary judgment is denied and
the defendants' motions for summary judgment are
Summary Judgment 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). 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.
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 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).
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).
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.
Policy on Involuntary Administration of Anti-Psychotic
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
• 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.
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.
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
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.
Mental Health Background
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.
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.
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.
to Medicate Perry with Haldol
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
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.
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.
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.
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.
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.
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.
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 ...