Beatty v. M. Person

          Arthur Beatty, Sr., #876231 Correctional Industrial Facility Electronic Service Participant - Court Only Douglass R. Bitner KATZ KORIN CUNNINGHAM, PC. Jeb Adam Crandall BLEEKE DILLON CRANDALL ATTORNEYS

          ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Defendants' Motion for Summary Judgment, Dkt. [48] filed by Defendants M. Person (“Dr. Person”), L. Bergeson (“Nurse Bergeson”), Tina Collins (“Nurse Collins”), Corizon Health (“Corizon”), and Wexford Medical of Indiana (“Wexford”) (collectively, “the Defendants”). Also pending are two Motions to Reconsider Denial of Summary Judgment, Dkts. [61] and [62], in which Plaintiff Arthur Beatty, Sr. (“Mr. Beatty”) seeks reconsideration of the Court's Entry denying his prior motion for partial summary judgment and request for injunctive relief, (see Dkt. [44]). Mr. Beatty filed this action pursuant to 42 U.S.C. § 1983, alleging each of the Defendants violated his Eighth Amendment rights. For the following reasons, the Defendants' Motion for Summary Judgment, Dkt. [48], is granted and Mr. Beatty's Motions to Reconsider, Dkt. [61] and Dkt. [62], are denied.

         I. LEGAL STANDARDS

         A. 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 Federal Rule of Civil Procedure 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 the 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 relevant in the granting 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). “A genuine dispute as to any material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Daugherty v. Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting 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 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. Anderson, 477 U.S. at 255.

         B. Reconsideration Standard

         Motions to reconsider “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 526 (N.D. Ind. 2009). A motion to reconsider is appropriate where the court has misunderstood a party, where the court has made a decision outside the adversarial issues presented to the court by the parties, where the court has made an error of apprehension (not of reasoning), where a significant change in the law has occurred, or where significant new facts have been discovered. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). A party seeking reconsideration cannot introduce new evidence that could have been discovered before the original motion or rehash previously rejected arguments. Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269 (7th Cir. 1996).

         II. MATERIAL FACTS

         Mr. Beatty is a prisoner currently incarcerated at the Correctional Industrial Facility (“CIF”) in Pendleton, Indiana. In 2016, he developed a severe foot/ankle injury. He alleges that he received inadequate medical treatment from the Defendants since that time, in violation of his Eighth Amendment rights. Mr. Beatty has sued Dr. Person, Lisa Bergeson, R.N. who was the Health Services Administrator for Corizon, and Nurse Collins for the care they provided (or failed to provide) to him. He has also sued Corizon and Wexford, the companies who contracted with the Indiana Department of Correction (“IDOC”) to provide medical care to state prisoners. On March 31, 2017, the contract between Corizon and the IDOC ended, and Wexford became the contracted health care provider on April 1, 2017.

         A. Medical Record Review

         In summary, Mr. Beatty's medical records reflect the following. See Dkt. 49-1 (Dr. Person Decl. at ¶¶ 7-23). He first reported symptoms of left ankle pain and swelling on June 15, 2016, using a Request For Health Care form (“RFHC”). Dkt. [49]-2 at 1. In response, nurses provided ibuprofen and an Ace wrap on June 17, 2016. Id. at 1, 4. He filed another RFHC on June 22, 2016 stating that he was very flat footed and needed high support gel insoles. He also requested to see a doctor without charge. Id. at 5. He received gel insoles on June 29, 2016. Id. at 5, 7. Mr. Beatty filed another RFHC on June 27, 2016, stating that his ankle was still swollen and he needed an x-ray. Nurse Bergeson saw him on June 30, 2016, and assured Mr. Beatty he would be seen by the medical provider as soon as the schedule allowed. Id. at 8-9. In June, Mr. Beatty was prescribed aspirin for pain. Id. at 10.

         On July 1, 2016, Mr. Beatty submitted a RFHC stating that the insoles did not help and requested to be seen by a provider, as well as an x-ray or CT scan. On July 3, 2016, Mr. Beatty was told that he had already been referred to a provider for this issue. Id. at 11-12. Dr. Person saw him on July 8, 2016, and Mr. Beatty complained that the gel insoles did not provide enough arch support for his flat feet and that he was in pain. Id. at 13-15. Dr. Person assessed pes planus (flat feet) in both feet and noted Mr. Beatty had tried the arch supports provided but he was not getting enough arch height. Id. at 14.

         On July 24, 2016, Mr. Beatty submitted a RFHC stating that his left ankle had been hurting, but now had a burning feeling. He requested to be seen by a provider and to have an x-ray taken. Id. at 16. On July 26, 2016, Dr. Person saw Mr. Beatty for a chronic care visit. Id. at 17-21. Mr. Beatty continued to complain of left ankle pain. Dr. Person performed an examination of the ankle and diagnosed a left ankle sprain. He ordered a large lace-up ankle brace for extra stability and submitted a request for physical therapy so Mr. Beatty could learn additional range of motion exercises. In his request for physical therapy, Dr. Person noted that Mr. Beatty had left lateral ankle pain and swelling for four months. The pain had started while he was working in the brake shop, but he had no known acute injury. Dr. Person requested a formal physical therapy visit to see if other conservative measures might be beneficial. Id. at 22-24.

         The request for physical therapy was approved August 2, 2016, and Mr. Beatty saw the physical therapist on August 5, 2016.^[1] Id. at 25, 28. The therapist noted that Mr. Beatty previously worked in the brake shop and stood for long hours on a concrete floor and pressed a pedal with his left foot repeatedly. Mr. Beatty was educated on flexibility and strengthening exercises for his foot and ankle and told to try the exercises for a month. Id. at 28.

         On August 9, 2016, Mr. Beatty received the large lace-up ankle brace. Id. at p. 30-31. During August 2016, he was prescribed aspirin for pain. Id. at 32. In September 2016, he submitted three RFHCs reporting continued ankle and foot pain and seeking an x-ray or CT scan. In response, on September 5, 2016, he was scheduled to see the doctor. Id. at 33-34.

         Dr. Person saw Mr. Beatty again on September 19, 2016 and performed a physical examination. Id. at 38-40. Mr. Beatty had moderately reduced range of motion to the left ankle. Dr. Person again assessed an ankle sprain and submitted a request for Mr. Beatty to see an orthopedist due to his failure to improve. Id. at 41-45. The request was approved September 20, 2016. Id. at 46.

         On September 26, 2016, Mr. Beatty saw orthopedist Dr. David Kaehr. Id. at 47. Dr. Kaehr believed Mr. Beatty's ankle injury was caused by overuse of the left foot and ankle by operating a machine in the brake shop that required him to wear steel-toed boots and repetitively plantar flex and dorsiflex his left ankle. On examination, Dr. Kaehr noted the following:

[T]he patient appears to be in no acute distress. His left ankle is definitely swollen compared to the right. He is tender to palpation over the anterior talofibular and calcaneal fibular ligaments as well as over the peroneal tendons. He also complained of pain with passive dorsiflexion of his ankle as well as with active dorsiflexion of the ankle. This pain is anterior over the tendons of the anterior compartment. He is minimally tender medially. The patient has severe pes planus bilaterally. When he stands with his heels together he has marked valgus of his ankles but this is symmetric. He has a 2 dorsalis pedis and posterior tibial pulse.

Id. at 51. Ankle x-rays were taken and were normal except for the pes planus. Dr. Kaehr did not believe that further bracing of the ankle would help. He opined that the best thing for Mr. Beatty was to have custom made arch inserts for his severe pes planus which hopefully would correct his marked ankle valgus and hopefully correct his pain. Id. at 52. Dr. Kaehr stated that he would see Mr. Beatty on an as-needed basis. Id.

         On September 27, 2016, Dr. Person followed Dr. Kaehr's recommendations and requested a consultation with Hanger Orthotics, a company that provides custom orthotics. Id. at 53-57. The request was approved September 29, 2016. Id. at 58. In September 2016, Mr. Beatty was prescribed aspirin for pain. Id. at 60.

         From September 30 to October 21, 2016, Mr. Beatty submitted three RFHCs requesting a foot soak tub, to speak with the provider about x-ray results, stating that the bone was out of place and still swollen, and then complaining about the wait to see the doctor. Id. at 59, 61, 62. Nurse Collins responded to each RFHC and instructed Mr. Beatty to discuss his requests at his upcoming chronic care appointment. Id.

         On October 27, 2016, Mr. Beatty met with a representative from Hanger Clinic for an evaluation for orthopedic footwear. Id. at 65, 69. During October 2016, Mr. Beatty was prescribed aspirin for pain. Id. at 70.

         On November 12, 2016, Mr. Beatty submitted an RFHC stating his ankle was still hurting and requesting a bottom bunk pass because he could not climb or jump up or down without extreme pain, but Dr. Person informed him that his condition did not meet the bottom bunk criteria. Id. at 71-72. Corizon's policy on January 17, 2017 was that inmates with fractures and sprains met the standard qualifications for a bottom bunk pass. Dkt. [56]-2 at p. 6.

         On November 17, 2016, Mr. Beatty submitted a RFHC asking whether the shoes had been approved yet and stating that his ankle hurt every day and that he needed relief. Dkt. [49]-2 at 73. On November 28, 2016, Mr. Beatty was told they are still waiting on the estimate before it could be submitted for approval and that Ms. King called Hanger Clinic that day to follow up. Id.

         On November 24, 2016, Mr. Beatty sent a RFHC stating that he continued to have pain and swelling and requested an MRI/CT scan to find out what is causing the pain. In response, Mr. Beatty was ...