United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
WALTON PRATT, JUDGE.
matter is before the Court on the parties' cross motions
for summary judgment. Plaintiff Raymond McGraw ("Mr.
McGraw"), an inmate at Miami Correctional Facility,
initiated this civil rights action pursuant to 42 U.S.C.
§ 1983 alleging violations of his First and Eighth
Amendment rights while he was incarcerated at Pendleton
Correctional Facility ("Pendleton"). On March 4,
2019, Mr. McGraw moved for summary judgment. (Dkt. 151.)
Thereafter, Defendant Officer Edwards opposed the Motion
arguing that there is a dispute of material fact regarding
the degree of force she used to secure Mr. McGraw when he
refused to take medication on January 14, 2016. (Dkt. 200.)
Defendants Corizon Health, Inc. ("Corizon"),
Aleycia McCullough ("Ms. McCullough")Dr. Paul
Talbot, Carrie Welders ("Ms. Welders"), Nurse Kim
Simpson ("Nurse Simpson"), and Nurse Leah Rose
("Nurse Rose"), (collectively, "the Medical
Defendants") responded and cross-motioned for summary
judgment on May 3, 2019. (Dkt. 202.) Mr. McGraw replied on
June 6, 2019. (Dkt. 237.) For the reasons stated below, Mr.
McGraw's Motion is denied and the
Medical Defendants' Motion is granted in part and
denied in part.
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 Federal Rule of
Civil Procedure 56(a). Whether a party asserts that a fact is
undisputed or genuinely disputed, the party must support the
asserted fact by citing to specific portions 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 by an adverse party 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). "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.'" Dougherty v.
Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(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
factfinder. Miller v. Gonzalez, 761 F.3d 822, 827
(7th Cir. 2014). Any doubt as to the existence of a genuine
issue for trial is resolved against the moving party.
Anderson, 477 U.S. at 255.
reviewing cross-motions for summary judgment, all reasonable
inferences are drawn in favor of the party against whom the
motion at issue was made. Volenti v. Lawson, 889
F.3d 427, 429 (7th Cir. 2018) (citing Tripp v.
Scholz, 872 F.3d 857, 862 (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).
reciting the facts underlying Mr. McGraw's claims, the
Court must address several issues that have made it difficult
for the Court to determine the undisputed facts. First, Mr.
McGraw (who is proceeding pro se) produced more than
two thousand pages of exhibits with his Motion for Summary
Judgment. (Dkts. 154-159.) While he attempts to identify
documents to support his statement of material facts not in
dispute, he does so by referencing medical entries from
particular dates, rather than particular page numbers, making
it difficult for the Court to locate his references.
Medical Defendants' submissions do not fare much better.
Some citations in the Medical Defendants' brief are
incorrect, making it difficult for the Court to locate their
referenced documents. For example, the Medical Defendants
assert that Mr. McGraw submitted a healthcare request form on
October 1, 2015. They cite docket "159, pp. 99" as
the location of the healthcare request form, but p. 99 of
docket 159 is a medical record dated November 20, 2015. The
adjacent pages are part of that medical record.
addition, the accuracy of the records submitted by the
Medical Defendants', and therefore their statement of
facts and expert's opinions that rely upon those records,
are called into question by records from an outside
neurosurgeon, Gautam Phookan, M.D. ("Dr. Phookan"),
who also treated Mr. McGraw. For example, the Medical
Defendants' records do not indicate on what date Mr.
McGraw's staples were removed, but they do indicate that
the staples were intact on September 23, 2015 and were not
present on October 1, 2015. Dr. Talbot examined Mr. McGraw on
October 12, 2015, and did not note the presence of staples.
(Dkt. 158, p. 367.) The Medical Defendants note that Dr.
Phookan charted on October 16, 2015, that Mr. McGraw's
remaining staples were removed in his office that day. (Dkt.
158, p. 142.) But they fail to acknowledge that this creates
a dispute of material fact regarding whether the Medical
Defendants removed all of the staples on September 25, 2015,
as instructed to do by Dr. Phookan, or at any other time
before Mr. McGraw's follow-up with Dr. Phookan. Moreover,
The Medical Defendants' expert witness, Dr. Craig Wilson,
fails to acknowledge at all that the remainder of Mr.
McGraw's staples were removed at Dr. Phookan's office
on October 16, 2015. (Dkt. 196-7.) If Dr. Phookan removed
staples from Mr. McGraw's back on October 16, 2015, then
the prison medical records before that date which indicate
that there were no staples in Mr. McGraw's back are
called into question.
issues leave the Court with little in the way of undisputed
facts to draw from. Therefore, the following recitation of
undisputed facts is rather truncated.
times relevant to his Complaint, Mr. McGraw was incarcerated
at Pendleton. Corizon was the company that contracted with
the Indiana Department of Correction to provide medical care
to Indiana prisoners at all times relevant to this action.
Dr. Talbot was a physician providing medical services at
Pendleton. Nurse Simpson and Nurse Rose were licensed and
qualified nurses at Pendleton. Ms. McCullough was the Health
Service Administrator at Pendleton. Ms. Welders was a medical
assistant at Pendleton. Ms. McCullough and Ms. Welders are
not medically trained and do not perform any patient care
McGraw suffered from chronic lower back pain. On September
14, 2015, he underwent an L3 to L5 decompressive
laminectomy at IU Health Ball Memorial Hospital
performed by Dr. Phookan, a neurosurgeon with Goodman
Campbell Brain and Spine. Mr. McGraw was discharged from the
hospital on September 16, 2015, with instructions to remove
the drain from the surgical site when it drained less than 40
ml in a 12-hour period, to remove staples on September 28,
2015, and to schedule a follow up appointment with the
surgeon in four weeks.
Mr. McGraw returned to Pendleton, Dr. Talbot ordered that he
be housed in the medical unit to facilitate his
post-operative recovery. The next day, September 17, 2015,
Mr. McGraw had a fever of 101 degrees. Dr. Talbot ordered an
Rose removed Mr. McGraw's drain on September 21, 2015,
and he was discharged from the medical unit. Myra Wilson from
Goodman Campbell Brain and Spine called the prison and left a
message for Ms. Welders stating that Mr. McGraw's staples
could be removed on September 25, 2015.
aspects of Mr. McGraw's care are disputed from September
21, 2015 through October 30, 2015, when Dr. Talbot determined
that Mr. McGraw's wound was not healing, and he needed to
be transferred to a facility with 24 hour nursing
care. Mr. McGraw returned to Pendleton on
December 30, 2015. On January 14, 2016, Nurse Simpson
attempted to administer two antibiotics to Mr. McGraw. He
resisted because a previous dose of the same medications
caused him to have physical reactions that indicated he might
be allergic to them. Eventually, Officer Edwards restrained
Mr. McGraw. Officer Edwards and Mr. McGraw dispute the nature
an appropriateness of Officer Edwards' actions.
January 15, 2016, Dr. Talbot examined Mr. McGraw, noted
purulent drainage from his back wound, and ordered him to an
outside hospital for further treatment. Doctors at St.
Vincent Hospital in Anderson, Indiana, determined that Mr.
McGraw was suffering from a spinal epidural abscess and
Methicillin-resistant Staphylococcal Aureus
("MRSA"). He required additional surgery and was