United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Gray, III, a prisoner without a lawyer, proceeds on an Eighth
Amendment claim against Ms. Beverly Abney for being
deliberately indifferent to his serious medical needs when
she confiscated his medically necessary devices on August 30,
2017, despite allegedly knowing they were authorized, and
deprived him of those devices until October 17, 2017. Sgt.
Abney filed the instant motion for summary judgment, arguing
that Gray cannot show that she caused any constitutional
deprivation and that she was not deliberately indifferent to
his serious medical needs. She also argues that she is
entitled to qualified immunity.
initial matter, the court must resolve the evidentiary
disputes raised by the parties. In reference to a motion for
summary judgment, “[a] party may object that the
material cited to support or dispute a fact cannot
be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2) (emphasis added).
“In other words, the Court must determine whether the
material can be presented in a form that would be admissible
at trial, not whether the material is admissible in its
present form.” Stevens v. Interactive Fin.
Advisors, Inc., 2015 WL 791384, *2 (N.D. Ill. Feb. 24,
response, Gray argues that the Miami Correctional Facility
(MCF) post order related to receiving and releasing personal
property (Exhibit A-2, ECF 34-4) is inadmissible because it
has not been properly authenticated. ECF 39 at 2. As far as
authentication is concerned, the Federal Rules of Evidence
provide simply that, “the proponent must produce
evidence sufficient to support a finding that the item is
what the proponent claims it is.” Fed.R.Evid. 901(a).
“Rule 901 requires only a prima facie showing of
genuineness and leaves it to the jury to decide the true
authenticity and probative value of the evidence.”
United States v. Harvey, 117 F.3d 1044, 1049 (7th
Cir. 1997). The Seventh Circuit has noted that
“[a]uthentication relates only to whether the documents
originated from [their purported source]; it is not
synonymous to vouching for the accuracy of the information
contained in those records.” United States v.
Brown, 688 F.2d 1112, 1116 (7th Cir. 1982). Here, Sgt.
Abney points out that Major Danny Tucker, a custody
supervisor at MCF, attests that he is familiar with the post
order at issue and that Exhibit A-2 is a “true and
accurate copy of the policy that specifically addresses
offenders’ personal property and medical braces.”
ECF 34-2; see also ECF 40 at 2, n. 1. Because
testimony of a witness with personal knowledge can
sufficiently establish authenticity, see Fed. R.
Evid. 901(b), the court denies Gray’s objection to the
admissibility of the post order (Exhibit A-2) for purposes of
in her reply brief, Sgt. Abney argues that the court should
not consider any evidence of Gray’s previous lawsuits
because they are not relevant to the pending claim; she moves
to strike Exhibit E-3 (ECF 39-1 at 30–35), Exhibit F-1
(ECF 39-1 at 36– 37), and Exhibit J (ECF 39-1 at
46–56) in their entirety. ECF 40 at 1–2. She
states that Gray is “essentially trying to argue as
part of his response that because IDOC and its’ staff
have an alleged pattern of not showing care for his medical
devices that this somehow imputes some sort of liability on
the part of Abney.” Id. at 2. Gray has
responded, arguing that the they are not being used for that
purpose but rather to show that Sgt. Abney was aware that the
devices were medically necessary and previously authorized
because he showed those documents to her. ECF 41 at
1–2. The court agrees with Gray that the documents are
relevant to the extent they are being used to show what Sgt.
Abney knew during the time period in question. Moreover,
striking the documents in their entirety as requested would
be overly broad. Therefore, the court denies Sgt.
Abney’s request to strike.
the 1990s, Gray has used several medically prescribed devices
on an ongoing basis while incarcerated within the Indiana
Department of Correction-a knee cage brace on his right knee,
an ankle brace on his right ankle, and a hearing aid in his
left ear. ECF 39-1 at 3–4, 22–39. Gray
experiences “excruciating pain” when he walks
without the leg devices, and he is “unable to hear
commands or other warnings” without the hearing aid.
Id. at 4. Gray has maintained these devices
throughout the years pursuant to IDOC facility
directives-from both the Indiana State Prison (ISP) and the
Wabash Valley Correctional Facility (WVCF)-as well as court
orders. Id. at 26–39.
August 22, 2017, Gray was transferred from ISP to MCF due to
an emergency medical issue unrelated to this lawsuit.
Id. at 5. At the time, he was not wearing his
medical devices because his property had been packed up by
officers at ISP prior to the transfer. Id. Gray was
processed through Receiving and Releasing (R&R) upon his
arrival at MCF. ECF 34-2 at 1. Pursuant to IDOC policy,
offenders that go through R&R have their personal
property inventoried by staff officers. Id. In
accordance with that policy, MCF has an additional
confidential R&R post order that delineates the personal
property authorized to enter the facility and sets forth the
inventory procedures. ECF 34-2 at 2; ECF 34-4. The post order
indicates that all offenders processed through R&R who
are in possession of a medical brace will have it confiscated
and turned over to the medical department. Id.
Offenders are to be told that they must submit a health care
request form and be evaluated by medical in order to receive
their brace back. Id. Only braces that are deemed
medically necessary will be returned to inmates. Id.
It is the medical staff who makes this determination and
issues the returns. Id. This policy is in place for
the safety and security of the facility. ECF 34-2 at 2.
August 30, 2017, Sgt. Abney inventoried Gray’s property
and confiscated multiple items including his hearing aid, two
(2) knee cage braces, and an ankle brace. ECF 34-5; ECF 34-6
at 16. Sgt. Abney filled out a Notice of Confiscated Property
form indicating that all medical items were turned over to
medical. ECF 34-7. Later that day, when Gray became aware
that the devices had been confiscated, he objected and
attempted to explain to Sgt. Abney that he was authorized to
have them-according to Gray, he showed her medical records,
doctors’ orders, and court documents to substantiate
his claims, but she informed him that the documentation was
not valid and that the knee cage braces were unauthorized
because they contained metal. ECF 39-1 at 5–6,
22–42, 47–56; see also ECF 41 at
1–2. Gray attests that he subsequently approached Sgt.
Abney several times in the dining hall regarding his need for
the medical devices, but she refused to assist him. ECF 34-8
at 6; ECF 39-1 at 9. According to Gray, Sgt. Abney never
informed him about the applicable post order or showed him a
copy of it, and she did not specifically tell him that he
needed to put in a health care request to see medical about
getting his devices back pursuant to it. ECF 39-1 at
6–7. However, Gray does admit that a different officer,
Lieutenant Green, told him to “sign-up for sick
call” if he wanted his medical devices returned to him.
Id. at 5.
September 7, 2017, Gray submitted a request for an interview
with the health care administrator, Lyn Frye, requesting his
devices, but he received a response back indicating that
“I have not received any of these items from custody
– talk to custody.” ECF 39-1 at 13. On September
11, 2017, Gray submitted a request for health care noting
that he was having “a lot of pain in both of my knees,
ankles, and hips. I would please like to be seen by the
doctor, thank you.” ECF 34-9. That same day, Gray also
submitted a complaint explaining he was medically authorized
to have the devices that had been confiscated by Sgt. Abney
but that they had not yet been returned to him. ECF 34-10.
Ms. Frye responded on September 14, 2017, noting that
“You will be getting the hearing aid and ankle brace
back. MCF does not allow that type of knee braces so you will
have to see a provider and see about getting braces without
metal.” Id. On September 21, 2017, Gray
received his ankle brace back. ECF 34-6 at 16. On October 17,
2017, Gray received his hearing aid and knee cage braces
back. Id. Medical staff made the decision to return
the medical devices to Gray. ECF 34-2 at 2.
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether summary judgment is appropriate, the
deciding court must construe all facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
Eighth Amendment, which protects against cruel and unusual
punishment, is violated when prison officials display
“deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97,
104 (1976). There is both an objective and subjective
component to this type of claim. Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005). Specifically, a prisoner
must establish that: (1) his medical need was objectively
serious; and (2) the defendant acted with deliberate
indifference to that medical need. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Here, Sgt. Abney
concedes for purposes of the instant summary judgment motion
that Gray’s medical needs with regard to his hearing
aid and braces were objectively serious. ECF 34 at 6, n. 2;
ECF 40 at 2. Thus, only the subjective ...