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Gray v. Abney

United States District Court, N.D. Indiana, South Bend Division

September 25, 2019




         Proctor 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.


         As an 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, 2015).

         In his 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 summary judgment.

         Next, 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.


         Since 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.

         On 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, [1] all 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.[2] 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.

         On 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.

         On 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.


         Summary 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).

         The 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 ...

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