United States District Court, S.D. Indiana, Terre Haute Division
PAUL E. KELLER, Plaintiff,
YVONNE PORTER, MHP; BRION BERTSCH, MD; WEXFORD MEDICAL SERVICES, Defendants.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
R. SWEENEY II, JUDGE
prison inmate Paul E. Keller brought this action asserting 42
U.S.C. § 1983 and state law claims against two prison
medical providers, Yvonne Porter, MHP, and Brion Bertsch, MD,
and their employer, Wexford Medical Services. Wexford
contracts with the Indiana Department of Correction (IDOC) to
provide medical services to Indiana inmates. The three
defendants seek summary judgment on all claims against them.
For the reasons explained in this Order, the
defendants’ motion is granted.
Keller alleges that he was medicated against his will on
September 17 and October 17, 2017, with injections of the
medication Haldol. He alleges that defendants Dr. Daniel
Bertsch, MD, and Yvonne Porter, Mental Health Professional,
ordered the injections. Mr. Keller also alleges that Wexford
Medical Services – the IDOC contractor who employs Dr.
Bertsch and Ms. Porter – failed to train and supervise
them and had policies and practices in place that denied him
a hearing on forced medication. The Court allowed Eighth
Amendment deliberate indifference to serious medical needs
and Indiana state law claims for assault, battery,
negligence, and negligent infliction of emotional distress to
proceed. Dkt. 5.
Summary Judgment Standard
judgment is appropriate “if the movant shows that 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). The movant bears the initial
responsibility of informing the district court of the basis
of its motion and identifying those portions of designated
evidence that demonstrate the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). After “a properly supported
motion for summary judgment is made, the adverse party must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quotation marks and
factual issue is material only if resolving the factual issue
might change the outcome of the case under the governing law.
See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). A factual issue is genuine only if there is sufficient
evidence for a reasonable jury to return a verdict in favor
of the non-moving party on the evidence presented. See
Anderson, 477 U.S. at 248. In deciding a motion for
summary judgment, the Court may not “assess the
credibility of witnesses, choose between competing reasonable
inferences, or balance the relative weight of conflicting
evidence.” Stokes v. Bd. of Educ. of the City of
Chi., 599 F.3d 617, 619 (7th Cir. 2010). Instead, it
must view all the evidence in the record in the light most
favorable to the non-moving party and resolve all factual
disputes in favor of the non-moving party. See
Anderson, 477 U.S. at 255.
Keller failed to respond to the defendants’ summary
judgment motion with admissible evidence or a rebuttal of the
defendants’ statement of uncontroverted facts.
Accordingly, facts alleged in the motion are deemed admitted
so long as support for them exists in the record.
See S.D. Ind. L.R. 56-1 (“A party opposing a
summary judgment motion must . . . file and serve a response
brief and any evidence . . . that the party relies on to
oppose the motion. The response must . . . identif[y] the
potentially determinative facts and factual disputes that the
party contends demonstrate a dispute of fact precluding
summary judgment.”); Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (“[F]ailure to respond by the
nonmovant as mandated by the local rules results in an
admission”); Brasic v. Heinemanns, Inc., 121
F.3d 281, 285-86 (7th Cir. 1997) (affirming grant of summary
judgment where the nonmovant failed to properly offer
evidence disputing the movant’s version of the facts).
The Seventh Circuit has “repeatedly held that the
district court is within its discretion to strictly enforce
compliance with its local rules regarding summary-judgment
motions.” Patterson v. Indiana Newspapers,
Inc., 589 F.3d 357, 360 (7th Cir. 2009); see also
Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.
2008); McNeil v. United States, 508 U.S. 106, 113
(1993). This does not alter the summary judgment standard,
but it does “reduce the pool” from which facts
and inferences relative to the defendants’ motion may
be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th
Facts of the Case
following statement of facts was evaluated and formed
pursuant to the standard set forth above. That is, this
statement of facts is not necessarily objectively true, but
as the summary judgment standard requires, the undisputed
facts and any disputed evidence are presented in the light
reasonably most favorable to Mr. Keller as the non-moving
party with respect to the motion for summary judgment.
See Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 150 (2000).
times material to this lawsuit, Mr. Keller was an inmate at
the Wabash Valley Correctional Facility (WVCF), held in the
Special Needs Unit (SNU). Dkts. 1 & 44. Ms. Porter, a
mental health professional, and Dr. Bertsch, a psychiatrist,
were employees of Wexford of Indiana, LLC, the contract
medical provider for the IDOC (named in this case as Wexford
Medical Services). Dkt. 44, pp. 2, 5, & 9; dkts. 1 &
Keller had been transferred from the New Castle Correctional
Facility not long before he met Ms. Porter. Ms. Porter was
assigned to be Mr. Keller’s primary therapist and met
him for the first time in October 2016. Id., p. 3.
At this first meeting, Mr. Keller signed consent for
treatment forms and they discussed his condition and
treatment. Ms. Porter would remain Mr. Keller’s
therapist and continue to treat him in 2017. Id.
his transfer to WVCF, Mr. Keller had been receiving
involuntary Haldol injections at his prior facility.
Id. These involuntary injections continued after his
move to WVCF throughout the first six months of 2017.
Id. He met regularly with Ms. Porter during this
time and expressed his displeasure with receiving the
injections. Id. Ms. Porter encouraged him to
participate in the SNU program, engage in his treatment plan,
and maintain compliance with his medications. Id.
end, on July 3, 2017, Ms. Porter met with Mr. Keller and
informed him of the upcoming meeting of the involuntary
treatment team. Id., p. 4. Mr. Keller declined to
attend the meeting, a decision documented by Ms. Porter and a
correctional officer. Id. When the involuntary
treatment team met two days later, Mr. Keller refused to
attend at that time as well. Id. The team discussed
the continuation of the order for involuntary administration
of psychotropic medications for Mr. Keller. It was noted that
Mr. Keller was a diagnosed paranoid schizophrenic with panic
disorder and depressive disorder. Id. While on his
medications, Mr. Keller was successfully participating in the
SNU treatment program which was designed to instill skills
necessary for reintegration into the general population
without medication. Id., pp. 4-5. The involuntary
treatment team decided to continue Mr. Keller’s
involuntary psychotropic medications due to his serious
mental illness and history of becoming “gravely
disabled and dangerous to himself and others” if he
went off his medications. Id., p. 5.
the July 3, 2017 team meeting, Dr. Bertsch, a staff
psychiatrist, oversaw the involuntary injections given to Mr.
Keller. Id. Dr. Bertsch soon tapered off the
injections while Mr. Keller voluntarily took his medications
as ordered. Id. But by August 24, 2017, Mr. Keller
was acting erratic and agitated while in groups. Id.
He appeared distressed and was unable to organize thoughts or
statements. Id. Mr. Keller admitted he was not
taking his medications. Id. He was placed on a
temporary mental health hold. Id. Similar ...