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Keller v. Porter

United States District Court, S.D. Indiana, Terre Haute Division

September 27, 2019

PAUL E. KELLER, Plaintiff,



         Indiana 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.

         Mr. 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.

         I. Summary Judgment Standard

         Summary 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 citation omitted).

         A 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.

         Mr. 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 Cir. 1997).[1]

         II. Facts of the Case

         The 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).

         At all 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 & 5.

         Mr. 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.

         Before 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.

         To this 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.

         Following 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 ...

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