United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT OF
DEFENDANTS PERSON, BERGESON, EDWARDS, COLLINS, KING, CORIZON,
R. SWEENEY II, JUDGE
relevant times, plaintiff Charles Gooch was an Indiana
prisoner incarcerated at the Correctional Industrial Facility
(CIF). Mr. Gooch filed this civil rights action on April 3,
2017. Dkt. 1. This action was consolidated with another
action, 1:17-cv-2217-RLY-MPB, on March 12, 2018. Dkt. 41. His
third amended complaint, tendered on May 7, 2018, dkt. 48,
and filed on June 8, 2018, is the operative pleading. Dkt.
52. The third amended complaint names the following
defendants: 1) Dr. Michael Person; 2) Lisa Bergeson, nurse;
3) Dana Miller, physical therapist; 4) Jamalee Edwards, M.A.;
5) Tina Collins, R.N.; 6) L. King, A.A.; 7) Corizon Health
Care (Corizon); and 8) Wexford Health Care (Wexford). Mr.
Gooch seeks compensatory and punitive damages and injunctive
relief in the form of diagnostics and surgery.
Miller filed a separate motion for summary judgment which has
been resolved in a separate Entry. The remaining seven
defendants seek summary judgment on the claims brought
against them. Dkt. 85. Briefing was extended to allow the
Court to recruit counsel to assist Mr. Gooch. Counsel was
recruited on May 2, 2019, and August 15, 2019. Dkt. 137; dkt.
152. The Court greatly appreciates recruited counsel’s
assistance with this case. Mr. Gooch has opposed the motion,
dkt. 147, and the defendants have replied, dkt. 155. For the
reasons explained in this Entry, the defendants’ motion
for summary judgment, filed on February 13, 2019, must be
Summary Judgment Standard
judgment should be granted “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). “Material facts are those that
might affect the outcome of the suit under applicable
substantive law.” Dawson v. Brown, 803 F.3d
829, 833 (7th Cir. 2015) (internal quotation omitted).
“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.’”
Daugherty 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 facts in the light
most favorable to the non-moving party and all reasonable
inferences are drawn in the non-movant’s favor.
Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628
(7th Cir. 2018). The Court cannot weigh evidence or make
credibility determinations on summary judgment because those
tasks are left to the fact-finder. Johnson v. Advocate
Health and Hosp. Corp. 892 F.3d 887, 893 (7th Cir.
following statement of facts was evaluated pursuant to the
standards 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 the
disputed evidence are presented in the light reasonably most
favorable to Mr. Gooch as the non-moving party with respect
to the motion for summary judgment. See Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133,
Gooch received his first ankle-foot orthosis (AFO) in early
2015. Dkt. 148-1 at ¶ 20. An AFO is a mechanical brace
that can be worn by a patient with foot drop to keep the foot
elevated and to assist with ambulation. Dkt. 88-5 at ¶
3, 2016, Mr. Gooch was seen for a chronic care visit, at
which time he presented with high blood pressure, high
cholesterol, and gastroesophageal reflux (GERD) - all of
which were being controlled with medication. Dkt. 88-1 at
¶ 6. Mr. Gooch also presented with left-side weakness
related to a cerebrovascular accident (CVA), otherwise known
as a stroke, that he experienced in 1994 as a result of a
motor vehicle accident. Id. It was noted that Mr.
Gooch wore a brace on his left leg. Id. Mr. Gooch
was noted as being on bottom bunk/bottom floor status.
August 31, 2016, Mr. Gooch submitted a health care request
form (HCRF) stating he slipped on the stairs near the
officers’ station because standing water was present.
Dkt. 88-2 at 67. He was given Tylenol and ice for back pain.
Id.; dkt. 88-1 at ¶ 8. He was told to notify
medical if his symptoms became worse. Id.
September 8, 2016, Mr. Gooch saw Dr. Michael Person. Dkt.
148-1 at ¶ 6. Mr. Gooch stated he injured the back of
his left knee. Id. The examination reflected that
ligaments in the knee were intact. Dkt. 88-1 at ¶ 9. Dr.
Person prescribed Ultram for pain. Id. Nurse
Bergeson was present to take vital signs and record orders.
Bergeson is a Registered Nurse (RN) licensed by the State of
Indiana since 2013. Dkt. 88-1 at ¶ 2. She began her
employment with Corizon on March 17, 2014, as a floor nurse
at CIF. Id. She was then employed as the Health
Services Administrator (HSA) by Corizon from January 8, 2017,
through March 31, 2017. Id. She remained in that
position when Wexford was awarded the medical provider
contract beginning April 1, 2017. Id.
RN, Nurse Bergeson did not prescribe medications or order
repairs to medical devices. Dkt. 88-1 at ¶¶ 5, 56.
As an RN, Nurse Bergeson did not formulate treatment plans or
override the medical judgment of the medical providers.
Id. As HSA, she was the chief administrative manager
of the on-site health services department and, as such,
oversaw the administrative duties of the clinic but did not
treat or interact with patients. Id. In her capacity
as HSA for both Corizon and Wexford, her job duties included
responding to informal and formal grievances submitted by
inmates regarding their healthcare. Id. at ¶
September 23, 2016, Mr. Gooch was seen by Dr. Person for
continued left knee pain under the knee cap. Dkt. 88-4 at
145-47; dkt. 88-2 at 149-153. Mr. Gooch was wearing a knee
brace but not all the time. He reported that his pain was
less when he wore the brace. Id. Dr. Person’s
evaluation indicated good range of motion, but with pain.
Id. Dr. Person prescribed a left knee injection and
encouraged Mr. Gooch to wear his brace. Id. There
was no discussion about any issue with his AFO at this time.
Dkt. 88-5 at ¶ 9. Nurse Bergeson was present to take
vital signs and record Dr. Person’s orders. Dkt. 88-4
at 145-47; dkt. 88-1 at ¶ 12. Dr. Person also submitted
an outpatient request for physical therapy. Dkt. 88-4 at 143.
September 23, 2016, Lynette King, administrative assistant,
noted that the OPR (outside provider request) for a physical
therapist evaluation had been approved. Dkt. 88-4 at 141.
During all relevant times, Ms. King was employed as an
administrative assistant at the CIF. Dkt. 88-7 at ¶ 2.
As an administrative assistant, Ms. King did not have the
authority to order treatment or address medical issues. Dkt.
88-7 at ¶ 5. She scheduled outside specialist
appointments as directed by medical providers and noted on
the inmate’s medical chart when the appointment was
scheduled. Id. She occasionally responded to a HCRF
after reviewing a patient’s medical record and
conferring with a medical provider or nurse. Id. She
did not formulate treatment plans or override the medical
judgment of the medical providers. Id.
October 4, 2016, Mr. Gooch was seen by Dana Miller, PT, for
the first of four visits. Dkt. 88-4 at 139-40. She noted Mr.
Gooch had left hemiparesis after an earlier stroke and wore
an AFO. Id. He had been seen by Ms. Miller in
January 2015 for issuance of his AFO. Dkt. 148-1 at
¶¶ 19-20. He told her he had received a book of PT
exercises that he had been following faithfully until he fell
and injured his knee on August 31, 2016. Dkt. 88-4 at 139-40.
Ms. Miller noted left thigh atrophy, tight hamstrings and
quads, and good patellar mobility (but accompanied by pain).
Id. Mr. Gooch was issued a written copy of
flexibility exercises and strengthening for lower extremities
and encouraged to use a stationary bike. Id.
Gooch continued his physical therapy sessions with Ms. Miller
in October and November 2016. Dkt. 148-1 at ¶ 9. On
October 24, 2016, Mr. Gooch was seen by Tamara Smith for a
nurse visit in response to his HCRF complaining of knee pain
when he walked. Dkt. 88-4 at 127-29. He said physical therapy
was not improving his pain. Id. He was provided
crutches and referred to a medical provider. Id.
knee injection was scheduled for October 28, 2019, but it had
to be rescheduled because Mr. Gooch was out for a court
appearance in Marion County. Dkt. 88-4 at 119.
November 7, 2016, Mr. Gooch was seen for the third of his
physical therapy sessions. Dkt. 88-1 at ¶ 17; dkt. 88-4
at 111-113. He said his left leg was feeling better and
attributed the improvement to rest and staying off the leg.
Id. He said that his knee was not popping anymore,
but he had occasional pains and an itchy sensation under his
knee cap. Id. He returned his crutches on that date
and was using a cane. Id. He was advised to continue
the stretches and avoid exercises that caused him more
discomfort. Id. He was also advised to continue
wearing the knee sleeve and his AFO. Id.
November 8, 2016, Dr. Person saw Mr. Gooch for a chronic care
visit, during which they discussed his hypertension, drop
foot, and prior CVA. Dkt. 88-2 at 189-191. Mr. Gooch
indicated he was taking his hypertension medications as
prescribed and complained that he was poked by sharp object
while at the county jail. Id. Dr. Person’s
assessment was hypertension and drop foot, for which Mr.
Gooch was to continue wearing the AFO. Dr. Person also
ordered labs because of the complaint of a puncture wound.
November 29, 2016, at his fourth physical therapy session,
Mr. Gooch reported doing the therapy exercises and that he
had been going to recreation 2-3x/week and riding the bike.
Dkt. 88-4 at 103. He stated his knee was “bearable,
” but still gave him problems and he believed it needed
to be looked at more closely. Id. Mr. Gooch’s
left knee range of motion remained within normal limits.
Id. He stated that he believed his left AFO was
allowing his left foot to “drop” a little and
wondered if some rubber pieces at the ankle/foot articulation
might need to be replaced. Id. Ms. Miller examined
the orthosis and stated that she agreed that the
orthotist/prosthetist might be able to troubleshoot any
problems with his orthosis more effectively. Id. She
reported that Mr. Gooch had no further need for physical
therapy at this time and he was advised to continue the
exercises and to see the doctor for further concerns.
November 30, 2016, Mr. Gooch submitted a HCRF stating he
believed his AFO needed repairs. Dkt. 88-2 at 57. He stated
he had discussed this with the physical therapist.
Id. He then signed a refusal of treatment stating he
would wait for his annual medical review to discuss the need
for any repairs to his AFO. Dkt. 88-2 at 58; dkt. 88-4 at
December 13, 2016, Nurse Collins spoke to Mr. Gooch in
response to his December 12, 2016, HCRF in which he stated he
continued to have knee problems after his August 31 fall.
Dkt. 88-2 at 55. He stated that he was waiting to see a
physician to have him seen by an outside specialist.
Id. Nurse Collins reported to Mr. Gooch that no
outside visits were currently scheduled and that he should
discuss his request with his medical provider at his next
chronic care clinic visit. Id., dkt. 88-4 at 100.
relevant times, Nurse Collins was employed as the chronic
care nurse at CIF. Dkt. 88-8 at ¶ 2. Although she was
not generally involved with direct patient care as the
chronic care nurse, she would occasionally fill in as a floor
nurse if needed. Dkt. 88-8 at ¶ 5. A floor nurse was
responsible for patient triage, medication administration,
communicating with the treating physician, patient education,
and completing physician orders. Id. Nurse Collins
did not prescribe medications or order repairs to medical
devices. Id. She did not formulate treatment plans
or override the medical judgment of the medical providers.
December 18, 2016, Mr. Gooch saw a nurse in response to
complaints of knee pain. Dkt. 88-4 at 97-99. The nurse noted
that there was no swelling at that time, but referred Mr.
Gooch to a provider for evaluation. Id.
December 23, 2016, Mr. Gooch saw Dr. Person for his
complaints of knee pain. Dkt. 88-4 at 91-93. Dr. Person
submitted a request for outside orthopedic consultation
noting that Mr. Gooch experienced a CVA which resulted in
left foot drop and use of an AFO. Dkt. 88-4 at 94-96. Mr.
Gooch continued to report knee pain and instability on the
left knee, pain behind the knee in the popliteal region and
pain under the patella. Id. Dr. Person reported that
Mr. Gooch’s knee ligaments were stable, but the
musculature was weak secondary to the CVA. Id. He
had been through a course of physical therapy and Dr. Person
stated he needed some help to determine if there was anything
else that might improve Mr. Gooch’s pain/mobility.
December 27, 2016, the Utilization Management review
responded to Dr. Person’s request for an outside
orthopedic consultation with an alternative treatment plan
that, as Mr. Gooch’s knee weakness appeared to be
secondary to a CVA, physical therapy and home exercise
program should be continued. Dkt. 88-2 at 217. On December
28, 2016, Ms. King made an administrative note of the
alternative treatment plan. Dkt. 88-4 at 90.
January 3, 2017, Mr. Gooch submitted a HCRF stating that he
would like to request an MRI of his left knee. Dkt. 88-2 at
51. Nurse Collins responded that he should discuss this ...