United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING UNOPPOSED MOTION FOR SUMMARY JUDGMENT
AND DIRECTING ENTRY OF FINAL JUDGMENT
WALTON PRATT, JUDGE
Robert McCormick was a prisoner in the Indiana Department of
Correction (IDOC) when he filed this 42 U.S.C. § 1983
action against several defendants, named and unnamed,
asserting eleven claims, some unrelated to the others. At
screening pursuant to 28 U.S.C. § 1915A, eight of the
claims were dismissed with instructions on how Mr. McCormick
could bring the claims in separate actions. See dkt.
9. Three claims were allowed to proceed that concerned Mr.
McCormick's medically necessary leg braces, but the Court
instructed him to file an amended complaint concerning those
claims. Id. An amended complaint was filed in April
2018 naming the Commissioner of the IDOC on a policy claim
and Nurse Rebecca Trivett, a medical contractor employee, on
a deliberate indifference to serious medical needs claim.
Dkt. 23; see also dkt. 24 (screening of amended
complaint). The Commissioner's motion for summary
judgment for failure to exhaust administrative remedies was
granted, leaving Nurse Trivett as the sole remaining
defendant. Dkt. 54.
Trivett has now moved for summary judgment on the merits of
Mr. McCormick's claim. Dkt. 59. Mr. McCormick was served
with the motion and a notice of his right to respond and
submit evidence in opposition, id. and dkt. 62, but
he has not filed a response and the time for doing so has
Summary Judgment Legal Standard
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). On summary judgment, a party must show the Court what
evidence it has that would convince a trier of fact to accept
its version of the events. Gekas v. Vasilades, 814
F.3d 890, 896 (7th Cir. 2016). The moving party is entitled
to summary judgment if no reasonable fact-finder could return
a verdict for the non-moving party. Nelson v.
Miller, 570 F.3d 868, 875 (7th Cir. 2009). To survive a
motion for summary judgment, the non-moving party must set
forth specific, admissible evidence showing that there is a
material issue for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The Court views the record in the
light most favorable to the non-moving party and draws all
reasonable inferences in that party's favor. Skiba v.
Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir.
2018). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are
left to the fact-finder. Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014). The Court need only consider
the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh
Circuit Court of Appeals has repeatedly assured the district
courts that they are not required to “scour every inch
of the record” for evidence that is potentially
relevant to the summary judgment motion before them.
Grant v. Trustees of Indiana University, 870 F.3d
562, 573-74 (7th Cir. 2017).
dispute about a material fact is genuine only “if 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). If no
reasonable jury could find for the non-moving party, then
there is no “genuine” dispute. Scott v.
Harris, 550 U.S. 372, 380 (2007). Not every factual
dispute between the parties will prevent summary judgment,
and the non-moving party “must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Electric Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
noted, Mr. McCormick has not responded to Nurse Trivett's
motion for summary judgment, and the deadline for doing so
has passed. The consequence is that Mr. McCormick has
conceded Nurse Trivett's version of the events and
factual assertions. See 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.”); see S.D. Ind. Local Rule 56-1(b)
(“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.”). This
does not alter the standard for assessing a Rule 56 motion,
but it does “reduc[e] the pool” from which the
facts and inferences relative to such a motion may be drawn.
Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).
Mr. McCormick's Claims
amended complaint, dkt. 23, Mr. McCormick stated that he
entered the IDOC on January 8, 2016. Upon intake examination
at the reception facility, an intake officer confiscated Mr.
McCormick's leg braces, which had been custom made for
him by the Veterans Affairs Medical Center in Portland,
Oregon. Approximately a month later, when Mr. McCormick was
at his assigned prison facility, he submitted a request for
healthcare asking for his leg braces. He was eventually seen
by a physician who determined that the leg braces were
medically necessary and wrote an order to allow Mr.
McCormick's daughter to send them into the facility. Mr.
McCormick alleged that the defendant, Nurse Rebecca Trivett,
received the physician's order on July 4, 2016, and
“said no.” Dkt. 23.
Court screened the amended complaint, and relevant to the
instant motion, directed that an Eighth Amendment deliberate
indifference to serious medical needs claim proceed against
Nurse Trivett. Dkt. 24.
Statement of Material Facts
to the legal standard recited above and Mr. McCormick's
failure to respond to the motion for summary judgment, the
following facts presented by Nurse Trivett are undisputed and
accepted as true for purposes of summary judgment, although
all permissible inferences will be drawn in Mr.
McCormick's favor. See Agnew v. National Collegiate
Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012).
McCormick submitted a request for health care at the
Plainfield Correctional Facility on March 16, 2016, asking
for leg braces. Dkt. 61-2, p. 1 (medical records of
plaintiff). Nurse Trivett, an employee of the medical
contractor (Corizon) at the prison, saw Mr. McCormick on May
24, 2016, as part of his provider visit with Dr. Murat Polar.
Dkt. 61-1, ¶ 9 (affidavit of Nurse Trivett).
Nurse Trivett believed that Dr. Polar wrote an order allowing
Mr. McCormick to have his daughter send his leg braces from
his home to the prison. Id. Mr. McCormick alleges
that on July 4, 2016, Nurse Trivett told him that he could
not have his leg braces sent to him. Dkt. 23, p. 3. However,
Nurse Trivett has checked Mr. McCormick's medical records
and finds no visit with the physician or her on July 4, 2016.
Dkt. 61-1, ¶ 12. Nurse Trivett had no personal
involvement in the decision to confiscate Mr. McCormick's
leg braces on his entry into IDOC. Id., ¶ 6.
Nurse Trivett did not tell Mr. McCormick he could not have
leg braces and never refused to give him his leg braces.
Id., ¶ 12.