United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DIRECTING ENTRY OF FINAL JUDGMENT
R. SWEENEY II, JUDGE.
Cameus Barnett, an inmate at Pendleton Correctional Facility
(“Pendleton”), brought this civil rights action
pursuant to 42 U.S.C. § 1983 alleging violations of his
Eighth Amendment rights. Mr. Barnett also asserts a breach of
contract claim and an Indiana tort claim for intentional
infliction of emotional distress. Mr. Barnett alleges that
the defendants, Dr. Talbot and Wexford of Indiana, LLC
(“Wexford”), delayed medical treatment related to
a back injury Mr. Barnett sustained on April 21, 2017.
defendants seek resolution of the claims alleged against them
through summary judgment. They argue that Mr. Barnett's
constitutional rights were not violated, that Mr. Barnett is
not a third-party beneficiary to the contract between Wexford
and the Indiana Department of Correction and that he has not
sustained damages as a result of the alleged breach of that
contract, and that Dr. Talbot is not liable under Indiana
tort law because he did not act intentionally. Mr. Barnett
has not responded to the motion for summary judgment, and the
time for doing so has passed. For the reasons explained
below, the defendants are entitled to judgment as a matter of
Summary Judgment 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).
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
that draws all reasonable inferences in that party's
favor. Skiba v. Ill. 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 Ind. Univ.,
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 Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
noted above, Mr. Barnett has not responded to the motion for
summary judgment, and the deadline for doing so has passed.
The consequence is that Mr. Barnett has conceded the
defendants' statement of undisputed facts. 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
also 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.”). Mr. Barnett's failure to
respond, while deemed an admission of the defendants'
statement of facts, nevertheless does not alter the summary
judgment standard. This does not alter the standard for
assessing a Rule 56 motion, but it does reduce “the
pool” of facts from which inferences relative to the
motion may be drawn. Smith v. Severn, 129 F.3d 419,
426 (7th Cir. 1997).
although pro se filings are construed liberally,
pro se litigants such as Mr. Barnett are not exempt
from procedural rules. See Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008) (noting that
“pro se litigants are not excused from
compliance with procedural rules”); Members v.
Paige, 140 F.3d 699, 702 (7th Cir. 1998) (stating that
procedural rules “apply to uncounseled litigants and
must be enforced”).
Statement of Undisputed Facts
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. Barnett, despite his failure to respond, as
the non-moving party to the motion for summary judgment.
See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000).
April 21, 2017, Mr. Barnett injured himself while playing
basketball. Dkt. 45-2 at 28:17-25. While walking to a kiosk
machine, he felt tightening in his back and fell to the
ground after his legs buckled. Dkt. 45-3 at 187.
Barnett was taken to the health care unit and was evaluated
by Nurse Practitioner Wambui Murage. Id. Nurse
Practitioner Murage ordered that Mr. Barnett immediately
receive a Toradol injection, as well as a muscle relaxer.
Id. She re-examined Mr. Barnett an hour later, and
he reported that his pain had lessened, but he was still
experiencing numbness and tingling. Id. Nurse
Practitioner Murage ordered an x-ray, which revealed
abdominal gas and stool, but no other abnormality. She gave
Mr. Barnett a prescription for a muscle relaxer and an order
for Toradol injections as needed. Id. at 187-89. Mr.
Barnett received a second Toradol injection during the
evening of April 21, 2017. Id. at 181-82.
Practitioner Murage had a follow-up visit with Mr. Barnett on
April 24, 2017. Dkt. 45-3 at 177-78. Although his symptoms
had improved, Mr. Barnett reported a sudden onset of back
pain. Nurse Practitioner Murage provided a medical lay-in for
two weeks, continued the order for a muscle relaxer, and
prescribed an anti-inflammatory medication. Id.
Barnett had another appointment with Nurse Practitioner
Murage on May 15, 2017. Dkt. 45-3 at 172-74. He stated that
his symptoms had improved, but persisted. Mr. Barnett asked
that the prescription for the muscle relaxer be extended, so
Nurse Practitioner Murage ordered two more weeks of it.
Id. When Mr. Barnett returned to the health care
unit on May 30, 2017, again complaining of back pain, an
order was entered for a practitioner evaluation. Dkt. 45-3 at
Talbot evaluated Mr. Barnett for the first time on May 31,
2017. Dkt. 45-3 at 165-67. At this visit, Dr. Talbot
evaluated Mr. Barnett's active and passive range of
motion in his hips and legs and reviewed a prior x-ray of Mr.
Barnett's lumbar spine. Id. After finding no
significant abnormalities, Dr. Talbot gave Mr. Barnett a
Toradol injection, continued the order for a muscle relaxer,
and provided an exercise plan. Id.
6, 2017, Mr. Barnett saw Nurse Practitioner Murage and
reported persistent numbness in his left leg and periodic
throbbing in his lower back. He also stated that the muscle
relaxers no longer provided relief. Dkt. 45-3 at 159-61.
Nurse Practitioner Murage prescribed Prednisone and submitted
a request for an MRI of Mr. Barnett's lumbar spine.
Id. at 160. After a collegial discussion, it was
decided that Mr. Barnett would be referred for physical
therapy before receiving an MRI. Dkt. 45-3 at 154-55.
Murage informed Mr. Barnett of the treatment plan for
physical therapy on July 26, 2017. Dkt. 45-3 at 148-50. In
light of his complaints of significant discomfort, Nurse
Practitioner Murage prescribed Tramadol for pain.
Id. at 150.
Barnett was evaluated by a physical therapist on July 27,
2017. Dkt. 45-3 at 144. The physical therapist attempted a
number of exercises with Mr. Barnett, but he could not
tolerate any of them. Id. Consequently, the physical
therapist determined that Mr. Barnett could not tolerate
physical therapy and recommended that he receive an MRI.
Barnett met with Dr. Talbot on August 8, 2017, for a
follow-up appointment. Dkt. 45-3 at 140-41. Dr. Talbot noted
that Mr. Barnett was approved for an MRI and, after
evaluating Mr. Barnett, recommended that the MRI include Mr.
Barnett's left hip. Id. at 140. He was ...