Daniel v. MD
| Decision Date | 11 February 2019 |
| Docket Number | No. 2:17-cv-00162-JRS-DLP,2:17-cv-00162-JRS-DLP |
| Parties | DANIEL A TROYA, Plaintiff, v. WILLIAMS E WILSON MD/CD, MICHAEL RUMSKA HSA, HEATHER MATA PA-C, SUSAN PORTER RN, CINDY MCGEE NR-P, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Plaintiff Daniel A. Troya is a federal inmate currently incarcerated in the Special Confinement Unit (SCU) of the Federal Correctional Complex in Terre Haute, Indiana ("FCC TH"). On April 10, 2017, Mr. Troya filed this action again various FCC TH employees, including Dr. William Wilson, Andrew Rupska1, Heather Mata, Susan Porter, and Cindy McGee, alleging that, in violation of the Eighth Amendment, the defendants were deliberately indifferent to his serious medical needs from constipation after his hemorrhoidectomy in April 2016.2 Mr. Troya's action is brought pursuant to the theory recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Presently pending before the Court is the defendants' motion for summary judgment. For the reasons explained below, the motion for summary judgment, dkt. [72], is granted.
A 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).
The parties raise several concerns in their respective briefing that the Court will address separately here. Issues related to factual disputes possibly precluding summary judgment are discussed in the Factual Background, Section III, below.
On July 13, 2018, the defendants filed a motion for summary judgment. Dkt. 72. In support, they included testimony from Mr. Troya from his March 12, 2018, deposition. See dkt. 72-1.
On October 4, 2018, Mr. Troya filed his response in opposition. Dkt. 86. Mr. Troya included affidavits from two other inmates, Leamond C. Mitchell, dkt. 86-1, and Wesley I. Purkey, dkt. 86-2, and himself, dkt. 86-3. Mr. Troya also requested that the Court strike all references to his deposition because he was denied counsel to represent him in the deposition. He also felt threatened by the defendants' counsel's questions, was in a lot of distress, and suffered from a lack of sleep the day of his deposition. See dkt. 86 at 31; dkt. 86-3 at 1.
In reply, the defendants argue that the Court should not consider the declarations of Mitchell and Purkey because they were not disclosed as witnesses. Dkt. 89 at 2-5. The defendants also ask that the Court consider Mr. Troya's deposition and credit it over any contradictory statements in his declaration or verified Complaint. Id. at 5-7.
In his surreply, Mr. Troya argues that the defendants' reply brief should be stricken in its entirety because it is over the page limit by 10 pages, his affidavits are appropriate, the disclosure of witnesses does not apply to him because of Fed. R. Civ. P. 26(a)(1)(B), and his deposition testimony should be stricken in its entirety.
Mr. Troya argues that the defendants' reply brief should be stricken in its entirety because it is over the page limit by 10 pages. Dkt. 90 at 1-2. Mr. Troya is mistaken. Defendants' reply brief is 20 pages, which is within the limits set by Local Rule 7-1(e). See dkt. 89.
Regarding the disclosure of witnesses, on September 12, 2017, the Court issued a Pretrial Schedule that required the parties to exchange a list of potential witnesses. See dkt. 26 at 1. That list was to be updated as needed and the Court specifically noted that a party may be prevented "from using evidence that it has not shared with the other side." Id. at 2. On at least two occasions—including, for example, an actual "Disclosure Pursuant to F.R.Civ.P. 26(a)(1) and (2) (dkt. 89-1)—Mr. Troya disclosed a witness list, but failed to identify Mitchell or Purkey. Because Mitchell and Purkey were never disclosed as witnesses to the defendants, the defendants argue that the Court should not consider their declarations. Despite having previously disclosed witnesses in compliance with Fed. R. Civ. P. 26(a)(1)(A), (dkt. 89-1), Mr. Troya argues that he is exempt from disclosing witnesses because Fed. R. Civ. P. 26(a)(1)(B) exempts actions filed by pro se inmates from initial disclosures. See dkt. 90 at 2-3.
Fed. R. Civ. P. 26(a)(1)(B) provides that in actions filed by pro se inmates, the initial disclosure requirements set forth in Fed. R. Civ. P. 26(a)(1)(A) do not apply. However, although Mr. Troya is proceeding pro se, he must still comply with Court orders. See McMasters v. United States, 260 F.3d 814, 818 (7th Cir. 2001); McNeil v. United States, 508 U.S. 106, 113 (1993) (). The Court's Pretrial Schedule made clear that the parties were to exchange a list of potential witnesses and to update the list as needed. Yet, as noted above, although Mr. Troya has on several occasions previously disclosed witness lists, he did not specify Mitchell or Purkey in those disclosures. If a party fails to disclose a witness as required, that "party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R. Civ. P. 37(c)(1). Mr. Troya, and not the defendants, carries the burden of showing his non-disclosure was either substantially justified or harmless. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996).3
Mr. Troya has set forth no justification for the failure to disclose. The Court notes that the failure to disclose Purkey as a fact witness may be considered harmless because the defendants knew that Purkey was providing substantial assistance to Mr. Troya, including preparing Mr. Troya's complaint. However, paragraphs 1-6, 8-10 of Purkey's declaration and certain exhibits relate to health problems Purkey experienced in July and August 2018, unrelated to Mr. Troya's complaints. See dkt. 86-2 at 1-5, 8-12. The Court takes judicial notice that Wesley Purkey has incurred three "strikes" within the meaning of 28 U.S.C. § 1915(g), and therefore Purkey is unable to proceed in forma pauperis in his own actions in this Court. Purkey v. Marbery et al., No. 09-1843 (7th Cir. Jan. 15, 2010). Mr. Purkey cannot piggyback onto Mr. Troya's litigation to present his own medical care claims. Because paragraphs 1-6 and 8-10 of Purkey's declarations are irrelevant and do not present facts "of consequence in determining the action," pursuant to Fed. R. Evid. 401, the Court will not consider those paragraphs of Purkey's declarations. Moreover, the Court will not consider Mitchell's declaration because Mitchell was not properly disclosed as a witness to the defendants.
Mr. Troya requests that the Court strike his deposition testimony in its entirety "because he was denied counsel to represent him during such proceedings, and because of the acute stressand dis[]tress he was under at that time." Dkt. 90 at 5. He also alleges he felt threatened by the defendants' counsel. Despite his request, he requests that the Court should "use 'a scalpe[l], not a butcher knife.'" Id. at 6. But Mr. Troya may not ignore his prior testimony simply because he now regrets those answers.
Litigants in federal civil cases do not have a constitutional or statutory right to court-appointed counsel. Walker v. Price, 900 F.3d 933, 938 (7th Cir. 2018). Moreover, the Court has repeatedly found Mr. Troya to be competent, noting the quality of his legal filings. See, e.g., Dkt. 84. Thus, the lack of counsel during his deposition does not preclude his ability to testify truthfully regarding his knowledge in a deposition.
Mr. Troya argues that he felt threatened by the defendants' counsel's questions about the manila folder he brought to the deposition. Dkt. 86-3 at 1. He states that at the inception of the deposition, Ms. Shields, defendants' counsel, stated "I would like to see the legal materials that you plan to use during the deposition that might be relevant to such." Id. When he explained that he wanted to present the material to straighten the record out, she responded "this in't [sic] the time to straighten the record out, because you will have an opportunity to do that at a later date and time." Id. The...
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