Diaz v. Broglin, Civ. No. S87-749.

• Decision Date: 27 November 1991
• Docket Number: Civ. No. S87-749.
• Citation: 781 F. Supp. 566
• Parties: Fabio DIAZ, Plaintiff, v. G. Michael BROGLIN; Kurt Plescher; Anthony Metzcus; Nurse Schumaker; Nurse Kortman, and Doctor Paz Sango, Defendants.
• Court: U.S. District Court — Northern District of Indiana

781 F. Supp. 566

Fabio DIAZ, Plaintiff, v. G. Michael BROGLIN; Kurt Plescher; Anthony Metzcus; Nurse Schumaker; Nurse Kortman, and Doctor Paz Sango, Defendants.

Civ. No. S87-749.

United States District Court, N.D. Indiana, South Bend Division.

November 27, 1991.

Fabio Diaz, pro se.

Michael A. Schoening, Deputy Atty. Gen., Indianapolis, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On December 22, 1987, plaintiff pro se, Fabio Diaz, an inmate at the Westville Correctional Center, filed a complaint purporting to state a claim under 42 U.S.C. § 1983, and invoking this court's jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3) and (4).

On October 31, 1991, the Honorable Robin D. Pierce, United States Magistrate Judge, entered a Report and Recommendation, which this court has now carefully and fully examined. The plaintiff, Fabio Diaz, filed written notice of objection to that Report and Recommendation on November 8, 1991, with extensive and elaborate attachments, which basically restate his assertions.

It is all too apparent that deliberate indifference is not a static concept but an evolutionary one, even at this level of the federal judiciary. See Felders v. Miller, 776 F.Supp. 424 (N.D.Ind.1991); Wolf v. Napier, 742 F.Supp. 1014 (N.D.Ind.1990); Gorman v. Moody, 710 F.Supp. 1256 (N.D.Ind. 1989), and Cameron v. Metcuz, 705 F.Supp. 454 (N.D.Ind.1989).

It is to be assumed that Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) must be reexamined under Wilson v. Seiter, ___ U.S. ___, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) and such cases as Richardson v. Penfold, 839 F.2d 392 (7th Cir.1988), which are modified by McGill v. Duckworth, 944 F.2d 344 (7th Cir.1991) and Steading v. Thompson, 941 F.2d 498 (7th Cir.1991).

Magistrate Judge Pierce has ably defined the current status of the law in this regard in his Report and Recommendation, and such is worthy of publication. Said Report and Recommendation is ADOPTED. The defendants' motion for summary judgment is GRANTED and plaintiff's motion for summary judgment is DENIED as to all Eighth Amendment claims. Each party will bear its own costs. The Clerk shall enter judgment. IT IS SO ORDERED.

REPORT AND RECOMMENDATION

ROBIN D. PIERCE, United States Magistrate Judge.

This cause is presently before the court on defendants' motions for summary judgment filed on January 24, 1988 and June 27, 1990, as well as the plaintiff's motion for summary judgment filed on July 11, 1989.

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). However, once a properly supported motion for summary judgment is made, the party that bears the burden of proof on a particular issue at trial cannot resist the motion by merely resting on its pleadings. U.S. v. Lair, 854 F.2d 233, 235 (7th Cir.1988). Rather, the party opposing the motion must "affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988); Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.1987). "A genuine issue for trial only exists when there is sufficient evidence favoring the nonmovant for a jury to return a verdict for that party." Celotex Corp. v. Catrett, 106 S.Ct. at 2553. "Summary judgment is properly entered in favor of a party when the opposing party is unable to make a showing sufficient to prove an essential element of a case on which the opposing party bears the burden of proof." Common v. Williams, 859 F.2d 467 (7th Cir. 1988). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir. 1988). The inquiry involved in ruling on a motion for summary judgment implicates the substantive evidentiary standard of proof, for example, preponderance of the evidence, that would apply at trial. Anderson, 106 S.Ct. at 2512. All factual inferences must be drawn in favor of the non-moving party. Valley Liquors, 822 F.2d at 659.

The defendants' submission in support of their June 27, 1990 summary judgment motion satisfies their burden under Rule 56. The plaintiff has not met his burden of presenting specific facts to show that there is a genuine issue of material fact. Further, the plaintiff has not shown that there is sufficient evidence in his favor so that a jury could return a verdict in his favor. Finally, the plaintiff's submissions in support of his own motion for summary judgment have not satisfied his burden under Rule 56. Accordingly, the record before the court shows no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. For the foregoing reasons, the court now recommends that the defendants' motion for summary judgment be granted, and the plaintiff's motion for summary judgment denied.

Procedural Background

Plaintiff Fabio Diaz, an inmate at Westville Correctional Center ("WCC") in Westville, Indiana, filed a pro se complaint in this cause on December 22, 1987, pursuant to 42 U.S.C. § 1983. His original complaint alleges that defendants G. Michael Broglin, Kurt Plescher, and Anthony Metzcus provided inadequate treatment of a serious skin disorder. Mr. Diaz claims that he was denied access to a dermatologist and denied medication from September through October, 1987, and that these denials constituted cruel and unusual punishment under the Eighth Amendment.

On December 24, 1987, Mr. Diaz filed a motion for temporary restraining order and preliminary injunction which the court subsequently denied. The defendants responded to Mr. Diaz's complaint by denying all of the allegations contained therein and filing a motion to dismiss on January 22, 1988. On February 24, 1988, the court converted this motion to a motion for summary judgment. The defendants subsequently submitted documentation specifically addressing the allegations contained in Mr. Diaz's complaint. He filed his response to defendants' motion for summary judgment on March 8, 1988. This matter is still pending before the court. In an order dated June 6, 1988, the court dismissed all claims against defendants Broglin, Plescher, and Metzcus in their official capacities.

Mr. Diaz filed his own motion for summary judgment on July 13, 1989. On July 28, 1989, he filed a motion for leave to file a supplemental complaint, and on August 7, 1989 the court granted this motion. This supplemental complaint, which was filed on August 7, 1989, named two additional defendants who were initially identified as "Joan Doer." Mr. Diaz alleged that these defendants were nurses who had refused to see him about a stomach problem. He claimed that the nurses' conduct constituted deliberate indifference to his serious medical needs, and was thus in violation of the Eighth Amendment. On December 29, 1989, he filed a request for service of summons substituting Dawn Kortman and Caroline Schumaker for the "Joan Doer" identified in the August 7 complaint.

Mr. Diaz subsequently failed to perfect service on defendants Kortman and Schumaker. When he served Kortman and Schumaker on January 9, 1990, Mr. Diaz made no attempt to serve the supplemental complaint on defendants' counsel. On February 16, 1990, Mr. Diaz obtained an entry of default against defendants Kortman and Schumaker. Mr. Diaz, however, failed to serve defendants' counsel with a copy of his request for entry of default.

Defendants' counsel immediately filed a response seeking an order vacating and setting aside the court's entry of default. On April 23, 1990, the court reserved its ruling on the default issue, and referred all pending and future dispositive motions to this court for report and recommendation.

On June 27, 1990, defendants filed a new motion for summary judgment, accompanied by a supporting memorandum, various affidavits, and a host of medical records. On July 10, 1990, plaintiff filed his response to defendants motion for summary judgment. On September 17, 1990, Mr. Diaz filed a motion for leave to file another supplemental complaint. The court granted his motion on October 30, 1990, and deemed his supplemental complaint filed as of that date.

In his second supplemental complaint, Mr. Diaz alleges additional violations of his Eighth Amendment rights. He claims that on September 9, 1990, Dr. Velazco observed an elevated cholesterol level in him and ordered a low cholesterol diet. Mr. Diaz alleges that, at the direction of defendants Anthony Metzcus and G. Michael Broglin, unspecified prison employees have denied him the special diet prescribed by Dr. Velazco, thereby placing him in grave danger of suffering a heart attack.

Factual Background of Plaintiff's Original Complaint

Mr. Diaz's original complaint centers on the defendants' alleged denial of medication to him to treat a skin problem. He claims that on August 20, 1987 a Dr. "Pattel" referred him to a dermatologist. Then, on September 3, 1987, a Dr. "Benan" also referred him to a dermatologist for treatment of a "serious skin illness." Mr. Diaz asserts that on September 18,...