Felders v. Miller

• Decision Date: 04 October 1991
• Docket Number: S87-29 and S88-76.,Civ. No. S86-533
• Parties: Billy Charles FELDERS, Plaintiff, v. Jeffrey MILLER, individually and official capacity and as Deputy Sheriff, police officer Warden of Lake County Jail, Lake County, Indiana; Lt. Yaros, individually and official capacity and as Deputy Sheriff, police officer Lake County Jail, Lake County, Indiana; Don Moses, individually and official capacity and as Deputy Sheriff, Police officer of Lake County Jail, Lake County, Indiana; Alfonso Holliday, M.D. individually and as medical director, Lake County jail, Lake County, Indiana; and other persons individually and official capacity and as police officers at the Lake County Jail Lake County, Indiana, whose true names and identities are unknown Gordon Faulkner, personal and individually capacity and as commissioner of Indiana Department of Correction; medical staff, correctional official, correctional officers and other persons, personal and individually capacity employed at the serving at the Indiana Diagnostic Reception Center, whose true names and identities are unknown; Han Chul Choe, M.D. personal and individually capacity, and as doctor of Indiana Reformatory; Robert Doster, M.D. personal and individually Medical Director, and as doctor of Indiana State Prison, Defendants.
• Court: U.S. District Court — Northern District of Indiana

776 F. Supp. 424

Billy Charles FELDERS, Plaintiff, v. Jeffrey MILLER, individually and official capacity and as Deputy Sheriff, police officer Warden of Lake County Jail, Lake County, Indiana; Lt. Yaros, individually and official capacity and as Deputy Sheriff, police officer Lake County Jail, Lake County, Indiana; Don Moses, individually and official capacity and as Deputy Sheriff, Police officer of Lake County Jail, Lake County, Indiana; Alfonso Holliday, M.D. individually and as medical director, Lake County jail, Lake County, Indiana; and other persons individually and official capacity and as police officers at the Lake County Jail Lake County, Indiana, whose true names and identities are unknown Gordon Faulkner, personal and individually capacity and as commissioner of Indiana Department of Correction; medical staff, correctional official, correctional officers and other persons, personal and individually capacity employed at the serving at the Indiana Diagnostic Reception Center, whose true names and identities are unknown; Han Chul Choe, M.D. personal and individually capacity, and as doctor of Indiana Reformatory; Robert Doster, M.D. personal and individually Medical Director, and as doctor of Indiana State Prison, Defendants.

Civ. Nos. S86-533, S87-29 and S88-76.

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

October 4, 1991.

Billy Charles Felders, pro se.

Hamilton Carmouche, Merrillville, Ind., Michael A. Schoening, Indianapolis, Ind., James T. McNiece, Merrillville, Ind., James L. Wieser, Highland, Ind., Wardell Hampton, Lake County Atty., Gary, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This court has carefully reviewed a written transcript in 94 pages of the proceedings in the above cases held before Magistrate Robin D. Pierce on August 14, 1991, at the Indiana State Prison. To the extent that it is necessary to do so, this court confirms the dismissal of cause number S87-660, and it is now SO ORDERED. Also, the following Order should be entered in the above three referenced cases.

The court next takes up S88-76 and the motion for summary judgment filed by the defendants on August 20, 1991, and notes the compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). It should be noted as it was in the August 14, 1991, pretrial, that in S88-76, DeBase v. Doster, only Dr. Doster remains as a party defendant. The question is whether summary judgment should be granted.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; accord Arkwright-Boston Mfrs. Mut. Ins. Co. v. Wausau Paper Mills Co., 818 F.2d 591, 593 (7th Cir.1987). A material question of fact is a question which will be outcome-determinative of an issue in that case. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984).

Recently, the Supreme Court of the United States took the opportunity to address Rule 56. In two cases decided on the same day, the Court expanded the scope of the application of Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

After Celotex, it is clear that a nonmoving party may not rest on its pleadings to avoid summary judgment. 477 U.S. at 325-26, 106 S.Ct. at 2553-54. See also Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C.Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). The initial burden is on the moving party to demonstrate "`with or without supporting affidavits'" the absence of a genuine issue of material fact, and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Rule 56). Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine material issue for trial.'" Id. Furthermore, in Anderson, the Court held that what facts are material in a specific case shall be determined by the substantive law controlling that case or issue. 477 U.S. at 248, 106 S.Ct. at 2510. In addition, the court went on to interpret Rule 56 as requiring that the courts analyze summary judgment motions utilizing the standard of proof relevant to that case or issue. Id. at 252-55, 106 S.Ct. at 2512-14. For recent academic insight into Celotex and Anderson, see Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 194 (1987), where the author states:

The recent Supreme Court cases likely require that summary judgment be more readily granted.... This emerging trend signals a new era for summary judgment, one in which the old presumptions are giving way to a policy of balancing and efficiency, and the mechanism is more appropriate to double as a sufficiency motion — allowing some sort of trial itself on the paper record.

For the judicial epilogue of Celotex, see Catrett v. Johns-Manville Sales Corp., 826 F.2d at 33. A recent object lesson applying these ideas is found in Puckett v. Soo Line Railroad Co., 897 F.2d 1423 (7th Cir.1990); Richardson v. Penfold, 839 F.2d 392 (7th Cir.1988). See also Jamison-Bey v. Thieret, 867 F.2d 1046 (7th Cir.1989). For an exact and recent analysis on this subject, see Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Standards? 63 Notre Dame L.Rev. 770 (1988).

There is little doubt, and it is not disputed, that the conduct of Dr. Doster constitutes state action under West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). That is not the issue. The issue is whether there is deliberate indifference as that issue is and has been defined in this circuit. The opinion of Chief Judge Bauer in Richardson v. Penfold, 839 F.2d at 392, remains the most liberal statement of the rules in this circuit, and that decision has to be laid along side the recent Supreme Court decision of Wilson v. Seiter, ___ U.S. ___, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).¹ Also, cases such as Holmes v. Sheahan, 930 F.2d 1196 (7th Cir.1991), and Maul v. Constan, 928 F.2d 784 (7th Cir.1991), need to be examined in the specific context of prisoner medical treatment.

This plaintiff, Johnny A. DeBase, claims to have contracted tuberculosis on or about December, 1985, and was not provided with adequate medical care based on deliberate indifference by Dr. Doster. The seminal case on deliberate indifference with regard to medical treatment is Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See also this court's opinion in Miller v. Schacht, 567 F.Supp. 510 (N.D.Ind.1983). Understandably, United States district judges are reluctant to impose their views of appropriate medical treatment in the face of the judgment of attending physicians. It is certainly true that simply because an inmate and an attending physician have a difference of opinion with regard to the adequacy of treatment or the results does not state a claim based on deliberate indifference under 42 U.S.C. § 1983. It is this statute upon which this plaintiff's claims are based against this doctor. The same invokes the subject matter jurisdiction of this court under 28 U.S.C. §§ 1331, and 1343(a)(3) and (4). Specifically, see Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981). Certainly, mere delay in receiving treatment does not generally involve deliberate indifference. See Duncan, Id.

A claim for negligent medical malpractice does not in and of itself state a claim under 42 U.S.C. § 1983. See Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), and Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). See also Penn v. Starks, 575 F.Supp. 1240 (N.D.Ind.1983).

The elaborate medical evidence in the record of this case clearly establishes beyond any dispute that this plaintiff does not now have or has never contacted during the time frame alleged in this case the communicable disease of tuberculosis. It is true that he was administered a routine skin test for tuberculosis on May 19, 1978, while at the Reception Diagnostic Center and the results were negative. Later that same year on November 9, 1987, plaintiff DeBase was again administered a test for tuberculosis while at the Indiana State Prison. The results were considered positive because there was a reaction measuring 11nn, and anything 10nn is considered positive. Because of the positive reading on November 9, 1987, in regard to the above described skin test, a chest x-ray was taken on November 18, 1987, at the medical facility at the Indiana State Prison. The results of that x-ray were unremarkable, showing no signs of tuberculosis. On February 18, 1988, Dr. Doster met with plaintiff DeBase and informed him of the skin test results which were positive and the chest x-ray which was negative. On February 19, 1988, another chest x-ray was taken and again there were no signs of tuberculosis. On February 15, 1988, a urine sample of plaintiff DeBase was submitted to the Indiana State Department of Health for testing for the presence of tuberculosis, which proved to be negative.

On March 28, 1988, three sputum samples were submitted to the Indiana State Board of Health from plaintiff DeBase, and all proved negative for the presence of tuberculosis. The medical records and the test results of plaintiff DeBase indicate that he shows a significant reaction to the tuberculosis skin test, but has no clinical or x-ray evidence of tuberculosis. On April 21, 1988, the defendant,...