Penn v. Starks, S82-525.

• Decision Date: 29 December 1983
• Docket Number: No. S82-525.,S82-525.
• Citation: 575 F. Supp. 1240
• Parties: William Earl PENN, Jr., Plaintiff, v. William A. STARKS, Doctor, Defendant.
• Court: U.S. District Court — Northern District of Indiana

575 F. Supp. 1240

William Earl PENN, Jr., Plaintiff, v. William A. STARKS, Doctor, Defendant.

No. S82-525.

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

December 29, 1983.

William Earl Penn, Jr., pro se.

David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for defendant.

MEMORANDUM and ORDER

ALLEN SHARP, Chief Judge.

This case was filed pursuant to 42 U.S.C. § 1983 by an inmate at the Indiana State Prison in Michigan City, Indiana, against a physician. Jurisdiction of this court over the claim is predicated on a federal civil rights question under 28 U.S.C. §§ 1331, 1343. The matter is presently before this court on defendant's motion for summary judgment.

The defendant filed his motion for summary judgment with supporting memorandum, affidavit, and exhibits, on September 29, 1983. On October 7, 1983, this court entered the following order:

Defendant(s) have (sic) filed a motion for summary judgment to dismiss. (sic) Pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), plaintiff's attention is directed to Rule 56(e), F.R.Civ.P., which reads, in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Accordingly, plaintiff is hereby given to and including October 31, 1983, in which to respond. SO ORDERED.

Notwithstanding the above admonition, plaintiff has yet to file any response to defendant's motion.

This court further notes that, at the pretrial conference held in this matter on May 27, 1983, at the Indiana State Prison, plaintiff was specifically admonished by the court to file his response to a motion for summary judgment no later than November 1, 1983. Thus, and despite two warnings from this court, one oral, the other in writing, plaintiff has taken no action in this case, and has filed no pleadings, since the filing of the complaint more than one year ago.¹

Turning now to the merits of defendant's motion, this court notes that the defendant's pleadings in support of said motion, being uncontroverted, must be accepted as true. F.R.Civ.P. 56(e). The facts are as follows.

The defendant, William A. Starks is a consulting orthopedic surgeon to the Indiana State Prison at Michigan City, Indiana. His duties include examining and treating those inmates suffering orthopedic problems that are referred to him by prison staff physicians. The referred inmates are examined and treated at the prison during scheduled clinics.

On July 26, 1982, the defendant, pursuant to a normal referral from prison staff physician Dr. Weldon Cooke, examined inmate William Penn. On July 26, 1982 Dr. Starks had access to, and had received the following:

1. Records in the medical packet of inmate Penn that revealed that he had been in an automobile accident in February of 1982 while on parole, that resulted in injury to both knees.

2. Records that revealed that while incarcerated at the Indiana State Reformatory during a visit to Wishard Memorial Hospital in Indianapolis, Indiana on March 17, 1982 the plaintiff slipped out of a van and injured his left knee further.

3. Records of X-rays of both knees taken by staff at Wishard Memorial Hospital on June 14, 1982.

4. Consultation Requests and Reports from staff at Wishard Memorial Hospital dated February, March and April 1982.

5. X-rays of plaintiff's left knee and follow-up reports taken at the I.S.P. on July 23, 1982.

6. Sick call records of inmate Penn while incarcerated at the Indiana Reformatory, Westville Correctional Center and I.S.P. that were replete with entries stating complaints of pain in both knees and resulting treatment.

7. The diagnosis made by Dr. O'Brien the defendant's professional partner, made at Westville Correctional Center where he is an orthopedic consultant, that inmate Penn had instability of the left knee.

As a result of his examination of July 26, 1982 and of the above information, including X-rays, Dr. Starks performed an arthroscopy on inmate Penn's left knee on August 3, 1982. As a result of the arthroscopy Dr. Starks concluded that a surgical operation to inmate Penn's left knee would be required. This surgery was performed at Memorial Hospital in Michigan City on August 19, 1982, at which time the colateral ligament was repaired in a pinning process, and two torn medial meniscus were extracted.

Following this operation Dr. Starks prescribed all necessary medication which would have been administered by Memorial Hospital Staff.

Upon inmate Penn's return to I.S.P. the course of events becomes absurd. On September 11, 1982, inmate Penn, on his own volition, removed his post-operative cast applied by Dr. Starks to his left knee. The cast was reapplied. On September 12, 1982 inmate Penn slipped while taking a bath, allegedly split his cast, and again on his own volition removed the cast. On September 13, 1982, contrary to all physician's instructions, inmate Penn refused to use crutches and bore his weight on his left knee, and on September 14, 1982, allegedly became involved with another inmate at the prison hospital during which he was kicked in the knee. On September 15, 1982, Dr. Cooke made an entry in the sick call records that inmate Penn refused all medical instruction and advice. On September 16 and 17, 1982, inmate Penn returned to the hospital and complained of pain in...