Rowe v. Nurse

• Decision Date: 10 July 2018
• Docket Number: No. 1:17-cv-00599-SEB-MPB,1:17-cv-00599-SEB-MPB
• Parties: JEFFREY ALLEN ROWE, Plaintiff, v. ALICIA D. COOMER Nurse, et al. Defendants.
• Court: U.S. District Court — Southern District of Indiana

JEFFREY ALLEN ROWE, Plaintiff, v. ALICIA D. COOMER Nurse, et al. Defendants.

No. 1:17-cv-00599-SEB-MPB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

July 10, 2018

Order Granting in Part Defendants' Motion for Summary Judgment and Denying Plaintiff's Partial Motion for Summary Judgment

Plaintiff Jeffrey Allen Rowe brought this civil rights action pursuant to 42 U.S.C. § 1983 alleging claims of constitutionally inadequate medical care, and supplemental state medical malpractice, negligence, and breach of contract claims based on the treatment he received for an injured right thumb while at the New Castle Correctional Facility ("NCCF"). The claims currently pending in this action are as follows:

• Eighth Amendment deliberate indifference claims for failing to care for his right thumb injury against Nurse Alicia Coomer, Nurse Barbara Brubaker, Dr. Bruce Ippel, Nurse Melissa S. Wehrley, Nurse Megan Miller, Health Services Administrator Amber Dillow, Nurse Doug Beitler, and Nurse Jeffery Glover;

• Eighth Amendment policy, practice or custom claim against Corizon;

• Indiana state law claims of negligence against Nurse Beitler, Nurse Coomer, and Nurse Dillow for failing to timely see or schedule Rowe for a medical visit;

• Indiana state medical malpractice claims against Dr. Ippel, Nurse Brubaker, and Nurse Glover for failing to provide treatment for his right thumb injury; and

• A third party beneficiary claim that Corizon breached its contract with the Indiana Department of Correction ("IDOC").

Now before the Court are cross motions for summary judgment filed by Rowe and the defendants. Rowe seeks summary judgment in his favor as to: (1) his deliberate indifference claims against Nurse Wehrley, Nurse Beitler, Dr. Ippel, HSA Miller, Nurse Coomer and Nurse Dillow; (2) his negligence claims against Nurse Beitler, Nurse Coomer and Nurse Dillow; and (3) his claim that Corizon breached its contract with the IDOC. See dkt. 77. The defendants seek summary judgment on all the claims alleged against them. Dkt. 79.

I. Summary Judgment Legal Standard

Summary judgment is appropriate when the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).

A 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, 477 U.S. at 248. 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).

Courts often confront cross motions for summary judgment because Rules 56(a) and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to move for such relief. In such situations, courts must consider each party's motion individually to determine if that party has satisfied the summary judgment standard. Indiana Civil Liberties Union Found., Inc. v.Indiana Sec'y of State, 229 F. Supp. 3d 817, 821 (S.D. Ind. 2017) (citing Kohl v. Ass'n. of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998)).

Local Rule 56-1 requires that a party seeking summary judgment "include a section labeled 'Statement of Material Facts Not in Dispute' containing the facts: (1) that are potentially determinative of the motion; and (2) as to which the movant contends there is no genuine issue." Id. A party opposing a summary judgment motion must "include a section labeled 'Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment." Id. Due to the voluminous filings in this matter, only those material facts included in the appropriate section of the parties' brief will be considered despite any assertions that additional facts included in the argument section are incorporated into the statement of facts. See Smith v. Corizon Med. Servs., No. 1:12-cv-1208-SEB-MJD, 2013 WL 2458461, at *1 (S.D. Ind. May 30, 2013) ("[d]istict courts have discretion to strictly enforce their local rules even against pro se litigants.") (citations omitted); Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) ("[I]t is [ ] well established that pro se litigants are not excused from compliance with procedural rules." (citation omitted)).

II. Material Facts

Consistent with the foregoing, the following facts were evaluated pursuant to the standards set forth above.

A. Facts Regarding Rowe's Medical History and Right Thumb Injury

At all times relevant to the claims in this action, Rowe was incarcerated at NCCF. Corizon was the corporate entity contracted by the IDOC to provide medical services to NCCF until March31, 2017. All of the individual defendants in this action were employed by Corizon during the relevant time period.

On August 4, 2016, Rowe got into a fight with another inmate, and while blocking a punch with his right hand, his right thumb was injured. Dkt. 78-1 at 3. Shortly after sustaining the injury, Nurse Wehrley saw Rowe. Dkt. 80-11 at 1-3; dkt. 78-1 at 140-142. Rowe reported that he had been in an altercation with another inmate and had injured his right thumb at the knuckle. Id. On exam, Rowe had an active range of motion, no significant tenderness, no swelling, no bruising, and no signs of displacement. Id. Nurse Wehrley applied an Ace wrap to Rowe's right hand, which, according to Rowe, provided "immediate improvement in comfort." Id. She told Rowe to file a Request for Healthcare ("RFHC") form if the pain did not resolve itself. Nurse Wehrley testifies she provided Rowe with Tylenol pursuant to Dr. Ippel's telephone order, id. at 1, but Rowe disputes that he received any Tylenol during this appointment, dkt. 78-1 at 4. Nurse Wehrley did not see Rowe again.

On or about August 5, 2016, Rowe submitted RFHC # 329158, which stated:

I saw the nurse yesterday about an injury (possible fracture) to my right thumb from a physical altercation that occured [sic] between myself and my former Bunkie. She said if my finger bruises, or changes colors, to submit a Health Care Request for a follow up. My hand/thumb is very bruised (purple) and it hurts a lot, and I can't move it! I need to be seen and given something for my pain ASAP! Thanks!

Dkt. 80-11 at 4. On the form, a notation in the middle section on the left-hand side indicated that the form was triaged on August 8, 2016, and Rowe was referred to nursing sick call. Id. Rowe testifies that Nurse Bill Smith told Rowe that he put Rowe's RFHC in the Nurse Sick Call Stack (that Nurse Doug Beitler "handled") on August 8, 2016. Dkt. 86 at 7-8. Defendants indicate that they are unsure who put Rowe's RFHC in the Nurse Sick Call Stack. See dkt. 80 at 8; dkt. 80-2, ¶ 7. Nurse Beitler did not review Rowe's RFHC form until August 29, 2016. Id. Nurse Beitlerwrote "Resubmitt [sic] if present," and returned the form to Rowe. Resubmit if present apparently were instructions to Rowe to resubmit a RFHC if his symptoms were still present. Rowe testifies he was not sent a copy of the response. Dkt. 78 at 5.

Rowe testifies that between August 8, 2016, and late September 2016, he submitted at least five RFHC, two letters, and a grievance to Dr. Ippel requesting to be seen and treated for his right thumb injury. Dkt. 78 at 6; dkt. 78-1 at 173. In contrast, Nurse Beitler testifies that Rowe did not send any RFHCs relating to his right thumb between August 5, 2016, and August 29, 2016, and that Rowe never resubmitted his RFHC. Dkt. 80-2, ¶ 7.

Rowe also testifies that between August 10, 2016, and late September 2016, Rowe sent Megan Miller, the NCCF Health Care Service Administrator, at least three letters informing her of his right thumb injury and asking for her help to be seen. Dkt. 78 at 6; dkt. 78-1 at 173.

On October 3, 2016, HSA Miller saw Rowe and referred him to Dr. Ippel. Dkt. 78 at 6. On October 3, 2016, Dr. Ippel saw Rowe regarding his complaints about his right thumb pain. Dkt. 80-11 at 6-9. Rowe reported that he had injured his right thumb about two months prior in an altercation and that he had been in restricted housing and unable to use ice. Id. Rowe reported that while in restricted housing, he had "tried to ignore it." Id. Rowe stated that his thumb had "mostly gotten better, but remain[ed] sore and somewhat stiff and a little swollen" and he wondered what was going on. Id. Dr. Ippel examined the right thumb, which was tender to palpation and Rowe had mild, decreased range of motion. Id. Dr. Ippel obtained an x-ray, which did not reveal a fracture, dislocation, or other abnormality. Id. Dr. Ippel instructed Rowe to apply heat for any discomfort. Id. Heat is a pain management tool for chronic pain. Dkt. 80-3, ¶ 5. Heat also helps with stiffness, which Rowe had on exam. Id. Dr. Ippel instructed Rowe to notify him if the heat failed to improve his condition. Dkt. 80-11 at 6. During the examination, Dr. Ippelsaid Rowe definitely has a soft tissue injury and may never regain full range of motion. Dkt. 78 at 6; dkt. 78-1 at 5. Although Rowe requested pain medication, during this appointment, he did not receive even Tylenol from Dr. Ippel. Dkt. 78 at 6; dkt....