Opinion
3:20-CV-514-DRL
08-07-2023
CHARLES E. JUSTISE, SR., Plaintiff, v. MICHAEL MITCHEFF, Defendant.
OPINION AND ORDER
Damon R. Leichty, Judge, United States District Court
Charles E. Justise, Sr., a prisoner without a lawyer, is proceeding in this case “against Dr. Michael Mitcheff in his individual capacity for compensatory and punitive damages for continuing Mr. Justise on U-100 insulin R and NPH despite the possible adverse effects of taking a large volume of insulin and despite the ongoing pain caused by injecting that quantity of insulin in violation of the Eighth Amendment[.]” ECF 59 at 6-7. Dr. Mitcheff filed a motion for summary judgment. ECF 159. Mr. Justise filed a response, and Dr. Mitcheff filed a reply. ECF 183, 185. Mr. Justise also filed a motion for reconsideration of the court's earlier order denying his motion for summary judgment, reiterating many of the same arguments from his response to Dr. Mitcheff's summary judgment motion. ECF 187. Dr. Mitcheff's summary judgment motion is now fully briefed and ripe for ruling.
Despite the screening order limiting this case to Mr. Justise's treatment at Miami Correctional Facility, see ECF 59 at 3, the briefs here go beyond the scope of his treatment there to discuss events that occurred before his transfer. Mr. Justise frames the case thus:
Justise brought this lawsuit because Mitcheff cancelled his Humalog and Lantus insulins, placed him on R and NPH for no medical reason, knowing he is allergic and intolerant to R, transferred Justise to the Miami Correctional Facility to force Justise to take R and NPH and for Justise to die, and causing Justise needless pain for taking insulin R.ECF 183 at 1. The screening order centered around Dr. Mitcheff's alleged decision not to approve a Formulary Exception Request that Mr. Justise alleged Dr. Kuenzli had submitted, seeking approval for Mr. Justise to start taking a concentrated version of insulin R, U-500, which would allow him to take 1/5 the volume of insulin he currently takes. ECF 59 at 5. However, at summary judgment, Mr. Justise presents no admissible evidence that any such request was made; he relies only on his affidavit and other statements that Dr. Kuenzli said he would request approval for a different insulin.ECF 184-2 at 5. But that statement is not evidence that would allow a finding that such a request was actually made.
Mr. Justise argues that Exhibits “M” and “N” show Dr. Kuenzli tried to change his insulin. ECF 183 at 5. However, Exhibits M and N are two “Request for Healthcare” forms, in which Mr. Justise asked for information regarding when Dr. Kuenzli submitted requests to change his insulin, and healthcare staff responded that the last request to change his insulin was received in April 2019. ECF 183-2 at 96, 98. Thus, the exhibits provided by Mr. Justise support Dr. Mitcheff's attestation he never received any request from Dr. Kuenzli to change Mr. Justise's insulin.
In the absence of that request, the parties focus on an April 2019 Formulary Exception Request from before Mr. Justise's transfer, in which Dr. Mitcheff denied a request from Mr. Justise's provider at his former facility to approve a change in insulin. ECF 160-2 at 66. The court will consider this claim, but anything related to the transfer goes too far beyond the scope of this case to be discussed here.
Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in its own pleading, but rather must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009).
Under the Eighth Amendment, inmates are entitled to constitutionally adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must satisfy both an objective and subjective component by showing: (1) his medical need was objectively serious; and (2) the defendant acted with deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To be held liable for deliberate indifference to an inmate's medical needs, a medical professional must make a decision that represents “such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008).
Furthermore, a prisoner is not entitled to demand specific care, nor is he entitled to the “best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). “Whether and how pain associated with medical treatment should be mitigated is for doctors to decide free from judicial interference, except in the most extreme situations.” Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). When the defendants have provided some level of care for a prisoner's medical condition, to establish deliberate indifference the prisoner must show that “the defendants' responses to [his condition] were so plainly inappropriate as to permit the inference that the defendants intentionally or recklessly disregarded his needs.” Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). A mere disagreement with medical professionals about the appropriate treatment does not amount to an Eighth Amendment violation. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003).
Dr. Mitcheff provides an affidavit and Mr. Justise's medical records. At all relevant times, Dr. Mitcheff was employed by Wexford Health as the Regional Medical Director for Indiana. ECF 160-3 at 1. In this role, Dr. Mitcheff did not meet or directly treat offenders within the Indiana Department of Correction (IDOC), but rather was responsible for providing leadership in administrative matters, clinical program development, quality management, staff education, and leadership development in the State of Indiana. Id. Moreover, he regularly communicated with the onsite medical professionals who were entrusted to provide medical care to offenders incarcerated within IDOC. Id. at 1-2.
Mr. Justise's medical records show he has a long history of diabetes mellitus, obesity, and hypertension. ECF 160-3 at 2. Diabetes is a disorder in which the body does not produce enough insulin or respond normally to insulin, which then causes blood sugar levels to be abnormally high. Id. This condition can increase the risk of heart attack, stroke, chronic kidney disease, and vision loss. Id. As a result, it is important for an individual with diabetes to follow a healthy diet low in refined carbohydrates, saturated fats, and processed foods. Id. Additionally, regular exercise becomes important to help manage this condition as it can assist in keeping blood sugar levels low on a more consistent basis. Id. at 2-3. In addition to a healthy diet and regular exercise, diabetes is often treated with an insulin regimen. Id. at 3. Insulin Regular Human, commonly referred to as Insulin R, and NPH Insulin, commonly referred to as Humulin N, are medications designed to improve glycemic control in individuals diagnosed with diabetes. Id. Dosages of insulin are given based on blood sugar testing or the number of carbohydrates eaten. Id.
The medical records do not state whether Mr. Justise has type 1 or type 2 diabetes. Mr. Justise attests he has Type 1 diabetes. ECF 183 at 4; ECF 184-2 at 4. The difference is that type 1 diabetes is an autoimmune disease in which the body stops producing insulin and requires a person to take insulin every day. See What Is Type 1 Diabetes, CDC, https://www.cdc.gov/diabetes/basics/what-is-type-1-diabetes.html (last visited Aug. 2, 2023). With type 2 diabetes, on the other hand, cells develop insulin resistance and do not respond normally to the insulin the body produces. See Type 2 Diabetes, CDC, https://www.cdc.gov/diabetes/basics/type2.html (last visited Aug. 2, 2023). Not all people with type 2 diabetes require insulin. Id. Although the court accepts as true that Mr. Justise has type 1 diabetes, he does not provide evidence that the treatment for a person with type 1 diabetes differs from the treatment for a person with type 2 diabetes who is insulin-dependent. That distinction, thus, is not material to deciding the motion.
In April 2019, Mr. Justise was transferred from Indiana State Prison (ISP) to Miami Correctional Facility (MCF). ECF 160-3 at 3. Just before his transfer, Mr. Justise's treating physician at ISP, Dr. Marthakis, submitted a Formulary Exception Request for him to receive LisPro/Humalog insulin instead of Insulin R and NPH. Id.; ECF 160-2 at 66. In the request, Dr. Marthakis stated Mr. Justise believed no other insulin worked for him and would “boycott any other regimen prescribed to the point of being harmful to self.” ECF 160-2 at 66. She also indicated Mr. Justise did not have any allergies. Id. Dr. Mitcheff denied the request because Mr. Justise's medical records indicated he had uncontrolled diabetes and was not following his recommended diet and exercise routines. Id.; ECF 160-3 at 3.
As Mr. Justise points out, Dr. Mitcheff's denial states incorrectly that Mr. Justise refused Chronic Care Clinic appointments. ECF 183 at 1. Dr. Mitcheff concedes that the statement is unsupported by the medical record, but he argues that an underlying history of noncompliance is supported by the record. ECF 185 at 1-2. The Formulary Exception Request, itself, supports this, as Dr. Marthakis explicitly states that Mr. Justise would “boycott” any other insulin regimen. ECF 1602 at 66.
Additionally, Dr. Mitcheff believes Humalog insulin can be dangerous in a prison environment because it is fast acting, and the patient must eat immediately after receiving it or severe hypoglycemia can develop. ECF 160-3 at 3. This is especially true in a maximum-security prison, where the facility can be immediately locked down and patients sent back to their housing unit. Id. Humalog is also short acting and must be given with each meal, which can lead to worsening compliance. Id. Because Dr. Mitcheff denied this request, Mr. Justise's temporary prescription for LisPro and Humalog was not renewed and he was switched back to Insulin R and NPH. Id.; ECF 160-2 at 59. He was then transferred to MCF. ECF 160-3 at 3.
Dr. Mitcheff argues his decision to reject Dr. Marthakis' Formulary Exception Request in April 2019 was a proper exercise of his professional medical judgment. Because it is undisputed Dr. Mitcheff and the treating physicians provided some level of care for Mr. Justise's diabetes, Mr. Justise must provide evidence that Dr. Mitcheff's treatment decisions were “so plainly inappropriate as to permit the inference that [Dr. Mitcheff] intentionally or recklessly disregarded his needs.” Hayes, 546 F.3d at 524.
Mr. Justise disputes Dr. Mitcheff's assertion that he had uncontrolled diabetes and was not following his diet and exercise routines. ECF 183 at 1-2. But Mr. Justise does not dispute that the medical records available to Dr. Mitcheff indicated he had uncontrolled diabetes and was not following his diet and exercise routines. See ECF 160-2 at 62-65. The notes from the Chronic Care Clinic visit from the same day that LisPro and Humalog were requested stated that Mr. Justise was compliant with medication and follow-up recommendations for his diabetes, but also that, "Patient is not adhering to diet and exercise recommendations for their [diabetes mellitus],” and “Not controlled[. L]ast HA1C was 8.5 Feb 5th, 2019[.]” Id. at 62, 64. Thus, the information known to Dr. Mitcheff in April 2019 showed that Mr. Justise had additional avenues he could pursue-but did not-to better manage his diabetes. Dr. Mitcheff had a valid basis to conclude Mr. Justise should attempt to improve his diabetes management through diet and exercise before resorting to a less practical and potentially more dangerous type of insulin.
Mr. Justise argues it was plainly inappropriate for Dr. Mitcheff to keep him on Insulin R because Dr. Mitcheff knew or should have known he was allergic to Insulin R. ECF 183 at 5; ECF 183-1 at 5-6. Specifically, Mr. Justise notes that Dr. Mitcheff approved Mr. Justise to receive Loratadine, an allergy medication, after a rash developed at his insulin injection site. ECF 183 at 5. Here, however, the request for Loratadine came in February 2020, well after Dr. Mitcheff denied the April 2019 request for Humalog and LisPro. ECF 184-2 at 90. The April 2019 Formulary Exception Request specifically stated that Mr. Justice had no known allergies. ECF 162-2 at 66. Dr. Mitcheff attests he was never informed by any of Mr. Justise's treating physicians of any observed allergy to the insulin or possible adverse effects they believed were caused by the insulin. ECF 160-3 at 6. Mr. Justise provides no evidence to dispute that.
Mr. Justise further argues that Humalog “is no more dangerous than” Insulin R. ECF 183 at 2. But Mr. Justise has no medical expertise to offer this opinion. Mr. Justise also argues that Dr. Mitcheff's concerns about taking Humalog insulin in the prison environment are unfounded because when he was at ISP, he took his insulin after each meal, and he would do the same for Humalog. ECF 184-2 at 4. Thus, he argues, the danger of being prevented from eating after getting insulin is not a legitimate basis to deny him Humalog.
Mr. Justise has tried to refute the reasons Dr. Mitcheff gave about the dangers of Humalog in the prison setting-the danger of taking it before meals if a lockdown occurs suddenly and that having to give it at every meal could lead to worsening compliance. Dr. Mitcheff may have other reasons for avoiding using Humalog in a prison setting, but these are not in the record. Ultimately, though, this does not allow Mr. Justise to prevail at summary judgment because there is no evidence in the record that the NPH and Insulin R regimen he was on was ineffective so as to make a refusal to switch plainly inappropriate. The court will accept for purposes of summary judgment that Humalog and LisPro would be more effective at managing Mr. Justise's diabetes (though Mr. Justise presents no evidence of that other than his own belief). But Mr. Justise is not entitled to the best care possible, only “reasonable measures to meet a substantial risk of serious harm.” Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (quoting Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)). He has presented no evidence that Dr. Mitcheff was aware that the Insulin R and NPH were ineffective at reasonably managing his diabetes when he considered whether to approve a change in insulins. Notably, the Formulary Exception Request did not request a change based on a problem with the old insulin regimen; rather it was based on Mr. Justise's continued noncompliance with it. ECF 160-2 at 66. Though Mr. Justise believes he required Humalog, he has not shown that a reasonable jury could conclude that Dr. Mitcheff's decisions to try other methods to control his diabetes was plainly inappropriate. See Thomas v. Martija, 991 F.3d 763, 772 (7th Cir. 2021) (“Persisting in treatment known to be ineffective can constitute deliberate indifference, provided that the doctor was subjectively aware that the treatment plan was ineffective. It is not enough that the plaintiff simply believes the treatment was ineffective or disagrees with the doctor's chosen course of treatment.” (citations omitted)).
Nor does Mr. Justise's medical care at MCF reveal any other basis to hold Dr. Mitcheff liable. The record shows that upon his arrival at MCF, Mr. Justise met primarily with Dr. Carl Kuenzli, Dr. Noe Marandet, and Nurse Kim Myers. ECF 160-3 at 4. During many appointments, Dr. Kuenzli modified Mr. Justise's insulin regimen by increasing or modifying his NPH and Insulin R dosages. Id. Additionally, discussions were had regarding Mr. Justise's commissary purchases and lifestyle patterns. Id. On occasion, Mr. Justise's blood sugars were found to be elevated, but he refused extra medication coverage or modifications. Id.; ECF 160-2 at 19-20 (December 21, 2019, refusal of extra insulin for elevated blood sugar), 31-32 (March 20, 2020, refusal of extra insulin for elevated blood sugar).
Mr. Justise disputes that he refused extra coverage (ECF 183 at 3) but does not dispute the information available to Dr. Mitcheff indicate he refused extra coverage (ECF 160-2 at 20, 32).
During an appointment with Nurse Myers in June 2020, Mr. Justise reported he refused the recommendation to increase his insulin due to bruising and increased tissue density from the amount of insulin he was taking. ECF 160-2 at 43-46; ECF 160-3 at 4. Nurse Myers found Mr. Justise was non-compliant with what he ate and did not follow the diet he was prescribed by onsite providers. ECF 160-2 at 43-46. Mr. Justise had been asked to lose weight to help with his diabetes management, but often contradicted himself with his purchases through the commissary. Id.; ECF 160-3 at 4-5. Nurse Myers emailed Dr. Mitcheff to see what other options medical could provide to Mr. Justise. ECF 160-2 at 43. Dr. Mitcheff attests that based on the providers' ongoing reports that Mr. Justise was noncompliant with recommended treatment plans, including medical diets and recommended lifestyle changes, Dr. Mitcheff did not see the clinical benefit of trying another course of treatment at that time because it appeared Mr. Justise refused to assist in his own health and treatment. ECF 160-3 at 5.
On August 26, 2020, Dr. Marandet found Mr. Justise's blood sugar was not well controlled and attributed it was likely due to insulin resistance. ECF 160-2 at 55-58; ECF 160-3 at 5. Insulin resistance occurs when cells in your muscles, fat, and liver do not respond well to insulin and cannot use the glucose in the blood for energy. ECF 160-3 at 5. Typically, insulin resistance is commonly found among other specific conditions, including obesity, an inactive lifestyle, a diet high in carbohydrates, and a family history of diabetes. Id. Insulin resistance is treatable and can be reversed by exercise, getting to a healthy weight, eating a healthy diet, and medication management. Id. Dr. Marandet kept Mr. Justise on his present dose of insulin and advised him to start exercising more. ECF 160-2 at 55. Mr. Justise's medical records indicate he did not follow through with the recommendations of his treatment providers to decrease his insulin resistance. ECF 1603 at 5.
Throughout his incarceration at MCF, Mr. Justise was regularly monitored by onsite practitioners to manage his diabetes. ECF 160-3 at 5. Dr. Mitcheff attests that he was not involved in day-to-day decisions about increasing or decreasing Mr. Justise's insulin regimen. Id. Additionally, none of Mr. Justise's treating physicians ever informed Dr. Mitcheff about any allergy or possible adverse side effects related to Mr. Justise's prescribed insulin, other than a rash at the injection site that was treated with Loratadine. Id. at 6; ECF 184-2 at 90.
The only identified involvement Dr. Mitcheff had in Mr. Justise's diabetes care at MCF was Nurse Myers' June 2020 email. Mr. Justise argues that Dr. Mitcheff's reasons for not changing his insulin at that point are invalid because commissary purchases and workout routines are not applicable to treatment decisions for people with Type 1 diabetes, as opposed to Type 2 diabetes. ECF 183 at 3-4. But Mr. Justise has no medical expertise to offer this opinion. He further argues that for 13 years in IDOC custody, he had been managing his diabetes on Humalog and Lantus, but problems began once he changed insulins. Id. at 4. However, as discussed above, he presents no evidence that NPH and Insulin R were ineffective in managing his diabetes when taken as prescribed and in conjunction with a healthy diet and exercise.
Mr. Justise, thus, provides no evidence that Dr. Mitcheff was aware of any deficiencies in his medical care at ISP or MCF. Overall, he argues Dr. Mitcheff is not entitled to summary judgment because he is not credible, as his affidavit and deposition testimony contain numerous lies. ECF 183 at 6-7; ECF 183-1 at 4-6. But challenges to Dr. Mitcheff's credibility are insufficient to survive on summary judgment. See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (“[W]hen challenges to witness' credibility are all that a plaintiff relies on, and he has shown no independent facts-no proof-to support his claims, summary judgment in favor of the defendant is proper”); see also Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406 (7th Cir. 1998) (“[T]he prospect of challenging a witness' credibility is not alone enough to avoid summary judgment.”).
In summary, the undisputed facts show that Dr. Mitcheff and Mr. Justise's treating physicians provided constitutionally adequate care for his diabetes by monitoring his condition, prescribing and providing an insulin regimen, and recommending diet and exercise programs. Though Mr. Justise disagrees with the treatment decisions made by Dr. Mitcheff, he has provided no evidence on which a reasonable jury could conclude that any of Dr. Mitcheff's decisions were plainly inappropriate. There is insufficient evidence on which any reasonable jury could conclude Dr. Mitcheff violated Mr. Justise's Eighth Amendment rights. Summary judgment is warranted in favor of Dr. Mitcheff.
Last, Mr. Justise files a motion for reconsideration of the court's earlier order denying his motion for summary judgment. ECF 187. The court denied Mr. Justise's summary judgment motion because he did not meet his high burden to provide compelling evidence that Dr. Mitcheff acted with deliberate indifference. ECF 186 at 3-5. In his motion for reconsideration, Mr. Justise argues Dr. Mitcheff was deliberately indifferent for keeping him on an NPH and Insulin R regimen, reiterating many of the same arguments he raised in his response to Dr. Mitcheff's summary judgment motion and making some new arguments that are unsupported by evidence. ECF 187. But Mr. Justise merely reiterates arguments he raised, or could have raised, in his summary judgment motion. See Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (“Reconsideration is not an appropriate forum for rehashing previously rejected arguments”); King v. Ford Motor Co., 872 F.3d 833, 838-39 (7th Cir. 2017) (arguments that “could have been submitted along with [the] response to the motion for summary judgment [are] not properly presented for the first time in a motion for reconsideration”). Regardless, for the same reasons discussed above, Mr. Justise has not shown Dr. Mitcheff acted with deliberate indifference. Therefore, because Mr. Justise provides no argument that warrants reconsideration from this court's order denying his summary judgment motion, his motion for reconsideration (ECF 187) will be denied.
For these reasons, the court:
(1) GRANTS Dr. Mitcheff's summary judgment motion (ECF 159);
(2) DENIES Mr. Justise's motion for reconsideration (ECF 187); and
(3) DIRECTS the clerk to enter judgment in favor of Dr. Mitcheff and against Charles E. Justise, Sr., and to close this case.
SO ORDERED.