Opinion
Case No. 3:16-cv-924-NJR-GCS
09-06-2019
WARREN MORRIS, Plaintiff, v. JACQUELINE LASHBROOK, MICHAEL D. SCOTT, MICHAEL CLARK, CHARLES PEARCE, DALTON PORTER, BOBBY JOHNSON, MARK MOORE, BRIAN FAGERLAND, GARY PRUITT, C/O EBERS, and CHAD WALL, Defendants.
REPORT & RECOMMENDATION SISON, Magistrate Judge :
Plaintiff Warren Morris alleges that, after he fractured a bone in his right hand in a physical altercation with another inmate, Defendants Scott, Lashbrook and Ebers were deliberately indifferent to his serious medical needs (Count I). Morris further alleges that Defendants Clark, Pearce, Johnson, Moore, Fagerland, Pruitt, Porter, Ebers and Wall used excessive force when handcuffing him following his injury (Count II). Defendant Scott moved for summary judgment (Doc. 116), as have Defendants Clark, Fagerland, Johnson, Lashbrook, Moore, Pierce, Porter, Pruitt and Wall (Doc. 119). The matter has been referred to the undersigned by Chief Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b) and Local Rule 72.1(a)(2). For the reasons delineated below, it is RECOMMENDED that the Court grant Defendant Scott's motion for summary judgment (Doc. 116) and grant in part the motion for summary judgment filed by Defendants Clark, Fagerland, Johnson, Lashbrook, Moore, Pierce, Porter, Pruitt and Wall (Doc. 119).
I. FINDINGS OF FACT
Morris, who was incarcerated at Pinckneyville Correctional Center, became involved in a physical altercation with another inmate on March 18, 2016, around 12:00 p.m. He injured his hand during the incident, leaving it painful and visibly swollen. At his deposition, Morris testified that Defendant Ebers, a correctional officer, arrived a few minutes after the fight and told Morris not to say anything. Morris alleges that Ebers saw that his hand was swollen and that he was in pain, but Ebers did nothing. (Doc. 117-2, p. 28).
Morris was not taken to the healthcare unit until approximately 3:00 p.m. that day even though Ebers knew of his injury hours earlier. (Doc. 117-2, p. 30-31). Morris testified that around 3:00 p.m., Defendant Clark, who was aware of Morris's hand injury and pain, handcuffed and escorted him from his cell to an office. Clark questioned Morris about the altercation in the office before handcuffing him a second time and transporting him to the healthcare unit. (Doc. 117-2, p. 24). Clark testified at his deposition that he did not recall his interactions with Morris on August 18, 2016. (Doc. 122-1).
When he arrived in the healthcare unit, Morris was treated by a nurse before seeing Defendant Michael Scott, a doctor, for what may have been an unofficial appointment. Morris testified that Dr. Scott told him that the x-ray technician was unavailable until Monday, March 21 because the technician did not work on the weekends. Morris recalled Dr. Scott telling him that he had a boxer's break and would need a cast from an outside orthopedist after his hand was x-rayed. Dr. Scott prescribed ibuprofen (400mg) three-times daily as needed for pain. (Doc. 117-1, p. 3, 13, 19). Morris stayed in the infirmary through the weekend and was given 24 ibuprofen pills for his pain. (Doc. 117-2, p. 11-13).
Defendant Wall escorted Morris to see the x-ray technician on August 21, 2018. Wall handcuffed Morris while transporting him despite being aware that Morris had a hand injury. (Doc. 117-2, p. 11-13, 23-25). Dr. Scott reviewed the results of the x-ray with Morris and diagnosed a fractured third metacarpal with 30-degree angulation. Dr. Scott placed an ortho-glass splint on Morris's hand and told him that he would be sent to an orthopedist. In Dr. Scott's medical opinion, Morris's fracture was not urgent due to the minimal angulation, the closed nature of the fracture and the absence of neurological symptoms. (Doc. 117-1, p. 7). On March 22, 2016, Dr. Scott submitted a collegial review request, and he noted that an orthopedic outpatient visit was scheduled to be approved. (Doc. 117-1, p. 5, 19).
Morris testified that after his appointment with Dr. Scott, Wall again handcuffed him behind his back and transported him from the healthcare unit to segregation. (Doc. 117-2, p. 25). Wall does not recall his interactions with Morris. (Doc. 122-3, p. 11). Defendant Pearce strip-searched Morris when he arrived at the segregation unit. Pearce then handcuffed Morris behind his back to transport him to the shower, even though Morris testified that he told Pearce about his broken hand and his severe pain. (Doc. 117-2, p. 25).
Morris maintains that he received no pain medication between March 21-28, 2016. He testified that he spoke to numerous nurses about his pain medication and that the nurses told him to submit a sick call request to address the issue, but he refused to do it. (Doc. 117-2, p. 14). Dr. Scott testified that an inmate can request an evaluation through the sick call process if he is not receiving his pain medication. (Doc. 117-1, p. 13)). On March 28, 2016, Morris submitted a sick call request, received pain medication and was referred to see Dr. Scott. (Doc. 117-2, p. 14-15; Doc. 117-1, p. 20). Dr. Scott prescribed tramadol on March 29, 2016. Dr. Scott testified that he wrote that the tramadol prescription was "inadvertently omitted" from a previous request in order to help Morris cover his $5 co-pay for placing the nurse sick call request. (Doc. 117-1, p. 7-8).
Morris testified that when he was transported to the nurse for the March 28, 2016 sick call, Defendant Moore handcuffed him behind his back, despite Morris telling him that he was in severe pain from his broken hand and showing him the splint. He testified similarly as to Defendant Johnson, who transported him to see Dr. Scott on March 29. (Doc. 117-2 p. 25-26). Neither Moore nor Johnson remember the interactions with Morris. (Doc. 122-5; Doc. 122-6).
On April 5, 2016, Morris alleges that Moore transported him to the showers, again with his broken hand handcuffed behind his back. Defendant Fagerland then was responsible for transporting Morris to his outpatient appointment with an orthopedic specialist. Fagerland used box cuffs to handcuff Morris. Morris testified that he told Fagerland that he was in severe pain due to his broken hand and that he showed Fagerland his splint. Morris claims that the box cuffs caused more pain because they required that he place one palm face-up and the other face-down. (Doc. 117-2, p. 25-26).
Morris was seen by Gretchen Mason, a physician's assistant at the Orthopedic Institute of Southern Illinois. At her deposition, Mason testified that she treats approximately 80 patients per week and that roughly 15-20% are referred for treatment more than one week after their date of injury. She determined that Morris had a clean fracture that was starting to heal and that he did not require surgery. She taught Morris hand exercises to strengthen his hand and to help control his pain. Mason testified that she did not believe that the two-week interval between Morris's injury and her appointment with him had any impact on the outcome of his injury. (Doc. 117-3, p. 4-8). Dr. Scott saw Morris on April 8, 2016, for a follow-up appointment. He prescribed Motrin (400mg) as needed for pain for approximately 30 days.
On April 12, 2016, Defendant Porter handcuffed Morris behind his back to transport him to the showers even though Morris told him he was in severe pain from his broken hand. (Doc. 117-2, p. 26). On April 18, 2016, Dr. Scott reviewed records from Gretchen Mason. Dr. Scott noted that Mason requested a follow-up appointment, and he submitted a collegial review request to approve the appointment. (Doc. 117-1, p. 27). On May 3, 2016, Dr. Scott prescribed a new round of Tylenol in response to a request from Morris for pain medication. On May 4, 2016, Morris had a follow-up visit with Mason. She determined that his fracture was healed as expected. On May 27, 2016, Dr. Scott saw Morris for a follow-up appointment. He noted that Morris completed six weeks in a splint and showed healing without malalignment, per Mason's notes. Morris complained of pain, so Dr. Scott prescribed Motrin and Tylenol along with physical therapy.
II. ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if 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 Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014)(citing FED. R. CIV. P. 56(a)). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014).
In assessing a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. See Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the Seventh Circuit has explained, as required by Rule 56(a), "we set forth the facts by examining the evidence in the light reasonably most favorable to the non-moving party, giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the evidence in [his] favor." Spaine v. Community Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).
B. Count I: Deliberate Indifference Claim against Defendants Michael Scott, Jacqueline Lashbrook, and C/O Ebers
The Eighth Amendment prohibits cruel and unusual punishments, and the deliberate indifference to the "serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the Constitution." Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to "reasonable measures to meet a substantial risk of serious harm" - not to demand specific care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
In order to prevail on a claim of deliberate indifference, a prisoner who brings an Eighth Amendment challenge of constitutionally-deficient medical care must satisfy a two-part test. See Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). The first consideration is whether the prisoner has an "objectively serious medical condition." Arnett, 658 F.3d at 750. Accord Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). "A medical condition is objectively serious if a physician has diagnosed it as requiring treatment, or the need for treatment would be obvious to a layperson." Hammond v. Rector, 123 F. Supp. 3d 1076, 1084 (S.D. Ill. 2015)(citing Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)). It is not necessary for such a medical condition to "be life-threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated." Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828 (1994)(noting that violating the Eighth Amendment requires "deliberate indifference to a substantial risk of serious harm")(internal quotation marks omitted) (emphasis added).
Prevailing on the subjective prong requires a prisoner to show that a prison official has subjective knowledge of—and then disregards—an excessive risk to inmate health. See Greeno, 414 F.3d at 653. The plaintiff need not show the individual "literally ignored" his complaint, but that the individual was aware of the condition and either knowingly or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). "Something more than negligence or even malpractice is required" to prove deliberate indifference. Pyles, 771 F.3d at 409. See also Hammond, 123 F. Supp. 3d at 1086 (noting that "isolated occurrences of deficient medical treatment are generally insufficient to establish . . . deliberate indifference"). Deliberate indifference involves "intentional or reckless conduct, not mere negligence." Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)).
Assessing the subjective prong is more difficult in cases alleging inadequate care as opposed to a lack of care. Without more, a "mistake in professional judgment cannot be deliberate indifference." Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016). The Seventh Circuit has explained:
By definition a treatment decision that's based on professional judgment cannot evince deliberate indifference because professional judgment implies a choice of what the defendant believed to be the best course of treatment. A doctor who claims to have exercised professional judgment
is effectively asserting that he lacked a sufficiently culpable mental state, and if no reasonable jury could discredit that claim, the doctor is entitled to summary judgment.Id. (citing Zaya v. Sood, 836 F.3d 800, 805-806 (7th Cir. 2016)). This is in contrast to a case "where evidence exists that the defendant [ ] knew better than to make the medical decision[ ] that [he] did," Id. (quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016))(alterations in original). A medical professional's choice of an easier, less efficacious treatment can rise to the level of violating the Eighth Amendment, however, where the treatment is known to be ineffective but is chosen anyway. See Berry, 604 F.3d at 441.
1. Defendants Ebers and Lashbrook
Defendant Ebers does not move for summary judgment on Count I. Defendant Lashbrook argues that she is entitled to summary judgment because her only role in any alleged deliberate indifference towards Morris was to receive a grievance and deem it a non-emergency. Morris concedes that this claim should not survive summary judgment as to Lashbrook.
2. Defendant Scott
Morris's hand fracture rises to the level of an objectively serious medical need, which Dr. Scott does not challenge in his motion for summary judgment. Instead, Dr. Scott argues that he did not demonstrate deliberate indifference towards Morris's injury while he was his treating physician. Dr. Scott argues that he had no control over the scheduling of Morris's orthopedic appointment and that there is no evidence that any delays in the receipt of pain medication caused or contributed to Morris's injuries.
Morris contends that there are two areas where disputes of material fact preclude summary judgment. First, Morris argues that the delay from the time of the x-ray of his hand at 12:15 on March 21, 2016, until 4:30 p.m. on March 22, 2016, when Dr. Scott submitted the request for an outside orthopedic appointment for collegial review, creates an issue of fact as to whether Dr. Scott was deliberately indifferent to Morris's injury. Second, Morris points to the period between March 21-28, 2016, when Morris did not receive his pain medication as evidence of Dr. Scott's deliberate indifference.
As to the delay in seeking collegial review, in order to succeed on a claim that prison officials delayed, rather than denied, medical assistance to an inmate, a plaintiff must provide "'verifying medical evidence' that the delay (rather than the inmate's underlying condition) caused some degree of harm." Williams v. Liefer, 491 F.3d 710, 715-716 (7th Cir. 2007) (citing references omitted). A plaintiff "must offer medical evidence that tends to confirm or corroborate a claim that the delay was detrimental." Id. There is no such evidence before the Court in this case, and the evidence suggests that any delay in the referral to an outside orthopedist had no impact on Morris's healing, as supported by the testimony of Gretchen Mason. Mason testified that even the two-week period between Morris's injury and her appointment with him made no impact on his medical outcome, and there is no verifiable medical evidence to the contrary before the Court.
As to Morris's claim that he did not receive his pain medication, the undersigned notes that he does not argue that Dr. Scott deliberately delayed any distribution of his medication. Instead, he suggests that Dr. Scott was responsible for controlling the distribution of pain medication by the nursing staff after he wrote the prescription. The record reflects that Morris made no sick calls during the period when he was not receiving pain medication despite being told by nurses to do so. When he did submit a sick call, he saw Dr. Scott and was prescribed a stronger pain medication than Dr. Scott previously prescribed.
To succeed on a claim of deliberate indifference, Morris must show that Dr. Scott knew of a risk of harm to him and disregarded it. Here, there is no evidence that Dr. Scott knew Morris was not receiving his pain medication as prescribed and ignored the resulting pain Morris endured. Nor is there evidence that Dr. Scott knew the prescribed medication would not treat Morris's pain. To the extent that Morris believes Dr. Scott should have prescribed tramadol prior to March 28, 2016, there is insufficient evidence that this decision was "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)(quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)). For these reasons, the undersigned concludes that no reasonable juror could conclude that Defendant Scott was deliberately indifferent to Morris's injury and that Defendant Scott is entitled to summary judgment on Count I.
C. Count II: Excessive Force by Defendants Michael Clark, Brian Fagerland, Bobby Johnson, Mark Moore, Charles Pearce, Dalton Porter, Gary Pruitt, Chad Walls, and C/O Ebers
Defendant Ebers does not join in Defendants' motion for summary judgment. --------
The Eighth Amendment's proscription on cruel and unusual punishment extends to prohibit the use of excessive force on prisoners. The use of force is excessive when it involves the unnecessary and wanton infliction of pain. See Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 667 (7th Cir. 2012). When prison officials are accused of using excessive force, the core inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). Several factors are relevant to this determination, including the need for force, the amount of force applied, the threat a guard reasonably perceived, the effort made to temper the severity of the force used and the extent of the injury caused to the prisoner. See Hudson, 503 U.S. at 7; Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004).
Defendants argue that Morris does not allege that they applied handcuffs on him in an abnormal manner. They argue that they are entitled to summary judgment because they followed the procedure for cuffing inmates in segregation following a fight with another inmate. In the context of an arrest, the Seventh Circuit has noted that if an official knows of a preexisting injury or medical condition that would be aggravated by handcuffing a plaintiff or if a plaintiff communicates that he suffers from such an injury to the official, then the official is "obligated to consider that information, together with the other relevant circumstances, in determining whether it was appropriate to handcuff" the plaintiff. Rabin v. Flynn, 725 F.3d 628, 636 (7th Cir. 2013)(quoting Stainback v. Dixon, 569 F.3d 767, 773 (7th Cir. 2009). This suggests that summary judgment cannot be entered in favor of Defendants solely because they followed prison procedures for handcuffing a segregation inmate. The Court must consider other factors in weighing Defendants' behavior, and the motion for summary judgment does not address these factors in a developed manner.
Here, the evidence indicates that Morris told the Defendants, all of whom handcuffed him at various points after his injury, that their actions were causing him pain due to his injured hand. A reasonable juror, considering the factors relevant to whether force was used in a good-faith manner, could conclude that the Defendants lacked a good-faith basis in their decision to handcuff him. Defendants' limited argument in favor of summary judgment fails to establish that no reasonable juror could find in favor of Morris, and, as such, their motion should be denied.
Defendants also argue that they are entitled to qualified immunity on Count II. Qualified immunity shields "government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine "balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. It protects an official from suit "when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
The qualified immunity test has two prongs: (1) whether the facts shown, taken in the light most favorable to the party asserting the injury, demonstrate that the officer's conduct violated a constitutional right, and (2) whether the right at issue was clearly established at the time of the alleged misconduct. See Pearson, 555 U.S. at 232. See also Brosseau, 543 U.S. at 197; Wilson v. Layne, 526 U.S. 603, 609 (1999).
To be "'clearly established' a right must be defined so clearly that every reasonable official would have understood that what he was doing violated that right." Dibble v. Quinn, 793 F.3d 803, 808 (7th Cir. 2015)(citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). There need not be a case directly on point, but "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The right must be established "not as a broad general proposition[,]" but rather, it must be "particularized" such that the "contours" of it are clear to a reasonable official. Reichle, 566 U.S. at 664. That is, "existing precedent must have placed the statutory or constitutional question beyond debate." Carroll v. Carmen, 135 S.Ct. 348, 350 (2014).
Defendants briefly argue that they did not violate any clearly established right held by Morris to be free from cuffing, but that fails to encompass the bulk of Morris's claim in Count II. He complains of being restrained in a manner that caused him unnecessary pain due to his injury. Such a claim is consistent with clear statements by the Supreme Court and the Seventh Circuit providing fair warning of the potential for liability for allegations of unnecessary pain caused by restraints on prisoners and arrestees. See e.g., Hope v. Pelzer, 536 U.S. 730, 737-738 (2002); Rabin, 725 F.3d at 636 (noting that officer who knew tight restraints would cause arrestee unnecessary pain not entitled to qualified immunity); Stainback, 569 F.3d at 772. When the facts are considered in the light most favorable to Morris, they demonstrate that his constitutional rights were violated, and his rights were clearly established at the time of his alleged injury. As such, Defendants are not entitled to qualified immunity on Count II.
III. CONCLUSION
For the above-stated reasons, it is RECOMMENDED that the Court GRANT Defendant Scott's motion for summary judgment (Doc. 116) and enter judgment in favor of Defendant Michael D. Scott and against Plaintiff Warren Morris at the close of this case. It is further RECOMMENDED that the Court GRANT in part and DENY in part the motion for summary judgment filed by Defendants Lashbrook, Clark, Fagerland, Johnson, Moore, Pearce, Porter, Pruitt and Walls (Doc. 118). The motion should be granted as to Morris's claim against Defendant Lashbrook and denied as to the remaining Defendants. At the close of the case, the Clerk of Court should enter judgment in favor of Defendant Jacqueline Lashbrook and against Plaintiff Warren Morris. Should the Court adopt the undersigned's recommendation, the following claims will remain pending:
• Count I: Deliberate Indifference against Defendant C/O Ebers; and
• Count II: Excessive Force against Defendants Michael Clark, Brian Fagerland, Bobby Johnson, Mark Moore, Charles Pearce, Dalton Porter, Gary Pruitt,
Chad Wall and C/O EbersPursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Seventh Circuit Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). Accordingly, objections to this Report and Recommendation must be filed on or before Friday, September 20, 2019.
IT IS SO ORDERED.
Dated: September 6, 2019.
/s/_________
GILBERT C. SISON
United States Magistrate Judge