Opinion
CIVIL NO. 1:99cv525
January 8, 2002
ORDER
This matter is before the court on a motion for summary judgment filed by the defendant, John Lawson ("Lawson"), on April 9, 2001. The plaintiffs, William G. Perkins, Jr. ("Perkins") and Connie Perkins ("Mrs. Perkins"), filed their response on November 9, 2001. Lawson filed his reply on November 28, 2001.
Also before the court is a motion to strike certain summary judgment materials filed by Lawson on November 28, 2001. The plaintiffs filed their response to the motion to strike on December 18, 2001, to which Lawson replied on January 3, 2002.
For the following reasons, the motion for summary judgment and the motion to strike will both be granted.
Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponents claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications. Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact, Celotex, 477 U.S. at 323. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988);Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983).
So that the district court may readily determine whether genuine issues of material fact exist, under Local Rule 56.1, the moving party is obligated to file with the court a "Statement of Material Facts" supported by appropriate citation to the record to which the moving party contends no genuine issues exist. In addition, the non-movant is obligated to file with the court a "Statement of Genuine Issues" supported by appropriate citation to the record outlining all material facts to which the non-movant contends exist that must be litigated. See Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir. 1994). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. Furthermore, in determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion. L.R. 56.1
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law.Anderson, 477 U.S. at 248. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252. Finally, the court notes that, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Discussion
On January 12, 1998, while an inmate at the Grant County Jail, Perkins was assaulted by a fellow inmate, Randall Lahr. Perkins subsequently filed suit against Lawson alleging Section 1983 liability for failure to prevent the attack and for inadequate medical treatment afterwards. Perkins also asserts state law negligence claims. Mrs. Perkins asserts a claim for loss of consortium.
The plaintiffs also sued the Grant County Commissioners. However, in an order dated April 6, 2000, this court granted the Grant County Commissioners' motion to dismiss.
The court will first address Lawson's motion to strike, which is directed to the affidavits of Perkins and Mrs. Perkins. Specifically, Lawson contends that paragraphs 5, 9, and 11 of Mrs. Perkins' affidavit contain inadmissible hearsay, and that paragraphs 6, 9, 11, and 13 of Perkins' affidavit contain incompetent and hearsay statements. The relevant portions Mrs. Perkins affidavit states as follows:
5. On January 15, 1998, Bill's physical condition was so deteriorated that I spoke with Corporal Artie Jones at the jail by telephone and told him that Bill was in pain, he could not eat or drink and something had to be done. The Corporal told me he would keep a "close eye on Bill", he knew what had happened and he would see what needed to be done about Lahr.
9. After the Sheriff moved my husband, I had to call and "raise the devil" to get to talk to him. I called and talked with Artie Jones, Jeff Pence and Lt. Lowe and Corporal Taylor, cell jail officers or guards about Bill's condition and they were fully aware of the situation.
11. On Monday, January 26, 1998, Bill was released from the jail in critical condition and I took him to the Marion General Hospital in Marion, Indiana at approximately 2:00 p.m. where he was examined by Dr. Javail Iqbal a neurologist practicing in Marion, Indiana. He diagnosed Bill as having suffered a brain stem stroke with damage to the artery which goes to the back part of the head. Dr. Iqbal ordered Bill to be transferred by ambulance to the Lutheran Hospital in Fort Wayne for treatment and further diagnosis.
It is clear that Mrs. Perkins' statements concerning what other persons told her or were aware of are inadmissible hearsay statements. The plaintiffs, however, claim that Mrs. Perkins' statements are hearsay exceptions under F.R.E. 803(1)(2) or (3), as "present sense impression", "excited utterance" and "then existing mental, emotional, or physical condition". The plaintiffs misunderstand the proper application of these hearsay exceptions, as they only apply to the declarant. In the present case, none of the statements at issue are sense impressions of the declarant, excited utterances of the declarant, nor regard the mental, emotional, or physical condition of the declarant. Thus, the statements are inadmissible hearsay and will be stricken.
The portions of Perkins' affidavit subject to the motion to strike are as follows:
6. Each day I was slowly deteriorating and Jerry Walters had full knowledge of my symptoms from her own observation.
9. I was put in isolation following the assault and attack on January 12, 1998, and I was moved to a separate cell on the girl's floor on January 21, 1998. I could not drink or eat because I could not swallow. My food and drink were always picked-up by the jail guards and they had full knowledge of my inability to eat, drinks [sic] and swallow.
11. After I was examined at the Marion General Hospital emergency room I was returned to the Grant County Jail on January 23, 1998, and advised that I should take Tylenol for the discomfort. I again saw Jerry Walters and she was surprised that I had been sent back to the jail. Jerry Walters told me she could not give me Tylenol that I would have to purchase it from the jail commissary. She knew, however, that I could not get to the commissary and that I could not swallow the Tylenol even if I could have gotten it.
13. After January 23, 1998, and up to the time of my release on January 26, 1998, I was taken out of my cell one time at approximately twelve midnight for a shower. I could not see the shower nor could I walk to it and I vomited when I attempted to get to the shower. The guards at the jail observed this and were fully aware of my physical condition but they did nothing and told me there was nothing they could do about it. I could do nothing to help myself as I was physically unable to communicate or walk without assistance. When I left the jail, I was taken in a wheelchair by my wife to the Marion General Hospital.
Lawson objects to these statements by Perkins, arguing that they contain hearsay and speculation as to the mental state of another person. Perkins claims that the statements in paragraph 6 are permissible by F.R.E. 803(4) as made for the purposes of medical diagnosis and treatment. However, the statements at issue are clearly not a medical diagnosis or treatment but, rather, are an attempt to speculate as to what Nurse Walters knew. The same is true with respect to Paragraph 9 wherein Perkins speculates as to what the Jail guards knew. Paragraph 11 contains inadmissible hearsay, and is also an incompetent speculation as to what Nurse Walters knew. Likewise, Paragraph 13 contains inadmissible speculation as to what the Jail guards knew about Perkins' physical condition. Accordingly, Lawson's motion to strike will be granted and the objectionable statements will not be considered as evidence in this case.
The court will now turn to the merits of Lawson's motion for summary judgment. In his motion, Lawson first seeks summary judgment on Perkins' claim relating to the attack of January 12, 1998. This claim is apparently asserted against Lawson in his official capacity. The law is clear that a Section 1983 claim based upon official capacity requires that there be some prior incident or notice amounting to a pattern or practice. That is, to state a cause of action against a governmental entity under Section 1983, a plaintiff must allege facts which, if true, would show that the relevant entity deprived him of a constitutionally protected right by reason of municipal policy or custom. Monell v. Department of Social Services of New York, 98 S.Ct. 2018 (1978); Leahy v. Board of Trustees, 912 F.2d 917 (7th Cir. 1990). A single act is generally insufficient to establish the existence of a governmental policy and custom. Ross v. United States, 910 F.2d 1422 (7th Cir. 1990);Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985). Moreover, there is no respondeat superior liability under Section 1983, nor is there any theory of "vicarious liability". Eversole v. Steele, 59 F.3d 710, 715 (7th Cir. 1995).
Additionally, in the specific context of failure to prevent a fight between inmates, deliberate indifference is required, amounting to a knowing disregard of an excessive risk to inmate health and safety.Farmer v. Brennan, 114 S.Ct. 1970 (1994). To satisfy the deliberate indifference standard, the plaintiff must show that the defendant was subjectively aware of the substantial risk, plus drew the inference of likely harm to the inmate. James v. Milwaukee County, 956 F.2d 696 (7th Cir. 1992).
Perkins has failed to file any sort of response to Lawson's request for summary judgment on his "failure to protect" claim. This court has reviewed the evidence submitted in this case, and finds that there is no evidence that would support a claim against Lawson for failing to prevent the attack on Perkins. Accordingly, summary judgment will be granted in favor of Lawson on this claim.
Further, as Lawson points out in his opening brief, an independent ground for summary judgment on this claim exists, as Perkins never submitted an inmate grievance pertaining to the alleged jail deficiencies (lack of staffing, lack of monitoring, overcrowding, etc). Thus, the claim is barred by the Prison Litigation Reform Act. Perez v. Wisconsin Dept. of Corrections, 182 F.2d 532 (7th Cir. 1999) (Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) bars prison conditions claims that were not submitted to internal grievance procedures).
Lawson next seeks summary judgment on Perkins' claim of denial of adequate medical care. Perkins alleges that Lawson failed to assure that he received adequate treatment for his head and neck injuries and the proper prescribed medication for treatment of his injuries. Perkins further alleges that he was not given follow-up hospital treatment as required by the Marion General Hospital. Perkins claims that these alleged deficiencies in treatment demonstrate Lawson's deliberate indifference to his serious medical needs.
Perkins was attacked by Lahr on January 12, 1998. Perkins claims that on January 20, 1998 he told Jail Nurse Jerry Walters that he was vomiting and had difficulty swallowing with increased pain. On January 23, 1998, Walters sent Perkins to Marion General Hospital Emergency Room. Hospital personnel examined Perkins and sent him back to the Jail with instructions to take Tylenol for the pain. Perkins was told at the Jail that he was to purchase Tylenol at the commissary. According to Perkins he did not see any other medical provider after his return to the jail until he was released on January 26, 1998. Perkins claims that after his release he was taken to Marion General Hospital and then transported to Lutheran Hospital in Fort Wayne. Perkins claims that he was later diagnosed as having had a brain stem stroke.
The evidence of record shows that Nurse Walters examined Perkins on the day of the altercation with Lahr, January 12, 1998. At that time Walters observed that Perkins was coherent, able to walk and talk, and his eyes reacted equally to light. (Walters' Aff. at ¶ 3). Perkins was also examined by the Jail Doctor, Dr. Oliver, on January 13, 1998. Dr. Oliver ordered x-rays, which were taken at Marion General Hospital on January 13, 1998. The x-ray report stated: "The skull is of normal size and configuration and there is no evidence of fracture or destructive lesions. The sella turcica appears normal and there are no abnormal intracranial calcifications. The facial bones, as visualized, appear intact. There is no soft tissue swelling or radiopaque foreign bodies noted." (Exhibit 8 to Lowe Affidavit). After repeated complaints by Perkins, Nurse Walters ordered a CT scan on January 23, 1998. This CT scan was performed at Marion General Hospital, and the related report stated: "Sequential axial images of the head were obtained. The basal cisterns and the ventricular system are of normal size. There are no mass lesions, hemorrhages, abnormal extracerebral fluid collections, or areas of cerebral infarction. Bone windows were obtained and demonstrate no skull fractures." (Exhibit 16 to Lowe Affidavit, at p. 9). Dr. Doug Phillips, D.O. indicated the plan of treatment as follows:
I discussed that his electrolytes are normal and he doesn't appear dehydrated. He then went on to state that he has been able to take some fluids but he doesn't feel that this is enough. I discussed the facial numbness may be a bruise to the maxillary component of the facial nerve, this needs to be followed up. For his headache he will continue to use Tylenol as needed every 4 hours for discomfort. He has a follow-up with his own physician on Monday. He is to return to the Emergency Department if his symptoms change or get worse.
(Id. at p. 5). Dr. Phillips further indicated that Perkins' condition at discharge was "Good". (Id.).
The law is clear that non-medical personnel are entitled to rely on the medical judgment of those to whom the judgment is entrusted, i e the medical staff employed by the jail. Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995). Mere disagreement with a medical diagnosis or treatment plan does not rise to the level of a constitutional violation. Snipes v. Detella, 95 F.3d 586, 591 (7th Cir. 1996). When an inmate complains that delay in medical treatment rose to a constitutional violation, he must at the very least place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment.Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996); Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995). As with any claim based on conditions of confinement, the court will examine the totality of the inmate's medical care when considering whether that care evidences a deliberate indifference to his serious medical needs. Snipes, supra, 95 F.3d at 591.
Perkins does not deny any of the medical facts set out earlier in this opinion. He acknowledges that Nurse Walters and Dr. Oliver sent him to the hospital, that the hospital personnel examined him, performed x-rays and a CT scan and, after finding nothing wrong with him, sent him back to the Jail with instructions to take Tylenol for his headache. Perkins' entire case against Lawson centers on the fact that Mrs. Perkins called Lawson on January 21, 1998, about Perkins' condition, which call Lawson returned later that day after consulting with Nurse Walters. As Nurse Walters informed Lawson that Perkins had been seen by both Dr. Oliver and doctors at Marion General Hospital, Lawson reported to Mrs. Perkins that Perkins was being treated. There is nothing in the record to suggest that Lawson had any reason to believe that Perkins' medical needs were not being taken care of by the appropriate medical personnel. As noted above, under the deliberate indifference standard, Lawson can only be held liable if he was on notice of a problem which he chose to ignore. The medical records in this case clearly indicate that no one at the Grant County Jail was on notice that Perkins had any sort of serious medical condition. Perkins alleges that he suffered a brain stem stroke which he should have received treatment for while at the Jail. However, Perkins has failed to present any medical evidence of this diagnosis. Moreover, Perkins has failed to present any evidence establishing that his alleged brain stem stroke was medically diagnosable at the time Perkins was at the Jail, or that it would have been noticeable by any doctor during that time period.
This court concludes that Perkins has totally failed to support his claim of deliberate indifference to a serious medical need. Perkins was seen by the Jail Nurse on the date of his altercation with Lahr. Perkins was seen shortly thereafter by the Jail Doctor, and was sent to the hospital for x-rays, which came back normal. After repeated complaints, Perkins was again sent to the hospital for CT scans, which likewise came back normal. Although Perkins claims he suffered a brain stem stroke, he has failed to submit any medical evidence of this alleged condition. Even assuming Perkins suffered a brain stem stroke while at the Grant County Jail, Perkins has failed to show how Lawson could have possibly been aware of this, considering that Perkins had been treated and tested at the Marion General Hospital which ruled out any serious medical conditions. Accordingly, summary judgment will be granted in Lawson's favor on Perkins' Section 1983 claims related to his medical care while at the Grant County Jail.
To the extent that Perkins is attempting to sue Lawson in his individual capacity, such a claim also fails to pass summary judgment as it is totally unsupported by the evidence. In fact, Perkins' brief fails to set forth any sort of standard upon which this court could find Lawson individually liable.
Next, the court will address Lawson's request for summary judgment on Mrs. Perkins' claims. Mrs. Perkins appears to be alleging federal and state claims in her complaint which states:
24. By reason of Defendants' negligence, breach of statutory duties and violations of the constitutional rights of the Plaintiffs husband, William G. Perkins, Jr., Plaintiffs said husband has become injured and disabled and has been severally [sic] and permanently injured, has been confined to the hospital and to his bed for many months and this Plaintiff was obliged to incur expenses and provide care for her husband in an amount in excess of $150,000.00 in attempts to effect a rehabilitation and care for her husband and will necessarily incur further expenses of a similar nature for an indefinite time into the future.
25. In consequence of these injuries, Plaintiffs husband has been unable to perform the duties which he had previously performed for Plaintiff, and in consequence and as a proximate result she has been deprived of the society and companionship of her husband, and her comfort and happiness have been impaired, and this depravation [sic] and impairment will necessarily continue for a long time into the future, all to Plaintiffs damage.
To the extent that Mrs. Perkins is attempting to pursue a Section 1983 claim against Lawson for loss of consortium, it is clear that there is no such claim under the Constitution. Neihaus v. Liberio, 973 F.2d 526, 532-34 (7th Cir. 1992). Therefore, summary judgment will be granted on any Section 1983 claim Mrs. Perkins may be asserting.
To the extent that either Perkins or Mrs. Perkins are attempting to assert a state law negligence claim, they have failed to present any evidence supporting such a claim against Lawson. Lawson was a law enforcement officer, and not a doctor, during the time period in question. The Grant County Jail had in place a trained medical staff who treated Perkins and sent him to Marion General Hospital for further testing and treatment. Lawson, as Sheriff of the Grant County Jail had in place a medical policy pertaining to inmates which, according to all available evidence, was followed in this case. (See Exhibit A to Lawson Aff.). There is simply no basis upon which a jury could find that Lawson acted negligently in this case. Therefore, the court will grant summary judgment in favor of Lawson on any and all state law claims asserted against Lawson.
Conclusion
On the basis of the foregoing, Lawson's motion to strike and motion for summary judgment are both hereb GRANTED.