Opinion
Case No. 02-cv-1052-JPG.
July 21, 2005
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 45) of Magistrate Judge Philip M. Frazier recommending that the Court grant the parties' joint motion to dismiss all claims against defendant Alfred Garcia, M.D., with prejudice (Doc. 42) and the defendants' motion for summary judgment (Doc. 18). Plaintiff Richard L. Ambrose has objected to the Report (Doc. 46), and the defendants have responded to his objections (Doc. 48).
I. Report and Recommendation Review Standard
After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed.R.Civ.P. 72(b). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
II. Motion to Dismiss (Doc. 42)
The Court has received no objection to the portion of the Report that recommends granting the motion to dismiss defendant Dr. Garcia from this case. The Court has reviewed the entire file and finds that the Report is not clearly erroneous as to this recommendation. Accordingly, the Court will adopt the Report to the extent that it addresses the motion to dismiss and will grant the motion (Doc. 42).
III. Motion for Summary Judgment (Doc. 18)
The Report sets forth the appropriate standard for summary judgment and the essential facts. A brief summary of those facts, which are set forth in great detail in the Report, will suffice for the purposes of this order. In sum, Ambrose, who was civilly committed to be confined at Big Muddy Correctional Center ("Big Muddy") during all relevant times, challenges the adequacy of the medical diagnoses and treatment he received from medical personnel at Big Muddy's Health Care Unit in response to pain and vomiting occurring both before and after his appendix ruptured and was surgically removed. Count I of Ambrose's amended complaint alleges a cause of action for violation of his Eighth Amendment right to be free from cruel and unusual punishment through deliberate indifference to a serious medical need. Counts II and III allege actions for common law negligence.
With respect to Count I, the Report assumes that Ambrose had a serious medical need but finds that Ambrose has not presented sufficient evidence from which a reasonable jury could find that any of the defendants were deliberately indifferent to that need. With respect to Counts II and III, the Report finds that Ambrose has not presented sufficient evidence from which a reasonable jury could find that the defendants in those counts breached a duty to Ambrose by failing to abide by the proper standard of care.
Ambrose has objected to the Report's conclusions as to Counts I and II but not as to Count III. The Court has reviewed the entire file and finds that the Report is not clearly erroneous as to the recommended disposition of Count III. Accordingly, the Court will adopt the Report to the extent that it addresses Count III and will grant the motion for summary judgment as it pertains to that count (Doc. 42). As for Counts I and II, the Court reviews the motion for summary judgment de novo.
A. Count I
1. Applicable Standard
As a preliminary matter, the Court notes that because Ambrose is a civilly committed person and is not being punished as a convicted person, Count I falls under the Fourteenth Amendment Due Process Clause rather than the Eighth Amendment's prohibition of cruel and unusual punishment. However, for all practical purposes, the Fourteenth and Eighth Amendments prescribe the same standard, and Fourteenth Amendment claims should be analyzed under the Eighth Amendment test. See Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005) (involving pretrial detainee's failure to protect claim); Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001) (involving pretrial detainee's excessive force claim).
To the extent that a civilly committed person's due process rights may be broader than a criminally confined person's Eighth Amendment rights, Ambrose has forfeited that argument by arguing that the Eighth Amendment deliberate indifference standard applies to this case. See Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 n. 1 (7th Cir. 1996).
The Eighth Amendment's prohibition on the unnecessary and wanton infliction of pain forbids deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Zentmyer v. Kendall Co., 220 F.3d 805, 810 (7th Cir. 2000). To prevail on such a claim, a prisoner must show (1) that he had an objectively serious medical need and (2) that the official knew that the medical need was serious but disregarded it. Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); Chavez v. Cady, 207 F.3d 901, 905 (7th Cir. 2000).
An objectively serious injury or medical need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Zentmyer, 220 F.3d at 810 (quotations omitted). Prison officials can only be liable if they were aware of the medical need and disregarded it. Chavez, 207 F.3d at 905. The prisoner must show that the defendant's conduct was intentional or criminally reckless; neither simple nor gross negligence is sufficient to establish deliberate indifference. Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991).
2. Ambrose's Objections
Ambrose objects to the Report's version of the facts and the inferences drawn from them.
a. Frequency of Visits to Health Care Unit
Ambrose objects to the Report's omission of the fact that he repeatedly went to the Big Muddy Health Care Unit from December 20, 2001, to March 5, 2002, and was refused medical treatment, but no notes appeared in his medical file for that period. It is true that the Report does not explicitly state that Ambrose visited the health care unit during this time and the defendants refused him treatment. However, there is no evidence to support such a factual finding. It is true that Ambrose testified at his deposition, "Since the surgery I have been on health — in Health Care on numerous occasions. So many that I probably can't count, all right. I have got officers . . . that sent me to the Health Care Unit and on numerous occasions I had to deal with a couple of the nurses, one of the nurses, all of the nurses. It really depended on how they would do it." Ambrose also argues that his medical records do not reflect each visit he made to the Health Care Unit. He points to a "green pass" reflecting that he visited the Health Care Unit on a day for which there are no notations in his medical file. Nevertheless, except for the incident noted in the following paragraph, the evidence is simply not sufficient for a reasonable jury to conclude that any particular defendant in this case was aware of and deliberately indifferent to Ambrose's medical needs.
There is, however, one incident sometime in January, February or March 2002 where the evidence identifies particular defendants. Ambrose testified that he had reported to the Health Care Unit because he was vomiting. Someone there had told him he probably had the stomach flu, gave him medicine for vomiting and told him not to come back because there was nothing more the medical staff could do for him. Later that same day, a correctional officer observed Ambrose vomit in his cell and took him to the Health Care Unit, where defendants Yates and Nancy Thomas refused to see Ambrose and told the correctional officer that Ambrose had already been given medicine for vomiting. Ambrose waited in the Health Care Unit for two hours, then returned to his cell. The Report reflects this incident and identifies defendant Yates, but does not particularly identify defendant Nancy Thomas. However, the Court finds that the Report is not in error to find that this incident cannot establish deliberate indifference to a serious medical need. First, there is no evidence from which a reasonable jury could find that Ambrose's vomiting on this occasion amounted to a serious medical need, even in light of his appendectomy several months before. Second, there is no evidence from which a reasonable jury could conclude that Yates and Nancy Thomas knew that Ambrose's vomiting was anything more than the stomach flu, were able to provide any further treatment beyond the vomiting medication without a doctor's orders, and deliberately failed to provide that treatment. Thus, even though Ambrose has identified two defendants who refused to treat him for vomiting on one occasion, the evidence could not lead a reasonable jury to find that the defendants were deliberately indifferent to a serious medical need.
Ambrose argues that he has also sufficiently identified defendant Puckett. He testified in his deposition that he had "talked to her on numerous occasions when I went over there [to the Health Care Unit] and she [] made a statement that I don't understand why nothing is getting accomplished." Ambrose's testimony, however, does nothing to establish whether his medical need was serious at the time he talked to Puckett, whether she was aware that his medical need was serious, or that she did nothing in response to that need. Even viewed in light of the rest of the evidence presented, Ambrose's encounter with Puckett is not sufficient for a reasonable jury to find that she was deliberately indifferent to his serious medical needs.
b. Observation
Ambrose argues that defendant Dr. Hamby's decision to admit Ambrose to the infirmary for observation for vomiting, but then to give him no solid food that he could have vomited, "is hardly evidence of a genuine interest in diagnosing [Ambrose's] condition." Pl. Obj. at 4. However, neither is it evidence of deliberate indifference. The evidence shows that Ambrose presented himself to Dr. Hamby with a problem, and Dr. Hamby evaluated Ambrose's symptoms, decided to watch him to assist in diagnosing the problem and discharged him back to his cell when the problem appeared to cease. There is no evidence that Dr. Hamby's course of action was a substantial departure from accepted professional judgment, practice or standards such that it could not have been based on his medical judgment, and absent such evidence, Ambrose cannot demonstrate Dr. Hamby was deliberately indifferent to his need.
c. Hernia Treatment
Ambrose argues that Dr. Rowe's and Wexford's rejection of Dr. Garcia's recommendation for a consultation with Ambrose's surgeon for his ventral hernia amounts to deliberate indifference. It does not. Dr. Rowe indicated that he believed the consultation was not medically necessary and that Dr. Garcia could follow up on the hernia adequately at the Big Muddy Health Care Unit. The rejection of Dr. Garcia's recommendation does not reflect anything more than differing medical opinions on the course of treatment, which cannot, by itself, establish deliberate indifference. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). Viewed as a whole, the evidence presented in this case is not sufficient for a reasonable jury to conclude that Dr. Rowe and Wexford were deliberately indifferent to Ambrose's medical needs simply because they did not follow Dr. Garcia's recommendation.
d. Dr. Hamby's Skepticism
Ambrose objects because he believes the Report improperly minimized the importance of defendant Dr. Hamby's skepticism of inmate health complaints to establish deliberate indifference. On the contrary, the Report properly noted Dr. Hamby's skepticism and found that it, along with other evidence, could not establish deliberate indifference. Indeed, Dr. Hamby's skepticism supports the inference that Dr. Hamby did not actually know of a serious medical need and therefore took action to observe Ambrose to assess if such a serious need existed. Ambrose has not presented evidence that Dr. Hamby's reaction to his complaints, skeptical as it was, was so far outside the realm of accepted professional judgment so as to constitute deliberate indifference.
c. Dr. Garcia's Expectations
Ambrose argues that the Report did not construe in his favor Dr. Garcia's testimony regarding his expectations about the functioning of the Health Care Unit. Dr. Garcia testified essentially that if an inmate visited the Health Care Unit for vomiting, he would expect the nurses to make a note of it in his record. The Report found that this testimony did not establish the standard of care by which constitutional claims should be measured. The Court finds that the Report was correct as to what Dr. Garcia's testimony could reasonably establish. Furthermore, for the reasons discussed in Part III.A.2.a. of this order, even in light of Dr. Garcia's testimony, Ambrose has not presented evidence from which a reasonable jury could find that any defendant in this case was deliberately indifferent to his serious medical need even if the he or she did not meet Dr. Garcia's expectations.
d. Deliberate Indifference Standard
Ambrose takes issue with the standards set forth by the Court for finding a constitutional violation based on inadequate medical care. The standard Ambrose cites, however, is the same standard the Report sets forth on page 12 and is the standard set forth earlier in this order. The Report correctly applied it.
In sum, Ambrose essentially objects to the Report's conclusions that the evidence cannot establish that any particular defendant was deliberately indifferent to a serious medical need. The Court has attempted to address Ambrose's individual objections one by one to the extent that they are not redundant. The Court has also conducted a separate de novo review of the pending motion and finds that, viewing the evidence in the light most favorable to Ambrose and drawing all conclusions in his favor, no reasonable jury could find that any defendant was deliberately indifferent to a serious medical need. The evidence reflects that Ambrose received medical attention on numerous occasions and only failed to receive further attention or treatment from a defendant where there were no verifiable symptoms or diagnosis or where in a defendant's medical judgment he had already been given appropriate tests or treatment and was not in need of further tests or treatment.
B. Count II
Ambrose believes that the Report improperly found that Wexford's and Rowe's failure to approve the consultation ordered by Dr. Garcia in March 2002 and the tests ordered by Dr. Korman in July 2002 did not establish that Wexford and Rowe were negligent in their duty to provide medical care for inmates. First, Ambrose overlooks the fact that Dr. Garcia only recommended the consultation and did not indicate that it was medically necessary. On the contrary, he indicated that ventral hernia's were asymptomatic and essentially cosmetic. Thus, Dr. Garcia's testimony cannot establish that the failure to order the consultation breached the applicable standard of care. Ambrose has simply not presented any evidence from which a reasonable jury could determine that Wexford and Rowe breached a standard of care by finding that the consultation was not necessary and that Dr. Garcia could adequately monitor the ventral hernia at the prison. With respect to the tests ordered by Dr. Korman, again Ambrose has not presented evidence that the standard of care required the tests and that Wexford and Rowe breached that standard of care by not approving those tests. The Report is correct in its conclusions as to Count II.
IV. Conclusion
For the foregoing reasons, the Court:
• ADOPTS the Report (Doc. 45) as SUPPLEMENTED by this order;
• GRANTS the motion to dismiss all claims against defendant Dr. Garcia (Doc. 42);
• DISMISSES all claims in this case against defendant Dr. Garcia with prejudice;
• GRANTS the remaining defendants' motion for summary judgment (Doc. 18); and
• DIRECTS the Clerk of Court to enter judgment accordingly.
IT IS SO ORDERED.