Fingers v. Carter

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DEREK D. FINGERS,

Plaintiff,

v. CAUSE NO.: 3:19-CV-525-RLM

COURTNEY BRIDENTHAL; SERENA

KENDALL; JESSICA KOONS; JADA

MILLER; BRADY HERRINGTON;

STEVEN PRICE; WALTER PINTAL;

MARGARET HEINE, a/k/a DEVORE;

BARBARA ANN GIBBS; and ALTA

JANE OVERHOLSER,

Defendants.1

OPINION AND ORDER

Plaintiff Derek D. Fingers, a prisoner without a lawyer, asserts violations of

his Eighth Amendment right to be free from cruel and unusual punishment stemming

from his mental health treatment while incarcerated by the Indiana Department of

Correction at the Miami Correctional Facility from June 2018 through June 2019.

His complaint includes:

• a claim against Nurse Courtney Bridenthal, for refusing to provide

Mr. Fingers with his psychiatric medication around 7:00 a.m. on July 10, 2018;

1 The caption has been amended to reflect the Defendants’ full names and correct spellings

as reflected in their summary judgment materials.

• a claim against Correctional Officers Serena Kendall, Jessica Koons, and

Jada Miller, for preventing Mr. Fingers from receiving his psychiatric

medication around 7:00 a.m. on July 17, 2018;

• a claim against Correctional Officers Brady Herrington and Steven Price, for

harassing and threatening Mr. Fingers on January 29, 2019, so he would react

in a way that would justify tasing him; and

• a claim against mental health professionals Walter Pintal, Margaret Heine,

a/k/a Devore, Barbara Ann Gibbs, and Alta Jane Overholser, for refusing to

provide treatment to him from July 17, 2018 to November 28, 2018. See ECF 4

at 13.

The defendants filed motions for summary judgment, Mr. Fingers filed a combined

response, and reply briefs were filed. For the reasons that follow, the court grants the

defendants’ summary judgment motions. The discussion of the reasons for those

rulings are divided into two parts: Part One addresses Mr. Fingers’s claims against

defendants Bridenthal, Kendall, Koons, Miller, Herrington, and Price, while Part

Two addresses the claims against defendants Pintal, Devore, Gibbs and Overholser.

STANDARDS OF REVIEW

Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a). A genuine issue of material fact exists when “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). Summary judgment is not appropriate if the

court must choose between competing inferences or weigh the credibility of witnesses,

since these are a jury’s functions. Abdullahi v. City of Madison, 423 F.3d 763, 770

(7th Cir. 2005); Keri v. Bd. of Trust. of Purdue Univ., 458 F.3d 620, 627 (7th Cir.

2006). The nonmoving party can’t rely merely on allegations or denials in his own

pleadings but instead must “marshal and present the court with the evidence [he]

contends will prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654

(7th Cir. 2010). That a party doesn’t have a lawyer doesn’t ease this burden. Arnett

v. Webster, 658 F.3d 742, 760 (7th Cir. 2011).2

Eighth Amendment Standard

Inmates are entitled to constitutionally adequate medical care under the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability

for a violation of this right, a prisoner must satisfy both an objective and subjective

component. First, he must show that he had an objectively serious medical need.

2 Dr. Pintal argues that the court shouldn’t consider factual statements made in Mr.

Fingers’s summary judgment response brief because they are “unsworn and unverified.”

ECF 164. But Mr. Fingers’s March 3, 2021 filing includes a declaration, sworn under

penalty of perjury, that all factual statements in his summary judgment brief are true. ECF

167 at 3. The March 3 filing is among the documents that the court held would be “before

the court for consideration when the merits of the summary judgment motion is

considered.” ECF 169. The declaration in the March 3 filing satisfies the sworn affidavit or

declaration requirement of Rule 56 of the Federal Rules of Civil Procedure. See Dale v.

Lappin, 376 F.3d 652, 655 (7th Cir. 2004). In any event, the court doesn’t need to rely on

any facts asserted in Mr. Fingers’s response brief because the same facts can be found

elsewhere in the record, i.e., Mr. Fingers’s medical and other records produced by the

defendants in discovery.

Second, he must show that the defendant acted with deliberate indifference to that

medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

“A condition is objectively serious if failure to treat it could result in further

significant injury or unnecessary and wanton infliction of pain.” Reed v. McBride, 178

F.3d 849, 852 (7th Cir. 1999) (collecting cases) (internal quotation omitted). None of

the defendants dispute that Mr. Fingers’s mental illness is an objectively serious

medical condition requiring treatment,3 so the inquiry turns on the subjective

“deliberate indifference” prong of the Eighth Amendment analysis. To establish

“deliberate indifference,” a plaintiff must show that the defendant “acted in an

intentional or criminally reckless manner, i.e., the defendant must have known that

the plaintiff was at serious risk of being harmed and decided not to do anything to

prevent that harm from occurring even though he could have easily done so.” Board

v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (internal quotation marks, brackets,

and citations omitted). Deliberate indifference is a higher standard than negligence,

incompetence, or even medical malpractice. Pierson v. Hartley, 391 F.3d 898, 902 (7th

Cir. 2004). It is “something approaching a total unconcern for a prisoner’s welfare in

the face of serious risks,” or a “conscious, culpable refusal” to prevent harm. Duane

v. Lane, 959 F.2d 673, 677 (7th Cir. 1992).

3 “The need for a mental illness to be treated could certainly be considered a serious medical

need.” Sanville v. McCaughtry, 266 F.3d 724, 733–734 (7th Cir. 2001).

DISCUSSION

General Introduction

Mr. Fingers has been in the Department of Correction’s custody since July

2004 when he was convicted of Arson, a Class B felony, and sentenced to twenty years

in prison with an additional twenty-year habitual offender enhancement,4 for a total

sentence of forty years. See Fingers v. State, 895 N.E.2d 739 (Ind. App. 2008). His

prison medical records indicate he has suffered from mental illness dating back to

when he was a young child. At some point before he arrived at the Miami Correctional

Facility, a Department of Correction treating psychiatrist had classified Mr. Fingers’s

mental illnesses as atypical psychosis, antisocial personality disorder, and a history

of multiple different substance abuse issues including alcohol. Mr. Fingers was

prescribed three psychiatric medications to treat his mental illnesses, and continued

to take those throughout his incarceration at the Miami Correctional Facility. Those

medicines were Effexor to treat depression, taken once a day in the morning;

Risperdal (or risperidone), to treat psychotic episodes, taken once a day in the

evening; and Depakote for mood stabilization, taken twice a day in the morning and

evening.

Immediately before his transfer to the Miami Correctional Facility,

Mr. Fingers was incarcerated in the Intensive Residential Treatment program at

Pendleton Correctional Facility. Another inmate tried to cut Mr. Fingers’s throat with

4 Mr. Fingers apparently had previous convictions for aiding criminal recklessness (1997,

1998), and resisting law enforcement and robbery (2001).

a razor in April 2018. ECF 161-1 at 143. For his own safety, he was moved from the

Intensive Residential Treatment into the general prison population. Traumatized by

the attack, Mr. Fingers spent forty out of sixty days on suicide watch. He covered his

cell door with his mattress and attempted suicide by cutting his wrists. He was

transferred from Pendleton to the Miami Correctional Facility three weeks later, on

June 22, 2018.

Part One

Facts5

Mr. Fingers’s claims against Defendants Bridenthal, Kendall, Koons, Miller,

Herrington, and Price arise out of three incidents occurring on July 10, 2018, July 17,

2018, and January 29, 2019. A fourth incident occurring on July 18, 2018 sheds

further light on the three incidents at issue.

July 10, 2018. Miami Correctional Facility inmates are dispensed medications

once in the morning and once in the evening through a procedure known as the

“medicine line.” The morning medicine line takes place as early as 5:30 or 6:30 a.m.,

and Mr. Fingers wasn’t let out of his cell in time that day. Around 7:00 a.m., he asked

“Sergeant Nice” if he could go to the medical building to get his missed morning

medications from the nurse. Sergeant Nice called the medical unit and spoke with

Nurse Bridenthal. Nurse Bridenthal told Sergeant Nice that Mr. Fingers couldn’t get

5 For purposes of the defendants’ summary judgment motions, the court construes all facts

and draws all reasonable inferences in the light most favorable to Mr. Fingers. Ogden v.

Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

his medications after the morning medicine line had ended because the morning and

evening dosages had to be spaced a certain length of time apart. Mr. Fingers contends

he suffered “a mania/manic, psychotic, and schizophrenia episode . . . where he took

a broom stick and started hitting the walls, cell doors, and light fixture inside the

housing unit” as a result of missing his morning medications.

July 17, 2018. On this day, Mr. Fingers again arrived late to the morning

medicine line. Sergeant Nice gave him permission at around 7:12 a.m. to go to the

medical building for late administration of his medicines. But as he arrived at the

medical building, Sergeants Kendall, Miller, and Koons intervened. Mr. Fingers told

them he had permission from Sergeant Nice to go to the medical building to get his

psychotropic medication, but the three officers responded in a “loud” and “disruptive”

manner.” Mr. Fingers “made the decision to walk around” them, but they followed

behind him and interfered with him “trying to receive [his] medication.” Mr. Fingers

threatened suicide if he didn’t get his medication. The defendants handcuffed

Mr. Fingers inside the medical building and left him there for hours.6

July 18, 2018. The next day, Mr. Fingers was ordered to go with four or five

other inmates who also were on suicide watch “for a suicide observation review” and

6 The court sets forth the evidence in the light most favorable to Mr. Fingers, but other

evidence in the record shows that Mr. Fingers’s initial interaction was with Sergeant

Kendall only. ECF 161-1 at 126. It also indicates that Sergeant Kendall was with

unidentified medical staff when Mr. Fingers was told that medications could not be passed

outside the medicine line because doing so could result in them being received too close

together. Mr. Fingers then became loud and disruptive, drawing the attention of Sergeants

Koon and Miller who came to provide assistance to Sergeant Kendall. Mr. Fingers was

asked to leave, whereupon he asserted he was suicidal. He was left in the medical office

because Sergeant Kendall had to make arrangements for his transfer to a suicide watch

cell. ECF 161-3 at 19; ECF 161-1 at 127.

administration of morning medications. Mr. Fingers didn’t want to go because his

mental illness had been “exacerbated” by having been deprived his medicines the

previous day. But his request that his morning medicines be brought to his cell

instead was refused. When he got to the medical building, Mr. Fingers met with

Clinical Psychologist Fania Lee, PsyD for a suicide observation review. Dr. Lee

reported that Mr. Fingers was upset he had missed his medications the previous day.

Mr. Fingers became upset when Dr. Lee told Mr. Fingers that he needed to go

through proper procedure to get his morning medications. He began yelling that he

didn’t want to talk to Mental Health anymore, didn’t want to take his medications,

and was going on a hunger strike. He walked out of Dr. Lee’s office without allowing

her to respond.

Back in the room with the four or five other inmates who were waiting on their

suicide observation review, Mr. Fingers said out loud that he was hearing voices and

then began throwing furniture against the door to barricade himself and the other

offenders inside. Mr. Fingers explains that he was suffering a “schizophrenia,

psychotic and mania/manic episode” at the time, “where the voices got so bad, and

attacked [him] and drove him insane,” causing him to do those things.7 Additional

7 Mr. Fingers received a disciplinary report for rioting as a result of this incident. He later

filed a habeas petition asserting he was improperly sanctioned for conduct that was caused

by his mental illness. His habeas petition was denied. See Fingers v. Warden, No. 3:19-cv-

20, 2020 WL 638523 (N.D. Ind. Feb. 11, 2020). Mr. Fingers has filed quite a few other

habeas petitions in this district making the same argument that penalties imposed on him

for conduct infractions were improper due to his mental illness, all of which have been

either denied or dismissed. See Fingers v. Warden, No. 3:19-cv-131 (filed Feb. 26, 2019,

denied Feb. 11, 2020); Fingers v. Warden, No. 3:19-cv-132 (filed Feb. 26, 2019, denied July

3, 2019); Fingers v. Warden, No. 3:19-cv-134 (filed Feb. 26, 2019, denied Aug. 11, 2020);

Fingers v. Warden, No. 3:19-cv-135 (filed Feb. 26, 2019, dismissed Apr. 14, 2020); Fingers v.

correctional officers were called to the scene, and Mr. Fingers ultimately was

convinced to let himself be handcuffed so he could talk to Warden Hyatte, who was

waiting outside the room. Mr. Fingers “became extremely emotional” during his

conversation with Warden Hyatte, and the warden asked if he (Mr. Fingers) had

received his morning psychotropic medicines. Hearing that Mr. Fingers had not yet

gotten his psychotropic medicines that morning, the warden directed Nurse

Bridenthal to give them to him.

January 29, 2019. As Mr. Fingers came out of his cell for breakfast that

morning, he asked Sergeant Herrington to hold the door for him. Sergeant Herrington

responded by calling Mr. Fingers a “retard” and getting “into a fighting stance.”

Sergeant Herrington had been harassing Mr. Fingers all morning to the point where

another sergeant had to intervene, telling Sergeant Herrington to leave Mr. Fingers

alone and taking Mr. Fingers into another room to calm him down. After that

sergeant had to leave for training, Sergeant Herrington continued to provoke

Mr. Fingers. Mr. Fingers went to Counselor Price for help, saying he couldn’t “take

it” anymore and was “about to lose control of [himself].” Counselor Price replied that

Mr. Fingers shouldn’t be out of his cell and that he (Counselor Price) was going to call

Sergeant Herrington over to physically put Mr. Fingers back in his cell. Counselor

Price told Mr. Fingers “to take your black ass to your cell,” and warned Mr. Fingers

that he and Sergeant Herrington “would come and physically put him” in his cell.

Warden, No. 3:19-cv-136 (filed Feb. 26, 2019, dismissed Mar. 4, 2019); Fingers v. Warden,

No. 3:19-cv-205 (filed Mar. 22, 2019, dismissed Apr. 14, 2020).

Counselor Price’s words caused Mr. Fingers “to lose control over himself” by running

up to Counselor Price, who then kicked Mr. Fingers, causing him to fall back. Mr.

Fingers got up and hit Counselor Price three times. Mr. Fingers claims he was having

a psychotic episode, and backed off once he realized what he was doing. But then he

saw Sergeant Herrington coming and “flipped out again,” this time hitting another

sergeant. A third sergeant, responding to Mr. Fingers’s physical aggression against

the other correctional officers, tased him.

Analysis

Nurse Bridenthal

Nurse Bridenthal raises a number of factual arguments for why she is entitled

to summary judgment on Mr. Fingers’s deliberate indifference claim against her for

refusing to administer his psychiatric medication on the morning of July 10, 2018.

Even if all the parties’ factual issues are resolved in Mr. Fingers’s favor, the

evidence isn’t sufficient to support a jury finding against Nurse Bridenthal on the two

prongs of the deliberate indifference test. Those two prongs require sufficient

evidence for a jury to find (1) that there was a substantial risk of Mr. Fingers

sustaining a serious injury as a result of not receiving his morning medications, and,

if so, (2) that Nurse Bridenthal was subjectively aware of it. Gayton v. McCoy, 593

F.3d 610, 623 (7th Cir. 2010).

Mr. Fingers has presented no evidence to show that a single missed morning

dosage of his medication posed a substantial risk of exacerbating his mental illness.

See Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir. 2007) (the delay in treatment,

rather than the underlying serious mental illness, must be the cause of the risk of

harm suffered by the plaintiff). No reasonable jury could credit Mr. Fingers’s

testimony that his behavioral outburst with the broom later that day was caused by

the single missed dosage when there is no medical testimony attesting to that

causation theory. Further, the evidence shows that Mr. Fingers met with the

prescribing nurse practitioner later that day, and she reported he showed no signs at

that time of suffering any current symptoms of mental illness. Finally, contrary to

Mr. Fingers’s representations, the only change to his psychiatric medications that

resulted from his session with the psychiatric nurse was an increase in Risperdal,

which is given in the evening and so wasn’t one of the missed morning medications.

On the second prong of the deliberate indifference inquiry, assuming a single

missed dosage of morning medicine would pose a serious risk of exacerbating

Mr. Fingers’s mental illness, Mr. Fingers hasn’t pointed to any evidence showing that

Nurse Bridenthal knew that was the case. For instance, there is no evidence that

Nurse Bridenthal was aware of the nature and extent of Mr. Fingers’s mental health

issues other than that he had been prescribed psychiatric medications. This

knowledge by itself doesn’t support a claim that Nurse Bridenthal was aware he was

at risk of a serious aggravation to his mental health by a single missed dosage. And

her knowledge of the July 18 incident in which the warden ordered that Mr. Fingers

be given his morning medicine after Mr. Fingers instigated a riot with four or five

other inmates doesn’t add to the analysis, because that happened after July 10. Apart

from that timing, the incident itself wouldn’t support a reasonable inference that

Nurse Bridenthal had subjectively concluded either beforehand or afterwards that

Mr. Fingers’s missed dosage of medicines was connected with his problematic

conduct.

Mr. Fingers says there were repeated delays in receiving his psychiatric

medicines at the Miami Correctional Facility and that those repeated delays caused

him to suffer a deterioration of his mental health over a longer period of time. Mr.

Fingers’s medical records suggest his mental health might have deteriorated in the

fall of 2018, and there might have been additional incidents in that time period of

missed dosages of medications. The record contains no evidence that would allow a

reasonable jury to distinguish the medical effects of the alleged missed dosages of his

psychiatric medicines from the effects of Mr. Fingers’s preexisting mental illnesses.

And in any event, Mr. Fingers hasn’t presented any evidence to show that Nurse

Bridenthal personally participated in the repeated delays of which he complains. The

evidence at most shows that she potentially participated in some way in only three

instances involving Mr. Fingers not receiving his morning dosages—July 10, 17, and

18. Disregarding Mr. Fingers’s unsupported assertions and viewing the evidence

most favorably to him, a reasonable jury simply couldn’t infer that a systemic problem

existed in the Miami Correctional Facility’s administration of Mr. Fingers’s

medicines for which Nurse Bridenthal can be held responsible. See Sanville v.

McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). (a defendant can only be held liable

for the actions or omissions in which she personally participated).

Correctional Officers Kendall, Koons and Miller

Mr. Fingers says defendants Kendall, Miller, and Koons violated his Eighth

Amendment right to be free from cruel and unusual punishment because they

prevented him from receiving his psychotropic medication on the morning of July 17,

2018.

Our court of appeals recognized the division of labor between medical staff and

administrative staff in Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), in which the

court found that when a prison official refers the matter to medical professionals, a

failure to act further can’t be viewed as deliberate indifference. Id. at 655-656

(agreeing with Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004)); see also Estate of

Miller v. Marberry, 847 F.3d 425, 427 (7th Cir. 2017); Hayes v. Snyder, 546 F.3d 516,

527 (7th Cir. 2008). Only if nonmedical officers have a reason to believe that medical

personnel are not treating a prisoner, or else they interfere with that treatment, can

nonmedical officers be found deliberately indifferent. King v. Kramer, 680 F.3d 1013,

1018 (7th Cir. 2012).

Mr. Fingers argues both situations apply. First, he argues the three defendants

interfered with his getting his medicine. The three defendants state (with support in

the record) that their involvement in the July 17, 2018 incident “was limited to

performing [their] duties as a Correctional Sergeant/Caseworker,” and that none of

their actions on the morning in question did or was intended to interfere with

Mr. Fingers’s medical care. But those assertions are conclusory, and unsupported by

any description or explanation of each defendants’ conduct in relation to the incident,

so the court turns to Mr. Fingers’s description of what happened. He says the three

defendants didn’t keep him from entering the medical building to get his morning

medicine; he says he walked around them to enter the building. Based on Mr.

Fingers’s description of what happened, it was the medical staff that made the

decision to not give Mr. Fingers’s his medicines, not any of the three defendants.

There is no evidence that the three defendants prevented the nurse from giving Mr.

Fingers his medicines.

Mr. Fingers also argues the second situation applies here: defendants Kendall,

Miller, and Koons could have “used their custody influence” to interfere on

Mr. Fingers’s behalf by directing Nurse Bridenthal to give Mr. Fingers his

psychotropic medication, as the warden had done. The three defendants are

correctional officers who don’t have the same “custodial” power as a warden has. More

importantly, the officers had no reason to believe that the nurse wasn’t exercising her

professional judgment when she refused Mr. Fingers his medications. Even if these

three defendants could have ordered the medical staff to give Mr. Fingers his

medicines, no evidence could support a finding that any of them had reason to

question the medical staff’s apparent exercise of professional judgment that it was

too late for Mr. Fingers to receive his medicine.

In short, the record contains no evidence to suggest that these defendants had

any reason to believe that medical personnel responsible for distributing medications

were acting inappropriately. No reasonable trier of fact could find that Sergeants

Kendall, Miller, and Koons were deliberately indifferent to any serious medical need

of Mr. Fingers on July 17, 2018. See Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.

2009) (“[a] layperson’s failure to tell the medical staff how to do its job cannot be called

deliberate indifference”).8

Correctional Officers Herrington and Price

Mr. Fingers contends that Defendants Herrington and Price violated his

Eighth Amendment right to be free from cruel and unusual punishment by provoking

him to act in a way that would justify his tasing.9

Read in the light most favorable to Mr. Fingers, the record shows only that

Sergeant Herrington deliberately taunted or harassed him, while Counselor Price

was disrespectful and callous in his response to Mr. Fingers’s complaints about

Sergeant Herrington. The conduct Mr. Fingers describes doesn’t support a

constitutional claim. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)

(“[S]imple verbal harassment does not constitute cruel and unusual punishment,

deprive a prisoner of a protected liberty interest or deny a prisoner equal protection

of the laws.”).

8 Mr. Fingers’s deliberate indifference claim against these defendants also fails for the

reasons previously discussed with regard to Nurse Bridenthal: there is no evidence in the

record that a single missed dosage of medicine posed a serious risk of exacerbating Mr.

Fingers’s mental illnesses or, if it did, that these defendants were aware of the risk.

9 Mr. Fingers doesn’t contend that the correctional officer who tased him used excessive

force. Nor could he, given Mr. Fingers’s physical attacks on Counselor Price and a third

correctional officer. See Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (stating

that the “core requirement” for an excessive force claim is that the defendant “used force

not in a good-faith effort to maintain or restore discipline, but maliciously and sadistically

to cause harm”).

Mr. Fingers testified that taunting and harassment by correctional employees

is something that routinely happens to inmates with serious mental illnesses because

correctional officers want mentally ill inmates housed in restrictive housing units

rather than in the general prison population. So correctional officers “try to provoke

those kinds of prisoners, who then fall into the trap by responding to the provocation

and then end up in lockup.”

Assuming such allegations could give rise to an Eighth Amendment claim for

wanton infliction of psychological pain,10 Mr. Fingers hasn’t met his burden of

presenting enough evidence to support a finding in his favor. There is no evidence

from which a jury reasonably could infer the state of mind that Mr. Fingers attributes

to defendants Herrington and Price: an intentional provocation with the purpose of

inciting Mr. Fingers to violence so that he could then be tased in response to that

violence. See, e.g., Denton v. Trasher, No. 3:18-CV-5017-BHS-DWC, 2020 WL

5350656, at *16 (W.D. Wash. Mar. 20, 2020) (rejecting prisoner’s claim that verbal

harassment violated the Eighth Amendment because it caused him psychological

harm, in light of his mental health issues, where there was no evidence that the

“defendant’s actions were ‘calculated to’ cause such [psychological] damage”), report

10 See Leiser v. Kloth, 933 F.3d 696, 703 (7th Cir. 2019) (listing cases in which the alleged

conduct unrelated to penological interests inflicted psychological torment and humiliation

sufficient to give rise to an Eighth Amendment claim); Northington v. Jackson, 973 F.2d

1518, 1525 (10th Cir. 1992) (holding that a prisoner stated an Eighth Amendment claim

when he alleged that the defendant correctional officer “intended to do harm to [him] by

inciting inmates to beat him”).

and recommendation adopted in part, rejected in part on other grounds, No. C18-5017

BHS, 2020 WL 3529809 (W.D. Wash. June 29, 2020).

Mr. Fingers’s allegations of a general pattern or practice among correctional

officers are conclusory. The facts contained in this summary judgment record relate

to only a single name-calling incident involving two correctional officers. Moreover,

Mr. Fingers does not allege, let alone present evidence to show, that Counselor Price’s

or Sergeant Herrington’s ridicule and taunting exacerbated his underlying

psychological condition and that worsened psychological condition then caused the

violence for which Mr. Fingers was tased. Even with Mr. Fingers’s unsupported and

speculative testimony about the motives of Sergeant Herrington and Counselor Price,

no reasonable jury could find on the current record that Mr. Fingers lacked control

over his conduct in response to the harassment and taunting such that the taunting

itself, rather than Mr. Fingers’s violent response to the taunting, could be said to

have caused Mr. Fingers to be tased. Finally, even if Mr. Fingers’s could show

otherwise, he hasn’t presented any evidence to show that Sergeant Herrington and

Counselor Price knew their conduct would make Mr. Fingers’s mental illness worse,

or knew that Mr. Fingers couldn’t control his conduct because of his mental illness.

Mr. Fingers hasn’t shown that Sergeant Herrington and Counselor Price put him at

risk of suffering a constitutional harm or that they acted with constitutionally

cognizable culpability.11

11 Sergeant Herrington and Counselor Price also argue they are entitled to qualified

immunity. Because the court finds their motion for summary judgment should be granted

on alternative grounds, this argument need not be addressed.

Part Two

Facts12

The facts discussed in this part are taken primarily from Mr. Fingers’s prison

medical records, grievance records, and requests for health care. The relevant time

frame for Mr. Fingers’s claims against defendants Pintal, Devore, Gibbs, and

Overholser is July 17, 2018 to November 28, 2018. See ECF 4 at 13.

July 2018. Ms. Gibbs, Ms. Devore, and nursing staff monitored Mr. Fingers

for suicide from July 17-18. On July 20, he met with Ms. Overholser for the first time.

He told her that he didn’t want any mental health treatment and believed he

shouldn’t be held responsible for conduct reports due to his history of mental illness.

Ms. Overholser told Mr. Fingers that despite his mental illness, she believed he knew

the difference between right and wrong and so was responsible for his conduct.

Ms. Overholser noted in her report that Mr. Fingers’s mental diagnoses included only

a mood disorder and antisocial personality disorder. She said that Mr. Fingers’s

symptom report was questionable since she saw no observable signs of anxiety, anger,

agitation, depression, or cognitive/intellectual limitations. She saw no indication of

impulse control issues, psychosis, mania, or suicidal/homicidal ideation. She reported

that Mr. Fingers’s attitude was demanding and manipulative, and that in her

opinion, he didn’t present any mental health issues then.

12 See note 5, supra.

Mr. Fingers met with Ms. Overholser again on July 23. He spent much of the

session arguing about his prior conduct reports again. He claimed his mental health

“was off chain,” and said he “would have [Ms. Overholser’s] head on a platter” and

“take [her] down” for “not knowing” his mental health history. He called her “a bitch”

and threatened to “get the courts and IDOC involved.” Ms. Overholser ultimately had

custody personnel remove him from her office. Aside from being hostile, demanding,

and manipulative, Ms. Overholser saw no mental health issues and discontinued

Mr. Fingers on suicide watch. Ms. Overholser met with Mr. Fingers again the next

day. Mr. Fingers wanted to know when he could be moved out of restrictive housing.

Ms. Overholser told him that he had to remain there for the time being due to a

conduct report he had received. Ms. Overholser reported that Mr. Fingers “was

exhibiting poor insight and strong access to features of his prior diagnosis of

antisocial personality disorder.”

On July 30, Mr. Fingers met briefly with Ms. Devore after reports that he had

threatened to “slice his wrists.” Ms. Devore determined he didn’t have any mental

health issues at that time.

August 2018. On August 6, Mr. Fingers met with Dr. Pintal, who wrote in his

session notes that Mr. Fingers “denied having any current [mental health] needs.”

Dr. Pintal also wrote that Mr. Fingers “spoke at length” about something being

“wrong” with him, describing voices in his head that got so loud at times he had

difficulty controlling himself. Dr. Pintal wrote that he responded to Mr. Fingers’s

mental health concerns by encouraging him “to reframe his thinking from ‘control’ to

‘management’” and “accept that he is responsible for his behavior.” Mr. Fingers

interpreted Dr. Pintal’s words differently. He testified at his deposition that

Dr. Pintal actually said was that “it was his [Dr. Pintal’s] job to make sure that he

[Mr. Fingers] never got out of prison.”

Mr. Fingers met with the psychiatric nurse for medication management on

August 13. Together they decided to increase Mr. Fingers’s dosage of Effexor for

depressed mood, while maintaining the other two medications at the same level. A

week later, Mr. Fingers met with Ms. Gibbs, who reported that Mr. Fingers was

pleasant and talkative with “no observable signs of significant impairment or

distress.” His “focus” in the session was on his belief that he should be placed in an

off-site psychiatric hospital. He also spoke of his plans to write the governor and

judges about his need to be released from prison, and he wanted Ms. Gibbs “to

understand” his supposed role with the “IPAS settlement.”13 Ms. Gibbs noted that,

although Mr. Fingers had been transferred to the Miami Correctional Facility two

months earlier, he hadn’t yet had a mental health intake assessment, probably

because it had been deferred because of his placement on suicide watch shortly after

his arrival.

13 Mr. Fingers was referring to a settlement in a lawsuit brought by the Indiana Protection

and Advocacy Services Commission (“IPAS”) against the IDOC in which a district court in

the Southern District of Indiana had ruled after a bench trial that the IDOC had violated

the Eighth Amendment by placing seriously mentally ill prisoners in isolation with little or

no access to treatment. See Ind. Prot. & Advoc. Servs. Comm’n v. Comm’r, No. 1:08-cv-1317-

TWP-MJD, 2012 WL 6738517 (S.D. Ind. Dec. 31, 2012).

Dr. Lee conducted the intake mental health examination of Mr. Fingers, which

lasted several hours, on August 28. Mr. Fingers told Dr. Lee detailed information

about his mental health history starting around age six, including suicide attempts

such as jumping into heavy traffic for no reason, hearing and seeing things, and

having odd beliefs, perceptions, and body sensations such as feeling an invisible force

push him down the stairs, a pulling behind his eyes, and a sense that his face was

not his own. Mr. Fingers also reported a history of violence starting at around age

fifteen, including an incident in which he tied his mother and two sisters up because

“something just [told] him to ‘kill em, kill em, kill em.’” Mr. Fingers estimated at least

four inpatient hospitalizations as a child, including his mother having committed him

to an institution because she thought he was ‘Damien.’”

Mr. Fingers also spoke to Dr. Lee about his current mental health symptoms.

including persistent auditory hallucinations when in restrictive housing, as well as

feeling “the presence of an entity” that pushes or holds him down and forces him to

smile or change his demeanor. He said there were times he could “just flip out,”

particularly if he was in his cell for a long time and the voices started to take over.

Mr. Fingers talked of a rattling in his head and the voices telling him to hurt himself.

He said the voices were unmanageable at times, telling him to do things that only led

to more trouble for him. His medications help somewhat by sedating him, and a

television also helps by drowning the voices out. Dr. Lee noted that Mr. Fingers

showed “some paranoid thoughts as well as tangential thinking.” She also noted that

it was necessary “to rule out drug-induced psychosis from extensive use of mind-

altering drugs.” She made no changes to Mr. Fingers’s diagnoses.

September 2018. Mr. Fingers met a second time with Dr. Lee on September

14, apparently so that Dr. Lee could get clarification about a request Mr. Fingers had

made for copies of his mental health records. Mr. Fingers explained that he needed

the records to show that he was a schizophrenic and that his mental health was

deteriorating in the restrictive housing unit where he was being held. Mr. Fingers

also had a medication counseling session that day with a psychiatrist, Dr. Alfredo

Tumbali, M.D., who continued his psychiatric medications as before.

On September 20, Mr. Fingers met with Ms. Devore. He reported to her that

he did not like being at the Miami Correctional Facility and wanted to be transferred.

He told her that he was writing to Congress about how the criminal justice system

fails and there should be a different way of punishing/rehabilitating offenders. He

also told her “how the frontal lobe [of the brain] where mental health issues are . . .

also affects behaviors so he believes they are one [and] the same.” He reported feeling

as if he has other souls or people come into his body and speak through him. He felt

the need to please the voices and more or less “be their servant” so that, “what mood

the people are in determines how his day goes.” He also claimed that he “changes

facial shape” to match the voices inside him. His medications helped but didn’t stop

the voices or these feelings, which were present on a regular basis. Ms. Devore

concluded that Mr. Fingers’s anxiety, cognitive issues, depression, impulse control,

and psychotic symptoms were “not significant,” and that Mr. Fingers didn’t present

any mental health issues at that time.

Mr. Fingers met for a therapy session with Dr. Lee on September 25. He

reported “feeling a person inside him, then he thought it was a device.” He said voices

had bothered him all week. Dr. Lee wrote that it was not “evident” he was suffering

from hallucinations. Mr. Fingers also spent time in the session protesting against

prison rules that would not allow him to get his medication if he was five minutes

late to the medication line, as well as expounding on his theory that conduct offenses

were mental health related. Dr. Lee described Mr. Fingers as presenting with

grandiose ideas about himself and attributing his conduct infractions to “psychosis”

rather than “personal choices and/or shaped by life experiences.”

October 2018. Mr. Fingers saw Stephanie Copeland, PsyD. for a therapy

session on October 1. Dr. Copeland’s medical notes, similar to Dr. Lee’s August

assessment, describe Mr. Fingers’s report of a long history of childhood mental illness

as well as current symptoms of hearing voices and feeling like forces are taking over

his body. Dr. Copeland noted that it was necessary to rule out schizotypal personality

disorder, and that Mr. Fingers’s reported symptoms of anxiety, cognitive issues, and

psychosis were “significant.”

Mr. Fingers saw Dr. Copeland for another therapy session on October 11. She

found him to be irritable this time, with a “loose racing” thought process. He

complained about not getting medication and having conduct issues as a result, and

he expressed his concern that his mental health needs weren’t being met. He also

repeated previous “narratives of feeling other forces or people in him and wrestling

with reportedly multiple personalities.” Dr. Copeland acknowledged in her session

notes that Mr. Fingers had symptoms of auditory hallucinations and obsessional

paranoid thought content. She noted her attempt to explore the possibility of

“maladaptive schemas” and “hidden agenda regarding manipulating clinician,” while

concluding that Mr. Fingers had “significant” psychotic symptoms.

On October 18, Ms. Overholser met with Mr. Fingers. She wrote that

Mr. Fingers “claimed” to have auditory command hallucinations, but that there was

“no evidence” he actually experienced those things, remarking that his only mental

health diagnoses were a mood disorder, antisocial personality, and a third diagnosis

labeled “NOS” or “not otherwise specified.” Mr. Fingers reported he was “not doing

too good.” He felt “weird” in his current housing placement, and claimed to be having

out-of-body experiences of hearing people who weren’t there talking to him in his cell.

Mr. Fingers also reported that he couldn’t get his medications and “flipped out,”

resulting in a conduct report that was going to prevent him from participating in a

program or getting a job for another year. Ms. Overholser assessed Mr. Fingers as

having no significant anxiety, cognitive issues, depression, impulse control issues, or

psychotic symptoms. She reported that he demonstrated “[s]ome circular thinking

subjective more about debating the issues,” but concluded he had “no blatant” mental

health issues that needed to be addressed.

Later that day, Mr. Fingers submitted a request for health care in which he

complained that Ms. Overholser didn’t have a PhD in mental health, wasn’t qualified

to weigh in on his diagnoses, “became nasty and angry with him,” and “told him to

get out.” Mr. Fingers submitted another request for health care the next day in which

he stated that he realized he “need[ed] to see a psychiatrist” after waking up to find

he was in segregation and naked “in a shower with shit all over [himself].” He also

said he had been denied his medication, which he “really need[ed]” because his

therapy session the previous day with Ms. Overholser had subjected him to “stress

and depression,” causing him to mentally deteriorate.

Mr. Fingers had a therapy session with Ms. Gibbs on October 23. He shared

“his dislike for the mental health treatment” at the Miami Correctional Facility and

his desire “to parole to California because the care there is far superior to that in

Indiana.” He reported that he was “feeling like there are five female voices interfering

with his thinking,” and that “one voice [was] very dangerous, but . . . [the] other voices

keep the dangerous one at bay.” Ms. Gibbs suggested Mr. Fingers “reframe” his “self-

reports” of auditory hallucinations by telling himself he could “compensate for the

‘evil’ voice by listening to the ‘good’ voices.” Ms. Gibbs wrote in her session notes that

Mr. Fingers had “[n]o observable signs of responding to internal stimuli or distress,”

and concluded he had no significant mental health issues at that time.

On October 24, Mr. Fingers filed another request for health care asserting he

had a “rare and serious” mental illness that hadn’t been “correctly diagnose[d]”

because it was being “covered up.” Five days later he was brought to the medical office

handcuffed in the back and in an agitated state. He told the nurse he was suicidal

and homicidal, and said he wasn’t going to take his medications or eat anymore. He

was placed on suicide watch and Ms. Overholser was notified. It appears that this

was around the date that Mr. Fingers’s housing unit went into lockdown.

Mr. Fingers was seen by Ms. Overholser on October 30. He wouldn’t speak at

first, but responded to a correctional sergeant’s questions by angrily asserting that

the entire mental health staff was mistreating him. Ms. Overholser reported that

Mr. Fingers wasn’t taking responsibility for his actions, displayed possible

narcissistic/histrionic traits, and viewed himself as a victim. She ended the therapy

session because of the attitude he displayed towards her, and told correctional officers

to take him to be assessed by the medical staff instead. She wrote in Mr. Fingers’s

medical records that he didn’t present any mental health issues at that time.

On October 31, Mr. Fingers filed another request for health care in which he

said Ms. Overholser had become “angry and nasty” when she couldn’t answer his

questions, telling him to get out of her office. He wanted “her to stop occupying” the

position of “a psychiatrist or a psychologist,” and also complained that he was denied

his psychiatric medication that day. Mr. Fingers saw Ms. Gibbs the same day he

submitted this latest request for health care. He denied any suicidal or homicidal

ideation and wanted to have a lengthy conversation about which staff members were

eligible to diagnose him and which were not. Ms. Gibbs observed that “[t]his appears

to simply be [Mr. Fingers’s] normal routine.” She also observed that he didn’t present

with signs of distress, psychosis, bizarre behaviors, or difficulty concentrating or

communicating.

November 2018. On November 6, Mr. Fingers saw Ms. Overholser. He had

recently been given a cellmate and reported that he couldn’t sleep with another

person in the cell. He acted out by smearing feces on the cell walls and threatening

his cellmate with physical harm. He told Ms. Overholser he didn’t feel suicidal, but

his illness was much worse. She noted that he was “highly articulate and talkative

non-stop,” “[d]escribing that furnace[s] [and] air conditioners actually [make] sounds

that talk to [him],” and he “kept asking to see Dr. Pintal who he seems to have affinity

[for].” Ms. Overholser concluded from these observations that Mr. Fingers had “[n]o

other pressing [mental health] concerns,” and “[n]othing so serious presenting of

concern” to require any change in his placement.

In a November 8 request for health care, Mr. Fingers complained that, given

his attempted suicide only months earlier at Pendleton, his current mental health

classification should be more serious (a “D” rather than a “C”). He also complained

that his mental health diagnosis should include schizophrenia. Two days later,

Mr. Fingers submitted a grievance in which he again complained about

Ms. Overholser’s qualifications, and said he wasn’t getting adequate therapy sessions

or being properly diagnosed. In another grievance submitted the same day,

Mr. Fingers said he was “a seriously delusional schizophrenic” and that his “mental

health primary” care providers (defendants Overholser, Gibbs, and Devore) were

trying to conceal it. He reported hearing voices in his head that were going to make

him kill his cellmate. He warned a sergeant about being suicidal and homicidal, was

placed on suicide watch for less than twenty-four hours, and then returned to the

same cell with the same cellmate. He reported that the voices told him they would

stop if he smeared feces on the walls and door of the cell, and when that didn’t help,

he “tried to take [his] cellmate’s brain and put it in [his own] skull to stop the voices.”

His cellmate “ended up with razor cuts all over his head.” Prison officials moved his

cellmate out, but Mr. Fingers continued to smear feces all over the cell. Prison officials

cut off the water to his cell.

Ms. Overholser saw Mr. Fingers again on November 14. She wrote in her

sessions notes that before she walked up to the cell door, she heard Mr. Fingers

singing and talking to his cellmate. Mr. Fingers told her that he “could not handle”

being in lock-down, but he denied any thoughts of suicide. Ms. Overholser reported

she didn’t observe any notable mental health-related issues. Three days later, Mr.

Fingers proclaimed he was on a hunger strike because the voices were telling him not

to eat. A nurse reported that he refused his medications, had urinated on the cell

floor, and had smeared feces on the window. Ms. Gibbs was made aware of the

situation.

In a November 19 request for health care, Mr. Fingers complained that he

couldn’t be locked down in his cell for a long period of time. He said he had been

“laying in a cell full of feces and urine with no sink water or toilet flush.” Two day

later, Mr. Fingers “calmly” reported to a nurse he had been removed from his cell for

spreading fecal matter on the walls, and when she asked him to elaborate, he said

that he “get[s] all strung out” from “being trapped in” his cell, and then he starts to

hear the voices, which cause him “real bad pain” in his face, jaw, and head if he doesn’t

listen to them. The nurse asked if he wanted her to contact mental health, and he

said, “No, I don’t get along with mental health here . . . they stole my schizophrenia

diagnosis and labeled me anti[-]social.”

Mr. Fingers’s scheduled November 23 session with Ms. Devore was cancelled

due to the lock-down. A correctional officer reported to Ms. Devore that Mr. Fingers

had calmed down from before. On November 27, Mr. Fingers submitted a request for

health care in which he stated that “[w]hile in lock down … [he] ha[d] been laying in

a cell full of feces, urine and trash,” and “the voices won’t leave [him] alone,” telling

him to “stove [sic] people’s eyeballs out and smear feces in people’s faces and all over

[his] cell.” He felt the treating mental health practitioners were “against [him]” and

were “trying to conceal [his] diagnosis.”

Ms. Overholser saw Mr. Fingers cell-side on November 28. A correctional

officer had to coax him to go to the door to talk with her, and he presented as

“uncooperative” and “argumentative.” Ms. Overholser wrote in her session notes that

she was skeptical of Mr. Fingers’s assertions of a worsening mental state: he had been

sending “articulate” and “well thought out” requests for health care while claiming to

have a “rare” and “serious” mental health issue. She also noted that he refused to

speak but clearly had the ability to engage in conversation when he wanted to. She

concluded the described behaviors were indicative of the “absence” of any real mental

health problems.

Ms. Devore stopped by Mr. Fingers’s cell to check in on him the next day. As

she approached, she could hear Mr. Fingers being talkative with correctional officers.

Mr. Fingers told Ms. Devore he had feelings of suicidal ideation and his hunger strike

was the way to kill himself.

Ms. Overholser saw Mr. Fingers again on November 30. It appears that the

lockdown had ended by this time, but Mr. Fingers was still being held in restrictive

housing because of either his conduct reports or suicide threats. He told Ms.

Overholser that he wanted to “do the right thing” so had stopped his hunger strike,

and that he wanted to come off suicide watch and be released from restrictive housing.

Ms. Overholser wrote in her session notes that Mr. Fingers appeared “more docile

and open to being cooperative.” She didn’t see any mental health distress, but

expressed concern about pulling him out of restrictive housing “versus safety of staff”

due to his having smeared his cell with feces less than a few hours earlier. She wrote

that he “clearly knows what he is doing,” citing to a supposed “long history of acting

out with feces for secondary gain.” She concluded that he did not present any mental

health issues at that time.

Analysis

Mr. Fingers’s Eighth Amendment claim against the mental health professional

defendants—defendants Pintal, Devore, Gibbs and Overholser—is framed in the

screening order as a denial of mental health treatment “by refusing to see him from

July 17, 2018 to November 28, 2018.” The court has thoroughly reviewed

Mr. Fingers’s medical records, and those records show that Mr. Fingers was neither

denied mental health treatment nor “refused” to be seen by these mental health

professional defendants in the stated time period.

Nevertheless, during discovery in this case, Mr. Fingers explained that even

though he received treatment from the mental health professional defendants in the

sense that he was “seen” by them, that treatment was inadequate. To prevail on a

deliberate indifference claim, “a prisoner is not required to show that he was literally

ignored.” Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000). “If knowing that a

patient faces a serious risk of appendicitis, the prison official gives the patient an

aspirin and an enema and sends him back to his cell, a jury could find deliberate

indifference although the prisoner was not ‘simply ignored.’” Id. at 611-12.

Mr. Fingers’s complaints regarding his mental health treatment as articulated in the

record and during discovery are similar to the hypothetical patient in Sherrod who is

given “an aspirin and an enema and sen[t] him back to his cell.”14 The mental health

14 Mr. Fingers testified at his deposition that the mental health professional defendants’

mental health “treatment” was no more than them saying over and over again “you’re doing

fine; you don’t have any complaints,” with Mr. Fingers responding, “No, I’m not okay. I’m

not fine. . . . Quit trying to downplay it[.]”

professional defendants addressed this broader claim during discovery and presented

arguments on it in their summary judgment motions. Therefore, the Court will

consider Mr. Fingers’s claim as the parties have actually litigated it.

Substantial Risk of Serious Harm

As noted earlier, to prove deliberate indifference against a medical provider, a

plaintiff first must show he suffered or was exposed to a substantial risk of serious

harm. Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015) (citing Farmer v. Brennan,

511 U.S. at 837). Mr. Fingers argues that the risk of serious harm he suffered was

psychological distress from the deterioration of his mental health, as well as

continued confinement in restrictive housing. There is record support for a jury to

find that Mr. Fingers in fact suffered this harm between the end of October through

November 2018, as well as that he might have been confined to restrictive housing

for the length of time that he was, but for input from the mental health professional

defendants regarding his mental health given to custodial authorities.15

There is a growing recognition among courts regarding the harmful effects of

restrictive housing, formally known as segregation, on inmates who are mentally ill.

See Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 666-67 (7th Cir. 2012)

(“[P]rolonged placement in segregation might have adverse effects on someone in

Rice’s condition.”); Scarver v. Litscher, 434 F.3d 972, 975-96 (7th Cir. 2006) (“There

is extensive literature on the effect of . . . isolation . . . on mentally disturbed

15 See, e.g., ECF 161-1 at 17, 21-22, 24, 29, 38, 44-46, 48-49, 65; ECF 102 at 55, 64-67.

prisoners.”).16 Although Mr. Fingers hasn’t presented expert testimony on this point,

the mental health professional defendants don’t appear to dispute that long term

segregation can present a substantial risk of harm to inmates with serious mental

illnesses, and the court assumes for today’s purposes that it does. See Blue v. Baenen,

681 F. App’x 524, 526 (7th Cir. 2017) (“We will assume that an inmate assigned to a

top bunk who cannot safely access the bed may face a sufficiently serious risk of

harm.”).17

Nevertheless, to establish a disputed issue of fact on whether he was exposed

to a substantial risk of serious harm, Mr. Fingers must show that he is among the

class of prisoners who would suffer serious harm from continued restrictive housing,

that is, he must present evidence to support a jury finding that he in fact has a serious

mental illness. “A mental illness is properly characterized as ‘serious’ based on two

features of the diagnosis—one being the duration that the person has the illness and

the second being the degree of disability or functional impairment that it causes.”

16 See also Rasho v. Walker, 376 F. Supp. 3d 888 (C.D. Ill. 2019), appeal filed May 22, 2019;

Ind. Prot. & Advoc. Servs. Comm’n v. Comm’r, 2012 WL 6738517, at *15-17, No. 1:08-cv-1317-

TWP-MJD (S.D. Ind. Dec. 31, 2012); Braggs v Dunn, 275 F. Supp. 3d 1171 (M.D. Ala. 2017);

Graves v. Arpaio, 48 F. Supp. 3d 1318, 1335–1336 (D. Ariz. 2014); Coleman v. Brown, 938 F.

Supp. 2d 955, 979 (E.D. Cal. 2013); Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001).

17 Confinement in restrictive housing of an inmate with a serious mental illness might not

violate the Eighth Amendment if it is justified by safety considerations or other factors such

as the need to closely monitor a suicidal inmate. See Scarver v. Litscher, 434 F.3d 972, 975-

976 (7th Cir. 2006) (“[T]he treatment of a mentally ill prisoner who happens also to have

murdered two other inmates is much more complicated than the treatment of a harmless

lunatic.”). Although there were times when Mr. Fingers was in restrictive housing for one

or both of these reasons, that doesn’t appear to have always been the case. If Mr. Fingers

were to show he was seriously mentally ill, then the Eighth Amendment might require

custodial officials to justify Mr. Fingers’s confinement in restrictive housing by evidence he

was either at risk for suicide or a security/safety threat to others.

Ind. Prot. & Advoc. Servs. Comm’n v. Comm’r, 2012 WL 6738517, at *8. The

evidentiary basis for a jury to infer that Mr. Fingers had a serious mental illness in

terms of duration and functional impairment include Mr. Fingers’s medical records

reflecting a long history of serious mental illness dating back to early childhood,18 his

self-reports concerning the symptoms he was then experiencing, and his behavior

while in lockdown and in restrictive housing. Further, the record contains evidence

that Mr. Fingers at one time had been diagnosed by a previous Department of

Correction treating mental health provider with “atypical psychosis,” an Axis I/II

impairment.19 Finally, the mental health professional defendants haven’t argued that

Mr. Fingers doesn’t have an objectively serious medical need. Thus, there is at least

a jury question as to whether Mr. Fingers’s asserted mental illness is serious enough

to have exposed him to a substantial risk of serious harm from lengthy periods of

confinement in restrictive housing. See, e.g., Goodrich v. Clinton Cnty. Prison, 214

F. App’x 105, 111 (3d Cir. 2007) (concluding that the plaintiff had presented sufficient

18 The court can consider Mr. Fingers’s self-reports as set forth in his medical records as

evidence of his childhood history of mental illness on the assumption that Mr. Fingers could

testify to the same matters at trial.

19 An Axis I diagnosis refers to “clinical disorders such as major mental disorders like

schizophrenia, bipolar, depression and anxiety disorders,” while an “Axis II [diagnosis]

includes a variety of personality disorders which are mental disorders that can cause severe

personal and social disruption.” Ind. Protection & Advocacy Servs. Comm’n v. Comm’r, 2012

WL 6738517, at *7-8.

During the time period at issue in this case, Mr. Fingers’s active diagnoses apparently

included only Axis IV mood and antisocial personality disorders. An Axis IV disorder

generally would not be classified as “serious.” See Ind Protection & Advocacy Servs.

Comm’n v. Comm’r, 2012 WL 6738517, at *8.

evidence of a “serious” medical need where his mental illnesses were diagnosed by

psychiatrists as requiring treatment both before and after his incarceration, and

where he “provided a vivid description of his [mental] suffering”).

Deliberate Indifference

Turning to the question of deliberate indifference, Mr. Fingers must point to

evidence that the mental health professional defendants were actually aware of the

risk of substantial harm and, in the face of that awareness, committed “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.” Campbell v. Kallas, 936 F.3d 536, 545 (7th Cir. 2019) (internal

quotation marks and citation omitted). The record reflects that, although

Mr. Fingers’s deliberate indifference claim entails a litany of complaints,20 those

complaints can be described as falling into two general buckets of alleged

misconduct—ignoring the mental decompensation that he says occurred beginning in

late October through November 2018, and recklessly or deliberately refusing, or

contributing to a reckless or deliberate refusal, to diagnose him with a serious mental

illness.21

20 The mental health professional defendants contend that Mr. Fingers only “vaguely”

articulated how his mental health treatment was inadequate. Mr. Fingers’s complaints are

anything but vague, and the mental health professional defendants understood what they

were. See ECF 165 at 4-5 (explaining that the “primary undertone” of Mr. Fingers’s Eighth

Amendment argument was his “belief that the medical entries and his mental health

diagnosis had been falsified”).

21 The mental health professional defendants focus on a number of specific issues within

these two general buckets, such as whether there is evidence that Mr. Fingers’s medical

Defendant Pintal

Dr. Pintal saw Mr. Fingers only once, on August 6, 2018. This was before Mr.

Fingers’s housing unit went on lockdown and Mr. Fingers began to act out in a way

that might suggest a significant deterioration of his mental health. The policy or

practice at the Miami Correctional Facility is for an inmate to be seen by the first

available mental health professional. While Mr. Fingers was arguably suffering

mental decompensation from being in lockdown, he was only seen by defendants

Devore, Gibbs, and Overholser. If Mr. Fingers had asked to see Dr. Pintal specifically

in this time period, as a note in one of Mr. Fingers’s medical records suggests, 22 there

is no evidence that Dr. Pintal was ever informed of this request. Because there is no

evidentiary basis for a jury to find that Dr. Pintal was subjectively aware of

Mr. Fingers’s asserted mental decompensation in November 2018, Mr. Fingers’s

Eighth Amendment claim against Dr. Pintal arising out of that alleged

decompensation fails as a matter of law. See Sanville v. McCaughtry, 266 F.3d 724,

records were “falsified,” whether they were “qualified” to diagnose his mental illnesses, and

whether they had the authority to transfer Mr. Fingers outside Indiana Department of

Correction custody to a civil mental hospital. The court interprets Mr. Fingers’s arguments

about these specific matters as simply his way of saying the mental health professional

defendants refused to diagnose him correctly. This includes Mr. Fingers’s assertions that

his medical records have been “falsified”; Mr. Fingers uses the word “falsified” to mean that

the mental health professional defendants reported he had no serious mental health issues

when they know he does.

22 In hindsight, some of the requests for health care and grievances Mr. Fingers filed from

the end of October through November might have been intended as healthcare requests to

be seen by either Dr. Pintal or one of the other psychologists on staff at the Miami

Correctional Facility (Dr. Lee or Dr. Copeland). It is likely, however, that they were not

interpreted that way because they read more like complaints about the qualifications of the

mental health providers by whom Mr. Fingers was being treated, a charge that was deemed

to be without merit, than a request for an appointment with a particular provider.

735 (7th Cir. 2001) (“Not noticing that an inmate exhibits a serious medical need does

not violate the Constitution.”).

Insofar as Mr. Fingers’s claim against Dr. Pintal involves deliberate

indifference by not properly diagnosing his mental health illnesses, that, too, fails for

lack of evidence that Dr. Pintal knew Mr. Fingers suffered from a serious mental

illness requiring a change to his diagnoses. A reasonable jury might conclude that

Dr. Pintal intentionally downplayed Mr. Fingers’s mental health issues, but that

wouldn’t mean he knew Mr. Fingers’s mental health diagnoses were wrong.

Mr. Fingers’s testimony that Dr. Pintal said it was his job to make sure Mr. Fingers

never got out of prison isn’t sufficient standing alone for a reasonable jury to infer an

intentional or reckless misdiagnosis, or cover-up, of Mr. Fingers’s mental illnesses.

Defendants Devore, Gibbs, and Overholser

Unlike Dr. Pintal, defendants Devore, Gibbs, and Overholser had numerous

sessions with Mr. Fingers from July through November. But during November 2018

when Mr. Fingers was exhibiting outward signs of severe mental illness and/or

mental decompensation, Mr. Fingers was seen primarily by Ms. Overholser. Given

Ms. Gibbs’s and Ms. Devore’s limited contact with Mr. Fingers in this time period,

the evidence is insufficient to show that either one could have been subjectively aware

of Mr. Fingers’s alleged mental decompensation.

Insofar as Mr. Fingers’s claim involves a failure to diagnose, defendants

Devore, Gibbs, and Overholser weren’t indifferent in the treatment they provided—

they met with Mr. Fingers numerous times, observed and reported about any suicide

risk, noted his reported symptoms, described his relevant affect and behaviors that

were mental health in nature, and tried to provide Mr. Fingers guidance in the form

of individualized therapy. But their frequent contact with Mr. Fingers and apparent

responsibility for day-to-day management of his mental health issues suggests that

they played an important part in the overall process by which Mr. Fingers was, or as

he claims, was not, properly diagnosed. Defendants Devore, Gibbs, and Overholser

assert that it was up to a treating psychologist or psychiatrist, not them, to change

Mr. Fingers’s mental health diagnoses. That statement doesn’t foreclose liability:

they might be found deliberately indifferent if they recklessly or intentionally failed

to report a need to a treating psychologist or psychiatrist for reassessment of

Mr. Fingers’s diagnoses if reassessment or rediagnosis was called for based on

symptoms reported to or behaviors observed by them during monitoring or therapy

sessions. Nor are defendants Devore, Gibbs, and Overholser absolved of misconduct

(if there was any) by the fact that psychologists and psychiatrists also met with

Mr. Fingers in the same time period; those other professionals would have taken into

account the treatment and assessment notes of defendants Devore, Gibbs, and

Overholser in addition to their own impressions in making decisions regarding

Mr. Fingers’s diagnoses. Finally, the record contains ample evidence that

Ms. Overholser—not Drs. Pintal, Lee, or Copeland—advised custodial authorities

regarding the seriousness of Mr. Fingers’s mental illness for purposes of a decision

by those authorities as to Mr. Fingers’s housing placement.

Negligence in diagnosing a medical condition is not a “valid claim of medical

mistreatment under the Eighth Amendment.” Sanville v. McCaughtry, 266 F.3d at

734. But if the evidence shows the mental health professional defendants were

reckless in “avoid[ing] knowing,” Blue v. Baenen, 681 Fed. App’x at 526, that

Mr. Fingers was misdiagnosed, or that they intentionally misdiagnosed him, or

covered up the seriousness of his mental illnesses, then summary judgment would

not be appropriate. The “linchpin” to such a claim is whether the evidence is sufficient

to support a finding of “lack of professional judgment.” Campbell v. Kallas, 936 F.3d

at 545.23

This record couldn’t support a finding that defendants Devore and Gibbs didn’t

base their medical judgments reflected in Mr. Fingers’s medical records on something

other than professional judgment, even if they seemed to discount or write-off as

insignificant reported symptoms that might have justified a different diagnosis than

Mr. Fingers had at the time. As noted, there is insufficient evidence that they were

aware of the degree to which Mr. Fingers’s mental health appeared to have

deteriorated after October 29, 2018, so a reasonable jury would have to find that these

defendants exercised professional judgment in evaluating Mr. Fingers and analyzing

23 See Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1074 (7th Cir. 2012) (prison doctor “is

free to make his own, independent medical determination as to the necessity of certain

treatments or medications, so long as the determination is based on the physician’s

professional judgment”); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th

Cir. 2009) (allowing claim to advance that “alleged implicitly that [inmate’s] treatment . . .

was not based on a legitimate medical judgment”).

“his [mostly pre-October 29, 2018] behaviors in light of his reported history of faking

or exaggerating symptoms.” Goetsch v. Ley, 444 F. App’x 85, 88–89 (7th Cir. 2011).

The case of defendant Overholser is a closer call. Mr. Fingers’s medical records

show constant oversight by Ms. Overholser from the end of October through

November 2018, such that there can be little dispute that she knew of Mr. Fingers’s

extreme behaviors in that time period. Yet she did little more than note his reported

symptoms before going on to conclude that he had “no mental health issues” at that

time. A jury might find that she exaggerated the degree to which normal functioning

behaviors cancelled out non-normal functioning behaviors or “proved” that those non-

normal behaviors were faked. A jury could view Ms. Overholser’s frequently caustic

comments in Mr. Fingers’s medical records about her opinions regarding motivations

behind Mr. Fingers’s extreme behaviors as an indication she was basing her opinions

on something other than professional judgment. See Dixon v. Godinez, 114 F.3d 640,

645 (7th Cir. 1997) (deliberate indifference can be inferred from evidence of a

provider’s “sarcastic responses” to the prisoner’s complaint” suggesting the provider’s

“knowledge of the condition, and [his] refusal to take steps to prevent it”).

“The Constitution does not oblige [prison officials] to believe whatever inmates

say.” Riccardo v. Rausch, 375 F.3d 521, 527 (7th Cir. 2004). But prison officials can’t

avoid liability for deliberate indifference merely by saying that they didn’t believe the

inmate’s complaints about his suffering. Deliberate indifference will be found if there

was a reasonable way for the prison officials to “separate fact from fiction.” Id. The

logic behind the rule is that if what the inmate is saying is true, then there likely is

some kind of objective evidence to confirm or support it. But there is no blood test or

x-ray to confirm an inmate’s reports of mental distress. Diagnosing or evaluating

mental illness requires the provider to take into account self-described symptoms

when separating fact from fiction. Objective evidence that likely would be considered

in addition to self-reported symptoms includes the patient’s behavior. Mr. Fingers’s

behavior in the time period in question involved suicide threats, a hunger strike, an

attempt to cut his cellmate’s brain out with a razor, and the spreading of excrement

over himself and the cell. Even if this behavior was motivated in whole or in part by

a desire to manipulate, a person qualified in the field might see the behavior as

indicative of a seriously mentally ill person. See Lori Marschke, Proving Deliberate

Indifference: Next to Impossible for Mentally Ill Inmates, 39 Val. U. L. Rev. 487, 520

n.211 (2004) (“[B]ehavior such as self-mutilation can be both manipulative and a

symptom of a major mental disorder simultaneously.”).

Prison health care providers must exercise professional judgment in

determining whether an inmate is faking symptoms of severe mental illness. See

Tillery v. Owens, 719 F. Supp. 1256, 1286 (W.D. Pa. 1989) (noting that prison mental

health staff have a tough job of “determining who is bad and who is mad—who

requires limiting and restricting and who requires nurturing and care,” as they

typically “see dual problems in inmates who are anti-social and also schizophrenic”),

aff’d, 907 F.2d 418 (3d Cir. 1990). Given the difficulties prison mental health

providers face, a court should be wary of substituting “its judgment for theirs in the

absence of substantial evidence in the record to indicate that the officials have

exaggerated their response to these considerations.” Meriwether v. Faulkner, 821

F.2d 408 (7th Cir. 1987); see also Scarver v. Litscher, 434 F.3d at 967-977 (“Federal

judges must always be circumspect in imposing their ideas about civilized and

effective prison administration on state prison officials.”).

The deliberate indifference standard sets a very high bar of proving subjective

awareness. A reasonable jury reviewing Ms. Overholser’s written evaluations of

Mr. Fingers could reach only one conclusion—that she believed Mr. Fingers’s extreme

behaviors weren’t an indication of mental suffering; rather, she firmly believed that

he could control his behavior and was acting out on purpose. “[E]ven if a risk is

obvious—i.e., even if it was well-documented in [the prisoner’s] file that he had a

mental illness that, if left untreated, would pose substantial risk to his health—the

prison official is not liable under the Eighth Amendment if the obvious escaped him.”

Sanville v. McCaughtry, 261 F.3d at 735 n.5 (internal quotation marks and citation

omitted).24

24 Even if Ms. Overholser believed Mr. Fingers was genuinely experiencing mental distress

from being confined to his cell, she couldn’t have done anything about the lockdown that

applied to all inmates in Mr. Fingers’s housing unit at the time. See, e.g., Rice v. Corr. Med.

Servs., 675 F.3d at 666-667 (affirming dismissal of claim that conditions of segregation

violated Eighth Amendment for plaintiff’s failure to identify feasible alternative). The

requirement of feasible alternatives wouldn’t completely justify a failure to take any actions

to help Mr. Fingers, however, because there were other things she could have done, such as

schedule him to be seen by a psychologist, who could then evaluate his mental illnesses in

light of any effects that the lockdown was having on his mental health, or else refer him to

a prescribing provider for possible adjustments to his medication. She did neither of those

things because she didn’t think he was actually suffering mental distress. In addition, the

record contains evidence indicating that Ms. Overholser was involved in evaluating

Mr. Fingers for purposes of maintaining his restrictive housing assignment outside of the

period when his housing unit was on lockdown. As to those time periods, the feasible

alternative analysis would not apply unless there was some evidence of Mr. Fingers being a

safety threat or suicidal.

Mr. Fingers simply hasn’t marshalled sufficient competent evidence for a jury

to find in his favor on his claim against Ms. Overholser. While a jury could conclude

that Mr. Fingers is seriously mentally ill and that he was actually suffering from

mental decompensation in November 2018, and further could conclude that Ms.

Overholser should have treated him differently than she did, there is insufficient

evidence in the record for a jury to find that Ms. Overholser subjectively believed

Mr. Fingers was actually suffering from mental deterioration from the end of October

through November 2018, that he needed to see a psychologist or psychiatrist at any

point, or that his diagnoses of a mood disorder and antisocial behavior disorder were

incorrect. Ms. Overholser is entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons,

1. The court GRANTS the motion for summary judgment filed by

defendant Pintal, ECF 145.

2. The court GRANTS the motion for summary judgment filed by

Defendants Bridenthal, Devore, Gibbs, and Overholser, ECF 150.

3. The court GRANTS the motion for summary judgment filed by

Defendants Koons, Kendall, Miller, Herrington and Price, ECF 153.

4. The Clerk shall enter judgment in favor of the defendants and against

the plaintiff.

SO ORDERED on September 29, 2021

s/ Robert L. Miller, Jr.

JUDGE

UNITED STATES DISTRICT COURT