WOOLSEY v. WILSON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

CHARLES M. WOOLSEY, )

)

Plaintiff, )

)

v. ) No. 2:17-cv-00271-JPH-DLP

)

WILLIAM E. WILSON, et al. )

)

Defendants. )

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DIRECTING

FINAL JUDGMENT

Charles Woolsey, a federal inmate, brings this action pursuant to Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971), alleging that during his confinement at the Federal

Correctional Center in Terre Haute, Indiana (“FCC Terre Haute”), he received constitutionally

inadequate medical care for his injured knee. Mr. Woolsey contends that he requires a knee

replacement, but has been denied one, and that he has not received appropriate treatment for the

pain associated with his knee problems. Mr. Woolsey has sued Dr. William Wilson, Warden

Stephen Julian, Christopher McCoy, Physician Assistant Genevieve Muscatell, Nurse David

Decker, Andrew Rupska,1 and Paul Laird.

Mr. Woolsey and the defendants have filed cross-motions for summary judgment. For the

reasons discussed in this Order, Mr. Woolsey’s motion for summary judgment is DENIED, dkt.

[56], the defendants’ motion for summary judgment is GRANTED, dkt. [61].

1 Mr. Woolsey calls this defendant Hrupska, but the record reflects that the correct spelling of his name is

Rupska. The clerk shall amend the docket to reflect the correct spelling.

I. Summary Judgment Standard

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a). Whether a party asserts that a fact is undisputed or

genuinely disputed, the party must support the asserted fact by citing to particular parts of the

record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). Affidavits or

declarations must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P.

56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result

in the movant’s fact being considered undisputed, and potentially in the grant of summary

judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts

that are material to the decision. See Fed. R. Civ. P. 56(a). A disputed fact is material if it might

affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42

(7th Cir. 2016). “A genuine dispute as to any material fact exists ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d

606, 609-10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

On summary judgment, a party must show the Court what evidence it has that would

convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896

(7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable factfinder

could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.

2009). The Court views the record in the light most favorable to the non-moving party and draws

all reasonable inferences in that party’s favor. Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th

Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment

because those tasks are left to the factfinder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014).

The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit

Court of Appeals has repeatedly assured the district courts that they are not required to “scour

every inch of the record” for evidence that is potentially relevant to the summary judgment motion

before them. Grant v. Trs. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017). Any doubt as to

the existence of a genuine issue for trial is resolved against the moving party. Anderson, 477 U.S.

at 255. The fact that the parties have filed cross-motions for summary judgment does not change

this standard or require a conclusion that no dispute of fact exists. R.J. Corman Derailment Servs.,

LLC v. Int’l Union of Operating Engineers, Local Union 150, 335 F.3d 643, 647 (7th Cir. 2003).

The only evidence Mr. Woolsey has designated in support of his motion for summary

judgment and in response to the defendants’ motion for summary judgment is his Verified

Complaint. Because the Complaint is verified, the Court accepts the assertions in it as sworn

evidence for purposes of the motions for summary judgment. Beal v. Beller, 847 F.3d 897, 901

(7th Cir. 2017) (“A verified complaint is not just a pleading; it is also the equivalent of an affidavit

for purposes of summary judgment….”). Assertions in the Verified Complaint that are not based

on personal knowledge but only on “information and belief”, however, are not admissible

evidence. See Ferrell v. Mills, No. 4:11-CV-018-SEB-TAB, 2012 WL 442806, at *1 (S.D. Ind.

Feb. 10, 2012) (citing Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007)).

As will be discussed in more detail below, Mr. Woolsey has failed to submit through the

Verified Complaint specific facts to show that a reasonable jury would find in his favor because a

party opposing summary judgment must “respond to the moving party’s properly-supported

motion by identifying specific, admissible evidence showing that there is a genuine dispute of

material fact for trial.” Grant, 870 F.3d at 568. Inferences supported only by speculation or

conjecture will not suffice. Skiba, 884 F.3d at 721-22. The nonmoving party must come forward

with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed. R. Civ. P. 56(e) (emphasis in the

original)); see also Sommerfield v. City of Chicago, 863 F.3d 645, 649 (7th Cir. 2017) (“Summary

judgment is not a time to be coy: ‘[c]onclusory statements not grounded in specific facts’ are not

enough.”).

II. Statement of Facts

The following facts are undisputed for purposes of the motion for summary judgment. To

the extent they were not disputed by Mr. Woolsey, the Court adopts portions of defendants’

statement of undisputed material facts.

A. Mr. Woolsey’s Medical Condition Prior to BOP Custody

Mr. Woolsey has been incarcerated by the United States Bureau of Prisons (“BOP”) since

2006. Dkt. 61-1 at 9. Before his incarceration, Mr. Woolsey injured his left leg in a car accident.

Id. at 13. His femur was broken and the bone below his knee was crushed. Id. at 14. Also before

being incarcerated, Mr. Woolsey had several major surgeries to his left leg. Id.

B. Mr. Woolsey’s Medical Treatment in BOP Custody

When Mr. Woolsey arrived at FCC Terre Haute, Dr. Wilson performed a new arrival

physical. Dkt. 1 at 4, ¶ 15. Dr. Wilson and Chris McCoy both stated that Mr. Woolsey required a

knee replacement. Id., ¶ 17. Mr. Woolsey was also evaluated by Genevieve Muscatell in 2007.

Id. at 5, ¶ 18. These defendants told Mr. Woolsey that they had requested that Mr. Woolsey receive

a knee replacement, but they had not done so. Id., ¶ 19. They later advised Mr. Woolsey that they

would not submit a request for surgery because he was still able to ambulate. Id., ¶ 21.

In April 2011, Dr. Wilson evaluated Mr. Woolsey during a chronic care visit and requested

that Mr. Woolsey receive a consultation with an outside orthopedic surgeon for consideration of a

possible knee replacement. Dkt. 61-3, ¶ 8. FCC Terre Haute is a Care Level 3 medical facility and

cannot support post-surgical rehabilitation and physical therapy of the type that would be required

after a knee replacement surgery. Id. Therefore, before a major joint replacement surgery is

approved, the inmate must submit a request to the Office of Medical Designations and

Transportation (“OMDT”) for a transfer to a Federal Medical Facility (“FMC”) once the inmate

meets the BOP’s Interqual guidelines (internal qualification requirements). Id. Dr. Wilson asked

the outside specialist to look at several factors to assess Mr. Woolsey’s condition under the

Interqual criteria. Id.

Within four days, Mr. Woolsey was seen by an outside orthopedist, Dr. Ulrich, who

suggested a knee replacement. Id., ¶ 9. The OMDT denied the request, however, because Mr.

Woolsey’s BMI exceeded the level permitted by Interqual guidelines. Id. Specifically, his BMI

was over 30. Id., ¶ 17; Dkt. 61-4 at 9, 18.

From 2011 through early 2016, Mr. Woolsey continued to be seen by his primary care

provider team, physical therapists, and at chronic care visits. Dkt. 61-3, ¶¶ 11-18. On March 1,

2012, Mr. Woolsey stated that he had no complaints and his medications were working well. Dkt.

61-3, ¶ 11. On March 2, 2012, he received a pair of specialty boots for his orthopedic issues. Id.

On May 7, 2012, Mr. Woolsey was prescribed acetaminophen for his complaints of knee pain. Id.,

¶ 12. On May 10, 2012, he was seen by Hanger orthotics for new footwear and orthotics, including

a lift for the left boot. Id.

On October 27, 2014, Mr. Woolsey saw PA Muscatell. Dkt. 61-4 at 5. Her notes say:

Ortho recommends total knee replacement again. However, this was denied by

region. They are recommending weight loss and get BMI to 30 as well as external

joint support. Complains of ongoing left knee pain.

Id. Her notes also say she requested physical therapy for external joint support and scheduled him

for weekly weight checks. Id. at 6.

On November 20, 2014, the staff physician, Dr. Bailey (who is not a party to this case),

wrote that the previous requests for total knee replacement were denied due to obesity. Dkt. 61-3,

¶ 17; dkt. 61-4 at 1. Mr. Woolsey was seen by the physical therapist who also stated that Mr.

Woolsey’s knee replacement recommendations had been denied because he was overweight. Dkt.

61-3, ¶ 17. The physical therapist provided education about knee health. Id.

On February 12, 2015, Mr. Woolsey saw the physical therapist, who noted that he had not

been approved for knee replacement surgery. Dkt. 61-5 at 62. Mr. Woolsey was provided a brace.

Id.

While PA Muscatell treated Mr. Woolsey, she prescribed him different medications,

including Effexor, Cymbalta, and Gabapentin to address his pain. Dkt. 61-15, ¶ 6. She attempted

to prescribe narcotics, but that prescription was not approved. Id.

Mr. Woolsey was seen again by the staff physician, Dr. Bailey, on July 22, 2015, at which

point it was noted that he had gained more weight. Dr. Wilson testifies that “it appears he was not

a candidate for the knee replacement on this date as his BMI was above 30.” Dkt. 61-3, ¶ 18.

On September 22, 2015, Mr. Woolsey saw PA Muscatell for his knee pain. Id., ¶ 19; dkt.

61-5 at 40. She noted that he needed a left knee replacement, but it was deferred because of his

weight and stated that she would “defer any decision for pain medication to the compound MD for

review.” Dkt. 61-5 at 40.

On October 9, 2015, Mr. Woolsey saw PA Muscatell for his knee pain. Dkt. 61-5 at 24.

She noted that he had been prescribed Gabapentin, but that he reported that it was not helping

much. Id. She noted that she would increase his Gabapentin prescription and place another knee

replacement request. Id. Mr. Woolsey saw PA Muscatell again on October 29, 2015. Id. at 17.

She again increased his Gabapentin prescription. Id.

On October 29, 2015, FCC-Terre Haute Health Services Department submitted a request

that Mr. Woolsey be reconsidered for knee replacement surgery. Dkt. 61-3, ¶ 20; dkt. 61-5 at 26.

The request was again denied by the OMDT because his BMI was too high. Dkt. 61-3, ¶ 20; dkt.

61-5 at 17. Medical staff informed Mr. Woolsey that his request could be resubmitted if his BMI

was reduced. Dkt. 61-3, ¶ 20; dkt. 61-5 at 19, 24.

In April of 2016, Mr. Woolsey saw PA Muscatell for his knee pain and other health issues.

Dkt. 61-6 at 40. He agreed to a trial of Cymbalta for his pain. Id.

In May of 2016, Mr. Woolsey submitted a request stating that he had lost weight and asking

again for a referral for knee replacement. Dkt. 61-6 at 91. PA Muscatell replied that she could

place another request when his BMI was below 30. Id.

In October 2016, the FCC Terre Haute medical staff was notified that BMI was no longer

considered an Interqual criterion. Dkt. 61-3, ¶ 22. Accordingly, the staff physician sent another

request for medical transfer on Mr. Woolsey’s behalf. Id.; dkt. 61-6 at 9. In mid-2017, Mr.

Woolsey was transferred to the Federal Medical Center – Lexington, Kentucky (“FMC”). Dkt. 61-

6, ¶ 22. He filed this lawsuit on June 12, 2017. Dkt. 1. At the FMC, Mr. Woolsey underwent

evaluation for his knee. Dkt. 61-9, ¶¶ 4-8. At the time the defendants moved for summary

judgment, he had been approved for a consultation with a surgeon. Id., ¶ 9. Mr. Woolsey recently

reported that he had knee replacement surgery. Dkt. 73.

C. The Defendants

1. Sara Revell

Sara Revell was the Regional Director for the BOP’s North Central Regional Office from

June 2015 through her retirement in August 2018. Dkt. 61-10, ¶ 2.2 As Regional Director, she

was not involved in the day-to-day management of BOP institutions or of the medical care

rendered at the institutions. Id., ¶ 4. Ms. Revell has never received medical training and was not

qualified to provide medical care to inmates or evaluate inmates regarding their medical care. Id.

As Regional Director, Ms. Revell was not responsible for making decisions regarding medical

transfers, the direct supervision of institution staff, or managerial oversight of the institution or

staff training. Id.

Mr. Woolsey testified that he was “not sure” what Ms. Revell’s job title was. Dkt. 61-1 at

25. When asked whether he had any evidence that Ms. Revell denied his surgery in 2015, Mr.

Woolsey responded that she “doesn’t seem to be a major player in my lawsuit” and he would “have

to check [his] records.” Id. at 28-29. He acknowledged that she “wouldn’t have been actually a

person that would have denied [the surgery],” Id. at 25, but he believes she would have “signed

off on it” based “on a paper in one of my administrative remedies.” Id. at 27.

2. Paul Laird

Paul Laird was the North Central Regional Office Regional Director before Ms. Revell,

from April 22, 2012, through August 22, 2015. Dkt. 61-11, ¶ 1. Mr. Laird was not Regional

Director when Mr. Woolsey’s request for medical transfer was denied in October 2015 and lacked

2 Mr. Woolsey objects to the affidavit of Teri Gregory which describes Ms. Revell’s job duties. But

Gregory’s affidavit is made on personal knowledge and she is therefore competent to testify regarding

Ms. Revell’s job. Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated.”).

any personal involvement in that decision. Id., ¶¶ 1, 6, 8. Mr. Laird had no day-to-day interaction

with inmates at the FCC–Terre Haute and did not make decisions regarding their medical care.

Id., ¶ 5.

Mr. Woolsey testified that he does not know whether Mr. Laird had authority to decide

whether he received knee replacement surgery or not. Dkt. 61-1 at 35.

3. Stephen Julian

Stephen Julian was the Complex Warden of the FCC – Terre Haute from October 22, 2015,

through May 14, 2017. Dkt. 61-12, ¶ 1. In his role, Warden Julian did not treat patients or

participate in clinical medical decisions and was not qualified to do so. Id., ¶ 6. Warden Julian

did not make decisions regarding whether an inmate needed surgery but deferred to the Health

Services Department. Id. Warden Julian did not participate in decisions about Mr. Woolsey’s

medical care or pain management, which were clinical medical decisions. Id. He also did not refuse

Wooley pain medication or participate in decisions regarding the prescription of pain medication.

Id. Warden Julian did not deny or delay any outside medical consultations or surgery for Mr.

Woolsey. Id.

When asked in his deposition why he sued Warden Julian, Mr. Woolsey responded,

“[b]ecause he was the warden. It’s like the chain of command.” Dkt. 61-1 at 53. Mr. Woolsey also

asserted that Warden Julian “signed off on administrative remedies without doing any research or

he would have seen that what was going on was wrong and he would have corrected it.” Id. at 54.

4. Andrew Rupska and Chris McCoy – Health Services Administrators

Defendants Andrew Rupska and Chris McCoy each served as Health Services

Administrator (HSA) at the FCC–Terre Haute during the relevant time period. Dkt. 61-13, ¶ 2;

Dkt. 61-14, ¶ 1. Mr. Rupska served in this position from April 7, 2013, through November 26,

2017. Dkt. 61-13, ¶ 2. After Mr. Rupska left, Mr. McCoy assumed the role and is currently the

HSA at FCC Terre Haute. See dkt. 61-14, ¶ 1. The HSA position is administrative in nature and

involves implementing and directing the administration of the Health Services Department at FCC

Terre Haute. Dkt. 61-13, ¶ 5; Dkt. 61-14, ¶ 5. Specifically, the duties include supervising non-

clinical personnel and overseeing staff scheduling, fiscal management, and records management.

Id.

Mr. Rupska was not involved in any decisions related to whether Mr. Woolsey received

surgery. Id. ¶ 6. Similarly, Mr. McCoy did not ever perform a physical examination of Mr.

Woolsey or provide medical care to Mr. Woolsey. Dkt. 61-14, ¶ 6. Mr. McCoy was not involved

in deciding whether Mr. Woolsey received surgery. Id.

When asked why he sued Mr. Rupska, Mr. Woolsey stated it was because Mr. Rupska “was

the head of the medical department there.” Dkt. 61-1 at 35. Although Mr. Woolsey believes Mr.

Rupska “delayed and denied my medical issues,” he is unsure “what his actual title was,” believing

that Mr. Rupska was “over the doctors and everybody.” Id. at 36. Mr. Rupska only supervised non-

clinical personnel at FCC Terre Haute. Dkt. 61-13, ¶ 5.

Mr. Woolsey stated that other than the allegations in his complaint and his medical records,

he had “no additional information” supporting his claims against Mr. McCoy. Dkt. 61-1 at 52-53.

5. Dr. William Wilson

Dr. Wilson is a Medical Doctor who is employed at the FCC-Terre Haute, as the Clinical

Director. Dkt. 61-3, ¶ 1. He has served in that capacity since June 2011. Id. In this position, he

facilitates medical care and treatment for inmates housed there. Id. According to Mr. Woolsey’s

medical records, the last time Dr. Wilson examined or treated Mr. Woolsey was on April 1, 2011,

during a chronic care visit. Id., ¶ 8. At that visit, Dr. Wilson prescribed meloxicam for Mr.

Woolsey’s knee discomfort and requested that he receive a consultation with an outside orthopedic

surgeon for consideration of a possible knee replacement. Id. Dr. Wilson does not have the

authority to decide which inmates receive surgery or a medical transfer, which is a decision made

by the OMDT in Washington. Id., ¶ 24.

6. Physician Assistant Genevieve Muscatell3

Genevieve Muscatell is a Physician Assistant with the United States Public Health Service

(“PHS”) who is assigned to the FCC–Terre Haute. Dkt. 61-15, ¶ 1. She has been employed by the

PHS since April 29, 2016. Id. Before joining the PHS, PA Muscatell was employed by the BOP

since August 25, 2013. Id.

7. Nurse David Decker

David Decker is a Registered Nurse who works at the FCC Terre Haute. Dkt. 61-16, ¶ 1.

During the relevant time period, Nurse Decker had two contacts with Mr. Woolsey: on September

23, 2010, and September 27, 2016. Id., ¶ 4. On September 23, 2010, Nurse Decker saw Mr.

Woolsey for a complaint of a burn on his thumb and arm from a valve he turned, which is unrelated

to his claims in this lawsuit. Id. On September 27, 2016, Nurse Decker did not see or examine Mr.

Woolsey, but only reviewed his chart for medication refills then sent the chart to a medical doctor

and physician assistant for their co-signature and approval. Id. Mr. Woolsey’s medical records

show that Nurse Decker has never examined or treated Mr. Woolsey for his knee issues. Id.

Moreover, Nurse Decker was not involved in the decision to approve or deny Mr. Wooley’s

requests for surgery or a medical transfer, or what prescriptions he received for pain management.

Id. ¶ 5.

3 PA Muscatell was previously named Genevieve Daughtry. See dkt. 61-4 at 5.

III. Discussion

Mr. Woolsey asserts Eighth Amendment medical care claims against the defendants. Mr.

Woolsey seeks summary judgment arguing that the defendants ignored his need for surgery and

treatment for his pain. Defendants seek summary judgment as well. Several of the defendants

argue they are entitled to summary judgment because they were not involved in making decisions

related to Mr. Woolsey’s medical care.4 Dr. Wilson and PA Muscatell argue that the treatment

Mr. Woolsey received was within the standard of care and that they had no control over whether

he received knee surgery or medical transfer.

A. Eighth Amendment Standard

The Eighth Amendment requires prison officials to provide humane conditions of

confinement, including taking reasonable measures to guarantee the safety of the inmates and

ensure that they receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan,

511 U.S. 825, 834 (1994). To prevail on an Eighth Amendment deliberate indifference medical

claim, a plaintiff must demonstrate two elements: (1) he suffered from an objectively serious

medical condition; and (2) the defendants acted deliberately indifferent—they knew about the

plaintiff’s condition and the substantial risk of harm it posed, but disregarded that risk. Id. at 837;

Pittman v. Cty. of Madison, 746 F.3d 766, 775 (7th Cir. 2014). “[C]onduct is ‘deliberately

indifferent’ when the official has 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

4 The defendants also seek summary judgment based on the statute of limitations on claims that accrued

more than two years before Mr. Woolsey filed this lawsuit. But it is at least arguable that Mr. Woolsey’s

claims are based on “a numerous and continuous series of events” and therefore the doctrine of continuing

harm may apply to allow him to bring all of his claims. See Heard v. Sheahan, 253 F.3d 316, 319 (7th

Cir. 2001). The Court will therefore address the merits of Mr. Woolsey’s claims.

so.’” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quoting Armstrong v. Squadrito, 152

F.3d 564, 577 (7th Cir. 1998)). Something more than negligence or even malpractice is required.

Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). “To infer deliberate indifference on the basis

of a physician’s treatment decision, the decision must be so far afield of accepted professional

standards as to raise the inference that it was not actually based on a medical judgment.” Norfleet

v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); see Plummer v. Wexford Health Sources, Inc., 609

Fed. App’x 861, 863 (7th Cir. 2015) (holding that defendant doctors were not deliberately

indifferent because there was “no evidence suggesting that the defendants failed to exercise

medical judgment or responded inappropriately to [the plaintiff’s] ailments”). “A medical

professional is entitled to deference in treatment decisions unless no minimally competent

professional would have [recommended the same] under those circumstances.” Pyles v. Fahim,

771 F.3d 403, 409 (7th Cir. 2014). “Disagreement between a prisoner and his doctor, or even

between two medical professionals, about the proper course of treatment generally is insufficient,

by itself, to establish an Eighth Amendment violation.” Id.

For purposes of summary judgment, the parties do not dispute that Mr. Woolsey’s knee

condition constitutes a serious medical condition. Instead, they disagree as to whether the

defendants were deliberately indifferent to this condition.

B. Defendants Who Were Not Responsible for Mr. Woolsey’s Care

The undisputed evidence shows that several defendants were not involved at all in Mr.

Woolsey’s care and therefore were not responsible for any delay in referring him for surgery.

“A defendant cannot be liable under Bivens on the basis of respondeat superior or

supervisory liability, rather, there must be individual participation and involvement by the

defendant.” Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011) (citing Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009)). “[I]f a prisoner is under the care of medical experts, a non-medical prison

official will generally be justified in believing that the prisoner is in capable hands.” Arnett, 658

F.3d at 755. However, a non-medical official can be charged with deliberate indifference where

he has “'a reason to believe (or actual knowledge) that prison doctors or their assistants are

mistreating (or not treating) a prisoner.” Id. Mr. Woolsey must demonstrate that the

communication gave the non-medical defendant sufficient knowledge to alert him to “an excessive

risk to inmate health or safety.” Id.

Ms. Revell worked at the North Central Office in Kansas City, Kansas and had no direct

involvement in the day-to-day medical treatment of inmates or the decisions to approve or deny a

request for surgery or medical transfer. Dkt. 61-10, ¶ 4. Mr. Woolsey acknowledged that Ms.

Revell “wouldn’t have been actually a person that would have denied [the surgery],” dkt. 61-1, at

25, but he believes she would have “signed off on it” based “on a paper in one of my administrative

remedies,” id. at 27. However, basing liability on the existence of a “paper” sent to a senior official

is “inconsistent with the personal responsibility requirement for assessing damages against public

officials.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982) (addressing 42 U.S.C. § 1983

claims); see also Vance v. Peters, 97 F.3d 987, 993-94 (7th Cir. 2000) (rejecting argument that

“any prisoner communication to a prison official anywhere in the corrections hierarchy constitutes

adequate notice to the official of a violation of the Eighth Amendment”). Mr. Woolsey has not

designated evidence that Ms. Revell approved any decision to deny him treatment or that she was

provided with information that would put her on notice of an excessive risk to his health. See

Vance, 97 F.3d 987, 993 (7th Cir. 1996) (“The plaintiff still has the burden of demonstrating that

the communication, in its content and manner of transmission, gave the prison official sufficient

notice to alert him or her to ‘an excessive risk to inmate health or safety.’”) (quoting Farmer, 511

U.S. at 837). Ms. Revell is therefore entitled to summary judgment.

Similarly, Mr. Laird worked at the North Central Office in Kansas City, Kansas and had

no direct involvement in the day-to-day medical treatment of inmates or the decisions to approve

or deny a request for surgery or medical transfer. Dkt. 61-11, ¶ 5. In the Verified Complaint, Mr.

Woolsey generally alleges that after Ms. Revell denied his need for surgery, he appealed to Mr.

Laird, who also denied his request for treatment. Mr. Woolsey has not, however, designated

evidence showing that Mr. Laird approved any decision to deny him treatment or that he was

provided with information that would put him on notice of an excessive risk to his health. See

Vance, 97 F.3d at 993 (7th Cir. 1996). Accordingly, Mr. Laird is entitled to summary judgment.

Warden Julian also argues that he did not personally participate in the alleged denial of

medical care to Mr. Woolsey. Warden Julian responded to Mr. Woolsey’s grievance regarding his

request for knee surgery. Dkt. 61-2. The response indicates that Warden Julian reviewed Mr.

Woolsey’s medical records and found that the surgery had been denied based on Mr. Woolsey’s

BMI. Id. Warden Julian is not a medical professional and was therefore entitled to rely on the

opinions of medical professionals in providing Mr. Woolsey with medical care. Arnett, 658 F.3d

at 755. Further, there is no evidence that Warden Julian was alerted to an excessive risk to Mr.

Woolsey and ignored it. Accordingly, Warden Julian is entitled to summary judgment.

Mr. Rupska and Mr. McCoy also argue that they were not personally involved in Mr.

Woolsey’s medical care. Mr. Woolsey argues that Mr. McCoy and Mr. Rupska coerced him to

drop his first BP-10 and they denied him pain medication. In support of this argument, Mr.

Woolsey relies on statements in his complaint that Mr. McCoy and Mr. Rupska failed to refer him

for knee surgery, see dkt. 1, ¶ 20, and denied or discontinued his pain medication, see dkt. 1, ¶¶

27, 31. But these general assertions are insufficient to rebut the specific evidence presented by

Mr. Rupska and Mr. McCoy that they were not involved in clinical care of patients. Dkt. 61-14, ¶

6; dkt. 61-13, ¶ 7; see Sommerfield, 863 F.3d at 649 (conclusory statements are not enough to

defeat summary judgment). There is no evidence from which a jury could find that Mr. McCoy

or Mr. Rupska were directly involved with Mr. Woolsey’s medical care, much less that either was

provided with information giving them notice of an excessive risk to his health.

Last, Nurse Decker contends that he was not deliberately indifferent to Mr. Woolsey’s knee

pain because he never treated Mr. Woolsey for it. Nurse Decker has presented evidence that he

had contacts with Mr. Woolsey on two occasions – once to treat a complaint of a burn, which is

unrelated to the claims in this lawsuit, and one time in which Decker reviewed Mr. Woolsey’s

chart for medication refills. Dkt. 61-16, ¶ 4. Mr. Woolsey has provided no specific evidence to

support a conclusion that Nurse Decker was responsible for his treatment of his knee arthritis. His

allegations that Nurse Decker refused to provide him with treatment is too general and vague to

rebut this evidence. See Sommerfield, 863 F.3d at 649 (conclusory statements are not enough to

defeat summary judgment).

Because Mr. Woolsey has not designated evidence showing that Ms. Revell, Mr. Laird,

Warden Julian, Mr. Rupska, Mr. McCoy, and Nurse Decker were involved medical care relating

to Mr. Woolsey’s knee, they are entitled to summary judgment on Mr. Woolsey’s claims.

D. Deliberate Indifference by Treating Personnel

Dr. Wilson and PA Muscatell5 argue that they were not personally involved in denying Mr.

Woolsey’s request for surgery or medical transfer. Alternatively, they argue that even if they were

5 PA Muscatell also argues that she is immune from any claims based on treatment after April 29, 2016,

because she began working for the Public Health Service at that time and employees of the Public Health

Service are immune from civil suit for damages for personal injury based on the “performance of medical,

involved, they are still entitled to summary judgment on Mr. Woolsey’s claims because the

treatment Mr. Woolsey received for his knee pain was within the standard of care. Mr. Woolsey

argues that the defendants acted with deliberate indifference when they did not provide him a knee

brace, did not adequately treat his pain, did not assist him with losing weight, and by delaying his

surgery.

The undisputed evidence shows that defendants Wilson and Muscatell were not

deliberately indifferent in providing Mr. Woolsey’s care. The defendants have established through

expert testimony that the care rendered by the Bureau of Prisons medical providers was within the

applicable standard of care. Dr. Rodney Benner determined, based on his review of Mr. Woolsey’s

medical records, that the attempts at nonsurgical treatment of Mr. Woolsey’s knee arthritis were

within the applicable standard of care, including the decision to deny surgery based on Mr.

Woolsey’s BMI. Dkt. 61-17 at 1. According to Dr. Benner, it is “clear in the medical literature

that high BMI patients receiving total joint replacements have higher risks of complications,”

making it appropriate to attempt to decrease BMI before surgery. Id. Dr. Benner also stated:

“while I believe the interventions prescribed and denials were within the standard of care, I do

believe there has been significant delay in the progression of his knee care. . . . [A]ll of these

interventions should progress relatively quickly over the course of several months, which the

caveat being the patient’s ability to lose weight, an important factor in this case, which can take

longer and is patient dependent.” Id. Dr. Benner also found that the medications prescribed to

Mr. Woolsey were within the standard of care for treating knee arthritis. Id. By showing that Mr.

Woolsey’s treatment was not the result of negligence, the defendants have shown that they were

not deliberately indifferent to Mr. Woolsey’s medical needs. See Petties, 836 F.3d at 728 (citing

surgical, dental, or related functions.” 42 U.S.C. § 233(a). But the majority of the care PA Muscatell

provided to Mr. Woolsey was before April 29, 2016, so the Court will address the merits of his claims.

McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Deliberate indifference is not medical

malpractice.”)).

Mr. Woolsey argues that the defendants failed to give him a knee brace to treat his pain

and, when they did give him a brace, they gave him the wrong kind of brace. But the defendants’

expert considered Mr. Woolsey’s contention on this point and still concluded that the care he

received was appropriate. Dkt. 61-17 at 1.

Mr. Woolsey also argues that he did not receive adequate treatment for his pain. But again,

the defendants’ expert considered the pain medications that Mr. Woolsey received, stating:

Woolsey’s request for further pharmacologic intervention is understood and

appreciated. However, further pharmacological intervention would likely have

required narcotic pain pills. Those are not recommended for knee arthritis chronic

management as they could lead to tolerance (needing more medicine for the same

effect), addition, or difficulty with pain management postoperatively. This

recommendation of avoidance of narcotic pain medication is supported by the

American Academy of Orthopaedic Surgeons Clinical Practice Guideline for Non-

Arthroplasty Treatment of Osteoarthritis of the Knee.

Dkt. 61-17 at 2. The record reflects that the defendants provided Mr. Woolsey with pain medication

and tried different medications to relieve his pain. See dkt. 61-15, ¶ 6; dkt. 61-3; dkt. 61-5 at 17,

24; dkt. 61-6 at 40.

Mr. Woolsey points out that other providers have provided him with narcotic pain

medication, but PA Muscatell has shown that she attempted to prescribe him with narcotics and

her requests were not approved. Dkt. 61-15, ¶ 6. Moreover, the fact that other providers have

given Mr. Woolsey narcotics is insufficient to show that the failure to do so was the result of

deliberate indifference because a difference of opinion even between medical providers is

insufficient to show deliberate indifference. Pyles, 771 F.3d at 409 (“Disagreement between a

prisoner and his doctor, or even between two medical professionals, about the proper course of

treatment generally is insufficient, by itself, to establish an Eighth Amendment violation.”).

Next, Mr. Woolsey challenges the expert’s opinion because he had not been able to review

his radiographs. But the expert based his opinion on the assumption that Mr. Woolsey’s “arthritis

is severe.” Dkt. 61-17 at 2. Mr. Woolsey has presented no evidence or argument to support a

conclusion that, since the expert assumed that his condition is severe, being able to review the

radiographs would have changed his opinion.

Mr. Woolsey also argues that the defendants were deliberately indifferent because he did

not receive assistance in losing weight to allow him to reach the required BMI. But the defendants

have shown that they provided him counseling on what to eat, dkt. 61-3, ¶ 15, scheduled weight

checks, dkt. 64-15, ¶ 6, and referred him to a dietician, id., ¶ 21. There is no evidence in the record

that would permit a reasonable jury to conclude that the defendants should have done anything

further to assist Mr. Woolsey in his weight management.

Mr. Woolsey argues that defendants used the wrong BMI criterion to determine his

eligibility for surgery, but he does not point to any evidence in the record to support this assertion.

Moreover, it is undisputed that Dr. Wilson and PA Muscatell requested knee surgery for Mr.

Woolsey more than once and that those requests were denied by OMDT. Dkt. 61-3, ¶ 17; dkt. 61-

5 at 24.

Mr. Woolsey also emphasizes the fact that the defendants’ expert stated that there had

“been a significant delay in the progression of his knee care.” Dkt. 61-17. But each of the

defendants who treated Mr. Woolsey have testified that they sought referrals for surgery but did

not have the authority to approve or disapprove a surgery. Dkt. 61-15, ¶ 6; dkt. 61-3, ¶ 8. To the

extent Mr. Woolsey argues that Dr. Wilson should be held liable for failing to request surgery in

2007, there is no reasonable inference that a failure to do so at that time was part of the “significant

delay” identified by the defendants’ expert. Mr. Woolsey has presented no evidence to show that

these defendants could have done more and failed to do so.

In summary, the defendants’ designated evidence shows that the defendants did not fail to

use medical judgment in making decision relating to Mr. Wooley’s knee condition, and that they

thus were not deliberately indifferent to Mr. Woolsey’s medical condition. The designated

evidence shows that Mr. Woolsey was examined regularly, given pain medication and a knee

brace, and that requests for Mr. Woolsey to receive a knee replacement were denied. Defendants

Wilson and PA Muscatell could not otherwise have ensured that he receive this surgery. Further,

the expert testimony also shows that the defendants’ treatment was within the standard of care.

While Mr. Woolsey seeks summary judgment on his claims, he has failed to designate any

evidence that defendants Wilson and PA Muscatell were deliberately indifferent towards his

medical needs. Defendants Wilson and PA Muscatell are therefore entitled to summary judgment

on Mr. Woolsey’s claims.

IV. Conclusion

For the foregoing reasons, Mr. Woolsey’s motion for summary judgment, dkt. [56], is

DENIED and the defendants’ motion for summary judgment, dkt. [61], is GRANTED.

Mr. Woolsey’s motion for the Court to take judicial notice and request for status, dkt. [73],

is GRANTED to the extent that the Court takes judicial notice of the fact that Mr. Woolsey had

his knee replacement surgery and that this Order provides Mr. Woolsey with the status of his case.

Judgment consistent with this Order and the Order of August 22, 2017 (dkt. 7) shall now

issue.

SO ORDERED.

Date: 2/6/2020 Sjamu Pataick Hanlon

James Patrick Hanlon

United States District Judge

00 Southern District of Indiana

Distribution:

CHARLES M. WOOLSEY

07858-028

LEXINGTON - FMC

LEXINGTON FEDERAL MEDICAL CENTER

Inmate Mail/Parcels

P.O. BOX 14500

LEXINGTON, KY 40512

Shelese M. Woods

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

shelese.woods@usdoj.gov