CISLO v. BANTRY GROUP CORPORATION

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RONNIE BEE CISLO, )

)

Plaintiff, )

)

v. ) No. 1:18-cv-03265-JPH-DML

)

WEXFORD OF INDIANA, LLC, et al. )

)

Defendants. )

Order Granting Defendant Osburn's Motion for Summary Judgment,

Granting Plaintiff's Motion to Dismiss Defendant Wexford,

and Directing Entry of Final Judgment

Plaintiff Ronnie Cislo, an inmate currently incarcerated at the LaPorte County Jail, brought

this civil rights action under 42 U.S.C. § 1983 alleging that defendants Michael Osburn and

Wexford of Indiana, LLC ("Wexford"), implemented an unconstitutional policy for the Indiana

Department of Correction ("IDOC") that denied dental treatment to inmates scheduled to be

released in less than six months.

Defendant Osburn, an IDOC administrator, contends that he is entitled to summary

judgment because he was not responsible for developing the policy at issue and regardless, the

policy is not unconstitutional. Additionally, he asserts that he is entitled to qualified immunity.

Mr. Cislo has responded in opposition to the motion for summary judgment, and Mr. Osburn has

filed a reply. For the reasons explained below, Mr. Osburn's motion for summary judgment is

granted.

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). 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).

To survive a motion for summary judgment, the non-moving party must set forth specific,

admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). The Court views the record in the light most favorable to the non-moving

party and draws all reasonable inference 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. Trustees of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir.

2017).

A dispute about a material fact is genuine only "if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). If no reasonable jury could find for the nonmoving party, then there is no

"genuine" dispute. Scott v. Harris, 550 U.S. 372, 380 (2007). Not every factual dispute between

the parties will prevent summary judgment, and the nonmoving party "must do more than simply

show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

II. Statement of Facts

The following statement of facts has been evaluated pursuant to the standard set forth

above. The facts are considered undisputed except to the extent that disputes of fact are noted.

Mr. Cislo began his incarceration with the IDOC in May 2018 when he arrived at the

Reception Diagnostic Center ("RDC"). Dkt. 1 at 3. When he arrived at RDC, Mr. Cislo was

examined by medical staff, dental staff, and mental health staff. Dkt. 66-1 (hereinafter "Cislo

Dep.") at 11:15-23.1 Because his incarceration at RDC was temporary, he received referrals for

dental, vision, and mental health treatment to be provided at his next place of incarceration within

IDOC. Id. at 12:3-15.

In late May 2018, Mr. Cislo was transferred to Pendleton Correctional Facility

("Pendleton"). Dkt. 1 at 4. When he met with medical staff at Pendleton, he informed them that he

needed cavities filled. Cislo Dep. at 15:13-16. Mr. Cislo believed he had cavities because he was

experiencing pain in his back, top teeth. Id. at 15:20-16:9.

While incarcerated at Pendleton, Mr. Cislo submitted two Request for Health Care forms

("RFHC") concerning dental care. In the first RFHC, dated August 7, 2018, Mr. Cislo stated that

he was experiencing tooth pain, and he asked for his cavities to be filled before his release date.

Dkt. 1-1 at 1. He also inquired as to whether he needed a root canal. Id. The response to this RFHC

was, "You are not eligible for dental treatment, release date is within 90 days." Id.

Mr. Cislo submitted a second RFHC on October 4, 2018. It stated, "I would like my teeth

checked and filled if there are cavities. I also would like my teeth cleaned." Dkt. 1-1 at 2. The

1 Citations to Mr. Cislo's deposition reference the relevant page and line numbers of the deposition

transcript, not the page numbers of the exhibit.

response to this RFHC was similar to the first: "You are not eligible for dental treatment as your

release date is within 30 days. Sorry!" Id.

During his incarceration at Pendleton, staff informed Mr. Cislo that Michael Osburn,

Executive Director of Adult Facilities at IDOC, developed the policies concerning dental care.

Dkt. 1 at 5; see also Cislo Dep. at 28:8-29:19; dkt. 66-2 at ¶ 1. Mr. Cislo wrote to Mr. Osburn in

2018 about the way he was being treated at Pendleton, but he did not mention his dental issues.2

Cislo Dep. at 25:22-26:9. Mr. Osburn forwarded Mr. Cislo's letter to mental health staff at

Pendleton. Id. at 26:10-12. Mr. Cislo also wrote to the IDOC ombudsman and referenced his dental

issues. Id. at 26:16-27:6. The IDOC ombudsman's response stated the issue was being investigated,

and Mr. Cislo received no further communication from the ombudsman. Id.at 27:7-13.

Mr. Osburn contends that he was not the final decision-maker as to Mr. Cislo's dental care.

Id. at ¶ 8. Rather, he defers to IDOC's contracted health care provider, which is currently Wexford,

to make all decisions concerning medical and dental treatment for inmates. Id. at ¶ 4. Mr. Osburn

also states that he was not the final decision-maker as to the dental care policy within IDOC and

that he was not involved with developing the policies set forth in the Dental Services Manual. Id.

at ¶¶ 10-11.

The Dental Services Manual ("Manual") "provides general guidelines regarding the

manner in which Dental Services are delivered within" IDOC. Dkt. 66-3 at 2. It sets forth five

2 In his response, Mr. Cislo asserts that he wrote more than one letter to Mr. Osburn and that he

mentioned his dental issues. Dkt. 77 at 2, 5. This factual assertion directly contradicts Mr. Cislo's

deposition testimony. See Cislo Dep. 25:22-26:9, 27:14-25. In light of this contradiction and Mr.

Cislo's failure to include any details in his response as to when he wrote Mr. Osburn, what

information the letters contained, and whether Mr. Osburn responded, the Court does not consider

the factual allegations in Mr. Cislo's response concerning his communications with Mr. Osburn.

See James v. Hale, 959 F.3d 307, 315-16 (7th Cir. 2020) ("[E]very federal court of appeals permits

a judge to disregard a 'sham' affidavit—typically an affidavit that contradicts prior deposition

testimony." (collecting cases)).

categories and prioritizes dental services consistent with those categories. Id. at 8. The highest

priority category includes dental emergencies which are "marked by extreme pain, overt spreading

infection, severe bleeding, or severe traumatic disruption of tissue." Id. The Manual identifies the

following as dental emergencies: post-extraction with bleeding, swelling, and/or pain; dry socket;

severe dental pain not responsive to simple oral analgesic medication; tooth abscess with infection

or drainage; jaw fracture; traumatic facial injury involving the gums, teeth, and/or bones of the

jaw; and irreversible pulpitis." Id. at 8-9.

The third highest priority category is "restorative services." Id. at 8. Treatment of a cavity

is considered a restorative service. The Manual provides: "Restorative procedures should not be

provided during the ninety (90) days prior to release from confinement unless the delay in care

would result in significant deterioration, infection, or pain." Id. at 9.

III. Discussion

Mr. Cislo brings claims against Mr. Osburn in both his individual and official capacities.

Dkt. 1 at 3. He alleges that Mr. Osburn implemented the policy contained in the Manual and that

this policy violates his rights under the Eighth Amendment. Dkt. 1 at 5. Mr. Osburn has moved for

summary judgment, arguing that the undisputed facts establish that he did not implement the policy

at issue and regardless, the policy is not unconstitutional. He also contends that he is entitled to

judgment as a matter of law under the doctrine of qualified immunity.

A. Official Capacity Claim

An official capacity suit "generally represent[s] only another way of pleading an action

against an entity of which an officer is an agent." Monell v. New York City Dep't of Social Services,

436 U.S. 658, 690 n.55 (1978); see also Kentucky v. Graham, 473 U.S. 159, 165 (1985). Therefore,

a suit against an officer of a state agency in his official capacity is a suit against the state, and the

state is not a "person" subject to suit under 42 U.S.C. § 1983. Kolton v. Frerichs, 869 F.3d 532,

535 (7th Cir. 2017); Foreman v. Wadsworth, 844 F.3d 620, 624 n.1 (7th Cir. 2016) ("A state

official in his or her official capacity is not deemed a "person" under § 1983."). Consequently, Mr.

Cislo cannot assert a claim for monetary damages against Mr. Osburn in his official capacity.

Any claim that Mr. Cislo may have had against Mr. Osburn in his official capacity for

prospective injunctive relief under Ex parte Young, 209 U.S. 123 (1908) is moot because Mr. Cislo

was released from Pendleton in October or November 2018. Cislo Dep. at 6:16-18. When an

individual is released from incarceration, any claim for injunctive relief becomes moot unless the

individual makes a "reasonable showing that he will again be subject to the alleged illegality."

Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (quoting City of Los Angeles v. Lyons, 461

U.S. 95, 109 (1983)); see also Jones v. Butler, 663 F. App'x 468, 470 (7th Cir. 2016) (noting claim

for injunctive relief was moot because plaintiff received requested transfer and his allegations that

he might be returned were mere conjecture). There is no evidence here suggesting that Mr. Cislo

will be subject again to the provisions in the Manual that limit the availability of dental care to

inmates at Pendleton.

Mr. Cislo cannot assert a claim for monetary damages against Mr. Osburn in his official

capacity and his claim for injunctive relief is moot. Therefore, Mr. Osburn is entitled to judgment

as a matter of law on the claim against him in his official capacity.

B. Individual Capacity Claim

Mr. Cislo also asserts a claim against Mr. Osburn in his individual capacity. Dkt. 1 at 3.

For purposes of a claim under § 1983, "a public employee's liability is premised on [his] knowledge

and actions, and therefore requires evidence that each defendant, through [his] own actions,

violated the Constitution." Aguilar v. Gaston-Camara, 861 F.3d 626, 630 (7th Cir. 2017); see also

Wilson v. Warren Cnty., 830 F.3d 464, 469 (7th Cir. 2016). "A defendant is personally responsible

'if the conduct causing the deprivation occurs at his direction or with his knowledge and consent.'"

Wilson, 830 F.3d at 469 (quoting Gentry v. Duckworth, 65 F.3d 555,561 (7th Cir. 1995)).

Here, the undisputed evidence establishes that Mr. Osburn was not personally involved in

either the denial of dental services to Mr. Cislo or the development of the policy outlined in the

Manual. Mr. Osburn testified that he was not the final decisionmaker as to either Mr. Cislo's dental

care or IDOC dental care policy, and that he was not involved in formulating the policies contained

in the Manual. See dkt. 66-2 at ¶¶ 8-11.

Mr. Cislo contends that Mr. Osburn was the final decisionmaker with respect to the

Manual, see dkt. 77 at 2, but he has presented no evidence to support this assertion. In his surreply,

he alleges that he cannot provide evidence because staff at Pendleton "lost or destroyed" his

discovery and property. Dkt. 80 at 1. However, Mr. Cislo has not described what evidence or

discovery he had in his possession that would have created a genuine issue of material fact.

Additionally, Mr. Osburn designated a copy of the Manual in support of his motion for summary

judgment, and the preface of the Manual states that any concerns about it should be communicated

to the Chief Medical Officer. See dkt. 66-3 at 2. The Manual identifies Dr. William Van Ness as

the Chief Medical Officer for IDOC. Id. Nowhere does the Manual reference Mr. Osburn or the

Executive Director for Adult Facilities. Mr. Cislo has failed to create a genuine issue of material

fact as to Mr. Osburn's involvement in developing or adopting the Manual. Accordingly, judgment

as a matter of law is warranted on Mr. Cislo's claims against Mr. Osburn in his individual capacity.

IV. Conclusion

For the foregoing reasons, Mr. Osburn's motion for summary judgment, dkt. [66], is

granted. All claims against Mr. Osburn are dismissed with prejudice.

Mr. Cislo's motion to dismiss all claims against defendant Wexford, dkt.[84], is granted.

All claims against Wexford are dismissed with prejudice.

All of Mr. Cislo's claims against all defendants have been resolved. Final judgment

consistent with this Order and the screening entry, dkt.[6], shall now enter.

SO ORDERED.

Date: 11/2/2020

Slam ruck anor

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

RONNIE BEE CISLO

Laporte County Jail

809 State St, Ste 201A

Laporte, IN 46350

All Electronically Registered Counsel