# BERRY v. COMMISSIONER OF INDIANA

> District Court, S.D. Indiana · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10167712

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

EARLIE B.A. BERRY, JR., )
)
Plaintiff, )
)
v. ) Case No. 1:19-cv-01476-TWP-MJD
)
INDIANA DEPARTMENT OF CORRECTION, )
Classification Director, DUSHAN ZATECKY, )
STAFFORD, D. REAGLE, CHAD EVANS, )
F. LITTLEJOHN, K. HUNTER, WENDY )
KNIGHT, JOHN POER, and INDIANA )
DEPARTMENT OF CORRECTION, )
Commissioner, )
)
Defendants. )

ORDER DENYING MOTION TO SUPPLEMENT MOTION FOR EXTENSION OF
TIME, GRANTING MOTION FOR SUMMARY JUDGMENT,
AND DIRECTING ENTRY OF FINAL JUDGMENT

This matter is before the Court on a Motion for Summary Judgment filed by Defendants,
Warden Dushan Zatecky, Kim Stafford, Purdue, D. Reagle, Dr. Easter-Rose, Chad Evans, Warden
Wendy Knight, Internal Investigator John Poer, Assistant Warden F. Littlejohn, K. Hunter,
Commissioner of the Indiana Department of Correction ("IDOC"), and the IDOC Classification
Director. (Dkt. 79.) Plaintiff Earlie B.A. Berry, Jr. ("Berry"), an Indiana prisoner, initiated this
action alleging he suffers from mental health issues, and that the Defendants have wrongfully
placed and kept him in solitary confinement in deliberate indifference to his mental health issues.
Also before the Court is Plaintiff's Request to Supplement Motion for Extension of Time and
Address Issues, (Dkt. 100). For the reasons explained in this Order, Berry's Motion to Supplement
is denied as moot and the Court grants the Defendants' Motion for Summary Judgment.
I. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 106 S. Ct. 1348 (1986). Summary judgment is appropriate when

the movant shows that there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law. See Federal Rule of Civil Procedure 56(a). A "material
fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). 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. See 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 inferences in that party's favor. See Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are left to the fact-finder. See O'Leary

v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). 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, 477 U.S. at 248. If no reasonable
jury could find for the non-moving party, then there is no "genuine" dispute. Scott v. Harris, 550
U.S. 372, 380 (2007).

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II. PROCEDURAL BACKGROUND
The Court will first address Berry's Motion to Supplement his motion for extension of time,
(Dkt. 100). In his Amended Complaint, Berry also brought claims against Martin Perdue, Dr.
Ciemone Easter-Rose, and Wexford of Indiana LLC. ("Medical Defendants"), but on July 20,

2020, the parties stipulated to the dismissal of the Medical Defendants. (Dkt. 89.) The Defendants'
Motion for Summary Judgment was filed on June 12, 2020. (Dkt. 79.) Since that time, the Court
granted Berry several extensions of time to respond to the summary judgment motion due to his
time in quarantine after he contracted COVID-19 and his lack of access to his legal papers. (Dkt.
86; Dkt. 97.) Berry received access to his legal documents on December 31, 2020.1 On February
19, 2021, the Court gave Berry a final extension through March 8, 2021, by which to respond to
the Defendants' Motion for Summary Judgment. (Dkt. 97.) That Order notified Berry that the
Court would not consider any future motions for extensions of time unless he strictly complied
with Rule 56(d) of the Federal Rules of Civil Procedure by specifically setting forth in an affidavit
or declaration that, for specified reasons, he could not present facts essential to justify his

opposition to summary judgment. Id.
That same day, Berry filed a motion for extension of time, stating that he had received his
legal documents on December 31, 2020, but had not received any court filings from January 10,
2021 to February 16, 2021. (Dkt. 98.) He therefore requested another extension of time to respond

1 See Berry v. Zatecky, 1:19-cv-01511-SEB-DML, (Dkt. 67), in which state defendants reported that "[o]n December
31, 2020, Mr. Berry received all his legal mail and signed a release indicating that he had received the same. Prior to
receiving all his legal mail, Mr. Berry was to only receive certain portions of his legal mail at a given time due to the
facility's security restrictions (a page limit)."

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to the summary judgment motion. The docket reflects that no filings were made in this case
between January 10, 2021 and February 16, 2021, which would explain why Berry received no
filings during that time.
Berry also timely mailed his response brief on March 8, 2021.2 (Dkt. 104.) On March 10,

2021, Berry filed the motion to supplement his motion for extension of time. He reported that he
did not receive the Court's February 19, 2021 Order until March 1, 2021. (Dkt. 100; Dkt. 101-1.)
Thus, Berry received the Order a week before his deadline to respond to the summary judgment
motion, yet he did not respond by the deadline or comply with Rule 56 despite being warned by
the Court that he must do so if he sought an additional extension. Berry's response brief is before
the Court for its consideration, accordingly, his Motion to Supplement his motion for extension of
time, (Dkt. 100), is denied as moot.
The Court will next address Berry's allegations that the law library stopped providing him
with electronic notices from the Court. Berry provided the Court with a copy of a form memo
from the law library supervisor, Marah Kelley, which indicated that he would not receive further

notice of filings from the Courts in his cases. (Dkt. 98-2.) The Court gave the Defendants through
March 15, 2021 to respond to Berry's allegation that the law library stopped providing him with
electronic notices from the Court. (Dkt. 99 at 2.) The Court extended the deadline for the
Defendants' response to the law library issue to March 19, 2021. (Dkt. 107.) The Defendants'
response indicates the form memo stating that all notices must be by U.S. Mail, was created for
state court cases rather than federal cases. In particular, Defendants state that "inadvertently, the

2 Under the "prison mailbox rule," a prisoner's filing is filed when it is handed over to prison staff for mailing, see
Ingram v. Jones, 507 F.3d 640, 643 (7th Cir. 2007). The Court notes that some of the pages of Berry's response brief
were scanned out of order. The Court cites to the PDF page number rather than the page number provided by Berry at
the bottom of each page.
4
state court cover sheet was appended to Mr. Berry’s federal court document received by the law
library in this case," and in error, Berry received the form memo stating that he would no longer
receive electronic notices from the Court. (Dkt. 105 at 2.) Defendants report that while regretful,
the error was harmless, because Berry continued to receive electronic notices from the federal

court despite the communication error. Id. Berry has not disputed this information.
Concerning Defendants' Motion for Summary Judgment, Berry filed his Response in
opposition on March 15, 2021, (Dkt. 104). The Defendants have not replied to Berry's response
brief nor moved for an extension of time to do so. Accordingly, summary judgment motion is ripe
for ruling.
III. FACTUAL BACKGROUND

Berry is currently incarcerated within the IDOC at Putnamville Correctional Facility
("Putnamville") and he is not in segregation. He suffers from Post-Traumatic Stress Disorder
(PTSD) and was previously diagnosed with other mental health conditions while in IDOC custody,
but he does not remember the specific designations. (Dkt. 79-1 at 17-19.)
A. Undisputed allegations in Berry's Amended Complaint
Berry alleges the following facts which are not disputed by the Defendants. (Dkt. 80 at 2-
3.) He was previously housed at Correctional Industrial Facility ("CIF") from October 31, 2017
to July 3, 2018. Defendants Warden Wendy Knight ("Knight"), Classification Specialist Kim
Stafford ("Stafford"), and Investigator John Poer ("Poer") worked at CIF and made
recommendations and decisions to place and keep Berry in segregation while he was at CIF.
Berry was housed at Wabash Valley Correctional Facility ("Wabash Valley") from July 3,
2018 to August 10, 2018. Defendants Deputy Warden Frankie Littlejohn ("Littlejohn") and Unit

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Team Manager Kevin Hunter ("Hunter") made decisions to keep Berry in segregation while he
was at Wabash Valley.
Berry was housed at Pendleton Correctional Facility ("Pendleton") from August 10, 2018
to December 6, 2019. Defendants Warden Dushan Zatecky ("Zatecky"), Deputy Warden Dennis

Reagle ("Reagle"), and Counselor Chad Evans ("Evans") worked at Pendleton while Berry was
there. Berry contends that Zatecky maintained a policy that allowed Berry to remain in segregation
despite his mental health issues. Reagle agreed with Berry's placement in segregation. Evans did
not seek reclassification for Berry when Berry thought he should.
B. Berry's Placement in Segregation at CIF
Since 2017, Berry has received 25 disciplinary conduct reports including:
• February 2017: Disorderly conduct, battery by bodily waste, and fleeing or
resisting staff;
• January 24, 2018: refusing to obey an order;
• February 23, 2018: possession of a controlled substance, possession of
tobacco, and possession of unauthorized property;
• March 3, 2018: intoxication;
• May 30, 2018: possession of a controlled substance, participating in an
unauthorized meeting or gathering, and four separate incidents of
possessing tobacco; and
• July 17, 2018: refusing to obey an order.

(Dkt. 79-2.).
He was placed in segregation at CIF on May 9, 2018. The Defendants contend that this
placement was a result of Berry's disciplinary history. Berry contends that he was placed in
segregation in retaliation by Poer, that he was not properly evaluated until October 2019, and that
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the Defendants' actions and failures to act violated multiple IDOC policies. (Dkt. 104 at 7-9, 18.)
His medical records reflect the following assessments and evaluations.
Alisha Richey, LPN, conducted an initial review of Berry's placement in segregation. This
review included a screening of Berry's suicide risk. Of 18 items, Berry only answered

affirmatively for one—that he had a history of psychiatric treatment. (Dkt. 79-12 at 75). He denied
suicidal ideation. Id. On May 11, 2018, Sarah Evans, MHP, completed a review of Berry's
placement in segregation (formally known as Restrictive Housing Unit or RHU). Her report states:
Offender Berry was seen by MHP for a 72-Hour RHU Review pending B-202
conduct report. He was reading when MHP approached his cell and denied needing
to speak to MHP outside of cell. He denied any significant mental health concerns
at this time and confirmed he is compliant with medication. He does not meet SMI
criteria at this time. He denied any functioning impairments, psychotic symptoms,
HI, SI, and mania. Placement in RHU is not clinically contraindicated at this time.
He will be seen by mental health weekly for rounds.

(Dkt. 79-3.) While in segregation at CIF, Berry was evaluated by mental health professionals on
a monthly basis, received medication for his mental health diagnoses, and was monitored for
suicide risk. (Dkt. 79-12 at 9-75.) Berry disputes that he was evaluated for suicide risk on more
than one occasion. (Dkt. 104 at 15.)
Due to his history of mental health issues, Berry's Individualized Action Plan was reviewed
and adjusted on May 18, 2018. (Dkt. 79-4.) The plan's goals included that Berry's depressive
symptoms would not impair his daily functioning and that there would be no decompensations

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while in segregation. The plan called for Berry's participation in weekly mental health rounds and
monthly visits with mental health professionals out of his cell. Id.
On June 5, 2018, Stafford recommended that Berry be transferred to another institution due
to his receipt of seventeen conduct reports in twelve months. (Dkt. 79-6.) Specifically, she

recommended transfer to a Maximum Security-Level 4 Facility. Id.
C. Berry Remained in Segregation at Wabash Valley
Berry was transferred to Wabash Valley on July 3, 2018. Hunter approved him for
placement in segregation on June 9, 2018, after psychologist Mary Ruth Sims PhD, HSPP,
determined that Berry was not at high risk for decompensating in segregation despite exhibiting
symptoms of an Axis I diagnosis. (Dkt. 79-7.) Berry states that Sims did not personally evaluate
him when completing her report. (Dkt. 104 at 17.) His suicide assessment showed Berry had no
incidents of serious self-harm or suicide attempts in the prior six months. (Dkt. 79-13 at 39.)
On the day of Berry's transfer, Wabash Valley Warden Richard Brown wrote a letter to Mike
Osburn, the Southern Regional Director of the IDOC, stating that based on Berry's receipt of

multiple conduct reports since his incarceration at IDOC, Warden Brown believed Berry should
be placed on department wide restricted status housing. (Dkt. 79-8.)
On July 6, 2018, Berry was seen for a medical services intake. (Dkt. 79-13 at 33-35.) The
report of this intake provides a detailed narrative description of the interactions with Berry and the
clinician. Berry reported a history of psychiatric issues including "bipolar, antisocial, 4 or 5
different ones." Id. at 33. He stated that he received these diagnoses in 2011 or 2012 after he
attempted suicide. His chart notes that he attempted to hang himself in the IDOC in 2016. Berry
denied thoughts of self-harm at the time of the evaluation. Id. He reported auditory and visual

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hallucinations but was found not to be reacting to internal or external stimuli. The examiner
determined that Berry had "no observed functional impairment related to mental illness and [] no
apparent need for mental health treatment." Id. at 34. He was to be seen regularly by mental health
professionals and told to submit a request if he would like to be seen more often. Id. But, ultimately,

Berry was found not to be seriously mentally ill. Id. at 39. Although the report does not clearly
state which mental health professional met with Berry on July 6, 2018, the report produced in
discovery states that it was generated by Ryan A. Harr Kulynych. Id. at 35. Berry disputes that
he was ever seen by Mr. Kulynych. (Dkt. 104 at 11.)
An email was sent to IDOC personnel on July 16, 2018 from Wexford Medical Group, the
medical provider to IDOC, also noting that Berry was not seriously mentally ill. (Dkt. 79-9 at 1.)
On July 31, 2018, a classification hearing was held, and it was determined that Berry should remain
in administrative segregation. (Dkt. 79-10.) Berry did not know that this classification hearing
occurred. (Dkt. 104 at 11.)
A mental status examination was conducted on August 6, 2018. (Dkt. 79-13 at 1.) It was

revealed during this examination that Berry's prescription for Mirtazapine had been inadvertently
allowed to lapse on July 8, 2018, shortly after his transfer to Wabash Valley, and that this caused
Berry to suffer increased symptoms of depression. Berry also reported a suicide attempt in January
2018 but denied serious issues at the time of the review. His diagnosis was recorded as "Major
depressive affective disorder, recurrent episode, moderate degree." Id. at 2. Berry requested
placement in a mental health treatment unit because he had been raped by his brother years ago
and had coped with that trauma by using drugs and being violent, but he wished to learn better
coping skills. Berry's prescription of Mirtazapine was renewed. Id. at 1. His Individualized Action

9
Plan was again reviewed an updated. Id. at 5-6. The plan's goals included psychotherapy and
medication counseling, education, and monitoring by mental health professionals. Id.
D. Berry Remained in Segregation at Pendleton
When Berry was transferred to Pendleton on August 10, 2018, he remained in department

wide administrative segregated housing. On August 14, 2018, his case manager, Evans, signed an
Offender Prison Intake Case Plan that stated,
Offender needs to remain on department wide for a minimum of one year and be
clear of conduct for one year before he will be considered for ARSH. Offender
should speak with mental health staff to receive self-study substance abuse (if
applies) and anger management material for the evaluation period starting August
14, 2018.

(Dkt. 79-15 at 2).
Throughout his time at Pendleton, medical records indicate that Berry was monitored for
mental health issues, given medication for his mental health diagnoses, assessed for suicide risks,
and provided regular access to mental health professionals. (Dkt. 79-16 at 4-412.) On February
5, 2019, he was placed on a behavior modification plan to assist him in returning to the general
population. (Dkt. 79-14.)
III. DISCUSSION

At all times relevant to Berry's claim, he was a convicted offender. Accordingly, his
treatment and the conditions of his confinement are evaluated under standards established by the
Eighth Amendment's proscription against the imposition of cruel and unusual punishment. See
Helling v. McKinney, 509 U.S. 25, 31 (1993) ("It is undisputed that the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to scrutiny under the
Berry Eighth Amendment.").
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Pursuant to the Eighth Amendment, prison officials have a duty to provide humane
conditions of confinement, meaning, they must take 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 defendant knew about the plaintiff's condition
and the substantial risk of harm it posed, but disregarded that risk. Id. at 837; Pittman ex rel.
Hamilton v. Cnty. of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014). "A significant delay in
effective medical treatment also may support a claim of deliberate indifference, especially where
the result is prolonged and unnecessary pain." Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.
2010).
Berry argues that the stress of being placed in segregated and restrictive housing for long periods
of time, and behaviors such as the inadvertent lapse in providing him medication, contributed to
his suffering from a serious medical condition. He argues he was never properly treated for mental

health issues until after his transfer to Putnamville, (Dkt. 104 at 10); where he was told that he had
"P.T.S.D, Paranoid, hear voices, anxiety, panic attacks, suicidal and homicidal thoughts (Dkt. 104-
1 at 8). In addition, his diagnoses of depression and "Axis I Diagnoses," Id. at 50, all show that
he suffered from a serious medical condition during the time periods alleged in his Amended
Complaint. In contrast, the Defendants dispute that Berry suffered from a serious medical
condition and they argue the evidence shows that while he was in segregation, Berry did not suffer
from a serious mental illness that would preclude him from being placed in segregation. Considering
the evidence in the light most favorable to Berry, the Court concludes that a material dispute of fact

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exists as to whether or not Berry suffered from a serious medical condition.
Assuming that Berry's mental health diagnoses qualified as serious medical conditions,
there is no evidence that any Defendant was deliberately indifferent to those conditions. At each
facility, Berry was assessed by a mental health professional and his Individualized Action Plan

was updated. He had access to weekly mental health rounds and monthly out of cell visits with
mental health professionals. His medication was also managed to assure that his symptoms were
being addressed and that he remained stable. On one occasion his prescription inadvertently
expired but was renewed as soon as the error was discovered. All evaluations concluded that his
placement in segregation was appropriate. When Berry was transferred to Pendleton in August
2018, he was placed on a behavior modification plan with the goal of being released from
segregation.
At all times relevant to this litigation, Berry was under the care of medical staff employed
by Wexford. As non-medical professionals, the Defendants' failure to overrule the decisions of
medical professionals, in the absence of any indication that Berry was receiving inadequate

treatment, does not constitute deliberate indifference. "'If 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.'" Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir.), cert. denied, 140 S. Ct. 50
(2019) (quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)). "'[A]bsent a reason to believe
(or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a
prisoner, a non-medical prison official ... will not be chargeable with the Eighth Amendment
scienter requirement of deliberate indifference.'" Id. at 1049-50 (quoting Spruill v. Gillis, 372 F.3d
218, 236 (3d Cir. 2004)).

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Berry's response raises several arguments, but none create a material issue of fact. He
contends that he was placed in segregation in retaliation by Defendant Poer, but there is no
retaliation claim proceeding in this action. And the reason for Berry's placement in segregation is
not dispositive of the question of whether the Defendants were deliberately indifferent to Berry's

mental health conditions while he was in segregation.
Berry argues that he was often seen by mental health professionals who were not licensed
psychologists or psychiatrists and that his mental health was not monitored continuously or daily
as the Defendants argue in their brief. (Dkt. 104 at 8, 17.) But the Court has not relied on any
statements that Berry was seen daily or was monitored continuously. The record reflects that he
had access to mental health professionals on weekly rounds and when he submitted health care
request forms. The Constitution does not require that inmates' mental health be managed only by
psychiatrists or psychologists, or that inmates be monitored either continuously or on a daily basis.
Berry also argues that he was not evaluated by a mental health professional before intelligence
officer Poer investigated him. Id. at 12. But again, there is no Constitutional right to such an

evaluation.
Berry contends that he was not properly diagnosed until he was transferred to Putnamville.
But the Defendants remaining in this suit were not responsible for diagnosing Berry's mental health
conditions—rather, this was the responsibility of the Medical Defendants who have been dismissed
from this action. The voluminous medical records reveal that Berry was periodically evaluated by
mental health professionals and had access to treatment. Under those circumstances, the
Defendants—all officials of IDOC—reasonably relied on the determinations made by medical
staff throughout Berry's time in segregation that he was not suffering from serious mental illness.

13
Berry argues the Defendants violated multiple IDOC policies, but 42 U.S.C. § 1983
“protects plaintiffs from constitutional violations, not violations of state laws or ... departmental
regulations." Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003); Mudd v. City of Fort Wayne,
732 Fed. App'x 471, 472 (7th Cir. 2018) (same). A mere policy violation is not enough to show
deliberate indifference.
Finally, Berry makes vague allegations that he went months without being seen by mental
health professionals. The Court's review of the medical records produced by the parties reveals
no such stretch of time where Berry was not seen on weekly rounds or was denied access to mental
health services. The healthcare request forms submitted by Berry show that he was seen by mental
health staff within a few days of each request. There is no evidence in the record that Berry
suffered any harm as a result of not being seen immediately in these situations. For these reasons,
the Defendants are entitled to summary judgment.
IV. CONCLUSION
For the reasons explained above, Berry's Motion To Supplement Motion For Extension Of
Time, Dkt. [100], is DENIED as moot. The Defendants’ Motion for Summary Judgment, Dkt.
[79], is GRANTED. Judgment consistent with this Order, and the Order Granting Joint Stipulated
Dismissal with Prejudice of Medical Defendants, (Dkt. 90), shall now issue in a separate entry.
SO ORDERED.
Date: 3/26/2021
rene Dit
Hon. Tanya Walton Pratt, Chief Judge
United States District Court
Southern District of Indiana

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DISTRIBUTION:

Earlie B.A. Berry, Jr., #932151
PUTNAMVILLE CORRECTIONAL FACILITY
Electronic Service Participant – Court Only

Thomas Joseph Flynn
INDIANA ATTORNEY GENERAL'S OFFICE
tom.flynn@atg.in.gov

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10167712. Public record. Not legal advice.