KEEYLEN v. TALBOT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

VICTOR KEEYLEN, )

)

Plaintiff, )

)

v. ) No. 1:18-cv-02395-JPH-DLP

)

JERRY GILLEY, )

CAROLYN MYERS, )

SAMANTHA ALBERSON, )

DALE PLUMBER, )

)

Defendants. )

ORDER GRANTING STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Victor Keeylen, a state prisoner, alleges that from March 2017 through late 2018,

he was denied effective treatment for a MRSA1 infection and other skin conditions which caused

unnecessary suffering. His claims are brought pursuant to 42 U.S.C. § 1983. Medical provider

defendants were recently dismissed, dkts. 376 and 377, and the remaining claims are against

custody staff: Samantha Alberson, Jerry Gilley, Carolyn Myers, and Dale Plumber (the "State

Defendants"). Mr. Keeylen alleges that (1) Ms. Alberson failed to properly quarantine other

inmates with MRSA, which led to Mr. Keeylen contracting MRSA, and failed to immediately seek

medical care for Mr. Keeylen; (2) Captain Gilley refused to respond to Mr. Keeylen's requests for

medical care, and instructed other correctional officers to stop seeking medical assistance for Mr.

Keeylen; (3) Officer Myers refused to provide Mr. Keeylen with decontaminated items from the

laundry, which left Mr. Keeylen with soiled bedding and clothing for months; and (4) Mr. Plumber

and Officer Meyers failed to comply with a dermatologist's orders issued May 3, 2018, to wash

1 MRSA is an acronym for Methicillin-resistant Staphylococcus aureus, a type of bacteria that is resistant

to several antibiotics.

Mr. Keeylen's clothing separately with hypoallergenic detergent due to possible chronic contact

dermatitis. Dkt. 276 at pgs. 2-3.

The State Defendants seek summary judgment, arguing that Mr. Keeylen has not

designated evidence demonstrating that any of the State Defendants were deliberately indifferent

to his serious medical needs. In response, Mr. Keeylen filed five documents. Dkt. 370 (response

brief); dkt. 371 (declaration); dkt. 372 (submission of exhibits); dkt. 374 (declaration); and dkt.

375 (submission of list of exhibits). The State Defendants did not reply. For the reasons explained

below, the State Defendants' motion for summary judgment, dkt. [348], is granted.

I.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment asks the Court to find that the movant is entitled to

judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed.

R. Civ. P. 56(a). "Though the movant bears the burden of showing that summary judgment is

appropriate, the non-moving party 'may not rest upon mere allegations in the pleadings or upon

conclusory statements in affidavits; it must go beyond the pleadings and support its contentions

with proper documentary evidence.'" Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 972 (7th

Cir. 2020) (quoting Warsco v. Preferred Tech. Grp., 258 F.3d 557, 563 (7th Cir. 2001)); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). "[S]ummary judgment requires a non-

moving party to 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 v.

Trustees of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017). "Such a dispute exists when there is

sufficient evidence favoring the non-moving party to permit a trier of fact to make a finding in the

non-moving party's favor as to any issue for which it bears the burden of proof." Id. (citing Packer

v. Tr. of Indiana Univ. Sch. of Med., 800 F.3d 843, 847 (7th Cir. 2015)).

A party must support any asserted disputed or undisputed fact by citing to specific portions

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

Court need only consider the cited materials and need not "scour the record" for evidence that is

potentially relevant to the summary judgment motion. Grant, 870 F.3d at 573−74. (quotation

marks omitted); see also Fed. R. Civ. P. 56(c)(3). "Indeed, we have repeatedly held that it is not

the responsibility of the district court to dig through the record to find evidentiary support for a

party's summary judgment arguments." MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins.

Co., -- F.3d --, No. 20-1268, 2021 WL 1538233, at *5 (7th Cir. Apr. 20, 2021).

II.

FACTS

The limited facts provided by the State Defendants are as follows: Mr. Keeylen was

transferred to the Pendleton Correctional Facility around December 30, 2016, and he was enrolled

in the facility's chronic care clinic. Dkt. 341-3, pp 1, 10, 11.2 In March of 2017, Mr. Keeylen

began suffering from a medical condition. Dkt. 75 at p. 3.3 Prior to March 31, 2017, the Indiana

Department of Correction ("IDOC") contracted Corizon to provide medical care to offenders in

IDOC. Dkt. 341-1, ¶3. On April 1, 2017, Wexford of Indiana, LLC took over the contract and

began providing care to offenders within IDOC. Id. Dr. Talbot's affidavit describes the frequency

2 State Defendants cite to Mr. Keeylen's amended complaint, docket number 75 at pages 6 and 10

for the proposition that the State Defendants are not medical care providers and that they were

laypersons and employees of the Department of Correction. The record cited is not "evidence" of

these proposed facts. First, even though Mr. Keeylen signed his amended complaint under penalty

of perjury, he does not have first-hand knowledge to qualify him to testify as to these facts. Second,

Mr. Plumber is not mentioned on the referenced pages.

3 The State Defendants' Statement of Material Facts Not in Dispute relays that Samantha Alberson

ran Pendleton Correctional Facility's PLUS program and that she failed to quarantine members of

the PLUS program. The page cited, dkt 75 at p. 5, does not support these facts.

of Mr. Keeylen's medical visits and treatments, which began in March of 2017 and continued until

January of 2019. Id. at ¶¶ 9-60.

The only fact listed in the facts section of Mr. Keeylen's response is: "Plaintiff's claims

against all defendants were filed by the Plaintiff and allowed to proceed as Eighth Amendment

claims." Dkt. 370 at p.1. Local Rule 56-1 provides that "[t]he response must include a section

labeled 'Statement of Material Facts in Dispute' that identifies the potentially determinative facts

and factual disputes that the party contends demonstrate a dispute of fact precluding summary

judgment." L.R. 56-1(b); dkt 347 (Notice to Pro Se Litigant). This Court is entitled to enforce its

local rules, even against pro se litigants. Maddox v. State Auto Prop. & Cas. Ins. Co., 638 F. App'x

533, 534 (7th Cir. 2016). The Court declines to review the argument section of Mr. Keeylen's brief

and his other related submissions to search for evidence that could support his claims.

III.

DISCUSSION

The State Defendants argue that they are entitled to summary judgment because Mr.

Keeylen cannot show that they were deliberately indifferent to his medical needs and because they

are entitled to rely on medical staff to provide appropriate medical treatment to Mr. Keeylen. Dkt.

349 at p. 6-7. In response, Mr. Keeylen must set forth evidence upon which a trier of fact could

conclude that his Eighth Amendment rights were violated. "Of course, a lack of evidence rarely

favors the plaintiff, who cannot stave off summary judgment with speculation . . . ." Kotaska v.

Fed. Express Corp., 966 F.3d 624, 630 (7th Cir. 2020); Owens v. Evans, 878 F.3d 559, 565 (7th

Cir. 2017) (summary judgment was appropriate where plaintiff lacked evidence to support his

claim).

Mr. Keeylen asserts an Eighth Amendment deliberate indifference claim against the

defendants. At all times relevant to his claims, he was a convicted offender. Accordingly, his

medical treatment and conditions of 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

Eighth Amendment.").

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 determine if the Eighth Amendment has been violated

in the prison medical context, [courts] perform a two-step analysis, first examining whether a

plaintiff suffered from an objectively serious medical condition, and then determining whether the

individual defendant was deliberately indifferent to that condition." Petties v. Carter, 836 F.3d

722, 727–28 (7th Cir. 2016) (en banc).

"[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 so." Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005)

(internal quotations omitted).

The State Defendants are entitled to judgment as a matter of law because Mr. Keeylen has

failed to meet his burden of presenting admissible evidence upon which a jury could conclude that

any of the State defendants were deliberately indifferent to his skin conditions. He has not

presented any evidence that he suffers from an objectively serious medical condition, or that any

of the individual defendants were deliberately indifferent to that condition. See Petties, 836 F.3d

at 727-28. The State Defendants’ submission is sparse, but the moving party has no obligation to

bring evidence in the form of affidavits or other information to demonstrate the absence of a

genuine issue of material fact. Celotex Corp v. Catrett, 477 U.S. 317 (1986). In fact, "there exist[s]

‘no express or implied requirement in Rule 56 that the moving party support its motion with

affidavits or other similar materials negating the opponents claim." Jd. at 323 (emphasis in

original) (as cited in Spierer v. Rossman, 798 F.3d 502, 507-508 (7th Cir. 2015)).

Mr. Keeylen "did not comply with the summary judgment rules, of which he had sufficient

notice, that required him to cite his evidence." McCaa v. Hamilton, 959 F.3d 842, 846 (7th Cir.

2020). In the absence of evidence to support his Eighth Amendment claims of deliberately

indifference, the State Defendants are entitled to judgment as a matter of law. Given this outcome,

the State Defendants’ qualify immunity defense need not be considered. See dkt. 349 at 14-16.

IV.

CONCLUSION

There is no evidence that the defendants have violated Mr. Keeylen's constitutional rights.

Accordingly, the motion for summary judgment, dkt. [348], is GRANTED. Final judgment in

accordance with this Order shall now issue.

SO ORDERED.

Date: 5/4/2021

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

VICTOR KEEYLEN

950970

PUTNAMVILLE - CF

PUTNAMVILLE CORRECTIONAL FACILITY

Electronic Service Participant – Court Only

Douglass R. Bitner

KATZ KORIN CUNNINGHAM, P.C.

dbitner@kkclegal.com

Jeb Adam Crandall

BLEEKE DILLON CRANDALL ATTORNEYS

jeb@bleekedilloncrandall.com

Christopher Andrew Farrington

BLEEKE DILLON CRANDALL ATTORNEYS

drew@bleekedilloncrandall.com

Zachary Robert Griffin

INDIANA ATTORNEY GENERAL

zachary.griffin@atg.in.gov

James D. Masur, II

ROBERT W. YORK & ASSOCIATES

jdmasur@york-law.com

Samantha May Sumcad

INDIANA ATTORNEY GENERAL

samantha.sumcad@atg.in.gov

Jarod Zimmerman

KATZ KORIN CUNNINGHAM, P.C.

jzimmerman@kkclegal.com