# SHANNON v. SCHWAB

> District Court, S.D. Indiana · September 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10170701

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 26, 2023
- **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

DANTAVIS LAMARCUS SHANNON, )
)
Plaintiff, )
)
v. ) No. 1:21-cv-02422-JPH-MJD
)
SGT. DAVID SCHWAB, )
SGT. ANDREW TRIVET, )
SGT. OLUWAFEMI AYODEL, )
MORGAN DAWS, )
)
Defendants. )

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Indiana prisoner Dantavis Lamarcus Shannon suffered pain and swelling
when Sgt. David Schwab used a bolt cutter to remove a handcuff that was stuck
on his right hand. Mr. Shannon is suing Sgt. Schwab for excessive force in
violation of the Eighth Amendment. He is also suing Licensed Practical Nurse
Morgan Daws, Sgt. Andrew Trivet, and Sgt. Oluwafemi Ayodel for deliberate
indifference to a serious medical need in violation of the Eighth Amendment.
The defendants have moved for summary judgment. As explained below,
the Court grants summary judgment for all defendants.
I. Summary Judgment Standard
Parties in a civil dispute may move for summary judgment, which is a way
of resolving a case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment
is appropriate when there is no genuine dispute as to any of the material facts,
and the moving party is entitled to judgment as a matter of law. Id.; Pack v.
Middlebury Comm. Schs., 990 F.3d 1013, 1017 (7th Cir. 2021). A "genuine
dispute" exists when a reasonable factfinder could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
"Material facts" are those that might affect the outcome of the suit. Id.

When reviewing a motion for summary judgment, the Court views the
record and draws all reasonable inferences from it in the light most favorable to
the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565,
572-73 (7th Cir. 2021). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are left to the fact-
finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court is only
required to consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3);
it is not required to "scour every inch of the record" for evidence that is potentially

relevant. Grant v. Trs. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017).
"[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of 'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,' which
it believes demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party
may be discharged by 'showing'—that is, pointing out to the district court—that

there is an absence of evidence to support the nonmoving party's case." Id. at
325.
II. Background
During the time relevant to this lawsuit, Mr. Shannon was a convicted
prisoner confined to a restricted housing unit at Plainfield Correctional Facility

("Plainfield"). (Dkt. 71-1 at 9-10). Sgt. Schwab, Sgt. Trivet, and Sgt. Ayodel were
correctional officers at Plainfield. (Id. at 34-35; dkt. 71-2 at 2). Nurse Daws was
a member of the medical staff at Plainfield. (Dkt. 67-1 at ¶ 2).
A. Sgt. Schwab removes a handcuff from Mr. Shannon's right hand
On June 20, 2021, Mr. Shannon asked Sgt. Schwab to escort him from
his cell to the recreation area. (Dkt. 71-1 at 26). At around 10:00-10:30 a.m.,
Sgt. Schwab placed handcuffs on Mr. Shannon and walked him to the recreation
area. (Id.). This was a routine interaction between Mr. Shannon and Sgt. Schwab,

and nothing unusual happened until they got to the recreation area. (Id.).
When they got to the recreation area, Mr. Shannon's handcuffs would not
come off. (Id. at 27). Sgt. Schwab turned to his fellow officer, Officer Cumba, and
asked why he had given him a pair of broken handcuffs to place on Mr. Shannon.
(Id. at 27-28). Until that moment, Sgt. Schwab "had no indication that
[the handcuffs] were malfunctioning." (Dkt. 71-2 at 3). Sgt. Schwab was able to
remove the handcuff from Mr. Shannon's left hand with a key, but the handcuff
on his right hand remained stuck. (Dkt. 71-1 at 28).

Sgt. Schwab then used a bolt cutter to remove the handcuff from
Mr. Shannon's right hand. (Id. at 29-32). At Plainfield, correctional officers have
access to bolt cutters to remove handcuffs that have gotten stuck on a prisoner.
(Dkt. 71-2 at 4). This was the first time Sgt. Schwab had to use a bolt cutter to
remove a handcuff. (Id.).
Mr. Shannon felt pain as soon as Sgt. Schwab started using the bolt cutter.

(Dkt. 71-1 at 29). He told Sgt. Schwab that he was in pain, but Sgt. Schwab
continued using the bolt cutter. (Id.). Sgt. Schwab successfully removed the
handcuff with the bolt cutter after about 15 to 20 minutes. (Id. at 30).
Immediately after removing the handcuff, Sgt. Schwab took a picture of
Mr. Shannon's swollen right hand. (Id. at 32). At around 11:00-11:30 a.m., Sgt.
Schwab escorted Mr. Shannon to the medical unit where his hand was treated.
(Id. at 33).
B. Nurse Daws treats Mr. Shannon's injured right hand

Nurse Daws treated Mr. Shannon in the medical unit shortly after his hand
was injured. (Dkt. 67-1 at ¶ 4). She observed that his right hand was swollen,
that he said he was in pain, and that he was unable to make a fist. (Id.). She
wrapped his hand with an ace bandage to control the swelling, instructed him
to ice his hand, and contacted the physician, who gave orders for an x-ray. (Id.).
Nurse Daws stated that she offered Mr. Shannon Tylenol for pain, but that
he refused because he already had Tylenol in his cell. (Id.; dkt. 67-2 at 12).
Mr. Shannon disputes that he declined Tylenol and claims that Nurse Daws

simply failed to provide him with any pain medication. (Dkt. 71-1 at 13). He also
faults Nurse Daws for failing to order an MRI. (Id.).
As a licensed practical nurse, Nurse Daws does not have the legal authority
to diagnose a patient, prescribe medication, or direct a physician's course of
treatment. (Dkt. 67-1 at ¶ 5).

C. Sgt. Trivet and Sgt. Ayodel take Mr. Shannon for follow-up care
That evening, Mr. Shannon asked Sgt. Ayodel to escort him to the medical
unit so he could request pain medication. (Dkt. 71-1 at 34). He had unlimited
access to ice for his hand, but the ice was not alleviating the pain, and he hoped
to receive ibuprofen, Tylenol, tramadol, or another non-narcotic pain medication.
(Id. at 15, 38).
After conferring with Sgt. Trivet, Sgt. Ayodel returned to Mr. Shannon's
cell and said that Sgt. Trivet wanted him to complete a request for health care

form before returning to the medical unit. (Id. at 34). Nevertheless, after an
unspecified period of time, Sgt. Ayodel returned to Mr. Shannon's cell and told
him to get dressed for the medical unit. (Id. at 39).
At his deposition, Mr. Shannon was asked, "Do you know how much time
passed between your initial request to Officer Ayodel to go see medical and when
you actually went to go see medical that evening?" (Id.). Mr. Shannon answered,
"No, I don't." (Id.).
D. Mr. Shannon's subsequent medical care

After Sgt. Ayodel escorted Mr. Shannon to the medical unit, a non-
defendant nurse provided him with Tylenol. (Dkt. 77-1 at 13-14). The Tylenol
relieved his pain. (Id. at 18).
The next day, Mr. Shannon received an x-ray of his right hand. (Dkt. 67-1
at 11). According to the radiologist, the x-ray showed "no acute fracture or
dislocation. Joint spaces appear normal. No erosions. There is dorsal mid and

proximal hand soft tissue swelling." (Id.). On June 28, 2021, Mr. Shannon
received a second x-ray of his right hand. (Id. at 6). The radiologist determined
that the x-ray was normal: "no acute fracture" and "soft tissues are
unremarkable." (Id.).On July 16, 2021, Mr. Shannon received a third x-ray of his
right hand. (Id. at 1). The radiologist again determined that the x-ray was normal.
(Id.).
III. Discussion
A. Medical claims against Nurse Daws, Sgt. Ayodel, and Sgt. Trivet

1. Deliberate Indifference Standard
The Eighth Amendment's prohibition against cruel and unusual
punishment imposes a duty on the states, through the Fourteenth Amendment,
"to provide adequate medical care to incarcerated individuals." Boyce v. Moore,
314 F.3d 884, 889 (7th Cir. 2002) (citing Estelle v. Gamble, 429 U.S. 97, 103
(1976)). "Prison officials can be liable for violating the Eighth Amendment when
they display deliberate indifference towards an objectively serious medical need."
Thomas v. Blackard, 2 F.4th 716, 721-22 (7th Cir. 2021).

"Thus, to prevail on a deliberate indifference claim, a plaintiff must show
'(1) an objectively serious medical condition to which (2) a state official was
deliberately, that is subjectively, indifferent.'" Johnson v. Dominguez, 5 F.4th
818, 824 (7th Cir. 2021) (quoting Whiting v. Wexford Health Sources, Inc., 839
F.3d 658, 662 (7th Cir. 2016)).
For purposes of this motion, the Court assumes that Mr. Shannon's

swollen hand is a serious medical need. To survive summary judgment then,
Mr. Shannon must show that the defendants acted with deliberate indifference—
that is, that they consciously disregarded a serious risk to his health. Petties v.
Carter, 836 F.3d 722, 728 (7th Cir. 2016).
Deliberate indifference requires more than negligence or even objective
recklessness. Id. Plaintiff "must provide evidence that an official actually knew
of and disregarded a substantial risk of harm." Id. "Of course, medical
professionals rarely admit that they deliberately opted against the best course of

treatment. So in many cases, deliberate indifference must be inferred from the
propriety of their actions." Dean v. Wexford Health Sources, Inc., 18 F.4th 214,
241 (7th Cir. 2021) (internal citations omitted). The Seventh Circuit has "held
that a jury can infer deliberate indifference when a treatment decision is 'so far
afield of accepted professional standards as to raise the inference that it was not
actually based on a medical judgment.'" Id. (quoting Norfleet v. Webster, 439 F.3d
392, 396 (7th Cir. 2006)). But when the evidence shows that a decision was
based on medical judgment, a jury may not find deliberate indifference, even if

other professionals would have handled the situation differently. Id. at 241-42.
2. Analysis
i. Nurse Daws
Mr. Shannon has two complaints about the medical care Nurse Daws

provided for his swollen hand: (1) she failed to order an MRI; and (2) she failed
to provide him with Tylenol or other pain medication. (Dkt. 77-1 at 13).
With respect to the MRI, Nurse Daws was not deliberately indifferent. The
record does not support a reasonable conclusion that Nurse Daws was
personally involved in the decision to order x-rays instead of an MRI. See Colbert
v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) ("Individual liability under
§ 1983 requires personal involvement in the alleged constitutional deprivation.")
(cleaned up). During the appointment with Mr. Shannon, Nurse Daws conferred

with a physician, who ordered x-rays. Because the decision to order one type of
diagnostic imaging over another was made by the physician, and not Nurse
Daws, she is not liable for that decision. Relatedly, Nurse Daws was entitled to
defer to treatment decisions made by Mr. Shannon's physician, including his
decision to order x-rays rather than an MRI. See Reck v. Wexford Health Sources,
Inc., 27 F.4th 473, 485 (7th Cir. 2022) ("As a general matter, a nurse can, and
indeed must, defer to a treating physician's instructions" so long as this
deference does not become "blind or unthinking," or result in the nurse failing

to advise the physician about the ineffectiveness of certain prescribed
treatments). There is no evidence that Nurse Daws engaged in blind deference,
that she deferred to decisions that were clearly medically inappropriate, or that
she concealed information about Mr. Shannon's condition from the physician.
Finally, even if Nurse Daws were responsible for the decision to have an x-
ray rather than an MRI, "the decision to order or forgo certain diagnostic tests,"
such as an MRI, "is a matter for medical judgment," which courts will not disturb

without evidence that the decision "departed significantly from accepted
professional norms." Crone v. Ippel, 2023 WL 5276606 at *2 (7th Cir. August 16,
2023) (citing Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014)). And here, there
is no such designated evidence.
Next, for the purpose of resolving the motion for summary judgment, the
Court assumes that Nurse Daws, in fact, refused to give Mr. Shannon Tylenol.
Even so, that does not rise to the level of deliberate indifference given the totality
of the care Nurse Daws provided. Her decisions to confer with a physician, wrap

Mr. Shannon's hand with an ace bandage, and provide him with an ice pack
show that she affirmatively tried to alleviate his pain and swelling. See Lockett v.
Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019) (nurse practitioner's refusal to
provide oxycodone was not deliberate indifference given the totality of care,
including responding to the prisoner's requests for healthcare, reviewing his
medical history, renewing his prescriptions, and providing alternative forms of
pain relief). Nurse Daws did not persist in a course of treatment that she knew
was ineffective or delay Mr. Shannon's access to a physician. While Mr. Shannon

did not receive Tylenol immediately after the injury, he was able to obtain some
later that day.
The evidence does not support a reasonable conclusion that Nurse Daws
was deliberately indifferent to a serious medical need, and her motion for
summary judgment is therefore GRANTED.

ii. Sgt. Ayodel and Sgt. Trivet
Mr. Shannon claims that Sgt. Ayodel and Sgt. Trivet were deliberately
indifferent to his swollen hand because they delayed his second visit to the
medical unit on June 20, 2021, for an unspecified period of time.
"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). "[T]he
length of delay that is tolerable depends on the seriousness of the condition and

the ease of providing treatment." Id.
Here, the designated evidence does not permit a reasonable conclusion
that Sgt. Ayodel or Sgt. Trivet were deliberately indifferent. Mr. Shannon's injury,
while painful, was not a medical emergency. No bones were broken and the
swelling went down within a week (Dkt. 67-1 at 1, 6, 11). And while ice didn't
relieve his pain, it was mild enough that it was effectively treated with Tylenol.
(Dkt. 77-1 at 18). Further, Mr. Shannon's injury had not been ignored, as he had
already been to the medical unit that day; his hand was wrapped in an ace

bandage; and he had unlimited access to ice for pain and swelling. (Dkt. 67-1 at
¶ 4; dkt. 77-1 at 15). This case is therefore distinguishable from cases where a
brief delay of medical care was determined to have violated the Eighth
Amendment, or at least prevent summary judgment for the defendant. See
Grieveson v. Anderson, 538 F.3d 763, 778–80 (7th Cir.2008) (guards could be
liable for delaying treatment for painful broken nose by at least a day-and-a-
half); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (two-day delay in

treatment for open dislocated finger for no medical reason stated a claim against
prison doctor for deliberate indifference); Gutierrez v. Peters, 111 F.3d 1364,
1374 (7th Cir.1997) (dismissal for failure to state a claim proper because six-day
wait to see a doctor was not unreasonably long for infected cyst deemed not that
severe); Cooper v. Casey, 97 F.3d 914, 916–17 (7th Cir.1996) (evidence presented
jury question as to “whether the plaintiffs were in sufficient pain to entitle them
to pain medication within the first 48 hours after the beating”).
Next, Mr. Shannon testified that he does not know how much time passed

before Sgt. Ayodel took him to the medical unit. (Dkt. 77-1 at 39). It is undisputed
that it was sometime later that evening, but there is no evidence that it was more
than a few minutes (as opposed to, at most, a few hours). Mr. Shannon thus has
not pointed to admissible evidence showing that the delay between his request
to go to the medical unit for a second time that day, and his arrival at the medical
unit, was so long that it could have violated his Eighth Amendment right to
medical care while incarcerated. Accordingly, the Court GRANTS summary
judgment for Sgt. Ayodel and Sgt. Trivet.

B. Excessive force claim against Sgt. Schwab
Sgt. Schwab argues that he is entitled to qualified immunity for using a
bolt cutter to remove a broken handcuff from Mr. Shannon's right hand.
1. Legal Standard
Qualified immunity protects government officials from damages liability
"insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known" at the
time that the conduct occurred. Campbell v. Kallas, 936 F.3d 536, 545 (7th Cir.
2017) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Although qualified immunity is an affirmative defense, the plaintiff has the
burden of defeating it once the defendants raise it. Archer v. Chisolm, 870 F.3d
603, 613 (7th Cir. 2017). To do so, the plaintiff must show: (1) that the defendant
violated a constitutional right, when construing the facts in the light most
favorable to the plaintiff; and (2) that the right was clearly established at the time

of the alleged violation, such that it would have been clear to a reasonable actor
that his conduct was unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
A failure to show either is fatal for the plaintiff's case, and courts may begin with
either inquiry. Id. at 236.
To be "clearly established," a constitutional right "must have a sufficiently
clear foundation in then-existing precedent." District of Columbia v. Wesby, 583
U.S. 48, 63 (2018). The principle of fair notice pervades the qualified immunity
doctrine. Campbell, 936 F.3d at 545. Qualified immunity applies unless the

specific contours of the right "were sufficiently definite that any reasonable
official in the defendant's shoes would have understood that he was violating
it." Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014).
Given this emphasis on notice, clearly established law cannot be framed
at a "high level of generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). "A
rule is too general if the unlawfulness of the officer’s conduct 'does not follow

immediately from the conclusion that [the rule] was firmly established.'" Wesby,
138 S. Ct. at 590 (quoting Anderson v. Creighton, 483 U.S. 635, 641, (1987)).
Existing caselaw must "dictate the resolution of the parties' dispute," Comsys,
Inc. v. Pacetti, 893 F.3d 468, 472 (7th Cir. 2018). While "a case directly on point"
is not required, "precedent must have placed the . . . constitutional question
beyond debate,” White v. Pauly, 137 S. Ct. 548, 551, (2017) (quotation marks
omitted).
Put slightly differently, a right is clearly established only if "every

reasonable official would have understood that what he is doing violates that
right." Taylor v. Barkes, 575 U.S. 822, 825 (2015). "The Supreme Court’s
message is unmistakable: Frame the constitutional right in terms granular
enough to provide fair notice because qualified immunity 'protects all but the
plainly incompetent or those who knowingly violate the law.'" Campbell, 936 F.3d
at 546 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quotation marks
omitted)).
2. Analysis

Here, there is no designated evidence that Sgt. Schwab was responsible
for the handcuff getting stuck on Mr. Shannon's right hand; it was an accident.
Sgt. Schwab's employer provided him with a bolt cutter to remove the handcuff.
He successfully removed the handcuff, but during the process, he caused pain
and swelling to Mr. Shannon's hand.
Mr. Shannon has not shown that Sgt. Schwab's actions were clearly

unconstitutional in June 2021. See Stockton v. Milwaukee County, 44 F.4th 605,
619 (7th Cir. 2022) (identifying the general rule that prison officials may not
inflict pain on prisoners maliciously or sadistically). He has not provided a
"closely analogous case finding the alleged violation unlawful," shown "such a
clear trend . . . that we can say with fair assurance that the recognition of the
right by controlling precedent was merely a question of time," or that
Sgt. Schwab's conduct was "so egregious and unreasonable that no reasonable
official could have thought he was acting lawfully." Id. at 620-21.

Qualified immunity allows government officials to carry out their
discretionary duties without the fear of litigation, so it protects from suit all but
the plainly incompetent or one who is knowingly violating the federal law.
Anderson v. Creighton, 483 U.S. 635, 638 (1987). Sgt. Schwab's actions to resolve
the broken handcuff is a context where government officials are given leeway to
address a problem without fear of litigation. It is unfortunate that Mr. Shannon's
hand was injured, but the designated evidence does not support a conclusion
that Sgt. Schwab's actions were clearly unconstitutional. Mr. Shannon argues

that Sgt. Schwab should have contacted a member of the medical staff to remove
the handcuff, but there is no evidence that a medical staff member would have
been better trained for this task. Given these circumstances, no clearly
established law showed that Sgt. Schwab's conduct could have violated the
Eighth Amendment in June 2021.
Moreover, as soon as the handcuff was removed, Sgt. Schwab documented
the injury by taking a photograph, and then escorted Mr. Shannon to the medical
unit for treatment. There is no evidence that he had a personal animus against
Mr. Shannon or that he was motivated by anything other than the need to remove
the broken handcuff. Given these facts, Sgt. Schwab is entitled to qualified
immunity, and his motion for summary judgment is therefore GRANTED.
IV. Conclusion
The defendants’ motions for summary judgment, dkts. [65] and [70], are
GRANTED. Mr. Shannon's motion for the status of the summary judgment
motions is GRANTED because this order has issued. Dkt. [93]. The Clerk is
directed to send a public docket sheet with Mr. Shannon's copy of this order.
Final judgment in accordance with this Order shall now issue.
SO ORDERED.
Date: 9/26/2023
SJamu Patrick lbanlove
James Patrick Hanlon
oo United States District Judge
Distribution: Southern District of Indiana
DANTAVIS LAMARCUS SHANNON
267900
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant — Court Only
All Electronically Registered Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170701. Public record. Not legal advice.