Petition for Writ of Certiorari — Jurijus Kadamovas, Petitioner v. John F. Caraway, Warden, et al.

Supreme Court briefOct 16, 2019

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Tlmldt jitates Glourt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

flpf>£?A/IU*

September 20, 2019

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 19-1230

JURIJUS KAD AMOVAS,

Plaintiff-Appellant,

JOHN CARAWAY, et al.,

Defendants-Appellees.

Appeal from the

United States District Court

for the Southern District of Indiana,

Terre Haute Division.

No. 2:17-CV-00050-WTL-MJD

William T. Lawrence,

Judge.

ORDER

On consideration of the petition for rehearing and for rehearing en banc, no judge

in active service has requested a vote on the petition for rehearing en banc, and all of the

judges on the original panel have voted to deny rehearing. It is therefore ordered that the

petition for rehearing and for rehearing en banc is DENIED.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

llniteit jitaiES (Knurl of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

/? PPC/Vft J X

Submitted August 19, 2019’

Decided August 20, 2019

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 19-1230

JURIJUS KADAMOVAS,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Southern District

of Indiana, Terre Haute Division.

No. 2:17-cv-00050-WTL-MJD

JOHN CARAWAY, et al,

Defendants-Appellees.

William T. Lawrence,

District Judge.

ORDER

Jurijus Kadamovas, an inmate at the Federal Correctional Complex who suffers

from mild persistent asthma, says that his condition is exacerbated by exposure to

secondhand smoke and chemical gas in his cell. He sued the prison's clinical director,

Special Confinement Unit supervisors, and former and current wardens for being

deliberately indifferent to his serious medical needs. The district judge granted the

defendants' motion for summary judgment, concluding that Kadamovas did not have a

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. Fed. R. App. P. 34(a)(2)(C).

No. 19-1230

Page 2

serious medical condition and, even if he did, officials did not willfully disregard it.

Kadamovas filed a motion for reconsideration, to no avail. We affirm.

Kadamovas has trouble breathing whenever chemical gas wafts into his housing

unit-the Special Confinement Unit-through heating and cooling vents from the

Special Housing Unit downstairs. Based on his own calendar entries, Kadamovas

believes that tear gas was used in the Special Housing Unit 30 times between 2013 and

2018. He believes that the gas is being used because during these episodes he cannot

breathe and experiences symptoms that include crying, diarrhea, and vomiting. When

this occurs, he bangs on the door of his cell or presses an emergency button, and staff

takes him to an outdoor recreation area for about an hour to an hour and a half.

Smoke causes Kadamovas similar problems. Whenever inmates smoke or set

fires in the Special Housing Unit (an occurrence that he estimates at 15-20 days each

month), he wakes up unable to breathe. Because he cannot open the window in his cell,

any smoke that enters cannot escape.

Kadamovas wrote multiple grievances and emails, asking for a permanent

solution" to the smoke and gas issues. Each time, he received a response from the

current warden. One warden wrote to Kadamovas, explaining that any inmate who

started a fire would receive an incident report, and that prison staff—despite taking

precautions to prevent fires—had limited ability to stop them entirely. Another warden

informed Kadamovas that staff was undertaking other efforts to mitigate the effects of

gas and smoke, including shutting off the vents between the units and changing air

filters more frequently than required to avoid residual contamination. And to reduce

further potential exposure, staff in 2015 moved him to a cell in the upper tier of the

Special Confinement Unit.

„

Medical staff also took steps to respond to Kadamovas's problems. In response to

his breathing issues, they treated him 17 times between 2014 and 2016. At each

evaluation, his lungs were found to be clear and his respiration normal. He asked in

2014 to see an outside pulmonologist, but his request was denied by the utilization

review committee. In early 2016, the clinical director examined Kadamovas and

determined that, given the subjective nature of his complaints, he should see a

pulmonary specialist.

Kadamovas was seen by a pulmonologist in May 2016. The pulmonologist

performed a pulmonary function test—which showed no obstruction, restriction, or air

No. 19-1230

Page 3

trapping—and prescribed Kadamovas a daily inhaler and medications for wheezing

and shortness of breath.

Kadamovas's problems persisted. More than half a year later, he complained that

smoke made him short of breath, but the responding nurse found him at his cell

breathing easily, without any cough. Four months later, he complained to a nurse that

smoke was raising his blood pressure. The nurse found that he had no breathing

problems, but his blood pressure was elevated. After he received a nebulizer, his blood

pressure dropped, and he reported feeling better.

The district judge granted the defendants' motion for summary judgment. The

judge first concluded that Kadamovas's asthma and breathing problems were not an

objectively serious medical need. Alternatively, the judge explained, no defendant acted

with deliberate indifference. The former and current wardens each took steps to ensure

that Kadamovas received appropriate medical care and attempted to reduce his

exposure to smoke and gas. The Special Confinement Unit supervisors were not

personally involved in any potential constitutional deprivation, as neither had decision

making authority over the Special Housing Unit and thus lacked the ability to restrict

contraband there or control the frequency with which chemical gas was used. And the

clinical director and his staff proffered extensive medical care. The judge also noted

that, although Kadamovas criticized the clinical director for delaying his visit to a

pulmonologist, it was actually the utilization review committee who denied this

request. The judge then denied Kadamovas's ensuing motion for reconsideration,

concluding that he failed to point to any misapplication of precedent in the court's

order or to present any new evidence.

On appeal, Kadamovas argues that the district court improperly entered

summary judgment for the non-medical defendants because they failed to adequately

protect him from the harmful effects of smoke and chemical gas. Even though staff

removed him from his cell when chemical gas was used, he says, his removal took place

only after he had already begun to suffer the medical consequences. He asserts that

staff's precautions to shut off the air ventilation and change the air filters make "very

little difference]." And his relocation to a unit further from the Special Housing Unit

did not help, as smoke and gas still reached him.

Even if we accept Kadamovas's contention that his medical condition is serious,

he has not raised a fact question over the subjective component of deliberate

indifference. See Farmer v. Brennan, 511 U.S. 825, 839-40 (1994); Huber v. Anderson, 909

No. 19-1230

Page 4

F.3d 201,208 (7th Cir. 2018). Kadamovas believes that the defendants could have been

more vigilant in minimizing the effects of gas and smoke, but presents no evidence that

their efforts approached criminal recklessness. See Lee v. Young, 533 F.3d 505, 511 (7th

Cir. 2008). Rather, the record indicates that defendants responded to Kadamovas's

complaints: they provided him regular access to medical care, allowed him to go to an

outside recreation area to avoid the harmful effects of gas, and relocated him to an

upper-tier cell. His unsupported contention that the defendants could have done more

cannot stave off summary judgment.

Kadamovas also asserts that the district judge erred in concluding that the

clinical director could not be responsible for delaying his appointment with a

pulmonologist, purportedly because the utilization review committee had denied the

request. But the judge did not consider, he says, whether the clinical director could have

granted his request before the utilization review committee's denial in 2014.

Even if we assumed that the clinical director had this authority, there is no

indication that his failure to schedule outside appointments amounts to deliberate

indifference. True, deliberate indifference can be inferred when a prison physician

recklessly delays referring a patient to an outside specialist for non-medically justified

reasons. See Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011). But here, all evidence

points to the clinical director exercising his medical judgment to diagnose Kadamovas's

condition, both reviewing his medical records and personally examining him at chronic

care visits. Nothing in the record suggests that concluding a pulmonologist visit was

unnecessary before 2014 would have constituted a "substantial departure from accepted

professional judgment, practice, or standards." Fettles v. Carter, 836 F.3d 722, 729 (7th

Cir. 2016) (enbanc) (quoting Cole v. Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996)).

Kadamovas also contends that the district court should have granted his motion

for reconsideration because his attorneys' conduct "deviate[d] from professional

standards of conduct." In order to prevail on his motion for reconsideration, however,

Kadamovas needed to point to newly discovered evidence or establish "a manifest error

of law or fact." Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015); Fed. R. Crv. P. 59(e).

Flis discontent with his attorneys' representation is neither.

AFFIRMED

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

JURIJUS KADAMOVAS,

Plaintiff,

JOHN CARAWAY, et al.

Defendants.

)

Page 8 of 58 PagelD #: 1358

Appe/aix

E>"

No. 2:17-cv-00050-WTL-MJD

Order Granting Defendants’ Motion for Summary Judgment

And Directing Entry of Final Judgment

Plaintiff Jurijus Kadamovas is a federal inmate currently incarcerated in the Special

Confinement Unit (SCU) of the Terre Haute U.S. Penitentiary (USP-TH) in Terre Haute, Indiana.

On February 1, 2017, Mr. Kadamovas filed this action again various USP-TH employees alleging

that the defendants were deliberately indifference to his serious medical needs of asthma and

breathing problems under the Eighth Amendment. Mr. Kadamovas alleges he is exposed to

second-hand smoke and chemical fumes, which he says exacerbates his asthma, and the defendants

have not sufficiently protected him from exposure to the smoke and fumes. Mr. Kadamovas’

action is brought pursuant to the theory recognized in Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971).

On March 3, 2017, counsel was recruited to represent the plaintiff.1 The Court screened

his complaint on March 9,2017, and allowed his Eighth Amendment claims against John Caraway,

Former Warden; Charles A. Daniels; Warden; Micheal L. Stephens, Former Unit Manager;

The Court is grateful to Oni N. Harton, Ladene Ivone Mendoza, and John R. Maley of Barnes &

Thornburg LLP for accepting the Court’s request for assistance and their diligent efforts on behalf

of Mr. Kadamovas.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 9.of 58 PagelD #: 1359

Melissa Bayless, Former Unit Manager; Micheal V. Sample, Unit Manager; Sara M. Revell,

Regional Director; Dr. William E. Wilson, Clinical Director; and Andrew William Rupska, Health

Services Administrator, to proceed. See Dkt. No. 8. The remaining claims and defendants

identified in the complaint were dismissed. On August 31, 2017, the parties stipulated to the

dismissal without prejudice of the claims brought against defendants Micheal Stephens, Sara

Revell, and Andrew Rupska. The Court granted the stipulations of dismissal and dismissed the

claims against those defendants. See Dkt. No. 51.

On November 13, 2017, Mr. Kadamovas filed an amended complaint, asserting Eighth

Amendment claims against John Caraway, Former Warden; Charles A. Daniels, Former Warden;

Melissa Bayless, Former Unit Manager; Micheal V. Sample, Unit Manager; Dr. William.E.

Wilson, Clinical Director; and Jeffrey E. Krueger, Warden. Dkt. No. 59.

Presently pending before the Court is the defendants’ motion for summary judgment. For

the reasons explained below, the motion for summary judgment, Dkt. No. 92, is granted.

Summary Judgment Legal 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 fact-finder 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, All U.S. 317, 323 (1986). The Court views the record in the light most favorable

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 10 of 58 Pag'elD #: 1360

to the non-moving party and draws all reasonable inferences in that party’s favor. Skiba v. Illinois

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 fact-finder. 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 Indiana

University, 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. Ponsettiv. GE Pension Plan, 614 F.3d 684, 691 (7th

Cir. 2010).

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, Lnc., All U.S.

242, 248 (1986). 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). Local Rule 56-l(e) requires that

facts asserted in a brief must be supported “with a citation to a discovery response, a deposition,

an affidavit, or other admissible evidence.” Id. In addition, the Court will assume that the facts

as claimed and supported by admissible evidence by the movant are admitted without controversy

unless “the non-movant specifically controverts the facts in that party’s ‘Statement of Material

Facts in Dispute’ with admissible evidence” or “it is shown that the movant’s facts are not

supported by admissible evidence.” Local Rule 56-l(f). The Court “has no duty to search or

consider any part of the record not specifically cited in the manner described in subdivision (e).

Local Rule 5 6-1(h); see Kaszuk v. Bakery and Confectionery Union and Indus. Intner. Pension

Fund, 791 F.2d 548, 558 (7th Cir. 1986) (“The court has no obligation to comb the record for

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 11 of 58 PagelD #: 1361

evidence contradicting the movant’s affidavits.”); Carson v. E.On Climate & Renewables, N.A.,

154 F. Supp.3d 763, 764 (S.D. Ind. 2015) (“The Court gives Carson the benefit of the doubt

regarding any disputed facts, however, it will not comb the record to identify facts that might

support his assertions.”).

Factual Background

The following statement of facts was evaluated pursuant to the standard set forth above.

That is, this statement of facts is not necessarily objectively true, but as the summary judgment

standard requires, the undisputed facts and the disputed evidence are presented in the light

reasonably most favorable to Mr. Kadamovas as the non-moving party with respect to the motion

for summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150

(2000).

Mr. Kadamovas’ Complaints Regarding Exposure to Smoke and Chemical

Spray

Mr. Kadamovas is a federal inmate incarcerated in the SCU at USP-TH. The SCU is the

only “death row” in the federal prison system. Dkt. No. 92-2,

8. Although Mr. Kadamovas has

not been evaluated with wheezing or other physical examination findings consistent with asthma,

Mr. Kadamovas has been diagnosed with mild persistent asthma and has been prescribed an

Albuterol inhaler and other bronchodilators. See Dkt. No. 92-3; Dkt. No. 92-4. He also sees an

outside pulmonologist each year. Dkt. No. 92-4 at 5, 8. For the past several years, Mr. Kadamovas

has complained that he has trouble breathing whenever smoke or chemical gas comes into the SCU

through the heating and cooling vents from the Special Housing Unit (“SHU”), which is located

directly below the SCU.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 12 of 58 PagelD #: 1362

Use of OC Spray in the SHU

In his complaint, Mr. Kadamovas asserts that he is exposed to oleoresin capsicum (OC)2

spray fumes when USP-TH staff deploy the spray in the SHU. Mr. Kadamovas does not claim

that USP-TH staff members have used OC spray on him.

Dkt. No. 92-13 at 16-17, 26.

Additionally, Mr. Kadamovas recalls that OC spray has only been used twice in the outdoor

recreation area of the SCU about three-and-a-half or four years ago but has not been used in the

SCU since that time. Id. at 17-18.

Rather, Mr. Kadamovas believes that OC spray was used in the SHU approximately thirty

times since 2013, including seven times in 2017 and as recently as January 29, 2018. Id. at 19-21.

Although Mr. Kadamovas cannot smell the gas, he says that the gas spreads to the SCU and he

just begins choking when he feels the particles in the air. Id. at 25. Generally, when OC spray is

used in the SHU, and USP-TH staff can detect it in the SCU, Mr. Kadamovas testified that SCU

staff will remove him from his cell and take him to the outdoor recreation area. Id. at 20, 21, 62.

Mr. Kadamovas asserts that when he is exposed to OC spray, he is unable to breathe as if

someone is choking him from inside, and he starts crying, sneezing, and vomiting. Id. at 20.

Exposure to Smoke from the SHU

Mr. Kadamovas also alleges that he is exposed to smoke when inmates in the SHU smoke

tobacco and other contrabrand, illegally cook food on an open fire, or set fires. Id. at 30-33, 39.

Mr. Kadamovas asserts that the smoke from the SHU travels to the SCU through the air vents. Mr.

2 Oleoresin capsicum spray or “OC” is a naturally occurring substance found in the resin of a

variety of peppers. See www.ncjrs.gov/pdffilesl/nij/grant (National Institute of Justice, U.S.

Department of Justice, Office of Justice Programs, March 1994). OC spray is also known as

pepper spray.

3 References to Dkt. No. 92-1 refer to the deposition page and not the exhibit page.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 13 of 58 PagelD #: 1363

Kadamovas acknowledges that inmates in the SCU, where he is housed, do not start fires or smoke

in their cells. Id. His claims about smoke, as with the OC spray, relate solely to inmates in the

SHU, who he believes either smoke or create fires in their cells approximately 15-20 times out of

each month. Id. at 32-33. In his complaint, Mr. Kadamovas referenced “known firestarters” in

the SHU, but in his deposition could not identify any inmates who he believes are “known

firestarters.” Id. at 42. Mr. Kadamovas recalls that a SCU inmate “Sanchez” was caught passing

coffee and soups to SHU inmates through the ventilation system, and Sanchez was disciplined

when he was caught. Id. at 46. For the last two and a half or three years, Kadamovas has been

housed on the upper range of the SCU. Id. at 12-13. His Unit Manager at the time, Micheal

Sample, moved him to the upper range in an effort to address Mr. Kadamovas’ complaints about

exposure to smoke and OC spray. Id. at 13.

Mr. Kadamovas alleges that he is unable to breathe when he smells smoke and he

experiences “psychological anguish, vomiting, diarrhea, headache, fear of death, high blood

pressure, accelerated heartbeat, significant respiratory stress, wheezing, pain in lungs, and

excessive sweating” due to his exposure to gas and smoke. Dkt. No. 96-1 at 5.

Mr. Kadamovas’ Medical Treatment

Mr. Kadamovas claims that he developed asthma after he was arrested and incarcerated in the

Metropolitan Detention Center - Los Angeles. Dkt. No. 92-1 at 9. When Mr. Kadamovas was

received into the custody of the Federal Bureau of Prisons (BOP) in March 2002, his intake

medical forms show that he denied having asthma or shortness of breath. Dkt. No. 92-4 at 1.

On July 25, 2013, Mr. Kadamovas was seen during sick call regarding complaints of

breathing problems. Id. at 2. However, his lungs were clear, his vitals were normal, and he

appeared alert and well with no acute distress. Nonetheless, the practitioner prescribed him an

Albuterol inhaler. Id.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19

Page 14 of 58 PagelD #: 1364

In 2014, Mr. Kadamovas was seen nine times by medical staff for his complaints about

trouble breathing. Id. at 2-3. Each time he was evaluated, his vitals were normal, his lungs were

clear, and he was in no acute distress. Id. During these visits, Mr. Kadamovas did not exhibit any

chest crackling or wheezing. Id. In May 2014, his medical provider recommended trying Singular,

Zantac, and Loratidine. Id. at 2. In November 2014, Dr. Wilson and the medical staff requested

a consult with an outside pulmonologist, but the Utilization Review Committee (URC) did not

grant the request. Id. at 3.

In 2015, Mr. Kadamovas was seen three times by medical staff for complaints of trouble

breathing. Id. at 4-5. Again, when evaluated by medical staff, his vitals were normal, he was in

no apparent distress, and his respiration was-normal. Id. In October 2015, Mr. Kadamovas

requested a CT scan of his chest, but due to a recent unremarkable chest x-ray (CXR), see Dkt.

No. 92-6 at 13, medical staff noted that a CT scan was not clinically indicated. Dkt. No. 92-4 at

4.. Nevertheless, in December 2015, Mr. Kadamovas received a CT scan, and his lungs showed

no evidence of local infiltrate or pleural effusion.4 Id. at 5. Nevertheless, the USP-TH medical

staff placed a note in Mr. Kadamovas’ medical file to restrict the use of chemical gas on Mr.

Kadamovas. Dkt. No. 29-6 at 40.

In 2016, Mr. Kadamovas was seen five times by medical staff for shortness of breath. Dkt.

No. 29-4 at 5-7. On January 28, 2016, Mr. Kadamovas did not complain or show signs of

respiratory distress, but again requested a pulmonary consult. Id. at 5. The practitioner explained

that his request had been submitted and rejected by the URC. Id. On February 12 and 22, 2016,

4 Pleural effusion is the build-up of excess fluid on the lungs.

https://my.clevelandclinic.org/health/.../17373-pleural-effusion-causes-signs. Local infiltrate is

i a

substance denser than air, such as puss, blood, or protein, which lingers within the parenchyma

of the lungs. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3218724.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 15 of 58 PagelD #: 1365

• Mr. Kadamovas was seen by a registered nurse for complaints of shortness of breath, but his lungs

were clear and his vitals were normal. Id. Mr. Kadamovas was then seen by Dr. Wilson on

February 25, 2016, for his complaints of shortness of breath. Id. Dr. Wilson found his lungs clear

and questioned whether Mr. Kadamovas was malingering for secondary gain. Id. Dr. Wilson

determined that a pulmonary consult was advisable to determine through differential diagnosis

whether Mr. Kadamovas had the symptoms he described. Id.

On May 6, 2016, Mr. Kadamovas was seen by an outside pulmonologist, Dr. Bhuptani. Id.

Mr. Kadamovas reported shortness of breath and tightness in his chest when exposed to smoke or

a strong smell. Id. at 6. Dr. Bhuptani performed a pulmonary function test, which showed no

obstruction, lack of bronchodilator response, no restriction and no air trapping. Id. Dr. Bhuptani’s

treatment recommendation was to stop Symbicort due to an alleged allergic reaction and prescribe

Proventil HFA aerosol (2 puffs inhaled 4 times daily), continue Singulair and Albuterol, and

follow-up in six months. Id.

Dr. Bhuptani also recommended that medical staff “consider

bronchodilators” “[i]f asthma is clinically suspected.” Id.

On June 26, 2016, Mr. Kadamovas was evaluated by a registered nurse for complaints of

shortness of breath. Id. at 6. The nurse found him in no apparent distress with no significant

findings. When the nurse arrived, Mr. Kadamovas was upright and ambulatory with a steady gait,

clear and concise speech, and no labored breathing.

On January 19, 2017, Dr. Wilson conducted a chronic care evaluation of Mr. Kadamovas.

Id, at 7. Mr. Kadamovas complained that a sewage back-up affected his breathing. Id. Dr. Wilson

noted that Mr. Kadamovas had been seen by a pulmonologist and diagnosed with mild persistent

asthma, and his chest x-ray was negative within the past three years. Id. Mr. Kadamovas also told

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 16 of 58 PagelD #: 1366

Dr. Wilson that he develops tachycardia, an abnormally rapid heart rate, when he uses the

Albuterol inhaler.

On February 11, 2017, Mr. Kadamovas was evaluated by a registered nurse to follow up

on his complaints that smoke was making him short of breath. Id. at 7. When she arrived at his

cell, the nurse observed that he was sitting in his cell writing. His respiration was easy and he had

no cough. However, Mr. Kadamovas appeared to become anxious and upset when he discussed

his breathing and smoke/fires. He also complained of a headache. The on-call provider was

notified, and a new order of Clonidine 0.1 mg was received. Id.

Mr. Kadamovas complained to medical staff about smoke again on June 3, 2017. Id. at 8.

He complained to a registered nurse that “they are smoking something and its raised my blood

pressure.” When the nurse arrived at his cell, he was in no apparent distress and was speaking in

full sentences. His 'respirations were easy and lungs were clear, but his blood pressure was

elevated. Mr. Kadamovas was given an Albuterol nebulizer and he appeared less anxious and his

blood pressure dropped. He reported he felt better and was ready to go back to his cell.

Mr. Kadamovas was seen for a follow-up visit by outside pulmonologist Dr. Bhuptani on

July 10, 2017. Id. at 8. Mr. Kadamovas complained that exposure to pressure spray “spread on

others” bothered his asthma.

Dr. Bhuptani continued Proventil, Atrovent, and mometasone,

recommended that Mr. Kadamovas avoid exposure to OC spray as possible, and directed him to

come back in one year for a follow-up appointment. Dkt. No. 92-8 at 37-38.

In November 2017, Dr. Wilson saw Mr. Kadamovas for his chronic care visit. Dkt. No.

92-4 at 8. Dr. Wilson found Mr. Kadamovas in no apparent distress and his lungs were clear. Id.

Dr. Wilson spoke with Executive Staff about trying to ensure that exhaust fans are used in the SHU

before pepper gas is administered. Id.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 17 of 58 Pag.elD #: 1367

Expert Opinion of Dr. John Buckley

Dr. John Buckley is a Medical Doctor who also has a Masters in Public Health. Dkt. No.

92-11. He is a practicing pulmonologist who is Board-certified in Pulmonary Medicine, Internal

Medicine, and Critical Care Medicine.

Id.

He is currently the Vice Chair for Education,

Department of Medicine, at the Indiana University School of Medicine. Id. Dr. Buckley is also a

Service Line Co-Leader in Pulmonary/Critical Care/Sleep Medicine at Indiana University Health

Physicians. Id.

Dr. Buckley was retained by the defendants to review Mr. Kadamovas’ complaints and the

BOP’s medical care of his asthma and breathing problems. Based on his review of the record, Dr.

Buckley determined that, he believes that Mr. Kadamovas’ breathing was irritated by smoke based

on Mr. Kadamovas’ consistent complaints over an extended period of time. Dkt. No. 92-10.

According to Dr. Buckley, Mr. Kadamovas’ medical examinations did not reveal wheezing or

other physical symptoms consistent with asthma. Moreover, Mr. Kadamovas’ pulmonary function

test was not consistent with asthma. Nevertheless, Mr. Kadamovas has been treated with “optimal

medical theory” for asthma through inhaled bronchodilators and inhaled corticosteriods, which Dr.

Buckley opined as “medically appropriate and within the standard of care.”

Security Precautions in the USP-TH SHU to Prevent Fires

The SHU custodial staff at USP-TH have taken multiple steps to ensure inmate and staff

safety and to prevent SHU inmates from setting fires. See generally Dkt. No. 92-12. SHU staff

have removed all unnecessary paper and flammable items from the inmates’ cells. Id. U 5. Staff

have also removed batteries and other items which inmates can use to ignite any paper which may

still be in their cells. While it is impossible to remove all items that may be used to start a fire

from the inmates, all available precautions have been taken to reduce the occurrence of this hazard.

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For example, correctional staff frequently perform cell searches or shakedowns in an effort to

locate contraband items, including items that may be used to start a fire. Correctional staff also

perform routine pat-down searches of inmates to determine whether they possess contraband.

SHU inmates also have limits on the commissary items they are permitted to purchase and

maintain as compared to inmates in the general population of the Federal Correctional Complex5

(FCC-TH) at Terre Haute. Id.

7. These limits have been imposed as a deterrent on inmate

“stores” and to help eliminate excess property items and nuisance contraband in housing units.

When an inmate does set a fire, the fire is extinguished as quickly as possible and the

inmate is disciplined. Id.

3, 8. If any residual smoke comes up into the SCU, the affected

inmates are removed from their cells and, if necessary, evaluated by medical staff. Id.

Moreover, the air handlers are reversed to remove smoke from the SHU and the SCU, and the air

removal only takes a few minutes. Id.

4; see also id. at 4 (March 27, 2017, response to Attempt

at Informal Resolution) (confirming that SHU is conducting shakedowns and confiscating batteries

and SHU inmates will not be permitted to possess batteries).

Defendants

Former Warden John Caraway, Former Warden Charles Daniels, Warden

Jeffrey Krueger

John Caraway was the Complex Warden at FCC-TH from August 26, 2012, until January

10 2015. See Dkt. No. 92-13. He has not worked at FCC-TH since January 2015, nor has he had

any decision-making authority over FCC-TH since January 2015.

Charles Daniels was the

5 The Federal Correctional Complex at Terre Haute (FCC-TH) is comprised of USP-TH, a high

security U.S. penitentiary, fhttps://www.bop.gov/locations/institutions/thp/), Federal Correctional

security

federal

correctional

institution

medium

Institute

Terre

Haute,

('https://www.bop.gov/locations/institutions/tha/), and Federal Prison Camp Terre Haute, a

minimum security satellite camp (id.).

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Complex Warden at FCC-Terre Haute from February 22, 2015, until his retirement on December

31, 2016. See Dkt. No. 92-14. Since March 2017, Jeffrey Krueger has been the Complex Warden

at FCC-Terre Haute. See Dkt. No. 92-2.

As Complex Wardens at the FCC-TH, Warden Caraway, Daniels, and Krueger delegated

the day-to-day tasks related to safety and security of inmates to his staff.

The day-to-day

operations in the SHU were run by a Captain, who reported to an Associate Warden. The Captain

oversaw the Lieutenants and Correctional Officers, who were responsible for safety and security

within the SHU, including moving the inmates, searching the cells and “policing” type activities.

During their respective time as Warden, Wardens Caraway, Daniels, and Krueger conducted

rounds in the Institution, during which they talked to inmates and staff about any issues in the

units. Wardens Caraway, Daniels, and Krueger were aware that their correctional staff would

regularly conduct cell searches, “shake-downs” of housing cells, and pat searches of inmates to

ensure that the inmates did not have contraband, including contraband that may be used to start

fires. Wardens Caraway, Daniels, and Krueger were also aware that inmates who were found to

have violated the prison’s Code of conduct (including the possession of contraband or starting fires)

would be written an Incident Report and appropriate disciplinary steps would be taken.

Wardens Caraway, Daniels, and Krueger were not involved in the decision by the BOP to

place Mr. Kadamovas in the SCU at USP-TH. The SCU is the only “death row” in the federal

prison system.6 Accordingly, for security purposes, there are no windows in the SCU that open

and close.

6 Mr. Kadamovas is a death row inmate because he is serving a death sentence for four counts of

conspiracy to take hostages resulting in death, in violation of 18 U.S.C. § 1203. See United States

v. Mikhel, et al, No. 2:02-cr-00220-DT-2 (C.D. Cal.), Dkt. No. 1641.

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Former Warden John Caraway

In February 2014, Warden Caraway responded to a grievance from Mr. Kadamovas

alleging that SHU inmates were burning things in their cells. Dkt. No. 92-13 at 5. Former Warden

Caraway confirmed that anytime a staff member observed a SHU inmate starting a fire or heating

up a food item, the inmate received an Incident Report for violating Code 103, Setting a Fire. In

October 2014, former Warden Caraway also responded to an email from Mr. Kadamovas regarding

smoke, gas, and dust traveling through the air vent system. Id. at 6. Warden Caraway confirmed

that the air filters were changed approximately every 6-8 weeks, more frequently than required by

the minimum standards of twelve weeks.

Former Warden Charles Daniels

In May 2015, and January 2016, Warden Daniels responded to letters from the Lithuanian

Embassy written on behalf of Mr. Kadamovas regarding second-hand exposure to gas and smoke

from the SHU. Dkt. No. 92-14 at 5,7. Warden Daniels confirmed that he had reviewed the matter

and the Facilities Department was changing the air filters approximately every four to six weeks,

even though the minimum standard for air filter replacement is twelve weeks. Warden Daniels

also confirmed based on medical records that Mr. Kadamovas was not showing signs of respiratory

distress and received a clear chest x-ray.7

Warden Daniels responded in January 2016 to a letter from Mr. Kadamovas’ attorney

addressing concerns about Mr. Kadamovas’ exposure to OC spray. Id. at 6. In the response,

Warden Daniels noted that every effort was made to limit and mitigate Mr. Kadamovas’ exposure

to OC spray when it was used in the SHU, that the vents between the SHU and SCU are closed off

7 The defendants also refer to October 5, 2015, and January 15, 2016, emails from Warden Daniels

to Mr. Kadamovas, see Dkt. No. 93 at 12-13, but no such emails were submitted to the Court.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 21 of 58 PagelD #: 1371

when OC spray is used, and that the air filters in those units are changed more frequently than

recommended to reduce any residual contamination.

Warden Jeffrey Krueger

Warden Krueger is aware of steps that his staff have taken to limit any exposure Mr.

Kadamovas may have to smoke or gas coming from the SHU. See Dkt. No. 92-2. These steps

include moving Mr. Kadamovas to an upper-tier cell; attempting to remove Mr. Kadamovas from

his cell when OC spray fumes were detected in the SCU; shutting off or reversing vent flow when

OC spray is used in the SHU; and changing the air filters between the two units more frequently

than is required by the minimum standards.

In April 2017, Warden Krueger responded to a letter from the Lithuanian Embassy written

on behalf of Mr. Kadamovas regarding second-hand exposure to smoke from the SHU. Dkt. No.

92-2 at 5. Warden Krueger confirmed that he had reviewed the matter and explained that while

every effort is made to limit and mitigate inadvertent inmate exposure to smoke and OC spray

when it is used for security reasons, it is impossible to ensure no other inmate or staff would be

tangentially affected. He also explained the vents between the SHU and SCU would be closed off

to limit the air moving between the two units and that the air filters were changed more frequently

than recommended.

Finally, Warden Krueger confirmed that he reviewed Mr. Kadamovas

medical record, which indicated he was last seen on February 11, 2017, for complaint of smoke

that made him short of breath, but that the staff did not note any visible smoke or smell any smoke

and no chemical agents had been used recently.

Warden Krueger cannot move Mr. Kadamovas to another housing unit because of his death

row designation, and cannot move Mr. Kadamovas to a cell with windows that open and close

because no such cells exist in the SCU. Id. ^ 8.

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Former Unit Managers Melissa Bavless and Micheal Sample

Melissa Bayless served as the SCU Unit Manager at FCC-TH from December 16, 2012,

until October 11, 2014. Dkt. No. 92-15. As SCU Unit Manager, Ms. Bayless had no day-to-day

control over the security of or custodial care of the inmates housed in the SHU, and had no

decision-making authority over the SHU. She did not have the ability to restrict or control the

contraband in the SHU, the frequency with which fires occurred in the SHU, nor the frequency

with which OC spray was deployed.

Micheal Sample served as the SCU Unit Manager at FCC-TH from December 2014,

through December 2015. As SCU Unit Manager, Mr. Sample had no day-to-day control over the

security of or custodial care of the inmates housed in the SHU, and had no decision-making

authority over the SHU. He did not have the ability to restrict or control the contraband in the

SHU, the frequency with which fires occurred in the SHU, nor the frequency with which OC spray

was deployed. Mr. Sample also had no decision-making authority regarding the decision to place

Mr. Kadamovas in the SCU of USP-TH. When Mr. Radamovas complained about exposure to

smoke and gas, Mr. Sample moved him to the upper tier of the SCU in an effort to reduce the

potential exposure.

Mr. Sample allegedly pulled Mr. Kadamovas “into the building when it was full of the gas

when [he] was actually asking to not to do so,” Dkt. No. 92-1 at 96-97, and prevented Mr.

Kadamovas from closing his ventilation system when gas and smoke are present. Id. Mr. Sample

asserts that neither SCU inmates or staff have access to the SCU ventilation system and are unable

to manipulate the SCU ventilation system, Dkt. No. 99-1 at 1. Only BOP Facilities staff have the

ability to close or open the ventilation system between the SCU and SITU. Id. Mr. Sample further

Case 2:17-CV-00050-WTL-MJD Document 105 Filed 02/06/19 Page 23 of 58 PagelD #: 1373

disputes that he pulled Mr. Kadamovas back into the building when it was full of gas, but that if

he had done so, he would have been exposed to the same gas or fumes. Id. at 1-2.

Clinical Director Dr. William Wilson

Dr. William Wilson is a Medical Doctor who is employed by the BOP as Clinical Director

of FCC-TH. Dkt. No. 92-3. As Clinical Director, Dr. Wilson facilitates the medical care and

treatment of the inmates housed at FCC-TH, but is not involved in and has no control over the

operations of the SHU or the SCU. He has no day-to-day control over the security of or custodial

care of the inmates housed in the SHU or SCU. He also has no decision-making authority over

the SHU or SCU, nor the ability to restrict or control the introduction of contraband in the SHU,

the frequency with which fires occurred in the SHU, nor the frequency with which OC is deployed

in the SHU.

Dr. Wilson has informed the Executive Staff that steps should be taken to ensure that Mr.

Kadamovas is not directly exposed to smoke and gas (i.e., that OC spray is not used directly on

Mr. Kadamovas). Id. f 6. It is Dr. Wilson’s understanding that staff are taking those steps to the

extent possible. Dr. Wilson has no information that Mr. Kadamovas is being exposed to levels of

smoke or gas that are triggering an “asthma attack” or respiratory distress. It is Dr. Wilson’s

medical opinion that Mr. Kadamovas has not exhibited any physical signs of an asthma attack or

respiratory distress when evaluated by medical staff at any point in time.

III.

Discussion

Mr. Kadamovas alleges that the defendants were deliberately indifference to his serious

medical needs of asthma and breathing problems under the Eighth Amendment. Mr. Kadamovas

argues that the defendants should have done more to protect him from exposure to OC spray and

smoke. See Dkt. No. 96 at 3-5. Specifically, former Warden Caraway should have implemented

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 24 of 58 PagelD #: 1374

a policy or recommendation at FCC-TH that would have required prison officials in contact with

Mr. Kadamovas to pull him out of his cell before chemical agents were used. See Dkt. No. 92-1 at

88. Further, Former Warden Caraway failed to “implement some policy that [would] prevent

inmates to pass[] and receiv[e] contraband.” Id. at 88. The FCC Terre Haute, Indiana, A&O

Handbook provided that inmates “have the right to safe, clean and healthy environment including

smoke-free living area.” Id. at 88. Former Warden Daniels failed to ensure that Mr. Kadamovas

had “safe, clean and healthy environment, including smoke-free living area.” Id. at 92-9. Warden

Krueger also failed to ensure that Mr. Kadamovas had a safe, clean and healthy environment. See

id. at 94. Mr. Kadamovas argues that Dr. Wilson should have permitted him to see a pulmonologist

sooner. Dkt. No. 92-1 at 101.

The defendants seek summary judgment on all Eighth Amendment claims against them.

Dkt. No. 92. The defendants first argue that any claims accruing before January 14, 2014; are

time-barred.

Dkt. No. 93 at 18-19. Next, the defendants argue they were not deliberately

indifferent because Mr. Kadamovas does not suffer from a serious medical need and the defendants

were not deliberately indifferent to his medical condition. Rather, the defendants assert that they

have actively taken steps to ensure Mr. Kadamovas’ exposure to smoke or OC spray is limited.

Finally, the defendants argue they are entitled to qualified immunity.

In response, Mr. Kadamovas argues his claims are not time-barred, he suffers from a

serious medical condition, and that the defendants (except for Ms. Bayless) were deliberately

indifferent and are not entitled to qualified immunity. Dkt. No. 96.

In reply, the defendants note that Mr. Kadamovas has not disputed the statement of material

facts they presented. Dkt. No. 99 at 2. The defendants also argue that Mr. Kadamovas

are merely his opinions and are insufficient to preclude summary judgment in their favor.

facts

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 25 of 58 PagelD #: 1375

Statute of Limitations

The defendants argue that any claims accruing before January 14, 2014, are time-barred.

Dkt. No. 93 at 18-19. The defendants assert that “if his claim is that the Defendants caused him

to be exposed to second-hand smoke and gas between 2012 and February 1, 2015, it is barred by

the Indiana two-year statute of limitations.” Id. at 18 (citing Wilson v. Garcia, 471 U.S.261, 280

(1985)). The defendants assert', however, that “claims made after his administrative remedy was

submitted on January 14, 2014, were tolled while it was being processed.” Id. at 19. In response,

Mr. Kadamovas argues his claims are not time-barred because his action does not accrue until his

administrative grievance is exhausted.

The statute of limitations in a Bivens claim is the same as that for a claim brought pursuant

to 42 U.S.C. § 1983. See Lewellenv. Morely, 875 F.2d 118,119 (7th Cir. 1989); Bieneman v. City

of Chicago, 864 F.2d 463, 469 (7th Cir. 1988). In these cases, “federal courts apply the statute of

limitations governing personal injury actions in the state where the injury took place.” Serino v.

Hensley, 735 F.3d 588, 590 (7th Cir. 2013). “In Indiana, such claims must be brought within two

years.” See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Ind. Code § 34-11-2-4. “But

federal law determines when that statute begins to run.” Serino, 735 F.3d at 590. Bivens and

§ 1983 claims “accrue when the plaintiff knows or should know that his or her constitutional rights

have been violated.” Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006). The Court conducts a

two-part inquiry to determine when this standard is met: “First, a court must identify the injury.

Next, it must determine the date on which the plaintiff could have sued for that injury.

Id.

However, an Eighth Amendment violation arising out of a defendant’s deliberate indifference to a

prisoner’s medical needs can be a continuing violation and can accrue for as long as a defendant

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knows about a prisoner’s serious medical condition, has the power to provide treatment, and yet

withholds treatment. Heard v. Sheahan, 253 F.3d 316, 318-20 (7th Cir. 2001).

In this case, the complaint was filed on February 1, 2017. However, the complaint alleges

an Eighth Amendment violation arising out of the defendants’ alleged deliberate indifference to

Mr. Kadamovas’ medical needs over the course of several years. However, the question would

turn on whether the defendants knew about Mr. Kadamovas’ “serious medical condition, had the

power to provide treatment, and withheld treatment. Id. Resolution of the statute of limitations

question requires analysis of Mr. Kadamovas’ constitutional claims and whether treatment was

“withheld.”

At this juncture, neither party has provided any briefing addressing this issue. Because the

issues in this case can be resolved on other grounds, in the interest of judicial economy, the Court

will bypass the question of statute of limitation and address the merits of Mr. Kadamovas’ claims.

See Klebanowski v. Sheahan, 540 F.3d 633, 639 (7th Cir. 2008) (“We may affirm summary

judgment on any basis supported in the record. Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,

681 (7th Cir. 2007)(“Like the district court, we will bypass the statute of limitations questions and

consider the merits of Klebanowski’s claims against the individual defendants.”).

Eighth Amendment Deliberate Indifference Standard

At all times relevant to Mr. Kadamovas’ claims, he was a convicted inmate. 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

Eighth Amendment.”). Pursuant to the Eighth Amendment, prison officials have a duty to provide

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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 plaintiffs

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

ex rel. Hamilton v. County ofMadison, III., 746 F.3d 766, 775 (7th Cir. 2014). A successful § 1983

plaintiff must also establish not only that a state actor violated his constitutional rights, but that the

violation caused the plaintiff injury or damages. Roe v. Elyea, 631 F.3d 843, 846 (7th Cir. 2011)

(citation omitted).

“[Cjonduct 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. Freeman, 394 F.3d 469, 478 (7th Cir. 2005)

(internal citations and quotations omitted).

The Seventh Circuit has held that non-medical personnel who'review an inmate’s

grievances and verify with medical officials that the inmate was receiving treatment are not

deliberately indifferent. See Hayes v. Snyder, 546 F.3d 516, 526-27 (7th Cir. 2008) (citing Greeno

v. Daley, 414 F.3d 645, 655-56 (7th Cir. 2005)). The Court further explained, “‘[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.’” Id. at 527 (quoting Spruill v. Gillis, 372 F.3d

218, 236 (3d Cir. 2004)). “The policy supporting the presumption that non-medical officials are

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 28 of 58 PagelD #: 1378

entitled to defer to the professional judgment of the facility’s medical officials on questions of

prisoners’ medical care is a sound one.” Id.

“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. Appx. 861, 2015 WL 4461297, *2

(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 plaintiffs] ailments”). “Under the Eighth Amendment, [a plaintiff] is not

entitled to demand specific care. [He] is not entitled to the best care possible. [He] is entitled to

reasonable measures to meet a substantial risk of serious harm to [him].” Forbes v. Edgar, 112

F.3d 262, 267 (7th Cir. 1997). “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, III 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.

(internal citation omitted).

Objectively Serious Medical Need

Mr. Kadamovas asserts that his asthma is a “serious” medical need. See Dkt. No. 96 at 2.

In support, he states that he has been diagnosed with asthma, has been prescribed various

medications for his asthma, and has a standing medical note that he is to avoid exposure to OC

spray. He also testifies that his reaction when exposed to smoke or gas is “extreme.” Id. at 2-3.

The defendants disagree, arguing that although medical providers have prescribed medication and

' Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 29 of 58 PagelD #: 1379

diagnosed him with “mild, persistent asthma” based on his subjective word, Mr. Kadamovas has

never exhibited signs of an asthma attack or respiratory distress. - Additionally, there are no

objective medical signs through pulmonary function testing, CT scans, or chest x-rays that show

that Mr. Kadamovas suffers from asthma. See Dkt. No. 93 at 21-22.

An objectively serious medical need is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would perceive the need for

a doctor’s attention.” Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008) (internal quotations and

citations omitted). A medical condition that causes pain can be serious without being lifethreatening, Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Lewis v. McLean, 864 F.3d 556,

563 (7th Cir. 2017) (finding muscle spasms and accompanying back pain objectively serious), but

“this is not to say, however, that every ache and pain or medically recognized condition involving

some discomfort can support an Eighth Amendment claim,” Gutierrez, 111 F.3d at 1372. As the

Seventh Circuit explained,

Deliberately [] ignoring] a request for medical assistance has long been held to be

a form of cruel and unusual punishment, but this is provided that the illness or injury

for which assistance is sought is sufficiently serious or painful to make the refusal

of assistance uncivilized. A prison’s medical staff that refuses to dispense bromides

for the sniffles or minor aches and pains or a tiny scratch or a mild headache or

minor fatigue—the sorts of ailments for which many people who are not in prison

do not seek medical attention—does not by its refusal violate the Constitution. The

Constitution is not a charter of protection for hypochondriacs. But the fact that a .

condition does not produce “objective” symptoms does not entitle the medical staff

to ignore it. ... Pain, fatigue, and other subjective, nonverifiable complaints are in

some cases the only symptoms of a serious medical condition.

Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996) (internal citations omitted). Of relevance is

the state of mind of the prison officials - even if an injury may later turn out to not be serious, if

the injuries appear to be serious, prompt medical attention must be provided. Davis v. Jones, 936

F.2d 971,972 (7th Cir. 1991).

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Relevantly, on two prior occasions, the Seventh Circuit has held that mild asthma and

breathing problems from exposure to second-hand smoke were not objectively serious medical

needs. In Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999), the Seventh Circuit held that

breathing problems, chest pains, dizziness, sinus problems, headaches, and a loss of energy as a

result of exposure to second-hand smoke was not an objectively serious injury or medical need

that amounts to a denial of “the minimal civilized measure of life’s necessities.” Similarly, in

Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996), the Seventh Circuit held that a mild case of asthma,

which was exacerbated by second-hand tobacco smoke, did not rise to the level of seriousness

sufficient to support a claim for relief.

Mr. Kadamovas attempts to distinguish his condition from Henderson and Oliver, arguing

that Mr. Henderson was not diagnosed with a medical condition or ailment brought about by his

exposure to second-hand smoke and Mr. Oliver’s asthma was not so serious as to require a separate

cell from nonsmokers. See Dkt. No. 96 at 8-9.

The Court does not find these differences

compelling. In Oliver, Mr. Oliver was asthmatic and showed sign of distress when exposed to

smoke. Oliver, 77 F.3d at 160. However, the Seventh Circuit found that:

Mr. Oliver’s medical records show that he received considerable medical attention

for asthma concerns, as well as for other ailments. He never required outside

hospitalization, and he even missed a few appointments he had with the medical

staff regarding his asthma. Uniformly, the medical records evaluate his asthma as

only a mild case. He was given medication and an inhaler. He does not dispute that

the medication and the inhaler were a proper medical response to his condition.

Id. Mr. Oliver requested that he be housed with a nonsmoker, but the Seventh Circuit rejected his

claim, arguing that “‘the Eighth Amendment forbids cruel and unusual punishments; it does not

require the most intelligent, progressive, humane, or efficacious prison administration.’ Mr.

Oliver’s complaint seeks to involve us in the sort of ‘micromanagement’ of a state prison that we

deplored in Anderson.'” Id. at 161 (citing Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995)).

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The Court finds Oliver to be instructive. Like Oliver, Mr. Kadamovas has been diagnosed

with mild, persistent asthma and prescribed inhalers and various other medications. However, Mr.

Kadamovas has never been shown to have asthma through objective medical testing such as

through pulmonary function testing, chest x-ray, or CT scans, nor has Mr. Kadamovas ever

exhibited any signs of asthma attack or respiratory distress when seen by USP-TH medical staff.

Nor does Mr. Kadamovas allege that he has ever suffered an asthma attack.

The only evidence of Mr. Kadamovas’ condition from exposure from gas or smoke is his

testimony that he has breathing problems, diarrhea, vomiting, crying, sneezing, psychological

anguish, headache, fear of death, high blood pressure, accelerated heartbeat, respiratory stress,

wheezing, chest pains, and excessive sweating. But these are, objectively speaking, relatively

minor. See Henderson, 196 F.3d at 846 (“the injuries of which Henderson complains-breathing

problems, chest pains, dizziness, sinus problems, headaches and a loss of energy—are, objectively

speaking, relatively minor”); Gayton v. McCoy, 593 F.3d 610, 921 (7th Cir. 2010) (“Vomiting, in

and of itself, is not an uncommon result of being mildly ill, and, absent other circumstances (e.g.,

vomiting continuously for a long period of time, having blood in one s vomit, or the like), does

not amount to an objectively serious medical condition.”). Moreover, as in Oliver, Mr. Kadamovas

fails to show “there is a causal relationship between the smoke and the distress [he] suffered.”

Oliver, 77 F.3d at 160. Additionally, symptoms like high blood pressure, accelerated heartbeat,

and excessive sweating is likely a consequence of psychological anguish Mr. Kadamovas brought

upon himself while thinking about smoke and gas. For example, in one medical encounter, Mr.

Kadamovas was calm and writing in his cell when the nurse first arrived but became agitated and

anxious when discussing the smoke. See Dkt. No. 92-8 at 8.

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Although exposure to unwanted OC spray and smoke fumes is generally undesired; no

reasonable jury would find that Mr. Kadamovas’ asthma and breathing problems were an

“objectively serious” medical need.

Accordingly, summary judgment for the defendants is

warranted on this ground.

Even if the Court were to assume, for purposes of argument only, that Mr. Kadamovas has

indeed established an objectively serious medical need, Mr. Kadamovas still needs to demonstrate

that defendants were deliberately indifferent to that need, which is explained in more detail below.

Claim against Former Warden John Caraway

Mr. Kadamovas argues that former Warden Caraway was deliberately indifferent to his

serious medical needs by failing' to implement a policy or recommendation at FCC-TH that would

have required prison officials in contact with Mr. Kadamovas to pull him out of his cell before

chemical agents were used, and that would prevent inmates from passing contraband and starting

fires. See Dkt. No. 59 at 4-5.

First, as explained above in Section III(C), the Court has determined that Mr. Kadamovas

asthma and breathing problems were not an objectively serious medical need. Moreover, Mr.

Kadamovas has failed to show that Warden Caraway disregarded the risk to Mr. Kadamovas’

health. Rather, the evidence reflects that Warden Caraway ensured that his staff took steps to

prevent SHU inmates from starting fires and smoking, including by conducting rounds, regularly

conducting cell searches and “shake-downs” of housing cells, and pat searching inmates to ensure

that the inmates did not have contraband, including contraband that may be used to start fires.

Warden Caraway also was aware that inmates who were found to have violated the prison’s code

of conduct (including the possession of contraband or starting fires) would receive an Incident

Report and appropriate disciplinary steps would be taken. Warden Caraway was also aware that

• Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 33 of 58 PagelD #: 1383

SHU inmates were placed on limited commissary privileges and are not permitted to make certain

purchases, such as batteries, which can be used to ignite fires. Additionally, Warden Caraway

took steps to ensure that Mr. Kadamovas had limited exposure to OC spray, including having the

air filters between the SHU and the SCU changed more frequently than recommended in order to

remove the possibility of residual particles.

Finally, Warden Caraway reviewed Mr. Kadamovas’ medical records and confirmed he

was receiving treatment and was therefore entitled to rely on professional judgment of the facility s

medical staff. See Hayes, 546 F.3d at 526-27.

In short, the evidence reflects that Warden Caraway took constitutionally adequate steps to

ensure that Mr. Kadamovas received appropriate medical care and was limited in his exposure to

smoke and OC gas. Accordingly, summary judgment for Warden Caraway is warranted.

Claim against Former Warden Charles A. Daniels

Mr. Kadamovas argues that former Warden Daniels was deliberately indifferent to his

serious medical needs by failing to prevent inmates from starting fires by not effectively enforcing

policies and procedures which would prevent such acts. See Dkt. No. 59 at 5.

First, as explained above in Section III(C), the Court has determined that Mr. Kadamovas’ .

asthma and breathing problems were not an objectively serious medical need. Moreover, Mr.

Kadamovas has failed to show that Warden Daniels disregarded the risk to Mr. Kadamovas’ health.

Rather, the evidence reflects that Warden Daniels ensured that his staff took steps to prevent SHU

inmates from starting fires and smoking, including by conducting rounds, regularly conducting

cell searches and “shake-downs” of housing cells, and pat searching inmates to ensure that the

inmates did not have contraband, including contraband that may be used to start fires. Warden

Daniels also was aware that inmates who were found to have violated the prison s code of conduct

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 34 of 58 PagelD #: 1384

(including the possession of contraband or starting fires) would receive an Incident Report and

appropriate disciplinary steps would be taken. Warden Daniels was also aware that SHU inmates

were placed on limited commissary privileges and are not permitted to make certain purchases,

such as batteries, which can be used to ignite fires. Additionally, Warden Daniels took steps to

ensure that Mr. Kadamovas had limited exposure to OC spray, that every effort was made to

mitigate his exposure to OC spray when it was used in the SHU, that the vents between the SHU

and SCU are closed off when OC spray is used, and that the air filters in those units are changed

more frequently than recommended to reduce any residual contamination.

Furthermore, Warden Daniels reviewed Mr. Kadamovas medical records and confirmed

he was receiving treatment and was therefore entitled to rely on professional judgment of the

facility’s medical staff. See Hayes, 546 F.3d at 526-27.

In short, the evidence reflects that Warden Daniels took constitutionally adequate steps to

ensure that Mr. Kadamovas received appropriate medical care and was limited in his exposure to

smoke and OC gas. Accordingly, summary judgment for Warden Daniels is warranted.

Claim against Warden Jeffrey E. Krueger

Mr. Kadamovas argues that Warden Krueger was deliberately indifferent to his serious '

medical needs by failing to prevent inmates from starting fires by not effectively enforcing policies

and procedures which would prevent such acts. See Dkt. No. 59 at 6-7.

First, as explained above in Section III(C), the Court has determined that Mr. Kadamovas

asthma and breathing problems were not an objectively serious medical need. Moreover, Mr.

Kadamovas has failed to show that Warden Krueger disregarded the risk to Mr. Kadamovas’

health. Rather, the evidence reflects that Warden Krueger ensured that his staff took steps to

prevent SHU inmates from starting fires and smoking, including by conducting rounds, regularly

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 35 of 58 PagelD #: 1385

conducting cell searches and “shake-downs” of housing cells, and pat searching inmates to ensure

that the inmates did not have contraband, including contraband that may be used to start fires.

Warden Krueger also was aware that inmates who were found to have violated the prison’s code

of conduct (including the possession of contraband or starting fires) would receive an Incident

Report and appropriate disciplinary steps would be taken. Warden Krueger was also aware that

SHU inmates were placed on limited commissary privileges and were not permitted to make

certain purchases, such as batteries, which can be used to ignite fires. Additionally, Warden

Krueger is aware of steps that his staff have taken to limit any exposure Mr. Kadamovas may have

from smoke or gas coming from the SHU, including moving Mr. Kadamovas to an upper-tier cell;

attempting to remove Mr. Kadamovas from his cell when OC spray fumes were detected in the

SCU; shutting off or reversing vent flow when OC spray is used in the SHU; and changing the air

filters between the two units more frequently than is required by the minimum standards.

Furthermore, Warden Krueger reviewed Mr. Kadamovas’ medical records and confirmed

he was receiving treatment and was therefore entitled to rely on professional judgment of the

facility’s medical staff. See Hayes, 546 F.3d at 526-27.

In short, the evidence reflects that Warden Krueger took constitutionally adequate steps to

ensure that Mr. Kadamovas received appropriate medical care and was limited in his exposure to

smoke and OC gas. Accordingly, summary judgment for Warden Krueger is warranted.

Claim against Former Unit Manager Melissa Bayless

Mr. Kadamovas argues that former Unit Manager Melissa Bayless was deliberately

indifferent to his serious medical needs by failing to protect him from exposure to smoke and OC

spray. See Dkt. No. 59 at 6-7.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 36 of 58 PagelD #: 1386

First, as explained above in Section III(C), the Court has determined that Mr. Kadamovas’

asthma and breathing problems were not an objectively serious medical need. Moreover, Mr.

Kadamovas has failed to show that Unit Manager Bayless was personally involved in any

constitutional deprivation. “Individual liability under § 1983... requires personal involvement in

the alleged constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir.

2017) (internal quotation omitted) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)

(“Section 1983 creates a cause of action based on personal liability and predicated upon fault. An

individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged

constitutional deprivation.... A causal connection, or an affirmative link, between the misconduct

complained of and the official sued is necessary.”)). Mr..Kadamovas alleges that Ms. Bayless

failed to do more to protect him from exposure to smoke and OC spray from the SHU, but Ms.

Bayless had no day-to-day control over the security of or custodial care of the inmates housed in

the SHU and had no decision-making authority over the SHU. She did not have the ability to

restrict or control the contraband in the SHU, the frequency with which fires occurred in the SHU,

nor the frequency with which OC spray was deployed.

In his reply, Mr. Kadamovas did not refute Ms. Bayless’ contention that she was not

personally involved in the alleged violation of his constitutional rights.

See Dkt. No. 96.

Accordingly, summary judgment for Ms. Bayless is warranted.

Claim against Former Unit Manager Micheal V. Sample

Mr. Kadamovas argues that former Unit Manager Micheal V. Sample was deliberately

indifferent to his serious medical needs by failing to protect him from exposure to smoke and OC

spray. See Dkt. No. 59 at 7. Mr. Sample also allegedly pulled Mr. Kadamovas “into the building

when it was full of the gas when [he] was actually asking to not to do so,” Dkt. No. 92-1 at 96-97,

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 37 of 58 PagelD #: 1387

an d prevented Mr. Kadamovas from closing his ventilation system during exposure to gas and

smoke. Id.

First, as explained above in Section III(C), the Court has determined that Mr. Kadamovas

asthma and breathing problems were not an objectively serious medical need. Moreover, Mr.

Kadamovas has failed to show that Unit Manager Sample was personally involved in any

constitutional deprivation. “Individual liability under § 1983... requires personal involvement in

the alleged constitutional deprivation.” Colbert, 851 F.3d at 657 (internal quotation omitted)

(citing Wolf-Lillie, 699 F.2d at 869 (“Section 1983 creates a cause of action based on personal

liability and predicated upon fault. An individual cannot be held liable in a § 1983 action unless

he caused or participated in an alleged constitutional deprivation.... A causal connection, or an

affirmative link, between the misconduct complained of and the official sued is necessary.”)). Mr.

Kadamovas alleges that Mr. Sample failed to do more to protect him from exposure to smoke and

OC spray from the SHU, but Mr. Sample had no day-to-day control over the security of or custodial

care of the inmates housed in the SHU and had no decision-making authority over the SHU. He

did not have the ability to restrict or control the contraband in the SHU, the frequency with which

fires occurred in the SHU, nor the frequency with which OC spray was deployed. Although Mr.

Sample allegedly prevented Mr. Kadamovas from closing his ventilation system during exposure

to gas and smoke, SCU inmates and staff do not have access to the SCU ventilation system and

are unable to manipulate the SCU ventilation system.

Even if Mr. Sample was personally involved, Mr. Kadamovas fails to show Mr. Sample

disregarded the risk to Mr. Kadamovas’ health. When Mr. Kadamovas complained about exposure

to smoke and gas, Mr. Sample moved him to the upper tier of the SCU in an effort to reduce the

potential exposure. Additionally, although Mr. Kadamovas identifies one instance where Mr.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 38 of 58 PagelD #: 1388

Sample allegedly pulled Mr. Kadamovas “into the building when it was full of the gas when [he]

was actually asking to not to do so,” Dkt. No. 92-1 at 96-97, no reasonable jury would find that

Mr. Kadamovas was injured from this isolated incident or that Mr. Sample was deliberately

indifferent to Mr. Kadamovas’ health where Mr. Sample would have been exposed to the same

gas or fumes if that level of smoke or fumes was so dangerous. See Antonelli v. Sheahan, 81 F.3d

1422, 1427 (7th Cir. 1996) (holding that to find deliberate indifference defendant must have

committed an act so dangerous that his knowledge of the risk can be inferred); Goka v. Bobbitt,

862 F.2d 646, 650 (7th Cir. 1988) (finding that to show deliberate indifference, a plaintiff is

required to prove that the prison official’s action was deliberate or reckless in the criminal sense).

Accordingly, summary judgment for Mr. Sample is warranted.

Claim against Clinical Director Dr. William E. Wilson

Mr. Kadamovas argues that Clinical Director Dr. William E. Wilson was deliberately

indifferent to his serious medical needs by denying his legitimate requests for procedures to protect

him from the harm of tear gas and smoke. See Dkt. No. 59 at 7-8. In his deposition, he argued

that Dr. Wilson should have permitted him to see a pulmonologist sooner. Dkt. No. 92-1 at 101.

First, as explained above in Section III(C), the Court has determined that Mr. Kadamovas’

asthma and breathing problems were not an objectively serious medical need. Additionally, Mr.

Kadamovas fails to show that Dr. Wilson was deliberately indifferent to his medical needs.

Viewing the evidence in the light most favorable to Mr. Kadamovas, Mr. Kadamovas was regularly

seen in a prompt manner by medical staff regarding his complaints of breathing problems. Despite

no objective evidence supporting a diagnosis of asthma, including through CT scan and chest xray, Mr. Kadamovas was provided Albuterol inhalers and various medications and a note was

placed in his file to restrict the use of chemical gas on him. Although Dr. Wilson requested a

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 39 of 58 PagelD #: 1389

consult with an outside pulmonologist in November 2014, the URC denied that request.

Ultimately, Mr. Kadamovas was seen by an outside pulmonologist in May 2016, but Dr. Bhuptani

found no obstruction, lack of bronchodilator response, no restriction and no air trapping in Mr.

Kadamovas’ lungs through a pulmonary function test. In 2017, Dr. Wilson spoke with Executive

Staff about trying to ensure that exhaust fans are used in the SHU before pepper gas is

administered.

The undisputed record reflects that Mr. Kadamovas received extensive medical care from

Dr. Wilson and the medical staff.

The defendants’ expert, Dr. Buckley, opined that Mr.

Kadamovas’ care was “optimal,” “medically appropriate[,] and within the standard of care.” Dkt.

No. 92-10.

Although Mr. Kadamovas asserts that Dr. Wilson inappropriately delayed in allowing him

to see an outside pulmonologist, the evidence reflects that Dr. Wilson’s request in 2014 for Mr.

Kadamovas to see an outside pulmonologist was denied by the URC, and Mr. Kadamovas does

not allege or set forth any evidence that Dr. Wilson had the authority to override that denial.

Moreover, Mr! Kadamovas fails to show how he was injured in any delay in seeing a pulmonologist

where Dr. Bhuptani provided no difference in diagnosis or treatment.

Prison doctors who try reasonable, though imperfect, approaches to address an inmate’s

symptoms, and eventually resolve the symptoms, do not violate the Eighth Amendment by

omitting a different, possibly better approach. See Proctor v. Sood, 863 F.3d 563, 567—68 (7th

Cir. 2017) (affirming entry of summary judgment for prison’s doctors who, despite failing to order

colonoscopy or endoscopy to diagnose inmate’s abdominal pain, reasonably investigated inmate’s

pain in other ways); Norfleet, 439 F.3d at 396 (reversing district court’s refusal to enter judgment

in favor of prison doctor where, despite a possibly superior alternative treatment, doctor’s

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 40 of 58 PagelD #: 1390

treatment of inmate was reasonable). As explained above, Mr. Kadamovas “is not entitled to

demand specific care. [He] is not entitled to the best care possible. [He] is entitled to reasonable

measures to meet a substantial risk of serious harm to [him].” Forbes, 112 F.3d at 267.

Accordingly, summary judgment for Dr. Wilson is warranted.

Qualified Immunity

The defendants argue that to the extent Mr. Kadamovas ’ constitutional rights were violated

or that the defendants personally acted with deliberate indifference towards him, they are all

entitled to qualified immunity.

Qualified immunity protects government officials from liability for civil damages unless

their conduct violates “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009); see also Burritt v.

Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015). Analysis of the qualified immunity defense requires

a consideration of: (1) whether the plaintiffs constitutional rights were violated and (2) whether

the right clearly established at the time. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

For the reasons explained above, there was no constitutional violation, see Jackson v.

Parker, 627 F.3d 634, 635 (7th Cir.. 2010); Suarez v. Town of Ogden Dunes, 581 F.3d 591, 595

(7th Cir. 2009), so a qualified immunity defense is not necessary. Mucha v. Vill. of Oak Brook,

650 F.3d 1053, 1057-58 (7th Cir. 2011).

IV.

Conclusion

It has been explained that “summary judgment serves as the ultimate screen to weed out

truly insubstantial lawsuits prior to trial.” Crawford-El v. Britton, 118 S. Ct. 1584, 1598 (1998).

This is a vital role in the management of court dockets, in the delivery of justice to individual

litigants, and in meeting society’s expectations that a system of justice operates effectively.

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 41 of 58 PagelD #: 1391

Indeed, “it is a gratuitous cruelty to parties and their witnesses to put them through the emotional

ordeal of a trial when the outcome is foreordained,” and in such cases, , summary judgment is

appropriate. Mason v. Continental Illinois Nat’l Bank, 704 F.2d 361, 367 (7th Cir. 1983).

Mr. Kadamovas has not identified a genuine issue of material fact as to his claims in this

case and the defendants are entitled to judgment as a matter of law. Therefore, the defendants’

motion for summary judgment, Dkt. No. 92, is granted.

Judgment consistent with this Entry shall now issue.

IT IS SO ORDERED.

Date: 12/6/18

Hon. William T. Lawrence, Senior Judge

United States District Court

Southern District of Indiana

Distribution:

JURIJUS KADAMOVAS

21050-112

TERRE HAUTE - USP

TERRE HAUTE U.S. PENITENTIARY

Inmate Mail/Parcels

P.O.BOX 33

TERRE HAUTE, IN 47808

Oni N. Harton

BARNES & THORNBURG LLP (Indianapolis)

oharton@btlaw. com

John R. Maley

BARNES & THORNBURG LLP (Indianapolis)

jmaley@btlaw.com

Ladene Ivone Mendoza

BARNES & THORNBURG, LLP (Indianapolis)

ladene.mendoza@btlaw.com

Shelese M. Woods

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

shelese.woods@usdoj .gov

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 42 of 58 PagelD #: 1392

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

JURIJUS KADAMOVAS,

Plaintiff,

JOHN CARAWAY, et al.

Defendants.

)

No. 2:17-cv-00050-WTL-MJD

FINAL JUDGMENT

The Court having this day made its Entry directing the entry of final judgment, the Court

now enters FINAL JUDGMENT.

Judgment is entered in favor of the defendants and against the plaintiff Jurijus Kadamovas.

The plaintiff shall take nothing by his complaint and this action is dismissed with prejudice.

Date: 12/6/18

Laura Briggs, Clerk

BY:

Deputy Clerk, U.S. District Court

Distribution:

JURIJUS KADAMOVAS

21050-112

TERRE HAUTE - USP

TERRE HAUTE U.S. PENITENTIARY

Inmate Mail/Parcels

P.O. BOX 33

TERRE HAUTE, IN 47808

Electronically Registered Counsel

lx)

Hon. William T. Lawrence, Senior Judge

United States District Court

Southern District of Indiana

V?€N MX

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 43 of 58 PagelD #: 1393

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

/)PP£/VA IX

JURIJUS KADAMOVAS,

Plaintiff,

JOHN CARAWAY, et al.

Defendants.

)

No. 2:17-cv-00050-WTL-MJD

Order Denying Motion for Reconsideration

Plaintiff Jurijus Kadamovas seeks reconsideration of the Court’s December 6, 2018, Order

granting defendants’ motion for summary judgment and directing entry of final judgment, Dkt.

No. 100.

Rule 59(e) Standard

To receive relief under Rule 59(e) of the Federal Rules of Civil Procedure, the moving

party “must clearly establish (1) that the court committed a manifest error of law or fact, or (2) that

newly discovered evidence precluded entry of judgment.” Edgewood Manor Apartment Homes,

LLC v. RSUI Indem. Co., 733 F.3d 761, 770 (7th Cir. 2013) (internal quotation omitted). A

“manifest error” means “the district court commits a wholesale disregard, misapplication, or

failure to recognize controlling precedent.” Stragapedev. City ofEvanston, Illinois, 865 F. 3d 861,

868 (7th Cir. 2017) (internal quotation omitted). “A manifest error is not demonstrated by the

disappointment of the losing party.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.

2000) (internal quotations omitted). Newly discovered evidence is that which the movant must

demonstrate it did not know and could not reasonably have discovered with reasonable diligence

until after the judgment was rendered. Caisse Nationale de Credit v. CBI Industries, 90 F.3d 1264,

Case 2:17-cv-00050-WTL-MJD Document 105 Filed 02/06/19 Page 44 of 58 PagelD #: 1394

1269 (7th Cir. 1996). Relief through a Rule 59(e) motion for reconsideration is an “extraordinary

remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).

Mr. Kadamovas’ Rule 59(e) Motion

Mr. Kadamovas requests that the Court reconsider his motion for summary judgment for

three reasons: (1) his attorneys failed to submit an affidavit asking the Court to deny the motion,

or at least stay it, because the defendants have not complied with discovery requests; (2) his

attorneys failed to request any tests to determine the levels of environmental tobacco, gas, or any

other hazardous pollutions in the ventilation systems; (3) his attorneys failed to take a single

deposition; and (4) although he had a two hour conversation with his attorney the day before his

response was due about the strategy for the brief, his attorney failed to include an affidavit from

him or include “nearly all” of what they had discussed would be included. See Dkt. No. 102.

However, Mr. Kadamovas fails to identify any misapplication of, or failure to recognize,

controlling precedent in the Court’s December 6, 2018, Order granting defendants’ motion for

summary judgment. Nor has Mr. Kadamovas presented any newly discovered evidence. Although

Mr. Kadamovas is unhappy with his attorneys’ performance, that unhappiness is not grounds for

reconsider the motion for summary judgment.

Accordingly, Mr. Kadamovas’ motion for

reconsideration, Dkt. No. 102, is denied.

IT IS SO ORDERED.

Date: 1/16/2019

IJl)

Hon. William T. Lawrence, Senior Judge

United States District Court

Southern District of Indiana

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.