Case 2:19-cv-00091-JRS-MJD Document 56 Filed 09/30/20 Page 1 of 13 PageID #: 607
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`SONNY DAVIS,
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`AASHIA BADE, et al.,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`Plaintiff,
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`v.
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`Defendants.
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`No. 2:19-cv-00091-JRS-MJD
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`ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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`Plaintiff Sonny Davis brought this action alleging that the defendants were deliberately
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`indifferent to his serious medical needs. The defendants have moved for summary judgment. For
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`the reasons explained below, the Court finds that Mr. Davis has not presented a genuine issue of
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`material fact, and the defendants' motion for summary judgment, dkt. [41], is GRANTED.
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`I.
`SUMMARY JUDGMENT STANDARD
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`A motion for summary judgment asks the Court to find that the movant is entitled to
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`judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed.
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`R. Civ. P. 56(a). A party must support any asserted disputed or undisputed fact by citing to specific
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`portions of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).
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`A party may also support a fact by showing that the materials cited by an adverse party do not
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`establish the absence or presence of a genuine dispute or that the adverse party cannot produce
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`admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations
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`must be made on personal knowledge, set out facts that would be admissible in evidence, and show
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`that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly
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`support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being
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`considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
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`In deciding a motion for summary judgment, the only disputed facts that matter are material
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`ones—those that might affect the outcome of the suit under the governing law. Williams v. Brooks,
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`809 F.3d 936, 941-42 (7th Cir. 2016). "A genuine dispute as to any material fact exists 'if the
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`evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Daugherty
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`v. Page, 906 F.3d 606, 609−10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
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`242, 248 (1986)). The Court views the record in the light most favorable to the non-moving party
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`and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d
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`708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary
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`judgment because those tasks are left to the factfinder. Miller v. Gonzalez, 761 F.3d 822, 827
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`(7th Cir. 2014). The Court need only consider the cited materials and need not "scour the record"
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`for evidence that is potentially relevant to the summary judgment motion. Grant v. Trustees of
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`Indiana University, 870 F.3d 562, 573−74 (7th Cir. 2017) (quotation marks omitted); see also Fed.
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`R. Civ. P. 56(c)(3). The non-moving party bears the burden of specifically identifying the relevant
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`evidence of record. D.Z. v. Buell, 796 F.3d 749, 756 (7th Cir. 2015). This is in part because
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`summary judgment is the “put up or shut up” moment in a lawsuit. Grant, 870 F.3d at 568.
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`II.
`FACTUAL BACKGROUND
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`A. The Parties
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`Plaintiff Sonny Davis has been an inmate of IDOC since 2003. Dkt. 50-1, p 12-13. He was
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`transferred from Westville Correctional Facility to WVCF on or about July 31, 2018. Dkt. 43-1,
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`para. 7.
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`2
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`Defendant Aashia Bade, Psy.D., is a psychologist employed by Wexford of Indiana, LLC
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`("Wexford"). Dkt. 43-1, paras. 1-2. She served as Wexford's regional director of mental health
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`from July 9, 2017, to October 27, 2018. Id. at para. 2. She is currently the associate director for
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`mental health programs for Wexford Health Sources, Inc. Id.
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`Defendant Sarah Clarke is employed as a licensed mental health professional by Wexford.
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`Dkt. 43-2, para. 2. She has worked at WVCF since approximately February 2018. Id. Ms. Clarke
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`has the authority to see and provide clinical mental health services to inmates, but she does not
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`have the authority to order medications, unilaterally order a change in housing assignment, or
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`declare an inmate seriously mentally ill. Id. at 6. She may consult with a licensed psychologist,
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`such as Dr. Sims or Dr. Bade, if she believes that a patient requires a new diagnosis. Id. Defendant
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`Kelly Inda is employed as a licensed mental health professional by Wexford. Dkt. 43-3, para. 2.
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`She has worked at WVCF since April 1, 2017. Id. Ms. Inda has the authority to see and provide
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`clinical mental health services to inmates, but she does not have the authority to order medications,
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`unilaterally order a change in housing assignment, or declare an inmate seriously mentally ill. Id.
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`at 9. She may consult with a licensed psychologist, such as Dr. Sims or Dr. Bade, if she believes
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`that a patient requires a new diagnosis. Id.
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`B. Mr. Davis' History of Mental Illness
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`Mr. Davis has suffered from mental illness issues his entire life. Dkt. 50-1, p. 1. He has
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`spent time in treatment facilities and has been prescribed medication to treat these mental health
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`issues. Id. Mr. Davis reports suffering from "depression (constant thoughts of suicide), anxiety
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`(panic attacks that feel as if I am having a heart attack which leaves me in pain all over my body
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`and feels as if I'm dying)," and auditory hallucinations. Id. "When I'm hearing voices or having
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`panic attacks I cut on my arms to stop the panic attacks or to quiet the voices. Something about
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`inflicting injuries to myself brings me to reality or out of the state I'm in." Id.
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`Mr. Davis' history of mental illness during his incarceration at IDOC is well documented.
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`On February 28, 2003, the sentencing court issued an Abstract of Judgment that found, as a
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`mitigating factor, Mr. Davis' mental illness and depression. Id. at 13.
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`On May 5, 2014, an IDOC official provided the following review summarizing Mr. Davis'
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`mental health issues:
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`The offender Davis has a "C" mental health code which means he has a psychiatric
`disorder that causes little functional impairment and requires infrequent psychiatric
`services. These services may be routine and/or unplanned in nature and may involve
`mental health monitoring. Offender Davis was
`transferred
`to Pendleton
`Correctional Facility (IRT) on 3/18/2014 and has been participating in therapy since
`that time. It is recommended that offender Davis continues to actively participate
`in therapy and continue to take his prescribed medications.
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`Id. at 44.
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`On September 21, 2016, Dr. Eddie Taylor noted that Mr. Davis has diagnoses of Axis I
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`Major Depression and Axis II antisocial personality disorder. Id. at 46. Dr. Taylor also noted that
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`Mr. Davis experiences issues with anxiety. Id. At that time, Mr. Davis was prescribed Prozac for
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`depression. Dr. Taylor determined that Mr. Davis "appears to be stable since being put back on
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`medications." Id. at 47.
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`C. Events at WVCF
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`On July 31, 2018, Mr. Davis was transferred from Westville Correctional Facility to
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`WVCF. Dkt. 43-1, para. 7. At that time, Mr. Davis had a mental health classification of A,
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`indicating that he was free of mental health issues. Id. at para. 5. Prior to this transfer, Mr. Davis
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`was housed in the Westville Control Unit, which is a restrictive housing unit. Id. at 7.
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`On August 1, 2018, Mr. Davis was placed on suicide precautions and was evaluated by
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`Ms. Clarke. Dkt. 43-2, para. 7; Dkt. 43-3, para. 5. Ms. Clarke reviewed records indicating that
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`Mr. Davis had a history of improper behavior as well as expressing the potential for self-harm. Id.
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`Ms. Clarke claims that Mr. Davis did not cooperate or communicate with her during their session
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`and noted that he was irritable, hostile, and short. Id. She did not believe that he had a significant
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`risk of self-harm and indicated that he could receive normal bedding items, clothing items, and
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`finger foods for meals. Id. She also kept him on a close observation status. Id.
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`On August 2, 2018, Ms. Clarke followed up with Mr. Davis. Id. at para. 9. Ms. Clark claims
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`that Mr. Davis told her he never felt suicidal and was mad about being transferred. Id. He
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`apologized for being disrespectful, and Ms. Clarke removed him from suicide watch. Id.
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`On August 3, 2018, Mr. Davis was evaluated by Ms. Inda. Id. He told Ms. Inda that he had
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`been stressed and was struggling with impulses of self-harm and feelings of depression. Id.
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`Ms. Inda suggested that they work on coping skills to avoid acting out engaging in self-harm. Id.
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`Mr. Davis was placed on a temporary mental health hold pending his long-term housing
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`assignment. Id.
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`On August 6, 2018, Ms. Clarke went to see Mr. Davis, but he refused her visit. Id. at para.
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`10. Mr. Davis was blocking his cell camera and, after refusing to move, was pepper sprayed by
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`custody staff. Id. When Ms. Clarke saw Mr. Davis the next day, he was courteous and polite but
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`indicated that he was on a hunger strike. Id. at para. 11. Ms. Clarke claims that he did not appear
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`to be having any mental health issues at that time, and he was given a temporary mental health
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`placement pending his transfer to a permanent housing unit. Id.
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`On August 12, 2018, Mr. Davis completed the following Request for Health Care Form:
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`I am requesting to see the psychologist. Will you please forward this to Dr. Sims.
`Ms. Sims I don't know if you remember me from last time I was here. I am not
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`doing very good. I am hearing voices and am having crazy thoughts of hurting
`myself. I really need to be placed back on my medication. I need to be seen A.S.A.P.
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`Id. at 52. This form was reviewed by Ms. Clarke on August 18, 2018. Id.
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`On August 21, 2018, Dr. Sims met with Mr. Davis for an evaluation. Dr. Sims diagnosed
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`Mr. Davis with Axis II borderline personality disorder. Id. at 7, 8. Her report noted that Mr. Davis
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`has a history of cutting himself when he becomes distressed and has a history of self-harm in
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`segregation. Id. at 7, 8, 9. In her report, Dr. Sims indicated that she had diagnosed Mr. Davis with
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`Axis II borderline personality disorder, that she would recommend removing Mr. Davis from the
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`Restrictive Housing Unit, and that she would refer him to a psychiatrist. Id. at 8, 9.
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`On August 21, 2018, Dr. Sims sent the following email to several IDOC officials and
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`mental health staff:
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`I saw Sonny Davis 12888 in SCU and he was given Axis II diagnosis that would
`contraindicate SCU and there is most likely going to be Axis I diagnosis and there
`is current need for evaluation for medication. Therefore there is now a
`contraindication for continued placement in WVCF Restricted Housing Unit/SCU.
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`Dkt. 1-1, p. 2. The defendants were recipients on this email and on the following emails
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`from IDOC officials. Id. at 2, 4, 6.
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`IDOC official James Basinger wrote back to Dr. Sims, telling her not to "remove
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`[Mr. Davis] from SCU until Mark Levenhagen and I have discussed." Id. at 4. Dr. Sims then asked,
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`"Should I hold back on the MSC Code change to 'C'? He actually would do better staying in SCU
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`if we could treat him there." Id. Mr. Levenhagen then sent the following response:
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`All, this offender is not to be moved from the SCU. We are in the process of making
`him a "danger" exception in compliance with the IPAS agreement.1 I talked with
`Dr. Dwenger regarding his mental health needs and if necessary, we will figure out
`a way to treat him in the SCU. Moving him anywhere else at this time would fail
`to meet his security needs.
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`1 On January 27, 2016, IDOC officials entered into a class action settlement agreement restricting IDOC's ability to
`place inmates with a serious mental illness in long-term segregation. Dkt. 50-1, pp. 15-41; see also Indiana Protection
`and Advocacy Servs. Comm'n v. Commissioner, No. 1:08-cv-1317-TWP-MJD at dkt. 496.
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`Id. at 11 (emphasis in original).
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`After Dr. Dwenger indicated that she was not available, Dr. Bade offered to review
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`Mr. Davis' chart and re-evaluate Dr. Sims' diagnosis. Id. at 6. Dr. Bade sent an email, less than two
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`hours after receiving the email from Mr. Levenhagen, indicating that she had "briefly" reviewed
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`Mr. Davis' chart and believed that his behaviors were related "primarily to his previous diagnosis
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`of Antisocial Personality disorder." Id. at 9. She asked that Dr. Sims' diagnosis of borderline
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`personality disorder and the change in Mr. Davis' mental health classification "be deferred in the
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`EMR, until an in person evaluation can be conducted by Dr. Dwenger or myself." Id.
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`On August 28, 2018, Dr. Bade met with Mr. Davis for an in-person evaluation. Dkt. 43-1,
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`para. 13. In an email to mental health staff and IDOC officials, Dr. Bade indicated that "Mr. Davis
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`did report symptoms that may be consistent with trauma related anxiety; however, it is unclear if
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`these reported symptoms are (1) genuine or feigned, (2) goal oriented or spontaneous, and/or
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`(3) acute or chronic." Dkt. 1-1, p. 8. "I'm recommending that no MH diagnosis be made at this
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`time, MH code remains 'A' and MH staff will monitor per their SCU protocol." Id.
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`On September 6, 2018, Mr. Davis directed a Request for Health Care form to Ms. Clarke,
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`indicating that he was "not getting any better and need[ed] a resolution. I need to know what I need
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`to do as I am in serious need of help and am suffering everyday." Dkt. 50-1, p. 51. Ms. Clarke
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`reviewed this form and indicated that Mr. Davis was seen on September 10, 2018. Id.
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`On September 10, 2018, Ms. Clarke met with Mr. Davis and suggested that he work on his
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`coping and communication skills. Dkt. 43-2, para. 15. Mr. Davis told Ms. Clarke that he needed
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`to be placed back on his medication. Id.
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`On September 12, 2018, Mr. Davis submitted a grievance indicating that he was hearing
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`voices "that tell me to hurt myself and others. Medication prevents me from hearing these voices."
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`Dkt. 1-1, p. 25.
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`On October 10, 2018, Dr. Bade sent an email to WVCF Warden Richard Brown asking,
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`"Is mr sonny (sic) Davis doing ok?" Dkt. 1-1. Warden Brown replied, "We haven't heard anything
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`from him lately. I will copy other staff on this in case they have heard anything." Id. at 19. The
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`next day, IDOC official Jerry Snyder responded, "I have heard nothing from custody staff of any
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`issues and his caseworker states he is doing fine." Id. In reply, Dr. Bade wrote, "Thanks!! I checked
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`in with MH staff, they reported no concerns currently. Just wanted to make sure things have been
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`ok since it's been a month and a half." IDOC official Frankie Littlejohn responded to Dr. Bade's
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`email, indicating that he had "pulled [Mr. Davis] out last week at his request to speak with me."
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`Id. According to Mr. Littlejohn, Mr. Davis broke down in tears about his placement in the
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`Restrictive Housing Unit believing that there was nothing he could do to change his placement. Id.
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`Mr. Littlejohn "reinforced that him playing the MH card to manipulate his placement would not
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`accomplish his goals of improving his circumstances." Id.
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`Ms. Clarke and Ms. Inda claim that Mr. Davis refused to meet with them on October 8,
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`2018, and December 11, 2018, respectively. Dkt. 43-2, para. 16; dkt. 43-3, para. 10. However,
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`Mr. Davis claims that they ignored his reports of serious mental health symptoms and that he "was
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`denied to be called out for session by both" Ms. Clarke and Ms. Inda. Dkt. 50-1, p. 4.
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`III.
`DISCUSSION
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`A. Deliberate Indifference Standard
`Mr. Davis asserts Eighth Amendment medical care claims against the defendants. At all
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`times relevant to his claims, he was a convicted offender. Accordingly, his treatment and the
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`conditions of his confinement are evaluated under standards established by the Eighth
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`Amendment's proscription against the imposition of cruel and unusual punishment. See Helling v.
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`McKinney, 509 U.S. 25, 31 (1993) ("It is undisputed that the treatment a prisoner receives in prison
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`and the conditions under which he is confined are subject to scrutiny under the Eighth
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`Amendment.").
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`Pursuant to the Eighth Amendment, prison officials have a duty to provide humane
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`conditions of confinement, meaning, they must take reasonable measures to guarantee the safety
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`of the inmates and ensure that they receive adequate food, clothing, shelter, and medical care.
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`Farmer v. Brennan, 511 U.S. 825, 834 (1994). "To determine if the Eighth Amendment has been
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`violated in the prison medical context, [courts] perform a two-step analysis, first examining
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`whether a plaintiff suffered from an objectively serious medical condition, and then determining
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`whether the individual defendant was deliberately indifferent to that condition." Petties v. Carter,
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`836 F.3d 722, 727–28 (7th Cir. 2016) (en banc). "[C]onduct is deliberately indifferent when the
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`official has acted in an intentional or criminally reckless manner, i.e., the defendant must have
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`known that the plaintiff was at serious risk of being harmed [and] decided not to do anything to
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`prevent that harm from occurring even though he could have easily done so." Board v. Farnham,
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`394 F.3d 469, 478 (7th Cir. 2005) (internal quotations omitted). "To infer deliberate indifference
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`on the basis of a physician's treatment decision, the decision must be so far afield of accepted
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`professional standards as to raise the inference that it was not actually based on a medical
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`judgment." Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); see also Plummer v. Wexford
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`Health Sources, Inc., 609 F. App’x 861, 862 (7th Cir. 2015) (holding that defendant doctors were
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`not deliberately indifferent because there was "no evidence suggesting that the defendants failed
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`to exercise medical judgment or responded inappropriately to [the plaintiff's] ailments"). In
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`addition, the Seventh Circuit has explained that "[a] medical professional is entitled to deference
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`in treatment decisions unless no minimally competent professional would have [recommended the
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`same] under those circumstances." Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (internal
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`quotation omitted). "Disagreement between a prisoner and his doctor, or even between two medical
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`professionals, about the proper course of treatment generally is insufficient, by itself, to establish
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`an Eighth Amendment violation." Id.
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`B. Mr. Davis' Claims Against the Defendants
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`1. Dr. Bade
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`Mr. Davis has failed to present evidence against Dr. Bade on the subjective element of his
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`deliberate indifference claim. Before making a diagnosis, Dr. Bade reviewed Mr. Davis' medical
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`records and met with him for an in-person evaluation. Although her diagnosis differed from that
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`of Dr. Sims, and although it came after Mr. Levenhagen's e-mail stating that Mr. Davis was not to
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`be moved at the time due to his security needs, these facts alone are insufficient to establish an
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`Eighth Amendment violation. In the months after making this diagnosis, Dr. Bade inquired about
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`Mr. Davis' mental health status with IDOC staff. Although Mr. Davis reported that he continued
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`to have panic attacks, auditory hallucinations, and episodes of self-harm, this information was kept
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`from Dr. Bade when IDOC officials told her that "his caseworker states he is doing fine."
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`Dkt. 1-1, p. 19. Thus, despite her affirmative efforts to follow up on Mr. Davis' status, Dr. Bade
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`lacked a subjective awareness that Mr. Davis was still reporting symptoms.
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`Mr. Davis urges the Court to draw the inference that Dr. Bade did not make a medical
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`judgment, and instead merely succumbed to Mr. Levenhagen's directive. Dkt. 50, p. 3. But, the
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`undisputed facts that Dr. Bade conducted an independent review of the medical records, conducted
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`an in-person examination of Mr. Davis, and made an unsolicited follow up into Mr. Davis' status
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`make this an unreasonable inference. Also, Dr. Bade's personal examination and assessment is in
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`line with other undisputed evidence, such as Mr. Davis having a mental health classification of A
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`(i.e., free of mental health issues) when he was transferred into WVCF, Ms. Clarke's multiple
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`assessments that he did not pose a significant risk of self-harm and Mr. Davis' supporting
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`pronouncement to her that he was not suicidal, and Ms. Inda's suggestion that they work on his
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`coping skills. Similarly, Dr. Sims concurred that Mr. Davis could be better treated in
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`administrative segregation. Indeed, there is no constitutional right to be treated outside of
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`segregation, notwithstanding any terms of the settlement agreement. Also, there is no evidence
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`that Dr. Bade could have overruled a security decision made by IDOC officials in any event, and,
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`as a psychologist, she could not prescribe the medications upon which Mr. Davis' claims are
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`premised. As for the latter, any failure to recommend medications does not evidence deliberate
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`indifference. Similarly, her review of medical records, in-person evaluation, and proactive follow-
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`up do not evidence deliberate indifference. Accordingly, the motion for summary judgment is
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`granted in favor of Dr. Bade.
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`2. Ms. Clarke and Ms. Inda
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`Mr. Davis has failed to present evidence against Ms. Clarke and Ms. Inda on the objective
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`element of his deliberate indifference claim. Upon Mr. Davis' arrival at WVCF, Ms. Clarke
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`reviewed his medical records, met with him multiple times, and recommended that he remain on
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`close observation status. Not only did Ms. Clarke initially not believe that he had a significant risk
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`of self-harm, he later confirmed to her that he did not feel suicidal, leading her to take him off the
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`precautionary suicide watch. Days later, Ms. Clarke met with him again and noted that he did not
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`appear to be having any mental health issues. Ms. Inda also met with Mr. Davis and discussed
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`coping skills to alleviate his mental health episodes. Notably, because the foregoing occurred prior
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`to any directive from Mr. Levenhagen, the aforementioned unreasonable inference—that Ms.
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`Clarke and Ms. Inda were not exercising their judgment and instead succumbing to Mr.
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`Levenhagen's directive—does not even arise. After Mr. Davis was evaluated by Dr. Bade, Ms.
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`Inda and Ms. Clarke continued to meet with him. Although Mr. Davis now claims that they refused
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`to meet with him for counseling, IDOC records indicate that it was Mr. Davis who refused to meet
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`with them. Even if this could be considered a dispute,2 when this dispute is construed in Mr. Davis'
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`favor he is still not entitled to relief. Mr. Davis' claims are based on the medical staff's refusal to
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`prescribe mental health medication, which is something Ms. Clarke and Ms. Inda were not even
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`authorized to do. Also, even if they could have recommended that medications be prescribed,
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`there is no evidence that they felt this was necessary, or that the failure to make such
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`recommendation would rise to deliberate indifference. To the contrary, Ms. Clarke did not note
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`any mental health issues and Ms. Inda worked with Mr. Davis on coping skills rather than ignoring
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`his alleged mental health issues. Accordingly, the motion for summary judgment is granted in
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`favor of Ms. Clarke and Ms. Inda.
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`IV.
`CONCLUSION AND FURTHER PROCEEDINGS
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`Mr. Davis' motion for an extension of time to file a response to motion for summary
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`judgment, dkt. [48], is granted. The defendants' motion for summary judgment, dkt. [41], is
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`granted. Mr. Davis' motion for sanctions, dkt. [52], is denied.
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`The clerk is directed to issue final judgment in accordance with this order.
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`IT IS SO ORDERED.
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`2 For example, Mr. Davis could be referring to times when he sought an informal meeting, whereas Ms. Inda and Ms.
`Clarke could be referencing formally scheduled meetings documented in the records; they all could be correct.
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`Date: 9/30/2020
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`Distribution:
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`SONNY DAVIS
`128888
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`6908 S. Old US Hwy 41
`P.O. Box 1111
`CARLISLE, IN 47838
`
`David A. Arthur
`INDIANA ATTORNEY GENERAL
`David.Arthur@atg.in.gov
`
`Douglass R. Bitner
`KATZ KORIN CUNNINGHAM, P.C.
`dbitner@kkclegal.com
`
`Marley Genele Hancock
`INDIANA ATTORNEY GENERAL
`marley.hancock@atg.in.gov
`
`
`
`
`13
`
`