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Flynn v. O'Brien

United States District Court, E.D. Wisconsin

October 24, 2017

DR. KELLY O'BRIEN, Defendant.


          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         Plaintiff Kristine A. Flynn (“Flynn”), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant Dr. Kelly O'Brien (“O'Brien”) was deliberately indifferent to Flynn's serious medical condition after Flynn fell inside her cell at Taycheedah Correctional Institution (“TCI”). Flynn also brings a state law claim for medical malpractice stemming from the same incident. O'Brien filed a motion for summary judgment, along with a memorandum of law in support of her motion, a supporting declaration, and proposed findings of material facts. (Docket #50-53). Flynn filed an opposition brief, (Docket #55), but did not respond to O'Brien's proposed facts. For the reasons stated below, the Court will grant summary judgment in favor of O'Brien.[1]


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [her] case is convincing, [she] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. BACKGROUND

         3.1 Plaintiff's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Flynn failed to dispute them. In the Court's scheduling order, entered September 19, 2016, Flynn was warned about the requirements for opposing a motion for summary judgment. (Docket #25 at 1-2). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission.

         In O'Brien's motion for summary judgment, she too warned Flynn about the requirements for her response as set forth in Federal and Local Rules 56. (Docket #50). She was provided with additional copies of those Rules along with O'Brien's motion. Id. at 3-12. In connection with her motion, O'Brien filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #52). It contained short, numbered paragraphs concisely stating those facts she proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         Flynn submitted an eight-page “motion for non-dismissal of case” in response. (Docket #55). The submission, bereft of factual citations or sworn testimony by Flynn, is comprised mostly of unsupported legal conclusions about O'Brien's allegedly deficient care. At one point in her submission, Flynn claims that a wrist x-ray revealed a dislocation, and that she had surgery, but that she has lost the ability to move her wrist up and down and from side to side. Id. at 3. She also claims that several other doctors have diagnosed her with several other medical issues. Id. at 4-6. But Flynn provides no evidence for any of these factual assertions; her submission is not accompanied by any documents or exhibits. In short, Flynn's submission does not attempt to dispute O'Brien's proposed facts about the events at issue in this case.[2]

         Despite being twice warned of the strictures of summary judgment procedure, Flynn ignored those rules by failing to properly dispute O'Brien's proffered facts with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as her lawyer, and it cannot delve through the record to find favorable evidence for her. Thus, the Court will, unless otherwise stated, deem the defendant's facts undisputed for purposes of deciding her motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 F. App'x 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).

         3.2 Relevant Material Facts[3]

         At all times relevant to this case, Flynn was an inmate and O'Brien was a supervising physician at TCI. On January 6, 2016, Flynn says that she fell inside her cell at TCI and hit her head. No one saw her fall, but she called out for help after getting up and correctional officers responded to her cell. Those officers enlisted the help of the health care staff on duty at TCI. A nurse reported to Flynn's cell and, after conducting an initial evaluation, gave Flynn an ice pack for a bump on her head. Flynn was then taken by wheelchair to the health services unit (“HSU”) for a more complete evaluation.

         O'Brien assessed Flynn within approximately fifteen minutes of her arrival in the HSU. Flynn reported experiencing dizziness, numbness, and decreased movement in her right leg. Neurological and ocular tests were within normal range, but hand grip tests resulted in abnormalities which were inconsistent with the other objective medical evidence. Because Flynn's subjective reports about her injuries were sufficiently at odds with O'Brien's objective medical findings, O'Brien suspected Flynn's reported symptoms might be due to a psychological issue-a factitious or conversion disorder. A patient with a factitious disorder produces or exaggerates medical symptoms for secondary gain. A patient with a conversion disorder reports physical symptoms which actually arise from psychological causes.

         Nonetheless, O'Brien ordered neurological checks and vital sign checks every hour for four hours, then every four hours, then every eight hours to ensure that any changes in Flynn's health would be discovered in an appropriate timeframe. O'Brien also completed an examination of the bump on Flynn's head, reviewed her heart rate, examined her right leg, and checked for any other possible cause of Flynn's reported symptoms.

         O'Brien told Flynn that the cause of her symptoms was currently unknown, but that O'Brien would have her remain in the HSU for continued monitoring rather than return Flynn to her living unit. O'Brien also ordered pain medication at Flynn's request. At that time, because O'Brien made no definitive diagnosis as ...

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