                                                                         FILED
                                                                    Apr 08 2020, 11:43 am
OPINION ON REHEARING
                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE –
Mary Jane Lapointe                                          INDIANA DEPARTMENT OF
Daniel Lapointe Kent                                        CORRECTION
Lapointe Law Firm, P.C.                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana

                                                            Frances Barrow
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana

                                                            ATTORNEYS FOR APPELLEES –
                                                            CORIZON, INC. AND THE
                                                            CORIZON MEDICAL
                                                            EMPLOYEES
                                                            Carol A. Dillon
                                                            Christopher Andrew Farrington
                                                            Bleeke Dillon Crandall, P.C.
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Sue Williams, Linda Wood, and                               April 8, 2020
Claude Wood, as the Co-                                     Court of Appeals Case No.
Personal Representatives of the                             19A-CT-1832
Estate of Rachel A. Wood,                                   Appeal from the Marion Superior
Deceased,                                                   Court
Appellants-Plaintiffs,                                      The Honorable John M.T. Chavis,
                                                            II, Judge
        v.                                                  Trial Court Cause No.
                                                            49D05-1401-CT-1478



Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020               Page 1 of 4
      Indiana Department of
      Correction, Corizon, Inc.,
      Georgeanne R. Pinkston, Dawn
      Renee Antle, Mary D. Grimes,
      Tina Icenogle, Daniel P. Rains,
      M.D., Richard M. Hinchman,
      M.D., and Vance Raham, M.D.,
      Appellees-Defendants.



      Najam, Judge.


[1]   Corizon petitions for rehearing following our opinion reversing the trial court’s

      entry of summary judgment for Corizon, certain Corizon medical employees,

      and the DOC. See Williams v. Ind. Dep’t of Corr., ___ N.E.3d ___, No. 19A-CT-

      1832, 2020 WL 878959 (Ind. Ct. App. Feb. 24, 2020). The Corizon medical

      employees and the DOC do not seek rehearing. 1


[2]   We grant the petition for rehearing to clarify two points in our opinion. First,

      in a footnote this Court stated that the Estate did not appeal the trial court’s

      entry of summary judgment for Corizon medical employee Dr. Michael

      Mitcheff. Id. at *1 n.1. In its response to Corizon’s petition for rehearing, the

      Estate asserts that this was an inadvertent omission on its part in the briefs on




      1
        In its petition for rehearing, Corizon asks that we consider an additional claim raised by the Estate against
      the DOC in the trial court but not raised by the Estate or the DOC on appeal. Corizon has no standing to
      raise issues on behalf of the Estate or the DOC, and we have no opinion on the entry of summary judgment
      on those issues.

      Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020                       Page 2 of 4
      appeal and, as such, we should clarify that Dr. Mitcheff continues to be a part

      of the proceedings in light of our opinion.


[3]   This we cannot do. The Estate’s brief on appeal contained no argument that

      the designated evidence warranted reversal of the court’s entry of summary

      judgment for Dr. Mitcheff. Rather, regarding the events at Rockville, the

      Estate’s brief expressly stated that “[t]his appeal is brought only against Dr.

      Raham and Nurse Practitioner Pinkston.” Appellant’s Br. at 16. Regarding the

      events at Madison, the Estate’s brief says: “This appeal is brought only against

      Dr. Hinchman and Nurse Practitioner Antle.” Id. at 20. Regarding the events

      at the Indiana Women’s Prison and thereafter, the brief states: “This appeal is

      brought only against Dr. Rains, Nurse Grimes, and Nurse Icenogle.” Id. at 29.

      And the Estate’s description of the systemic and gross deficiencies that were the

      basis of its remaining claim against Corizon makes no mention of Dr. Mitcheff.

      See id. at 35-41. In other words, we addressed the appeal as presented, and the

      Estate’s omission from its original briefing is not grounds for relief after the fact.

      It is well established that a party may not raise an argument for the first time on

      rehearing. Clark Cty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 679 (Ind. Ct. App.

      2012) (citing Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. App. 2008),

      trans. denied).


[4]   Second, it is not disputed by the parties on rehearing that, during the course of

      the trial court proceedings, the Estate’s theory of liability against Corizon under

      42 U.S.C. § 1983 was a theory of direct liability, not a theory of liability under

      the doctrine of respondeat superior. Direct liability against an employer under §

      Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020   Page 3 of 4
      1983 for deliberate indifference may exist if the facts show systemic and gross

      deficiencies such that the inmate population is effectively denied access to

      adequate medical care. Id. at *17. Our holding against Corizon was that the

      designated evidence, which was and is available against Corizon, met that

      standard. Id. Accordingly, we clarify our holding to be that the Estate’s theory

      against Corizon is for direct liability under § 1983, not liability under the

      doctrine of respondeat superior.


[5]   In all other respects, we affirm our opinion.


      Vaidik, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020   Page 4 of 4
