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Swann v. Brubaker

United States District Court, N.D. Indiana, South Bend Division

January 8, 2015

TERRANCE D. SWANN, Plaintiff,
v.
BARBARA A. BRUBAKER, et al., Defendants.

OPINION AND ORDER

ROBERT L. MILLER, Jr., District Judge.

Terrance D. Swann, a pro se prisoner, submitted an amended complaint under 42 U.S.C. § 1983. (DE 12.) The court must review the complaint and dismiss it if the action is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b). The complaint must state a claim for relief that is plausible on its face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 603. In other words, the plaintiff "must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law." Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). A pro se complaint is entitled to liberal construction, "however inartfully pleaded." Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Mr. Swann is an inmate at the Westville Correctional Facility ("Westville). He was initially seen by Dr. Joseph M. Thompson on June 25, 2013, complaining of three lumps on his testicles that caused him pain and disrupted his urine flow. Dr. Thompson prescribed the medication Cardura. In August 2013, Mr. Swann began experiencing side effects from the Cardura, which included fatigue, chest pains, stomach pains, pains in his rectum, blood in his stool, digestion complications and breath and body odor. These side effects continue to this date. Mr. Swann alleges Nurse Practitioner Brubaker continued to prescribe him Cardura even though he reported it was causing him extreme pain and complications.

Mr. Swann says that from March 2014 to August 2014, he made several health care requests surrounding his side effects from taking Cardura that went unanswered. He alleges that because he had previously filed complaints and grievances against Nurses Bigheart and Moore, these nurses intentionally disregarded his health care requests, which resulted in delayed medical treatment.

During this time, Mr. Swann asserts he was verbally harassed by Nurse Bigheart, Officer Baity, Officer Larson and Officer Williams, due to his body odor. They would make comments about how Mr. Swann "stinks" and would also make gestures, such as turning up their noses as they walked by Mr. Swann.

Mr. Swann made his complaints known to prison officials. He wrote to Health Care Administrator, DeAngela Boyn, and complained about Nurse Bigheart's verbal harassment. He also complained to Indiana Department of Corrections Commissioner, Bruce Lemmon, that the prison staff wouldn't provide him with any form of odor control. Mr. Swann further complained to Captain Reeves, custody supervisor in the Westville Control Unit, and Mr. Lowry, Complex Director of the Westville Control Unit, about being harassed by officers, and not receiving requested medical care. None of these people resolved Mr. Swann's complaints about officer and medical staff misconduct.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: "(1) that defendants deprived him of a federal constitutional right; and (2) that the defendants acted under color of state law." Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Swann first alleges being denied proper medical care under the Eighth Amendment, due to Nurse Practitioner Brubaker continuing to prescribe Cardura.

Inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must satisfy both an objective and subjective component by showing: (1) his medical need was objectively serious; and (2) the defendant acted with deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is "serious" if it is one that a physician has diagnosed as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). "Conduct 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. Farnham, 394 F.3d 469, 478 (7th Cir. 2005). For a medical professional to be liable under the Eighth Amendment for deliberate indifference to an inmate's medical needs, he or she must make a decision that represents "such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment." Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008).

The complaint can be read to allege that Nurse Practitioner Brubaker failed or refused to change Mr. Swann's prescription medication of Cardura even though it was making his condition worse. The Eighth Amendment doesn't entitle an inmate to a specific form of treatment, prison medical staff can't simply continue with a course of treatment that is known to be ineffective. Greeno v. Daley, 414 F.3d at 654-55. Giving Mr. Swann the inferences to which he is entitled at this stage, he has alleged an Eighth Amendment claim against Nurse Brubaker.

Mr. Swann also seeks injunctive relief, requiring Westville to provide him with some sort of body odor control. Mr. Swann's body odor isn't an objectively serious medical need. There is no allegation that his body odor caused him any pain. Instead, it is more akin to a hygiene problem. An Eighth Amendment claim for lack of hygiene items requires a denial of the "minimal civilized measure of life's necessities." Townsend v. Fuchs, 522 F.3d 765, 774 (7th Cir. 2008). Mr. Swann doesn't allege he was deprived of any basic hygiene materials. Instead, he complains that he was not given something special to alleviate his body odor. This isn't a denial of "life's necessities" and doesn't rise to the level of a constitutional claim.

Mr. Swann next alleges that Nurses Bigheart and Moore violated the Eighth Amendment by ignoring many of his health care request forms because he had filed grievances against both of them. Mr. Swann says this produced a delay in treatment, which has caused him to suffer for a prolonged period of time. A delay in providing treatment can constitute deliberate indifference when it causes unnecessary pain or suffering. Arnett v. Webster, 658 F.3d 742, 752-53 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008). Mr. Swann has alleged an Eighth Amendment claim against Nurses Bigheart and Moore.

Mr. Swann also brings suit against Nurse Bigheart, and Officers Baity, Larson and Wilson due to their verbal harassment and making gestures regarding Mr. Swann's body odor. Such conduct might be unprofessional, but it doesn't give rise to a constitutional claim. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) ("[S]imple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws."). These claims must be dismissed.

Mr. Swann brings suit against DeAngela Boyd, Captain Reeves, Mr. Lowry, and Bruce Lemmon for failing to properly investigate Mr. Swann's claims. Mr. Swann doesn't allege, and it's unreasonable to infer from the complaint, that any of these officials played a direct role in the providing of medical care. Mr. Swann asserts that they had personal involvement sufficient to trigger liability under Section 1983 because he sent them letters complaining about his treatment. "Section 1983 does not establish a system of vicarious responsibility" and "public employees are responsible for their own misdeeds but not for anyone else's." Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009).

Bureaucracies divide tasks; no prisoner is entitled to insist that one employee do another's job. The division of labor is important not only to bureaucratic organization but also to efficient performance of tasks; people who stay within their roles can get more work done, more effectively, and cannot be hit with damages under §1983 for not being ombudsmen. [The] view that everyone who knows about a prisoner's problem must pay damages implies that [a prisoner] could write letters to the Governor of Wisconsin and 999 other public officials, demand that every one of those 1, 000 officials drop everything he or she is doing in order to investigate a single prisoner's claims, and then collect damages from all 1, 000 recipients if the letter-writing campaign does not lead to better medical care. ...

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