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Kelly v. Mitcheff

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

February 18, 2015

RICHARD LARRY KELLY, Plaintiff,
v.
MD MIKE MITCHEFF, Defendant.

OPINION AND ORDER

RUDY LOZANO, District Judge.

This matter is before the Court on the amended complaint filed pursuant to 42 U.S.C. § 1983 by Richard Larry Kelly, a pro se prisoner, on April 9, 2014. For the reasons set forth below, the court: (1) GRANTS Richard Larry Kelly leave to proceed against Dr. Mike Mitcheff in his individual capacity, for compensatory damages, for enforcing seven policies which caused his treating physicians to provide him with medical treatment in violation of the Eighth Amendment; (2) GRANTS Richard Larry Kelly leave to proceed against Dr. Mike Mitcheff in his official capacity, for injunctive relief to obtain medical treatment consistent with the Eighth Amendment; and (3) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Dr. Mike Mitcheff respond to the amended complaint (DE 52), as provided for in the Federal Rules of Civil Procedure and N.D. IND. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this screening order.

BACKGROUND

Kelly alleges that Dr. Mitcheff, as the Regional Medical Director of Corizon Medical Services, is violating the Eighth Amendment by denying him medical care through the enforcement of seven policies:

1. Use of (only) A&C dose medication, "supplying pain meds only twice daily."
2. Use of formulary medications.
3. Use of (approved care system) by secondary physician.
4. Denial of immediate access to specialist appointments once prescribed.
5. Denial of long term care due to financial cost of care.
6. Denial to provide appropriate climate controlled living area.
7. Denial of treatment ordered/suggested by specialist.

(DE 52 at 3.) He is seeking monetary damages and a permanent injunction.

DISCUSSION

"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). However, pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. "In order to state a claim under § 1983 a plaintiff must allege: (1) that ...


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