United States District Court, N.D. Indiana, South Bend Division
DAVID R. NEAL, Plaintiff,
CORIZON, et. al., Defendants.
OPINION AND ORDER
L. MILLER, JR. JUDGE
R. Neal, a pro se prisoner, filed a complaint
against Dr. Noie J. Marandet, Kim Myers and Corizon arising
out of the medical treatment he received at the Westville
Correctional Facility. The court must review 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. 28 U.S.C. § 1915A(a), (b).
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, or any portion of a complaint, for
failure to state a claim upon which relief may be granted.
Courts apply the same standard under § 1915A as when
addressing a motion under Rule 12(b)(6). Lagerstrom v.
Kingston, 463 F.3d 621, 624 (7th Cir. 2006). In deciding
whether the complaint states a claim, the court must bear in
mind that “[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). To state a claim
under § 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). A 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).
Neal makes two complaints about the medical treatment he is
getting at Westville. First, he complains that he isn't
receiving a Harvone Treatment for his Hepatitis-C. Though Dr.
Marandet and Kim Myers told him that he is a candidate for
Harvoni, he claims that “Corizon refuses to give me
this treatment.” (DE 5 at 3.) He alleges that not
receiving Harvoni violates his constitutional rights.
medical cases, the constitution is violated only when a
defendant was deliberately indifferent to an inmate's
serious medical needs. “[C]onduct 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) (quotation marks, brackets, and citation omitted).
A “disagreement with medical professionals [does not]
state a cognizable Eighth Amendment Claim under the
deliberate indifference standard of Estelle v.
Gamble [429 U.S. 97 (1976)].” Ciarpaglini v.
Saini, 352 F.3d 328, 331 (7th Cir. 2003). “For a
medical professional to be liable for deliberate indifference
to an inmate's medical needs, he 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) (quotation
marks and citations omitted).
Neal hasn't alleged any facts demonstrating that any
defendant was deliberately indifferent to his medical needs.
the complaint reflects that Dr. Marandet and Kim Myers
examined Mr. Neal and told him he was a candidate to receive
Harvoni. Mr. Neal doesn't provide any additional facts
alleging that they were indifferent to his need for Harvoni.
He doesn't say whether they prescribed him that
medication (or a suitable alternative), denied him that
medication, or otherwise knew that he needed that medication
but wasn't receiving it. Instead, Mr. Neal blames
Corizon, the private company which provides medical care at
the prison, for his not receiving Harvoni. It appears he is
trying to hold Corizon liable simply because someone at
Westville denied him Harvoni. There is no general liability
of an employer under 42 U.S.C. § 1983 for an
employee's actions. Johnson v. Dossey, 515 F.3d
778, 782 (7th Cir. 2008) (“[A] private corporation is
not vicariously liable under § 1983 for its
employees' deprivations of others' civil
rights.”). The complaint doesn't plausibly allege
that any of the named defendants have violated Mr. Neal's
Eighth Amendment rights.
Mr. Neal had plausibly alleged an Eighth Amendment violation,
he is unsure whether he ever filed a prison grievance with
respect to not receiving Harvoni. This could be fatal to any
claim he may have. Under the Prison Litigation Reform Act,
prisoners are prohibited from bringing an action in federal
court with respect to prison conditions until “such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). If Mr. Neal
didn't take advantage of the available administrative
remedies, he must do so before he can proceed on this claim
here. See Ford v. Johnson, 362 F.3d 395, 401 (7th
Mr. Neal alleges that he has chronic leg problems that have
required medical care since 1999. He complains that he is
charged a $5 co-pay for each medical appointment. Mr. Wilson
submitted a grievance in an attempt to obtain treatment
without paying an additional co-pay, which was denied. Mr.
Neal's allegations do not state an Eighth Amendment
claim. Mr. Neal doesn't allege, and it cannot be
reasonably inferred from the complaint, that anyone denied
Mr. Wilson medical treatment for his legs. Instead, Mr.
Neal's complaint is that he isn't being provided free
care for the treatment of his legs. Although the constitution
guarantees necessary medical care, but not free medical care,
for inmates. See City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 245 n.7 (1983). Mr. Neal doesn't allege
that he was denied care because he couldn't afford to pay
for it, only that as a matter of principle he should not have
been charged. This does not state an Eighth Amendment claim.
the complaint does not state a claim, it might be possible
for Mr. Neal to present additional facts that would state a
claim against some defendant based on not receiving Harvoni
for his Hepatitis-C, so the court gives him the opportunity
to file an amended complaint. See Luevano v.
Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). Any amended
complaint must explain how each defendant was personally
involved and what that defendant did (or didn't do) which
makes that defendant liable to him. Any amended complaint
also needs to provide when these events occurred and needs to
describe what injuries he has suffered. Mr. Neal also needs
to address whether he exhausted his administrative remedies.
foregoing reasons, the court:
(1) DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint form and send it to David R. Neal; and
(2) GRANTS Mr. Neal until April 3, 2017, to file an amended
Neal doesn't respond by that deadline, this case will be
dismissed without further notice because his current
complaint does not state a claim.