United States District Court, N.D. Indiana, South Bend Division
DAVID R. NEAL, Plaintiff,
OPINION AND ORDER
L. Miller, Jr. Judge
R. Neal, a pro se prisoner, originally 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 found that his
original complaint didn't state a plausible claim, but
gave Mr. Neal leave to file an amended complaint in the
spirit of Luevano v. Wal-Mart, 722 F.3d 1014 (7th
Cir. 2013). Mr. Neal has now filed his amended complaint.
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). To survive a motion to dismiss under Rule 12(b)(6), 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). In determining 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). In order 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
Neal, an inmate at Westville, has two complaints about his
medical treatment. First, he complains that he isn't
getting a Harvoni Treatment for his Hepatitis-C. He says that
Dr. Marandet and Kim Myers told him that he is a candidate
for Harvoni, but Corizon refuses to give him this treatment.
He believes that not receiving Harvoni violates his
constitutional rights. Mr. Neal admits that he did not
exhaust his administrative remedies with respect to this
claim before filing suit. Mr. Neal explains that he initiated
the grievance process but hasn't yet exhausted it; he is
still awaiting a response from the final level of review.
This allegation makes clear that a grievance process is
available at the prison, but that Mr. Neal hadn't
completed it before filing this case.
the Prison Litigation Reform Act (“PLRA”),
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). Although the
failure to exhaust is an affirmative defense, dismissal at
this stage is appropriate if the defense is
“unmistakable” and “apparent from the
complaint itself.” Walker v. Thompson, 288
F.3d 1005, 1010 (7th Cir. 2002); see also Cancer Found.,
Inc. v. Cerberus Cap. Mgmt., LP, 559 F.3d 671, 674 (7th
Cir. 2009) (dismissal on the basis of an affirmative defense
is appropriate when the plaintiff pleads himself out of
court). Mr. Neal's complaint meets this standard.
isn't optional; it's a mandatory prerequisite to
filing suit over prison conditions. Woodford v. Ngo,
548 U.S. 81, 85 (2006). To satisfy the exhaustion
requirement, “a prisoner must file complaints and
appeals in the place, and at the time, the prison's
administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
“[U]nless the prisoner completes the administrative
process by following the rules the state has established for
that process, exhaustion has not occurred.”
Id. at 1023. Mr. Neal simply chose to file this
lawsuit before his prison administrative process was
completed. Because it is apparent from the complaint that Mr.
Neal hasn't exhausted his available administrative
remedies before filing this lawsuit, Section 1997e(a)
requires that this claim be dismissed without prejudice.
See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
2004) (noting that “it is essential to keep the
courthouse doors closed until those efforts have run their
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. Neal
has exhausted his administrative remedies with respect to
this claim, but his allegations don't state an Eighth
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 doesn't allege, and it cannot be reasonably inferred
from the complaint, that anyone denied him medical treatment
with regards to his leg problems. Instead, Mr. Neal's
complaint is that he isn't getting free care for the
treatment of his legs. The Constitution guarantees that
inmates receive necessary medical care, but it doesn't
guarantee free medical care. 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 could
not afford to pay for it, only that as a matter of principle
he shouldn't have been charged. This does not state an
Eighth Amendment claim.
foregoing reasons, Mr. Neal's claim about not receiving
Harvoni is DISMISSED WITHOUT PREJUDICE pursuant to 42 U.S.C.
§ 1997e(a) and his claim regarding having to pay for
treatment is DISMISSED WITH PREJUDICE ...