United States District Court, N.D. Indiana, South Bend Division
TODD A. BEBOUT, Plaintiff,
DR. LIAW, MD, Defendant.
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT.
Bebout, a prisoner without a lawyer, has finally filed a
second amended complaint (ECF 22-1) after a long delay. His
original complaint (ECF 1) filed in June 2016 and his first
amended complaint (ECF 10) filed in September 2016 both
alleged Dr. Liaw was denying him medical treatment, but
lacked sufficient facts to state a claim. As a result, he was
granted leave to amend pursuant to Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014 (7th Cir. 2013). Bebout
asked for extended enlargements of time (ECF 12 and 18) and
this case remained stayed waiting for him to proceed. Finally
he was ordered to file an amended complaint (ECF 20) because
further delay would prejudice the defendant.
second amended complaint, Bebout alleges Dr. Liaw has denied
him proper medical treatment at the Westville Correctional
Facility for his “Spinal Scoliosis as well as
Degenerative Disk Disease” (ECF 22-1 at 7) (emphasis
omitted) since October 2014. A filing by an unrepresented
party “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). Nevertheless,
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.
medical professional to be held liable for deliberate
indifference to a serious medical need, the decision must be
“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). Here, Bebout alleges Dr. Liaw
told him he was prescribing medication, but frequently did
not do so. He also alleges his prescribed medication was
repeatedly allowed to expire without being renewed. Though
the second amended complaint is thin on details about when,
how often, or why these events occurred, it nevertheless
states a claim against Dr. Liaw.
is seeking both monetary damages and injunctive relief.
However, he is no longer at the Westville Correctional
Facility. On January 3, 2018, he was transferred to the
Wabash Valley Correctional Facility. ECF 23. Therefore his
injunctive relief claim is moot. See Higgason v.
Farley, 83 F.3d 807, 811 (7th Cir. 1996) (quotation
marks and citation omitted) (“If a prisoner is
transferred to another prison, his request for injunctive
relief against officials of the first prison is moot unless
he can demonstrate that he is likely to be
retransferred.”). Therefore he will be granted leave to
proceed only for monetary damages.
also names Corizon Health Medical, Inc., and Wexford of
Indiana, LLC. “Private corporations acting under color
of state law may, like municipalities, be held liable for
injuries resulting from their policies and practices.”
Hahn v. Walsh, 762 F.3d 617, 640 (7th Cir. 2014)
(quoting Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 675 (7th Cir. 2012)). However, “[a]
municipality may not be held liable under § 1983 based
on a theory of respondeat superior or vicarious
liability.” Jenkins v. Bartlett, 487 F.3d 482,
492 (7th Cir. 2007). Thus, to state a claim against either of
these companies, Bebout must allege “(1) an express
policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not
authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage
with the final force of law; or (3) an allegation that the
constitutional injury was caused by a person with final
policymaking authority.” Lewis v. City of
Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quotation
marks omitted). Here, he has not done so. Rather, he merely
speculates he was denied treatment to save money for the
companies, but he has not alleged facts which plausibly
support that claim. Legal conclusions can provide a
complaint's framework, but unless well-pleaded factual
allegations move the claims from conceivable to plausible,
they are insufficient to state a claim. Ashcroft v.
Iqbal, 556 U.S. 662, 680 (2009) (citing
Twombly, 550 U.S. at 556). Therefore the two
corporate defendants will be dismissed.
Bebout filed a motion (ECF 22) asking to file the second
amended complaint. However this was unnecessary because he
was ordered (ECF 20) to file it.
these reasons, the court:
DENIES the motion to amend (ECF 22) as MOOT;
DIRECTS the clerk to separately docket the second amended
complaint (ECF 22-1);
GRANTS Todd A. Bebout leave to proceed against Dr. Liaw, MD,
in his individual capacity for compensatory and punitive
damages for denying him proper medical treatment for spinal
scoliosis and degenerative disk disease at the Westville
Correctional Facility from October 2014 to January 3, 2019,
by not prescribing medication he told Bebout would be
prescribed and by repeatedly allowing his prescriptions to
expire without being renewed in violation of the Eighth
DISMISSES all other claims;
DISMISSES Corizon Health Medical, Inc., and Wexford of
DIRECTS the clerk and the United States Marshals Service, as
required by 28 U.S.C. § 1915(d), to issue and serve
process with a copy of this order ...