United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Ortiz, Jr., a prisoner without a lawyer, filed a complaint
alleging that he has been denied necessary dental care at the
Westville Correctional Facility in violation of the Eighth
Amendment. 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.
alleges that on March 14, 2018, he visited Dr. Pearcy, the
dentist at Westville, to have a cavity filled. Dr. Pearcy
along with his dental assistant Ms. Coros worked to fill the
cavity in Ortiz's tooth. Twenty minutes later, the
filling fell out. Prison officials called the dentist's
office and told them of the problem with Ortiz's filling.
An unidentified individual at the dentist's office said
that they would reschedule Ortiz to be seen the following
day. However, that did not happen. Ortiz was not scheduled to
see Dr. Pearcy until April 16, 2018, when Dr. Pearcy
re-filled the cavity. However, later that same evening the
filling fell out. Since then, Ortiz has unsuccessfully tried
to have Dr. Pearcy repair his tooth. Ortiz requested that his
tooth be extracted and replaced with dentures, but Dr. Percy
told Ortiz that he did not need dentures. Following that
encounter, Ortiz has submitted numerous health care request
forms and grievances. Dr. Pearcy has not responded to any of
Ortiz's numerous requests. As a result of his tooth not
being repaired, Ortiz suffers pain when he eats. Ortiz sues
Dr. Pearcy, Ms. Coros, Warden Mark Sevier and Wexford for
both money damages and injunctive relief.
the Eighth Amendment, 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, 511 U.S. at 834. 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). On the subjective prong, the
plaintiff must establish that the defendant “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
held liable 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). Furthermore,
a delay in providing treatment can constitute deliberate
indifference when it causes unnecessary pain. Arnett v.
Webster, 658 F.3d 742, 752-53 (7th Cir. 2011);
Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.
to the allegations in the complaint, Ortiz made Dr. Pearcy
aware that his second filling came out and that he was in
extreme pain. However, no appointment was ever made, and Dr.
Pearcy did nothing to help him. These allegations state a
claim against Dr. Pearcy for deliberate indifference to his
need for dental treatment. Accordingly, Ortiz will be
permitted to proceed against Dr. Pearcy for monetary damages
and injunctive relief.
Ortiz's allegations against the other defendants do not
state a constitutional claim. To start, Ortiz alleges that
Ms. Coros was simply present and assisted Dr. Pearcy while
filling Ortiz's cavity on two occasions. These
allegations do not describe deliberately indifferent conduct.
At most, the allegations show that she did not do a very good
job. But, negligence - even gross negligence - does not
violate the Constitution. Lee v. Young, 533 F.3d
505, 509 (7th Cir. 2008). Next, Ortiz does not
allege facts to suggest that Warden Sevier was personally
involved or knew about his need for dental care. He alleges
only that the warden should be liable for the dentist's
actions. However, that is not the case. “§ 1983
lawsuits against individuals require personal involvement in
the alleged constitutional deprivation to support a viable
claim.” Palmer v. Marion Cty., 327
F.3d 588, 594 (7th Cir. 2003). “[P]ublic employees are
responsible for their own misdeeds but not for anyone
else's.” Id. at 596; Moore v. State of
Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993) (noting the
doctrine of respondeat superior has no application
to § 1983 actions). Finally, he sues Wexford, the
medical provider at Westville. “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). Ortiz does
not include any allegations from which it can be plausibly
inferred that Wexford had an unconstitutional practice or
policy that caused his injury. Instead, the gist of
Ortiz's claim is that Dr. Pearcy failed to give proper
care to him for his dental needs. Accordingly, Ortiz has not
plausibly alleged a claim against Wexford.
Ortiz's complaint contains a request for a preliminary
injunction, although he did not file a separate motion, as
required by this court's local rules. See N.D.
Ind. L.R. 65-1 (“The court will
consider requests for preliminary injunctions only if the
moving party files a separate motion for relief.”).
Ortiz asks that the court order Dr. Pearcy to refrain from
treating him and instead refer him to an outside dentist. ECF
2 at 4. As already explained, Ortiz may proceed against Dr.
Pearcy on an injunctive relief claim. So, Dr. Pearcy is the
proper party to respond to the motion for a preliminary
injunction. The court will defer ruling on Ortiz's
request for a preliminary injunction until the Dr. Pearcy has
filed a declaration in response to this request and Ortiz has
had an opportunity to reply.
these reasons, the court:
GRANTS Valentin Ortiz, Jr., leave to proceed against Dr.
Pearcy in his individual capacity for compensatory and
punitive damages for failing to provide Ortiz with adequate
dental care while housed at the Westville Correctional
Facility, in violation of the Eighth Amendment;
GRANTS Valentin Ortiz, Jr., leave to proceed against Dr.
Pearcy for injunctive relief to provide Ortiz with adequate
dental care, as required by the Eighth Amendment;
DISMISSES all other claims;
DISMISSES Wexford, Warden Mark Sevier and Ms. Coros;
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Dr. Pearcy at the Indiana
Department of Correction with a copy of this order and the
complaint (ECF 2), pursuant to 28 U.S.C. § 1915(d);
ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Dr.
Pearcy to respond, 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 ...