United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE
Haggard, a prisoner without a lawyer, filed a complaint
against Dr. Jackson and Wexford Nursing, because he believes
the care he has received for his right wrist while
incarcerated at the Westville Correctional Facility was
inadequate. 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, I 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.
complaint, Haggard reports that, in July 2016, while he was
housed at the Wabash Correctional Facility, he contracted a
serious bone infection. ECF 1 at 2. He had emergency surgery
to stop the infection from spreading throughout his body,
however, the infection damaged his right wrist. Id.
Haggard states he was supposed to return to the orthopedic
surgeon in March 2018 to have pins and plates put in his
right wrist, but he was transferred to the Westville
Correctional Facility before the appointment was made.
Id. Once he arrived at Westville, he was told an
appointment would be made with Dr. Jackson. Id.
However, because that did not happen, he filled out a sick
call slip to see Dr. Jackson. Id. Dr. Jackson
examined Haggard's right wrist in July 2018, and told
Haggard he did not need an appointment with the orthopedic
surgeon because there was nothing wrong with his wrist. ECF 1
at 2. However, Haggard claims that since his July 2018
appointment, he has had a lot of pain and swelling in his
wrist but Dr. Jackson has refused to schedule an appointment
with his orthopedic surgeon. Id. at 2-3.
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 v. Brennan, 511 U.S. 825, 834 (1994). 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). Deliberate
indifference means 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).
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). However, “[n]egligence on the part of an
official does not violate the Constitution, and it is not
enough that he or she should have known of a risk. Instead,
deliberate indifference requires evidence that an official
actually knew of a substantial risk of serious harm and
consciously disregarded it nonetheless.” Pierson v.
Hartley, 391 F.3d 898, 902 (7th Cir. 2004) (citations
omitted). It is not enough to show that a defendant merely
failed to act reasonably. Gibbs v. Franklin, 49 F.3d
1206, 1208 (7th Cir. 1995). Even incompetence does not state
a claim of deliberate indifference. Walker v.
Peters, 233 F.3d 494 (7th Cir. 2000).
a delay in providing treatment can constitute deliberate
indifference when it causes unnecessary pain or suffering.
Arnett v. Webster, 658 F.3d 742, 752-53 (7th Cir.
2011); Grieveson v. Anderson, 538 F.3d 763, 779 (7th
Cir. 2008). Accepting Haggard's allegations as true and
giving him the benefit of the inferences to which he is
entitled, as I must at this stage of the proceedings, he has
alleged facts from which it can be inferred that Dr. Jackson
was deliberately indifferent to his serious medical needs by
refusing to provide Haggard with appropriate follow-up
treatment for his wrist.
also names Wexford Nursing or Wexford of Indiana, the private
company which provides medical care at the prison, as a
defendant. While Haggard does not explicitly state why he has
named Wexford Nursing as a defendant, it appears he may be
attempting to hold Wexford liable because it employs the
prison's medical staff. However, Wexford is not
vicariously liable for the actions of its employees under 42
U.S.C. § 1983. Chavez v. Illinois State Police,
251 F.3d 612, 651 (7th Cir. 2001); see also 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.”). Because Haggard's complaint against
Wexford appears to be based only on Wexford's medical
staff's decisions related to the care of his right wrist,
I will dismiss Wexford as a defendant.
complaint also includes a state law claim for medical
malpractice against Dr. Jackson. ECF 1 at 3. Under Indiana
law, medical malpractice claims are governed solely by the
Indiana Medical Malpractice Act. Jeffries v. Clark
Mem'l Hosp., 832 N.E.2d 571, 573 (Ind.Ct.App. 2005).
“Before a medical malpractice action may be commenced
in any court of [Indiana], the Medical Malpractice Act
requires that a proposed complaint be presented to a medical
review panel and an opinion rendered by the panel.”
H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853
(Ind.Ct.App. 2008); Ind. Code § 34-18-8-4. Haggard
offers no indication that he complied with the Indiana
Medical Malpractice Act. Therefore, I cannot permit Haggard
to proceed on his medical malpractice claim against Dr.
GRANTS James Haggard leave to proceed against Dr. Jackson in
his individual capacity for compensatory and punitive damages
for deliberate indifference to his serious medical need for
adequate follow-up treatment for his damaged right wrist, in
violation of the Eighth Amendment;
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Dr. Jackson at the Westville
Correctional Facility with a copy of this order and the
complaint, pursuant to 28 U.S.C. § 1915(d);
DISMISSES Wexford Nursing;
DISMISSES all other claims; and
ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Dr.
Jackson respond, as provided for in the Federal Rules of
Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claim
for which the ...