United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DEGUILIO JUDGE.
Orr, a prisoner without a lawyer, filed a complaint listing
eleven counts against seven defendants. He alleges his left
elbow was diagnosed with a mild fracture and displacement
around October 6, 2017. He alleges he has not been given
proper medical treatment for his left elbow. 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.
Count One, Orr alleges Warden Sevier, Dr. Liaw, and Captain
Carter forced him to be handcuffed behind his back on
numerous occasions from October 21, 2017, to January 1, 2019,
despite his need for special accommodations because of the
injury to his left elbow. As a result, he alleges he suffered
unnecessary pain and permanent physical injury. The
“core requirement” for an excessive force claim
is that the defendant “used force not in a good-faith
effort to maintain or restore discipline, but maliciously and
sadistically to cause harm.” Hendrickson v.
Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (internal
citation omitted). Here, because Orr alleges these defendants
knew he needed special accommodations for his injured elbow,
his allegation that they forced him to be handcuffed behind
his back and knowingly caused him injury states a claim for a
violation of the Eighth Amendment. However, Orr also alleges
these defendants did not implement policies needed to
properly monitor and provide medical care to other inmates.
This is not a class action and Orr may not represent the
interests of other inmates. See Malone v. Nielson,
474 F.3d 934, 937 (7th Cir. 2007); Navin v. Park Ridge
Sch. Dist., 270 F.3d 1147, 1149 (7th Cir. 2001); and
Nowicki v. Ullsvik, 69 F.3d 1320, 1325 (7th Cir.
1995). Therefore those allegations in Count One do not state
Count Two, Orr alleges Warden Sevier, Nurse Lewis, and
Captain Carter “condon[ed] the oppressive acts of [Dr.]
Liaw, [Physical Therapist] Bates, [Nurse] Hutchison, and
Wexford [Corporation] . . ..” ECF 13 at 14. However,
there is no general respondeat superior liability under 42
U.S.C. § 1983. Burks v. Raemisch, 555 F.3d 592,
594 (7th Cir. 2009). “[P]ublic employees are
responsible for their own misdeeds but not for anyone
else's.” Id. at 596. “Only persons
who cause or participate in the violations are
responsible.” George v. Smith, 507 F.3d 605,
609 (7th Cir. 2007). Here, Orr has not alleged facts from
which it can be plausibly inferred that Warden Sevier, Nurse
Lewis, and Captain Carter were personally involved in any of
the actions or omissions of Dr. Liaw, Physical Therapist
Bates, Nurse Hutchison, or Wexford Corporation. Therefore,
the allegations in Count Two do not state a claim.
Count Three, Orr alleges Dr. Liaw and Physical Therapist
Bates “fabricat[ed] health records to . . . to derive
[him] of his access to further medical tests and appropriate
medications . . ..” ECF 13 at 14-15. In Count Four, Orr
alleges Dr. Liaw and Physical Therapist Bates
“creat[ed] inaccurate medical records to impede [his]
access to off-site referrals, further diagnostic testing, . .
. medical exams, and adequate mediation for nerve pain . .
..” ECF 13 at 15. 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). Here, because
Orr alleges these medical professionals knowingly falsified
his medical records to prevent him from obtaining proper
medical treatment from others, these allegations state a
claim for a violation of the Eighth Amendment.
Count Five, Orr alleges Dr. Liaw and Physical Therapist Bates
“prolong[ed] waits for practitioner and physical
therapy appointments . . . to cause harm, and . . . pain . .
..” ECF 13 at 15. These allegations state a claim that
these two defendants acted outside of accepted professional
standards in violation of the Eighth Amendment.
Count Six, Orr alleges Nurse Hutchison and Nurse Lewis
“fail[ed] to schedule timely sick call appointments for
[him] and withh[eld] non-prescribed pain relievers [on] Nov.
12, 2017, Nov. 14, 2017; Nov. 21, 2017, Feb. 8, 2018, Feb.
23, 2018, May 15, 2018, May 28, 2018, June 5, 2018, June 12,
2018, July 16, 2018, July 16, 2018, August 10, 2018, December
31, 2018, [and] January 15, 2019, . . . maliciously . . . to
cause harm, and . . . pain . . ..” ECF 13 at 16. These
allegations state a claim that these two defendants acted
outside of accepted professional standards in violation of
the Eighth Amendment.
Count Seven, Orr alleges Wexford, a private company that
provides medical care to inmates, has six policies which
resulted in his being denied needed medical treatment for his
left elbow: Health Care Records, HCSD-1.34; Access to Care,
HCSD-2.04; Waiting List, HCSD-2.33; Medication Management,
HCSD-2.17; Off-site Medical, Hospital, and Specialty Care
Referrals, A1.05, and Health Evaluation of Offenders in
Segregation, HCSD 2.25. A private company may be held liable
for constitutional violations when it performs a State
function. West v. Atkins, 487 U.S. 42 (1988). A
private company providing medical care in a prison performs a
State function and can be held liable under the standard
established in Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658 (1978). Rice v. Corr. Med.
Servs., 675 F.3d 650, 675 (7th Cir. 2012). Here, these
allegations state a Monell claim against Wexford for
enforcing six policies which denied Orr needed medical
treatment for his left elbow.
Count Eight, Orr alleges Warden Sevier, Dr. Liaw, and Captain
Carter violated the Americans with Disabilities Act (ADA) and
the Rehabilitation Act by not adopting policies permitting
him to avoid being handcuffed behind his back because of his
injured left elbow. In Count Nine, he alleges Wexford
Corporation, Dr. Liaw, and Physical Therapist Bates violated
those Acts by not enforcing policies to accurately diagnose
and prescribe medication for his suspected nerve damage. As
explained in Jaros v. Illinois Dep't of Corr.,
684 F.3d 667, 671-72 (7th Cir. 2012), the relief available
under the ADA and the Rehabilitation Act are coextensive and
in the prison context it is better to apply the
Rehabilitation Act alone. To state a claim under the
Rehabilitation Act, Orr “need only allege that (1) he
is a qualified person; (2) with a disability and (3) the
Department of Corrections denied him access to a program or
activity due to his disability.” Jaros v. Ill.
Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012).
Here, Orr's allegations about his injured left elbow meet
the first two prongs of the test. However, none of his
allegations meet the third prong. Orr does not allege he is
being denied access to a program or activity because of his
injured elbow. Therefore these allegations do not state a
claim. See also Bryant v. Madigan, 84 F.3d 246, 249
(7th Cir. 1996) (“The ADA does not create a remedy for
Count Ten, Orr alleges Dr. Liaw, Captain Carter, and Warden
Sevier violated 42 U.S.C. § 1985 by conspiring to
withhold adequate medical treatment. Section 1985
“prohibits a conspiracy . . . motivated by racial, or
other class-based discriminatory animus.” Smith v.
Gomez, 550 F.3d 613, 617 (7th Cir. 2008). Here, Orr does
not allege he was discriminated against because of his race.
To the extent he is alleging he was discriminated against
because of his injured elbow, disability is not a protected
class under Section 1985. D'Amato v. Wisconsin Gas
Co., 760 F.2d 1474, 1486 (7th Cir. 1985) (“Being
handicapped is not a historically suspect class such as race,
national origin, or sex . . ..”). Therefore these
allegations do not state a claim.
Count Eleven, Orr attempts to bring an “Indiana state
law claim for indemnification against Wexford of Indiana, LLC
and Warden Mark Sevier . . . for any and all future awards
and judgments against the Defendants . . ..” ECF 13 at
17-18. However, indemnification is not a basis for a claim by
a plaintiff. An action for indemnification “will lie
only where a party . . . has been compelled to pay damages
due to the wrongful conduct of another for which he is
constructively liable.” Underwood v. Fulford,
___ N.E. 3d ___, ___, 2019 WL 2701345, at *4 (Ind.Ct.App.
June 28, 2019) quoting Rotec v. Murray Equip., Inc.,
626 N.E.2d 533 (Ind.Ct.App. 1993). Therefore these
allegations do not state a claim.
Orr seeks injunctive relief. He wants to be examined by an
off-site neurologist and receive adequate medical care for
his chronic elbow pain. Under the Eighth Amendment, inmates
are entitled to adequate medical care. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). Inmates are not,
however, “entitled to demand specific care” or
“the best care possible.” Forbes v.
Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
The PLRA circumscribes the scope of the court's authority
to enter an injunction in the corrections context. Where
prison conditions are found to violate federal rights,
remedial injunctive relief must be narrowly drawn, extend no
further than necessary to correct the violation of the
Federal right, and use the least intrusive means necessary to
correct the violation of the Federal right. This section of
the PLRA enforces a point repeatedly made by the Supreme
Court in cases challenging prison conditions: Prison
officials have broad administrative and discretionary
authority over the institutions they manage.
Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012)
(quotation marks, brackets, and citations omitted). Therefore
if the court were to find that Orr is not receiving medical
treatment for his chronic left elbow pain as required by the
Eighth Amendment, the court could only order that he be
provided with medical treatment which meets the requirements
of the Eighth Amendment. Warden Sevier has both the authority
and the responsibility to ensure that Orr receives the
medical treatment to which he is entitled under the Eighth
Amendment. See Gonzalez v. ...