United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Turben, a prisoner without a lawyer, filed an amended
complaint alleging he has received inadequate medical care
for a foot injury and his diabetes while housed at the
Indiana State Prison. ECF 7. In his amended complaint, Turben
sues seven defendants: Commissioner Robert Carter,
Superintendent Ron Neal, Wexford of Indiana, LLC, Dr. Nancy
Marthakis, Pamela Williams, Nurse Lacey, and Nurse Dan for
compensatory and punitive damages and for injunctive relief.
“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).
Nevertheless, pursuant to 28 U.S.C. § 1915A, this court
must review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim, or seeks
monetary relief against a defendant who is immune from such
relief. “In order to state a claim under [42 U.S.C.]
§ 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 Cir. 2006).
amended complaint, Turben alleges that, on December 15, 2017,
he injured his right foot, which caused it to swell and turn
blue. ECF 7 at 2. Turben requested treatment for his injury
and, on January 3, 2018, Dr. Nancy Marthakis, a Wexford
doctor treated him. Id. Because his foot was
throbbing with pain and felt like it was “on fire,
” Dr. Marthakis ordered x-rays of his foot.
Id. Turben was prescribed crutches, but his crutches
were taken away in February 2018, because he was told the
prolonged use of crutches would cause cysts under his
armpits. Id. However, Turben states that neither Dr.
Marthakis nor Wexford checked his armpits to see if he was
developing cysts. Id. Without the use of crutches,
Turben had difficulty walking and could not put pressure on
his foot, which caused him to walk on his heal. Id.
He was prescribed crutches for another twenty-one days but
Wexford again took the crutches away from him stating that
prolonged use of crutches would cause him to develop cysts.
Id. In total, Turben alleges he was prescribed
crutches on four occasions; however, each time they were
taken away from him, he experienced significant pain walking.
Id. at 2-3.
next asserts that Dr. Marthakis told him that the “only
thing wrong with [his] foot” was his “neuropathy,
arthritis, or bone degeneration” and he is overly
sensitive to pain. ECF 7 at 3. But Turben was diagnosed with
a bi-partite sesamoid bone-a split in the bone of his big
toe-from x-rays taken on May 7, 2018. Id. He claims
a Wexford physical therapist told him that if his bone does
not heal, surgery may be necessary. Id. Furthermore,
he asserts that he was having difficulty with the medication
Pamelor, but Dr. Marthakis refused to change it. Id.
at 6. He claims that, after making twenty-eight requests to
change Pamelor, Dr. Marthakis finally discontinued it.
Id. In sum, he asserts that for the past eighteen
months, he has been in constant pain every day and Dr.
Marthakis's treatment plans have failed to heal his right
foot. As a result, he has yet to receive adequate care for
his foot injury.
further alleges that, in May of 2018, he received inadequate
medical care when Wexford medical staff changed his insulin
prescription to a different type of insulin even though he
told the medical staff he previously had a lot of trouble
with the new insulin. ECF 7 at 3. Here, he alleges he tried
to send Wexford a health care request form explaining his
situation but never received a response from Wexford.
Id. He alleges that when he took the new insulin, it
caused him to vomit, become light-headed and occasionally
fall down. Id. at 3-4. Because of the insulin
change, Turben was hospitalized for four days and given an
insulin drip. Id. at 4. However, when he returned to
the prison, Wexford medical staff once again gave him the
insulin that had made him sick even though the doctor
treating Turben at the hospital sent an order for Wexford to
change his insulin. Id. After taking the incorrect
insulin for a number of days, he became sick in his cell and
an emergency signal was called. Id. at 4-5. However,
Turben alleges Dr. Marthakis cancelled that signal without
seeing him. Id. at 5. The prison guard then called a
second emergency signal and Dr. Marthakis tried to clear the
signal a second time again without seeing Turben.
Id. After Dr. Marthakis finally saw Turben, he was
sent to the hospital and placed in the intensive care unit
for three days. Id. at 4-5.
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).
Turben's allegations as true and giving him the benefit
of the inferences to which he is entitled, as the court must
at this stage of the proceedings, he has alleged facts from
which it can be inferred that Dr. Marthakis was deliberately
indifferent to his serious medical needs by refusing to
provide him with appropriate care for his right foot injury
and associated pain, and by refusing to respond to
Turben's medical emergency promptly prior to his second
Commissioner Carter and Superintendent Neal, Turben has not
alleged they were personally involved in his medical care. A
lawsuit against an individual pursuant to § 1983
requires “personal involvement in the alleged
constitutional deprivation to support a viable claim.”
Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir.
2003). Furthermore, there is no general respondeat
superior liability under 42 U.S.C. § 1983, and
these individuals cannot be held liable simply because they
oversee operations at the prison or supervise other
correctional officers. See Burks v. Raemisch, 555
F.3d 592, 594 (7th Cir. 2009). Accordingly, Commissioner
Carter and Superintendent Neal will be dismissed.
next alleges that Nurse Pamela Williams improperly backdated
paperwork stating that he was “cheeking” his
medication instead of swallowing it. ECF 7 at 5. He asserts
that the “cheeking” incident took place on
February 27, 2018, but Williams backdated the paperwork to
show that it took place on February 11, 2018. Id.
Turben claims he did not “cheek” his medication
and the camera evidence would show he took it using one hand
while holding his crutches in his other hand. Id. He
asserts that if he did “cheek” his medication and
not swallow it, IDOC policy mandates that a conduct report be
issued. Id. at 5-6. It is unclear why Turben is
suing Nurse William; however, failure to follow prison
guidelines does not amount to a constitutional violation.
Scott v. Edinburg 346 F.3d 752, 760 (7th Cir. 2003)
(“However, 42 U.S.C. § 1983 protects plaintiffs
from constitutional violations, not violations of state laws
or, in this case, departmental regulations and police
practices.”). Because Turben has not stated a claim
against Nurse Williams, she will be dismissed.
has also named Wexford, the private company which provides
medical care at the prison, as a defendant. Here, Turben is
attempting to hold Wexford liable because it employs the
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 Turben's complaint against Wexford appears to be
based only on Wexford's medical staff's decisions
related to his care for his right foot injury and changes in
his prescribed insulin, Wexford will be dismissed as a
also names Nurse Lacey and Nurse Dan as defendants in the
caption of his case. However, he does not mention either of
these defendants in his amended complaint. Because Turben has
not articulated his basis for why he is suing Nurse Lacey and
Nurse Dan, they will be dismissed.
Turben has filed a motion seeking a preliminary injunction.
ECF 8. In his motion, he asks this court to allow him to be
seen by a podiatrist and have an MRI to evaluate the extent
of the damage to his right foot. However, the court will
defer ruling on the motion for preliminary injunction until
Dr. Marthakis has filed her declaration in response to this
request and Turben has an opportunity to reply.
these reasons, the court:
GRANTS Robert Turben leave to proceed against Dr. Nancy
Marthakis in her individual capacity for compensatory and
punitive damages for deliberate indifference to his serious
medical needs by refusing to provide him with appropriate
care for his right foot injury and associated pain, and by
refusing to respond to Turben's medical ...