United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY, JUDGE, UNITED STATES DISTRICT COURT
Oscar Adrian Solis, a prisoner without a lawyer, alleges that
he received constitutionally inadequate medical treatment for
seizures while incarcerated at the Westville Correctional
Facility. He has sued Nurse West, Nurse Jeanine, Wexford
Health Sources, and the State of Indiana. “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) (quotation marks and citations omitted).
Nevertheless, pursuant to 28 U.S.C. Â§ 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
March 22, 2018, Mr. Solis filled out a medical request form
indicating that he had not received his seizure medication,
Tegretol, for three days. He was told that the medication had
been discontinued and would be replaced with a different
medication. Later that night, Mr. Solis had a seizure, hit
his head on the toilet, and suffered a minor injury for which
he received treatment. He began taking a new medication for
his seizures, but the new medication was ineffective-he
continued to shake and have convulsions. He filed another
medical request form. In response, the dose of his medication
was adjusted, although no laboratory testing was performed.
On May 26, 2018, the facility ran out of his medication. He
filed a medical request form on May 27, 2018, indicating that
he was not receiving his medication. The form was signed by a
Westville representative on May 28, 2018, and he began
receiving his medication again on May 30, 2018. Afterwards,
Mr. Solis received his medication regularly until he was
transferred to a different facility.
Solis argues that he was deliberately deprived of his
medication, and that the defendants committed medical
malpractice. In medical cases, the Eighth Amendment test is
expressed in terms of whether the defendant was deliberately
indifferent to the inmate's serious medical need.
Estelle v. Gamble, 429 U.S. 97 (1976). A medical
need is “serious” if it is “one that has
been diagnosed by a physician 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).
“[C]onduct is deliberately indifferent when the
official has 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) (quotation
marks, brackets, and citation omitted). “For a medical
professional to be liable for deliberate indifference to an
inmate's medical needs, he 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) (quotation
marks and citations omitted).
disagreement with medical professionals about the appropriate
course of treatment does not establish deliberate
indifference, nor does negligence or even medical
malpractice. Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011). Even incompetence does not state a claim for
deliberate indifference. Minix v. Canarecci, 597
F.3d 824, 831-32 (7th Cir. 2010). A delay in providing
treatment, however, can constitute deliberate indifference
when it causes unnecessary pain or suffering.
Arnett, 658 F.3d at 752-53; Grieveson v.
Anderson, 538 F.3d 763, 779 (7th Cir. 2008).
Solis has alleged that he went without his medication for
seizures for a few days on three occasions. While this lapse
in care was understandably frustrating to Mr. Solis, and
ideally should not occur, he has not described behavior on
the part of Nurse West or Nurse Jeanine that represents a
substantial departure from accepted professional judgment,
practice, or standards. While Mr. Solis indicated that he
filed several medical request forms, it is not clear from the
complaint that either Nurse West or Nurse Jeanine were aware
that he was not receiving his medication and, despite that
knowledge, took no action to ensure that he received his
medication. While sympathetic to Mr. Solis's frustration,
he has not plausibly alleged that Nurse West or Nurse Jeanine
violated his right to constitutionally adequate medical care.
Solis also named Wexford Health Source as a defendant.
Wexford is the private company that provided medical care at
the prison. Mr. Solis attempts to hold the company liable
because it employs the medical staff. However, even if he had
alleged that Nurse West or Nurse Jeanine violated his rights,
there is no general respondeat superior liability
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)
(“private corporation is not vicariously liable under
§ 1983 for its employees' deprivations of
others' civil rights”). Mr. Solis's complaint
against Wexford appears to be based only on its medical
staff's poor decisions, so he has not stated a claim
against Wexford Health Sources.
Mr. Solis has named the State of Indiana as a defendant. The
Eleventh Amendment generally precludes a citizen from suing a
State or one of its agencies or departments in federal court.
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.
2001). There are three exceptions to Eleventh Amendment
immunity: (1) suits directly against the State based on a
cause of action where Congress has abrogated the state's
immunity from suit; (2) suits directly against the State if
the State waived its sovereign immunity; and (3) suits
against a State official seeking prospective equitable relief
for ongoing violations of federal law. MCI
Telecommunications Corp. v. Ill. Commerce Comm'n,
183 F.3d 558, 563 (7th Cir. 1999). None of these exceptions
applies here. Congress has not abrogated the state immunity
through the enactment of 42 U.S.C. § 1983. Joseph v.
Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748
(7th Cir. 2005). The State of Indiana also has not consented
to this lawsuit, so it must be dismissed.
on the amended complaint, it is unclear what, if anything,
Mr. Solis could add to his amended complaint that would state
a claim. Nevertheless, if he has additional facts that would
add substance to his claims, he may file a second amended
complaint. See Luevano v. Wal-Mart, 722 F.3d 1014
(7th Cir. 2013).
these reasons, the court:
(1) DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint (INND Rev. 8/16) and send it to Oscar
(2) GRANTS Oscar Adrian Solis until September 24,
2019 to file a second amended complaint on that
(3) CAUTIONS Oscar Adrian Solis that if he does not respond
by that deadline, this case will be dismissed without further
notice pursuant to 28 U.S.C. § 1915A because the ...