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Hogan v. Lemmon

United States District Court, N.D. Indiana, South Bend Division

September 24, 2019

BRUCE LEMMON, et al., Defendants.


          Robert L. Miller, Jr. United States District Judge.

         Christopher Dewayne Hogan, a prisoner without a lawyer, filed a complaint against eight[1] separate defendants alleging that he has received inadequate medical care for his stomach, hip, and shoulder pain while housed at the Indiana State Prison. The 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. 28 U.S.C. § 1915A. “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). “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).

         Mr. Hogan has resided at ISP since 2002. Throughout his stay at ISP, he has slept on a thin mattress that wears out quickly but isn't frequently replaced, providing inadequate support for his hips, back, and shoulders. He has had pain in his hips and shoulders that makes sleep difficult since 2014. Mr. Hogan also says that his diet contains excessive gluten and soy, and that, beginning in 2014, he has suffered from gastrointestinal distress after meals due to his poor diet. He has sued Commissioner Bruce Lemmon, Acting Commissioner Robert E. Carter, Jr., Warden Ronald Neal, Healthcare Administrator Sherri Fritter, Dr. Thompson, Dr. Martha Kis, Grievance Specialist J. Wallen, and Assistant Warden Payne. He has also included several “John Doe” defendants.

         Mr. Hogan indicates that he complained about his stomach, hip and shoulder pain in 2014, but got no response. On April 27, 2015, he filed a UCC-1 Financing Statement in Wisconsin. According to Mr. Hogan, he filed the statement “to put the world on notice of his rights, titles, and interest, as a superior lien interest with re: to the collateral described within that form, as well as the collateral described within the Security Agreement.” (ECF 1 at 14.)

         In October 2015, Mr. Hogan sent a notice directing that the diet plan be changed to Commissioner Lemmon and Warden Neal. Mr. Hogan believes that because Commissioner Lemmon and Warden Neal didn't respond to the demands contained in the notice, they stipulated to his demands, but still didn't fulfill his demands. A caseworker told him he needed to address his issues to the medical department. Instead, on October 29, 2015, Mr. Hogan filed a “fixture filing” in Marion County. (ECF 1 at 15.) Mr. Hogan believes this filing secures his “rights, titles, and interest as a Superior Lien Interest with re: to a fixture filing under UCC § 9-102(a)(40).” (Id.)

         On July 4, 2015, Mr. Hogan filed a request for healthcare, seeking care for his stomach, shoulder, and hip pain. He also indicated that he needed a special mattress and a “diet free of gluten and soy and rich with protein, fresh fruits and vegetables.” (Id. at 16.) He saw a heath care provider (he doesn't say who) for his stomach pain, and he was prescribed medication. The medication didn't help. It's not clear why his hip and shoulder pain weren't addressed when Mr. Hogan was seen by a provider following his request for care, but he indicates that no medical provider saw him for his complaints of shoulder and hip pain. He was provided with aspirin.

         In October 2016, Mr. Hogan filed an informal grievance about the lack of treatment for his hip and shoulder pain. Dawn Nelson responded by indicating that the records didn't show that he sought to be seen by medical for serious injuries to his shoulder, but that he could submit a health care request. Rather than following through by submitting a health care request as directed, Mr. Hogan served a document titled as a “Notice of Fault and Opportunity to Cure and Contest Presetment” on Commissioner Lemmon, Warden Neal, and former Indiana Attorney General Gregory Zoeller. (Id. at 18.) According to Mr. Hogan, this document made Bruce Lemmon, Ronald Neal, and Attorney General Zoeller aware that “Secured Party Christopher Hogan” had previously sent “documents asserting titles, rights, remedies, and defenses” and requesting information and services, that they knew or should have been aware of the presentments, and that they were in default and had dishonored the presentments. (Id. at 18-19.)

         Mr. Hogan asserts that, on January 3, 2017, Corizon Health Care tried to confer an unspecified benefit[2] on him that would, in turn, “obligate him to satisfy a commitment to administrative segregation.” (Id. at 22.) Mr. Hogan refused the benefit because he didn't want to be obligated to Corizon. He was taken to restrictive housing. Mr. Hogan served an additional document on Commissioner Lemmon, Warden Neal, and Corizon on February 2, 2017. Mr. Hogan describes this document as a “Complaint, Affidavit, Constructive Legal Notice, and Response to State form 9262 (RS/4-01)(item #CACR1982CDH00210), re: all rights to obtain, use, request, refuse, or authorize the administration of any food, beverage, nourishment, water, substance to be infused, drug manipulation, material process, procedure, surgery, psychiatric treatment that might benefit the present or future state of the body, mind, or spirit per Security Agreement item #5A1982COH000001, Financing Statement File NO. U201500001511, and Legal Notice and Demand item No. LNO1982COH000047 under Necessity and Lawful Protest.” (Id. at 20-21.)

         Mr. Hogan filed a grievance against Corizon based on the January 3, 2017, incident. The next day, an unidentified health care provider offered Mr. Hogan aspirin. Sherri Fritter responded to the grievance, but she didn't address the claims in the grievance to his satisfaction - Mr. Hogan says she relied upon fraudulent statements.

         On January 20, 2017, Mr. Hogan served Attorney General Gregory Zoeller with an “Affidavit of Notice of Default.” (Id. at 24.) Mr. Hogan believes that each of the defendants should have been made aware of this notice. On January 23, Mr. Hogan filed a formal grievance because he was unhappy with the manner in which his informal grievance had been resolved. In his formal grievance, Mr. Hogan sought to have an allegedly fraudulent state form removed from his health record. He also sought care for his stomach, hip, and shoulder pain, and he asked to be removed from restrictive housing for health reasons. His grievance was denied by Vicki Long.

         On February 2, Mr. Hogan mailed notice to Corizon and its medical personnel that Corizon was liable for the ill effects of his inadequate health care, and that his refusal of inadequate health care doesn't amount to an assumption of responsibility. He set forth a variety of demands for quality medical care, an improved diet, and monetary damages. Mr. Hogan also opined that the defendants' “silence equates to tacit agreement.” (Id. at 29.)

         In April of 2017, Mr. Hogan mailed Corizon, Commissioner Lemmon, and others a document he titled as a “Notice of Fault and Opportunity to Cure and Contest re: Complaint, Affidavit, Constructive Legal Notice, and response to state form 9262 (R3/4-01) item No. CACR1982CDH00210.” (Id. at 30.) He received no response. On August 2, he sent another “affidavit or Notice of Default” to Commissioner Lemmon, Robert Carter, and Corizon. The defendants again didn't respond. Mr. Hogan believes that, by not responding, the defendants stipulated to his version of the facts.

         On December 3, 2018, Mr. Hogan submitted two healthcare requests. One sought care for his stomach pain, and the other sought care for his hip and shoulder pain. He received no response.

         On February 20, 2019, Mr. Hogan filed an informal grievance against Warden Payne about the outdated mattress causing shoulder and hip pain. Mr. Hogan didn't get a response. He filed a formal grievance on March 3, 2019. Grievance Specialist J. Wallen returned the form to Mr. Hogan and indicated that he needed to use the proper chain of command by speaking to his unit team lieutenant first. Mr. Hogan says that he had already done that. His unit team lieutenant told him that he could fill out a healthcare slip, but no mattresses were available. Mr. Hogan ...

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