United States District Court, N.D. Indiana, South Bend Division
HAROLD E. MUMMEY, Plaintiff,
ROBERT CARTER, et al., Defendants.
OPINION AND ORDER
DEGUILIO UNITED STATES DISTRICT JUDGE.
E. Mummey, a prisoner without a lawyer, filed an amended
complaint. “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. § 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.
amended complaint, Mummey alleges that he has a limited
ability to climb stairs as a result of a left leg injury from
a motor vehicle accident and that medical staff at the
Indiana State Prison issues him flag passes to inform
correctional staff of his physical limitations. While these
physical limitations are permanent, the flag passes are
issued for only ninety days, and each time they expire,
inmates are required to undergo a medical examination to
renew them. The issue with this practice is that, even if an
inmate submits several medical requests, his flag pass may
expire before he is scheduled for a medical examination.
21, 2018, Mummey was moved to a cell in a location that
required him to climb stairs. He explained his physical
condition to Case Manager Wilson, who responded by telling
Mummey to contact the medical unit. On June 27, Mummey fell
while climbing stairs, which resulted in injuries to his
back, left eye, and his left hand. Despite submitting
numerous medical requests, Mummey was not able to obtain a
medical examination with Dr. Marthakis until August 10. For
his claims, Mummey seeks money damages and injunctive relief.
asserts an Eighth Amendment claim of deliberate indifference
against Case Manager Wilson for refusing to accommodate his
physical disability and Dr. Marthakis for failing to provide
him with a permanent flag pass. To establish such a claim, 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).
Mummey states a plausible Eighth Amendment claim of
deliberate indifference against Case Manager Wilson and Dr.
further asserts an Eighth Amendment claim of deliberate
indifference to a serious medical need against Wexford Health
Services. Corporate entities “cannot be held liable
under § 1983 on a respondeat superior
theory.” Calhoun v. Ramsey, 408 F.3d 375, 379
(7th Cir. 2005). Rather corporate liability exists only
“when execution of a [corporation's] policy or
custom . . . inflicts the injury.” Id. A
corporation can be held liable for “an express policy
that, when enforced, causes a constitutional
deprivation.” Id. Absent an unconstitutional
policy, corporate liability may be established with a showing
of “a widespread practice that, although not authorized
by written law or express [corporate] policy, is so permanent
and well settled as to constitute a custom or usage with the
force of law.” McTigue v. City of Chicago, 60
F.3d 381, 382 (7th Cir. 1995). The policy or custom must be
the “moving force behind the deprivation of his
constitutional rights.” Johnson v. Cook Cty.,
526 Fed.Appx. 692, 695 (7th Cir. 2013). Mummey alleges that
Wexford's policy or practice of issuing ninety-day passes
to inmates with permanent disabilities resulted in a
violation of his Eighth Amendment rights. Based on these
allegations, he may proceed on a claim against Wexford.
names Commissioner Robert Carter and Warden Ron Neal as
defendants because they supervise Case Manager Wilson. He
also names Nurse Sherri Fritter as a defendant for her role
in maintaining the policy or practice of issuing ninety-day
passes. “[Section] 1983 lawsuits against individuals
require personal involvement in the alleged constitutional
deprivation to support a viable claim.” Palmer v.
Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003).
Because Mummey does not explain how Commissioner Carter, Ron
Neal, or Nurse Fritter were personally involved in violating
his constitutional rights, he cannot proceed against these
defendants on claims for money damages.
also seeks an injunction for a more suitable flag pass
policy. Because the Prison Litigation Reform Act limits the
court's authority to grant injunctive relief in this
case, the injunctive relief, if granted, will be limited to
ordering correctional staff or medical staff to accommodate
his physical limitations as required by the Eighth Amendment.
See Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012).
The Warden of the Indiana State Prison has both the authority
and the responsibility to ensure that Mummey receives the
accommodations to which he is entitled under the Eighth
Amendment. See Gonzalez v. Feinerman, 663 F.3d 311,
315 (7th Cir. 2011). Therefore, the court will allow Mummey
to proceed against the Warden in his official capacity on an
injunctive relief claim.
these reasons, the court:
(1) GRANTS Harold E. Mummey leave to proceed against Case
Manager Wilson on an Eighth Amendment claim for money damages
for acting with deliberate indifference to his serious
medical needs by refusing to accommodate his physical
disability in June 2018;
(2) GRANTS Harold E. Mummey leave to proceed against Dr.
Marthakis on an Eighth Amendment claim for money damages for
acting with deliberate indifference to his serious medical
needs for failing to provide him with a permanent flag pass;
(3) GRANTS Harold E. Mummey leave to proceed against Wexford
Health Services on an Eighth Amendment claim for money
damages for maintaining a policy or practice of issuing
ninety-day passes to inmates with permanent disabilities;
(4) GRANTS Harold E. Mummey leave to proceed against the
Warden Neal on a claim for injunctive relief to obtain the
disability accommodations to which he is ...