United States District Court, S.D. Indiana, Indianapolis Division
ROBERT L. SCHUTT, Plaintiff,
WEXFORD HEALTH SERVICES, DANIEL RIPPETOE DR., Defendants.
ORDER SCREENING AND DISMISSING COMPLAINT,
ALLOWING PLAINTIFF TO SHOW CAUSE OR AMEND,
AND GRANTING MOTION TO AMEND FACTUAL
WALTON PRATT, JUDGE.
L. Schutt, a prisoner in the Marion County Jail in
Indianapolis filed this 42 U.S.C. § 1983 action on
August 23, 2019. He brings this action for alleged violations
of his Eighth Amendment rights while an inmate in the
Plainfield Correctional Facility from November 2016 through
June 2017. Dkt. 1-1. Mr. Schutt has been given leave to
proceed in forma pauperis and his pro se complaint
is now ready for screening.
Screening Legal Standard
Mr. Schutt was a prisoner at the time he commenced this
action, his complaint is subject to the screening
requirements of 28 U.S.C. § 1915A(b). This statute
directs that the court shall dismiss a complaint or any claim
within a complaint which “(1) is frivolous, malicious,
or fails to state a claim upon which relief may be granted;
or (2) seeks monetary relief from a defendant who is immune
from such relief.” Id. To satisfy the
notice-pleading standard of Rule 8 of the Federal Rules of
Civil Procedure, a complaint must provide a “short and
plain statement of the claim showing that the pleader is
entitled to relief, ” which is sufficient to provide
the defendant with “fair notice” of the claim and
its basis. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) and quoting
Fed.R.Civ.P. 8(a)(2)); see also Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)
(“[a] plaintiff's complaint need only provide a
“short and plain statement of the claim showing that
the pleader is entitled to relief, ” sufficient to
provide the defendant with “fair notice” of the
claim and its basis”) (citing Fed. R. Civ. P.
8(a)(2); Bell Atlantic, 550 U.S. at 555). The Court
construes pro se pleadings liberally and holds
pro se pleadings to less stringent standards than
formal pleadings drafted by lawyers. Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).
Mr. Schutt's Complaint
Schutt names two defendants: Wexford Health Sources and its
employee Dr. Daniel Rippetoe. He makes no allegations against
Wexford other than it is Dr. Rippetoe's employer. Mr.
Schutt alleges that he was in Dr. Rippetoe's care for
mental health concerns when, in November 2016, Dr. Rippetoe
prescribed him Risperdal. He alleges that Dr. Rippetoe was
negligent in not informing him that Risperdal could
“possibly and occasionally cause breast enlargement in
adolescent males, but not usually, [and] with less frequency
in adult males.” Dkt. 1-1. Mr. Schutt was in his early
fifties at the time the medication was prescribed. In June
2017 he noticed his breasts were enlarged, so he went
immediately to Dr. Rippetoe who discontinued the medication.
Mr. Schutt also alleges that the Food and Drug Administration
required a “black box” warning on Risperdal, but
he does not plead what the warning concerns. Finally, Mr.
Schutt alleges that he was prescribed Risperdal for
depression, an off-label use, but does not plead an injury
other than the breast enlargement side effect.
complaint is dismissed for failure to state
a claim upon which relief can be granted against Wexford
Health Sources because no allegations are made against it.
The Court also concludes that the complaint fails to state an
Eighth Amendment violation for Dr. Rippetoe's actions or
inactions for the following reasons.
officials violate the Eighth Amendment's proscription
against cruel and unusual punishment when their conduct
demonstrates “deliberate indifference to serious
medical needs of prisoners.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976). The standard
articulated in Estelle - “deliberate
indifference to serious medical needs” - contains both
an objective element and a subjective element. Pittman ex
rel. Hamilton v. County of Madison, Ill., 746 F.3d 766,
775 (7th Cir. 2014). The objective element requires the harm
suffered by a plaintiff to be “objectively,
sufficiently serious.” Farmer v. Brennan, 511
U.S. 825, 834 (1994). As the Court explained in
Farmer, to be sufficiently serious “a prison
official's act or omission must result in the denial of
the minimal civilized measure of life's
necessities.” 511 U.S. at 834. The objective element
requires the plaintiff's medical need be sufficiently
serious. The subjective element requires that the officials
act with a “sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834; Wilson v. Seiter,
501 U.S. 294, 298 (1991). “[T]he appropriate inquiry
when an inmate alleges that prison officials failed to attend
to serious medical needs is whether the officials exhibited
deliberate indifference.” Hudson v. McMillian,
503 U.S. 1, 5 (1992). In Farmer, the Court
illuminated the nature of deliberate indifference:
We hold . . . that a prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.
511 U.S. at 837.
Seventh Circuit provided an example of the difference between
negligence and deliberate indifference:
If [prison officials] place a prisoner in a cell that has a
cobra, but they do not know that there is a cobra there (or
even that there is a high probability that there is a cobra
there), they are not guilty of deliberate indifference even
if they should have known about the risk, that is, even if
they were negligent-even grossly negligent or even reckless
in the tort sense-in failing to know. But if they know that
there is a cobra there or at least that there is a high
probability of a cobra there, and do nothing, that is
Billman v. Indiana Dep't of Corr., 56 F.3d 785,
788 (7th Cir. 1995) (citations omitted). Billman and
its progeny instruct that “should have known, ”
or “negligence, ” does not rise to the level of
deliberate indifference. See, e.g., Cesal v. Moats,
851 F.3d 714, 721 (7th ...