United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE
Whitfield, a prisoner without a lawyer, filed a complaint
because he experienced pain in his mouth but did not receive
dental care for many months. “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, I
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).
complaint, Whitfield alleges that, in September of 2018, he
developed pain in his mouth and submitted a health care
request form requesting dental care. Whitfield was notified
that he was scheduled to see a dentist, Dr. Pearcy. Weeks
passed without treatment, and his condition worsened. His
mouth was bleeding, and his pain increased. He filled out
additional requests for dental care. (EC 1-1 at 27-31.) He
filed grievances, both formal and informal. He was repeatedly
told that he was on the list to be seen. In response to one
of his health care requests, he was instructed to improve his
oral hygiene by brushing his teeth three times a day for two
minutes, but he was not issued any pain medication.
five months later, on February 19, 2019, he was seen by Dr.
Pearcy. Dr. Pearcy told him that there was a crack in his
filling and placed a filling on top of the old one. (ECF 101
at 32.) It fell out the same day. (Id.) He filed a
health-care request on March 8, 2019, because he was still in
pain. (Id.) The response, a health care staff member
wrote, “[w]e just saw you on 2-19-19 but, I have added
your name to the WCU list again[.]” (Id.)
Whitfield has sued Dr. Pearcy and Wexford of Indiana, LLC.
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 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). 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).
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). Although the Eighth Amendment does not entitle an
inmate to a specific form of treatment, prison medical staff
cannot simply continue with a course of treatment that is
known to be ineffective. Greeno, 414 F.3d at 654-55.
Furthermore, a delay in providing treatment can constitute
deliberate indifference when it causes unnecessary pain.
Arnett v. Webster, 658 F.3d 742, 752-53 (7th Cir.
2011); Grieveson v. Anderson, 538 F.3d 763, 779 (7th
Whitfield alleges that he submitted health care requests
seeking dental care and that he was told that he had been
scheduled to see Dr. Pearcy, but that months passed before he
received treatment. When he was finally treated, the
treatment was ineffective, and yet he was merely placed back
in the queue. In light of the multiple health care requests,
it is reasonable to infer that Dr. Pearcy was aware of the
nature of Whitfield's complaints, and he yet did not
examine or treat Whitfield for months. This is enough to
allege deliberate indifference, and I will permit Whitfield
to proceed against Dr. Pearcy on this claim.
it is unclear whether Whitfield has now received adequate
treatment for his condition. The Warden of the Westville
Correctional Facility has both the authority and the
responsibility to ensure that Whitfield receives the
treatment to which he is entitled under the Eighth Amendment.
See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th
Cir. 2011). Accordingly, I will instruct the clerk to add the
Warden as a defendant, and I will permit Whitfield to proceed
against the Warden in his official capacity for injunctive
has also sued Wexford of Indiana, LLC, but 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) (“[A]
private corporation is not vicariously liable under §
1983 for its employees' deprivations of others' civil
rights.”). Thus, to the extent that Whitfield's
allegations against Wexford are based only on the poor
decisions that its staff made in connection with his care, I
cannot permit him to proceed against Wexford. To the extent
that he is alleging that Wexford is liable because he has an
unconstitutional policy that caused him to suffer, I cannot
permit him to proceed because he has not identified any
particular unconstitutional policy or custom.
indicates that there was a policy that provided that routine
dental evaluations should be performed within six weeks, and
that dental needs submitted by health care referral form
should be addressed within fourteen days. (ECF 1 at 3.)
Whitfield does not allege that this policy is
unconstitutional. In fact, he alleges that this policy should
have been followed, as it would have resulted in reasonably
prompt dental care. But, the defendants' failure to
follow their own policy does not state a claim. 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.”). ACCORDINGLY, the court:
(1) DIRECTS the Clerk to add the Warden of the Westville
Correctional Facility in his official capacity as a
(2) GRANTS Lawrence Whitfield leave to proceed against Dr.
Pearcy in his individual capacity for compensatory and
punitive damages for failing to provide Whitfield with
adequate dental care while housed at the Westville
Correctional Facility, in violation of the Eighth Amendment;
(3) GRANTS Lawrence Whitfield leave to proceed against the
Warden of the Westville Correctional Center in his official
capacity for injunctive relief to provide Whitfield with