United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE
Allen Livergood, a pretrial detainee at the Marshall County
Jail, filed a 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, I must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
alleges he is experiencing pain and loss of movement in his
left shoulder and arm. On July 16, 2019, Livergood was
examined by Dr. Tchapchet who told him he needed to be seen
by a physician specializing in orthopedic medicine. Dr.
Tchapchet prescribed Tylenol for Livergood, but he only
received it for one week. Livergood requested additional pain
medication, but his requests went unanswered.
seven weeks later, when Livergood inquired about seeing the
specialist during a visit with Dr. Tchapchet on an unrelated
matter, he was told that an appointment had been made.
However, by that time, Livergood alleges his arm had
“healed itself like this causing unknown permanent
damage . . ..” ECF 1 at 2. Dr. Tchapchet has advised
Livergood that he can do nothing further for his arm and
shoulder until he is seen by a specialist, which has not yet
occurred. Livergood requests monetary damages and injunctive
Livergood is a pretrial detainee, his claims must be assessed
under the Fourteenth Amendment. Mulvania v. Sheriff of
Rock Island Cty., 850 F.3d 849, 856 (7th Cir. 2017).
“[T]he Fourteenth Amendment's Due Process Clause
prohibits holding pretrial detainees in conditions that
‘amount to punishment.'” Id.
(quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)).
“A pretrial condition can amount to punishment in two
ways: first, if it is ‘imposed for the purpose of
punishment,' or second, if the condition ‘is not
reasonably related to a legitimate goal-if it is arbitrary or
purposeless-a court permissibly may infer that the purpose of
the government action is punishment.'” Id.
(quoting Bell, 441 U.S. at 538-39). “[I]n the
absence of an expressed intent to punish, a pretrial detainee
can nevertheless prevail by showing that the actions are not
‘rationally related to a legitimate nonpunitive
governmental purpose' or that the actions ‘appear
excessive in relation to that purpose.'”
Kingsley v. Hendrickson, 576 U.S. __, __; 135 S.Ct.
2466, 2473 (2015) (quoting Bell, 441 U.S. at 561).
The Seventh Circuit has held that “medical-care claims
brought by pretrial detainees under the Fourteenth Amendment
are subject only to the objective unreasonableness inquiry
identified in Kingsley.” Miranda v. Cty.
of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Giving
Livergood the favorable inferences to which he is entitled at
this stage, I find that the complaint states a plausible
claim for monetary damages against Dr. Tchapchet under the
has also sued Quality Correctional Care. “Private
corporations acting under color of state law may, like
municipalities, be held liable for injuries resulting from
their policies and practices.” Hahn v. Walsh,
762 F.3d 617, 640 (7th Cir. 2014) (quoting Rice ex rel.
Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir.
2012)). However, “[a] municipality may not be held
liable under § 1983 based on a theory of respondeat
superior or vicarious liability.” Jenkins v.
Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). Because
Livergood's complaint only describes the actions-or
inaction-of the medical staff in connection with his own
treatment, he may not proceed against Quality Correctional
Livergood has requested injunctive relief. It is the Sheriff
of Marshall County who has both the authority and the
responsibility of ensuring that Livergood receives adequate
medical treatment while he is an inmate at the Marshall
County Jail. See e.g. Gonzalez v. Feinerman, 663
F.3d 311, 315 (7th Cir. 2011). Accordingly, I will instruct
the clerk to add the Sheriff as a defendant, and I will
permit Livergood to proceed against the Sheriff in his
official capacity for injunctive relief. That said, the
specific injunctive relief Livergood requests-namely,
“mov[ing] the plaintiff to a facility with a medical
staff capable of addressing the needs of his shoulder and
arm” (ECF 1 at 2)-may not be ordered even if it is
ultimately determined that his current treatment is
inadequate. While it is true that Livergood must be provided
with constitutionally adequate medical care, there may be
several ways of doing so that do not involve sending him to
another facility. Simply put, Livergood cannot dictate how
such medical care is provided. See Westefer v. Neal,
682 F.3d 679, 683 (7th Cir. 2012) (The Prison Litigation
Reform Act mandates that “remedial injunctive relief
must be narrowly drawn, extend no further than necessary to
correct the violation of the Federal right, and use the least
intrusive means necessary to correct the violation of the
Federal right.”) (internal quotation marks, brackets,
and citations omitted)); see also Forbes v. Edgar,
112 F.3d 262, 267 (7th Cir. 1997) (Inmates are “not
entitled to demand specific care [nor] entitled to the best
care possible.”). Therefore, injunctive relief-if
granted- would be limited to requiring that the Sheriff
ensure Livergood receives medical treatment for his arm and
shoulder to the extent required by the Constitution.
DIRECTS the Clerk to add Dr. Tchapchet and the Sheriff of
Marshall County as defendants;
GRANTS Kenneth Allen Livergood leave to proceed against Dr.
Tchapchet in his individual capacity for monetary damages for
failing to provide him with medical treatment for his left
shoulder and arm since July of 2019 in violation of the
GRANTS Kenneth Allen Livergood leave to proceed against the
Sheriff of Marshall County in his official capacity on an
injunctive relief claim for medical treatment for his left
arm and shoulder to the extent required by the Fourteenth
DISMISSES Quality Correctional Care;
DISMISSES all other claims;
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Dr. Tchapchet at the Marshall
County Jail and the Sheriff of Marshall County at the
Marshall County Sheriff's Department with a copy of this
order and the complaint as required by 28 U.S.C. §
1915(d); and (7) ORDERS, pursuant to 42
U.S.C. § 1997e(g)(2), that Dr. Tchapchet and the Sheriff
of Marshall County respond, as provided for in the Federal
Rules of Civil ...