United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT
Michael Solis, a prisoner without a lawyer, filed a complaint
alleging that the Defendants have provided him with
constitutionally inadequate medical treatment for his asthma
and sinus issues. The court 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. 28 U.S.C. § 1915A. A filing by
an unrepresented party “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).
Solis alleges that his health care requests have gone
“basically unanswered” by officials and medical
professionals at the Westville Correctional Facility since
the beginning of 2019. ECF 2 at 5. Mr. Solis complained in
January 2019of extreme post-nasal drip coupled with painful
sinus congestion, but the staff simply referred him to
another medical request form. ECF 2 at 5; ECF 2-1 at 1. In
February, Mr. Solis experienced shallow breathing, pain, and
profuse sweating while sitting on his bunk. ECF 2 at 4. Sgt.
Deu saw him briefly and said he would be taken to medical,
but it took over three hours to be seen by Wexford Medical
Services. Id. Mr. Solis claims that Wexford
acknowledged his asthma but not his interrelated .
July, Mr. Solis filed a grievance because his request to see
an Ear, Nose, and Throat specialist for his preexisting sinus
issues had been denied. ECF 2 at 6; ECF 2-1 at 8.
The response to the grievance says Dr. Liaw saw him on July
9, and prescribed prednisone and follow-up treatment. ECF 2-1
at 8. Mr. Solis admits that he received the steroids but
claims that this didn't fully address the issues causing
him pain. ECF 2 at 6.
point, although the complaint doesn't make it clear when,
Mr. Solis was also prescribed a nebulizer treatment card that
allowed him to get breathing treatments up to four times a
day. See ECF 2-1 at 5, 7. In August, Nurse Salomon
cancelled his nebulizer breathing treatments, which has made
his sinus congestion and nasal drip “run wild.”
ECF 2 at 5. Records say it was Dr. Liaw who discontinued the
treatments, but Mr. Solis alleges that this was only done
after Nurse Salomon emailed Dr. Liaw and urged him to do so
because she was aggravated with Mr. Solis's medical
requests. ECF 2 at 5-6; ECF 2-1 at 2-3, 5.
September 5, Nurse Practitioner Jody Kupferberg saw Mr. Solis
to discuss his blood pressure, sinus, and asthma conditions.
ECF 2 at 6; ECF 2-1 at 7. Nurse Kupferberg refused to give
him a breathing treatment, telling him that “[n]obody
gets treatments everyday” and that prisons
“don't fix anything.” Id. Mr. Solis
alleges that Nurse Kupferberg continues to deny him any
treatment to this day. Id.
the Eighth Amendment, inmates are entitled to
constitutionally 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) (internal quotation marks, brackets,
and citations omitted).
Solis has stated a claim on which relief can be granted
against Sgt. Deu under the Eighth Amendment With regard to
the February incident. A delay in providing treatment can
constitute deliberate indifference when it causes unnecessary
pain, and “[n]on-medical defendants cannot simply
ignore an inmate's plight.” Arnett v.
Webster, 658 F.3d 742, 752-53 (7th Cir. 2011); see
also Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.
2008). Although it's not clear that Sgt. Deu was directly
responsible for the three-hour delay in being seen by
Wexford, when Mr. Solis is given the benefit of the
inferences to which he is entitled at this stage, it can be
plausibly inferred that Sgt. Deu was deliberately indifferent
to his pain and urgent medical needs. M. Solis may proceed
against Sgt. Deu in his individual capacity for monetary
same can't be said for the claims against Warden
Galipeau, Sgt. Slatton, and Sgt. McGowan. Mr. Solis names
them as defendants in the caption of his case and alleges
that they are liable for the violations because they work for
the Indiana Department of Correction, but he doesn't
mention them in the facts section of his complaint. There is
no general respondeat superior liability (an employer's
liability for what the employee does) under 42 U.S.C. §
1983. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.
2009). “[P]ublic employees are responsible for their
own misdeeds but not for anyone else's.”
Id. “Only persons who cause or participate in
the violations are responsible.” George v.
Smith, 507 F.3d 605, 609 (7th Cir. 2007). Because Mr.
Solis hasn't articulated a basis for why he is suing
these defendants, he hasn't stated claims for monetary
damages against them.
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 doesn't entitle an
inmate to a specific form of treatment, prison medical staff
can't just continue with a course of treatment that is
known to be ineffective. Greeno v. Daley, 414 F.3d
645, 654-55 (7th Cir. 2005). Delaying treatment for
“non-life-threatening but painful conditions, ”
refusing to provide prescribed medication, and/or deferring
necessary referrals to a specialist can constitute deliberate
indifference. Arnett, 658 F.3d at 753. Giving Mr.
Solis the benefit of the inferences to which he is entitled
at this stage, he has adequately alleged that Dr. Liaw, Nurse
Salomon, and Jody Kupferberg were deliberately indifferent to
his serious medical needs. He can proceed against them in
their individual capacities for monetary damages.
Solis has sued Wexford along with the individual medical
professionals. A private company performing a state function
can be held liable to the same extent as a municipal entity
under Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658 (1978). See Rice v. Corr. Med.
Servs., 675 F.3d 650, 675 (7th Cir. 2012)
(Monell framework applies to private company
providing medical care at correctional facility). But, a
corporation “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. Mr. Solis doesn't adequately
identify any Wexford policy or practice that resulted in his
allegedly inadequate care. Therefore, he has not stated a
claim on which relief can be granted against Wexford.
Solis has also named the Indiana Department of Correction as
a defendant. State agencies such as the Department of
Correction are immune from suit pursuant to the Eleventh
Amendment. Wynn v. Southward, 251 F.3d 588, 592 (7th
Cir. 2001). There are three exceptions to Eleventh Amendment
immunity: (1) suits directly against the state based on a
cause of action when Congress has abrogated the state's
immunity from suit; (2) suits directly against the state if
the state waived its sovereign immunity; and (3) suits
against a state official seeking prospective equitable relief
for ongoing violations of federal law. MCI
Telecommunications Corp. v. Ill. Commerce Comm'n,
183 F.3d 558, 563 (7th Cir. 1999). None of these exceptions
apply here, so Mr. Solis can't proceed against the
Indiana Department of Correction.
Solis also requests injunctive relief in the form of
“proper medical care.” ECF 2 at 7. “[T]he
warden . . . is a proper defendant [for] injunctive relief
[and is] responsible for ensuring that any injunctive relief
is carried out.” Gonzalez v. Feinerman, 663
F.3d 311, 315 (7th Cir. 2011). Mr. Solis may proceed against
Warden Galipeau in his official capacity to obtain a
permanent injunction for constitutionally adequate medical
care. That said, the specific injunctive relief Mr. Solis
requests-namely, “care by professionals not connected
to Wexford or I.D.O.C.” (ECF 2 at 7)-can't be
ordered even if it is ultimately determined that the
treatment he is getting now is inadequate. While it is true
that Mr. Solis must be provided with constitutionally
adequate medical care, there might be several ways of doing
so that don't involve sending him to outside medical
professionals. Simply put, Mr. Solis can't 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.”). Injunctive relief-if granted-would be
limited to requiring that Warden Galipeau ensure Mr. Solis
receives medical treatment for his asthma and sinus issues to
the extent required by the Constitution.
Solis asks for a preliminary injunction, but he didn't
file a separate motion as this court's local rules
require. See N.D. Ind. L.R. 65-1 (“The court
will consider requests for preliminary injunctions only if
the moving party files a separate motion for relief.”).
In the interests of justice, the court will consider his
request but will defer ruling on the matter until Warden
Galipeau has filed ...