Orr v. Sevier

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MICHAEL ORR,

Plaintiff,

v. CAUSE NO.: 3:19-CV-438-RLM-MGG

MARK SEVIER, et al.,

Defendants.

OPINION AND ORDER

Michael Orr, a prisoner without a lawyer, filed a complaint against Warden

Mark Sevier, Wexford of Indiana, Nurse DeAngela Lewis, and Dr. Andrew Liaw

because he believes the care he has received for his chronic headaches while

incarcerated at the Westville Correctional Facility is inadequate. Under 28 U.S.C.

§ 1915A, 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. 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).

Mr. Orr reports that he suffers from chronic headaches lasting from four

hours to four days and, when he has a headache, he can’t sleep, read, write,

work, eat, or leave his cell. Mr. Orr alleges that, when he arrived at Westville on

October 6, 2016,1 he reported that he suffered from headaches, and Dr. Liaw

prescribed Tylenol, Aspirin, and Propananol. Between October 27, 2017 and

January 5, 2019, Mr. Orr made fourteen reports to medical staff that his

headaches drain his energy, disturb his sleep, and cause him to suffer from

blurred vision. During that same time, Dr. Liaw saw Mr. Orr for seven chronic

care visits at approximately 90-day intervals. Dr. Liaw wouldn’t address his

headaches at these visits and instead only addressed other chronic health care

issues – an elbow injury and chronic asthma. Mr. Orr further alleges that Dr.

Liaw knew, based on his medical history, that Tylenol, Aspirin and Propananol

wouldn’t treat his condition effectively. He alleges that Dr. Liaw’s decision to

categorize his headaches as not serious and treat them with these medications

was motivated by a desire to save money.

Under 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). Deliberate indifference means that the defendant “acted

1 This may reflect a typographical error in the complaint, as Mr. Orr does not report

requesting additional treatment for his headaches until October 27, 2017.

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). To be held

liable for deliberate indifference to an inmate’s medical needs, a medical

professional 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). Accepting Mr.

Orr’s allegations as true and giving him the benefit of the inferences to which he

is entitled, as the court must at this stage of the proceedings, Mr. Orr has alleged

facts from which it could be inferred that Dr. Liaw was deliberately indifferent to

his serious medical needs by providing inadequate treatment for Mr. Orr’s

chronic headaches.

Mr. Orr alleges that Nurse Lewis was “the responsible health authority at

WCF/WCU, yet she refused [to] assure that Defendant Liaw[‘s] care was quality.”

(ECF 1 at 4.) This allegation doesn’t state a claim upon which relief can be

granted. There is no general respondeat superior liability under 42 U.S.C. § 1983,

and Nurse Lewis cannot be held liable simply because she oversees other medical

staff. See Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). “[P]ublic

employees are responsible for their own misdeeds but not for anyone else’s.” Id.

at 596. “Only persons who cause or participate in the violations are

responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). Mr. Orr

further alleges that Nurse Lewis willfully relied upon information provided by Dr.

Liaw that she knew was false to deny timely and appropriate care to Mr. Orr.

Giving Mr. Orr the inferences to which he is entitled, this states a claim on which

relief can be granted.

Mr. Orr has also sued Warden Sevier. Mr. Orr asserts that Warden Sevier

“blindly relied upon inaccurate and false medical records that were clearly

harming Orr.” (ECF 1 at 5.) Non-medical staff rely on medical experts and are

“entitled to relegate to the prison’s medical staff the provision of good medical

care.” Burks v. Raemisch, 555 F.3d 592, 595, (7th Cir. 2009). Mr. Orr was getting

three different medications for his headaches, and Warden Sevier was entitled to

rely on the judgment of the medical staff at the prison to decide what specific

treatment was appropriate for Mr. Orr. It wasn’t deliberately indifferent for

Warden Sevier to rely on the judgment of his medical staff, so this allegation

doesn’t state a claim against Warden Sevier in his individual capacity on which

relief can be granted. But because Warden Sevier is ultimately responsible for

ensuring that Mr. Orr receives medical care that complies with the Eighth

Amendment, Mr. Orr may proceed against Warden Sevier in his official capacity

to the extent Mr. Orr seeks injunctive relief.2

Mr. Orr also sues Wexford of Indiana, the private company that provides

medical care to inmates, alleging that Wexford encourages its medical staff to

2 To the extent that Mr. Orr might be alleging that Warden Sevier did not handle his

grievances properly, Mr. Orr has no constitutional right to access the grievance process. See

Grieveson v. Anderson, 538 F.3d 763, 770 (7th Cir. 2008) (noting that there is not a Fourteenth

Amendment substantive due-process right to an inmate grievance procedure).

delay and deny necessary medical care to save money. A private company can

be held liable for constitutional violations when it performs a state function. West

v. Atkins, 487 U.S. 42 (1988). Mr. Orr has alleged that, consistent with Wexford’s

policy of denying necessary medical care to save money, he was denied

appropriate care for his chronic headaches in favor of less expensive but

ineffective treatment options. Mr. Orr has stated a claim upon which relief can

be granted against Wexford.

Mr. Orr alleges that, due to his headaches, he is a person with a disability

within the meaning of the Americans with Disabilities Act, and he is being denied

further medical tests and treatment in violation of the ADA. “To establish a

violation of Title II of the ADA, the plaintiff must prove that he is a qualified

individual with a disability, that he was denied the benefits of the services,

programs, or activities of a public entity or otherwise subjected to discrimination

by such an entity, and that the denial or discrimination was by reason of his

disability.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (quotation

marks and citation omitted). Mr. Orr doesn’t identify a service, program, or

activity within the meaning of ADA. See Bryant v. Madigan, 84 F.3d 246, 249

(7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”);

Nesbitt v. Williams, No. 13 C 9241, 2017 WL 1079240, at *3 (N.D. Ill. Mar. 21,

2017) (“To the extent Nesbitt challenges the quality of the medical services he

has received, such a claim is not cognizable under the ADA.”). Furthermore, Mr.

Orr hasn’t alleged any facts that support his claim that he was denied care

because he is disabled. He says he was denied care because it saves money.

Finally, Mr. Orr alleges that Nurse Lewis, Dr. Liaw, and Warden Sevier violated

the ADA, but ADA claims must be brought against a governmental entity. 42

U.S.C. § 12101 et seq.; Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 670 (7th

Cir. 2012) (“[E]mployees of the Department of Corrections are not amenable to

suit under the … ADA.”). Mr. Orr hasn’t stated a claim on which relief can be

granted under the ADA.

Mr. Orr alleges that Dr. Liaw, Nurse Lewis, and Warden Sevier conspired

to deprive him of his right to fair and equal treatment. 42 U.S.C. section 1985

“prohibits a conspiracy . . . motivated by racial, or other class-based

discriminatory animus.” Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). Mr.

Orr makes the conclusory allegation of a conspiracy based on his disability, but

he doesn’t allege any facts supporting his claim of conspiracy.

Mr. Orr’s complaint also includes a state law claim for indemnification

against Wexford and Warden Sevier. The concept of indemnification is not

applicable here. See Rotec v. Murray Equip., Inc., 626 N.E.2d 533 (Ind. Ct. App.

1994) (citations omitted). To the extent that Mr. Orr has invoked indemnification

in an attempting to hold Wexford and Warden Sevier financially responsible for

the wrongdoing of its employees, he can’t succeed. There is no

general respondeat superior liability under 42 U.S.C. § 1983. See Burks v.

Raemisch, 555 F.3d at 594; 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.”). The court can’t let Mr. Orr

proceed on this claim.

Lastly, Mr. Orr’s complaint contains a request for preliminary injunction,

although he didn’t file a separate motion, as required by this court’s local rules.

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.”). Mr. Orr

asks this court to order the defendants to provide him with adequate medical

care and treatment for his headaches. The court will defer ruling on Mr. Orr’s

request for a preliminary injunction until Dr. Liaw, Nurse Lewis, and Warden

Sevier have filed their declarations in response to this request and Mr. Orr has

had an opportunity to reply.

For these reasons, the court:

(1) GRANTS Michael Orr leave to proceed against Dr. Andrew Liaw

and Nurse DeAngela Lewis in their individual capacities for compensatory

and punitive damages for deliberant indifference to his serious medical

need for adequate treatment of his chronic headaches, in violation of the

Eighth Amendment;

(2) GRANTS Mr. Orr leave to proceed against Dr. Andrew Liaw, Nurse

DeAngela Lewis, and Warden Mark Sevier in their official capacities for

injunctive relief to provide Michael Orr with adequate medical care for his

chronic headaches, as required by the Eighth Amendment;

(3) GRANTS Mr. Orr leave to proceed against Wexford of Indiana for

compensatory and punitive damages for following a policy of denying

necessary medical care in order to save money, resulting in him receiving

inadequate care for his chronic headaches, in violation of the Eighth

Amendment;

(4) DISMISSES all other claims;

(5) DIRECTS the clerk and the United States Marshals Service to

issue and serve process on Dr. Andrew Liaw, DeAngela Lewis, and Warden

Mark Sevier at the Indiana Department of Correction with a copy of this

order and the complaint, pursuant to 28 U.S.C. § 1915(d);

(6) DIRECTS the clerk and the United States Marshals Service to

issue and serve process on Wexford of Indiana at 9245 N. Meridian Street,

Indianapolis, IN 46260 with a copy of this order and the complaint,

pursuant to 28 U.S.C. § 1915(d);

(7) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Dr. Andrew

Liaw, DeAngela Lewis, Warden Mark Sevier, and Wexford of Indiana

respond, as provided for in the Federal Rules of Civil Procedure and N.D.

Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted

leave to proceed in this screening order; and

(8) ORDERS Dr. Andrew Liaw, DeAngela Lewis, and Warden Mark

Sevier to file their declarations in response to Mr. Orr’s request for a

preliminary injunction along with their answers.

SO ORDERED on June 13, 2019

s/ Robert L. Miller, Jr.

JUDGE

UNITED STATES DISTRICT COURT