Orr v. Sevier

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MICHAEL ORR,

Plaintiff,

v. CAUSE NO.: 3:19-CV-154-JD-MGG

ANDREW LIAW, et al.,

Defendants.

OPINION AND ORDER

Michael Orr, a prisoner without a lawyer, filed a complaint listing eleven counts

against seven defendants. He alleges his left elbow was diagnosed with a mild fracture

and displacement around October 6, 2017. He alleges he has not been given proper

medical treatment for his left elbow. 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). Nevertheless, pursuant to

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.

In Count One, Orr alleges Warden Sevier, Dr. Liaw, and Captain Carter forced

him to be handcuffed behind his back on numerous occasions from October 21, 2017, to

January 1, 2019, despite his need for special accommodations because of the injury to

his left elbow. As a result, he alleges he suffered unnecessary pain and permanent

physical injury. The “core requirement” for an excessive force claim is that the

defendant “used force not in a good-faith effort to maintain or restore discipline, but

maliciously and sadistically to cause harm.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th

Cir. 2009) (internal citation omitted). Here, because Orr alleges these defendants knew

he needed special accommodations for his injured elbow, his allegation that they forced

him to be handcuffed behind his back and knowingly caused him injury states a claim

for a violation of the Eighth Amendment. However, Orr also alleges these defendants

did not implement policies needed to properly monitor and provide medical care to

other inmates. This is not a class action and Orr may not represent the interests of other

inmates. See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Navin v. Park Ridge Sch.

Dist., 270 F.3d 1147, 1149 (7th Cir. 2001); and Nowicki v. Ullsvik, 69 F.3d 1320, 1325 (7th

Cir. 1995). Therefore those allegations in Count One do not state a claim.

In Count Two, Orr alleges Warden Sevier, Nurse Lewis, and Captain Carter

“condon[ed] the oppressive acts of [Dr.] Liaw, [Physical Therapist] Bates, [Nurse]

Hutchison, and Wexford [Corporation] . . ..” ECF 13 at 14. However, there is no general

respondeat superior liability under 42 U.S.C. § 1983. 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). Here, Orr has not alleged

facts from which it can be plausibly inferred that Warden Sevier, Nurse Lewis, and

Captain Carter were personally involved in any of the actions or omissions of Dr. Liaw,

Physical Therapist Bates, Nurse Hutchison, or Wexford Corporation. Therefore, the

allegations in Count Two do not state a claim.

In Count Three, Orr alleges Dr. Liaw and Physical Therapist Bates “fabricat[ed]

health records to . . . to derive [him] of his access to further medical tests and

appropriate medications . . ..” ECF 13 at 14-15. In Count Four, Orr alleges Dr. Liaw and

Physical Therapist Bates “creat[ed] inaccurate medical records to impede [his] access to

off-site referrals, further diagnostic testing, . . . medical exams, and adequate mediation

for nerve pain . . ..” ECF 13 at 15. For a 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).

Here, because Orr alleges these medical professionals knowingly falsified his medical

records to prevent him from obtaining proper medical treatment from others, these

allegations state a claim for a violation of the Eighth Amendment.

In Count Five, Orr alleges Dr. Liaw and Physical Therapist Bates “prolong[ed]

waits for practitioner and physical therapy appointments . . . to cause harm, and . . .

pain . . ..” ECF 13 at 15. These allegations state a claim that these two defendants acted

outside of accepted professional standards in violation of the Eighth Amendment.

In Count Six, Orr alleges Nurse Hutchison and Nurse Lewis “fail[ed] to schedule

timely sick call appointments for [him] and withh[eld] non-prescribed pain relievers

[on] Nov. 12, 2017, Nov. 14, 2017; Nov. 21, 2017, Feb. 8, 2018, Feb. 23, 2018, May 15,

2018, May 28, 2018, June 5, 2018, June 12, 2018, July 16, 2018, July 16, 2018, August 10,

2018, December 31, 2018, [and] January 15, 2019, . . . maliciously . . . to cause harm, and .

. . pain . . ..” ECF 13 at 16. These allegations state a claim that these two defendants

acted outside of accepted professional standards in violation of the Eighth Amendment.

In Count Seven, Orr alleges Wexford, a private company that provides medical

care to inmates, has six policies which resulted in his being denied needed medical

treatment for his left elbow: Health Care Records, HCSD-1.34; Access to Care, HCSD-

2.04; Waiting List, HCSD-2.33; Medication Management, HCSD-2.17; Off-site Medical,

Hospital, and Specialty Care Referrals, A1.05, and Health Evaluation of Offenders in

Segregation, HCSD 2.25. A private company may be held liable for constitutional

violations when it performs a State function. West v. Atkins, 487 U.S. 42 (1988). A private

company providing medical care in a prison performs a State function and can be held

liable under the standard established in Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658 (1978). Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012). Here, these

allegations state a Monell claim against Wexford for enforcing six policies which denied

Orr needed medical treatment for his left elbow.

In Count Eight, Orr alleges Warden Sevier, Dr. Liaw, and Captain Carter violated

the Americans with Disabilities Act (ADA) and the Rehabilitation Act by not adopting

policies permitting him to avoid being handcuffed behind his back because of his

injured left elbow. In Count Nine, he alleges Wexford Corporation, Dr. Liaw, and

Physical Therapist Bates violated those Acts by not enforcing policies to accurately

diagnose and prescribe medication for his suspected nerve damage. As explained in

Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 671-72 (7th Cir. 2012), the relief available

under the ADA and the Rehabilitation Act are coextensive and in the prison context it is

better to apply the Rehabilitation Act alone. To state a claim under the Rehabilitation

Act, Orr “need only allege that (1) he is a qualified person; (2) with a disability and (3)

the Department of Corrections denied him access to a program or activity due to his

disability.” Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012). Here, Orr’s

allegations about his injured left elbow meet the first two prongs of the test. However,

none of his allegations meet the third prong. Orr does not allege he is being denied

access to a program or activity because of his injured elbow. Therefore these allegations

do not state a claim. See also Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The

ADA does not create a remedy for medical malpractice.”).

In Count Ten, Orr alleges Dr. Liaw, Captain Carter, and Warden Sevier violated

42 U.S.C. § 1985 by conspiring to withhold adequate medical treatment. 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). Here, Orr does not allege he

was discriminated against because of his race. To the extent he is alleging he was

discriminated against because of his injured elbow, disability is not a protected class

under Section 1985. D’Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1486 (7th Cir. 1985)

(“Being handicapped is not a historically suspect class such as race, national origin, or

sex . . ..”). Therefore these allegations do not state a claim.

In Count Eleven, Orr attempts to bring an “Indiana state law claim for

indemnification against Wexford of Indiana, LLC and Warden Mark Sevier . . . for any

and all future awards and judgments against the Defendants . . ..” ECF 13 at 17-18.

However, indemnification is not a basis for a claim by a plaintiff. An action for

indemnification “will lie only where a party . . . has been compelled to pay damages

due to the wrongful conduct of another for which he is constructively liable.”

Underwood v. Fulford, __ N.E. 3d __, __ , 2019 WL 2701345, at *4 (Ind. Ct. App. June 28,

2019) quoting Rotec v. Murray Equip., Inc., 626 N.E.2d 533 (Ind. Ct. App. 1993). Therefore

these allegations do not state a claim.

Finally, Orr seeks injunctive relief. He wants to be examined by an off-site

neurologist and receive adequate medical care for his chronic elbow pain. Under the

Eighth Amendment, inmates are entitled to adequate medical care. Estelle v. Gamble, 429

U.S. 97, 104 (1976). Inmates are not, however, “entitled to demand specific care” or “the

best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).

The PLRA circumscribes the scope of the court’s authority to enter an

injunction in the corrections context. Where prison conditions are found to

violate federal rights, 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. This section of the PLRA enforces a point repeatedly

made by the Supreme Court in cases challenging prison conditions: Prison

officials have broad administrative and discretionary authority over the

institutions they manage.

Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) (quotation marks, brackets, and citations

omitted). Therefore if the court were to find that Orr is not receiving medical treatment

for his chronic left elbow pain as required by the Eighth Amendment, the court could

only order that he be provided with medical treatment which meets the requirements of

the Eighth Amendment. Warden Sevier has both the authority and the responsibility to

ensure that Orr receives the medical treatment to which he is entitled under the Eighth

Amendment. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Therefore, he

may proceed against Warden Sevier on a claim for permanent injunctive relief.

Additionally, Orr wants an injunction prohibiting injured inmates from being

handcuffed behind their backs. However, Orr does not allege he currently has an injury

which prevents him from being handcuffed behind his back and he cannot represent

the rights of others. See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Navin v. Park

Ridge Sch. Dist., 270 F.3d 1147, 1149 (7th Cir. 2001); and Nowicki v. Ullsvik, 69 F.3d 1320,

1325 (7th Cir. 1995). Therefore he may not proceed on this injunctive relief claim.

For these reasons, the court:

(1) GRANTS Michael Orr leave to proceed against Warden Sevier, Dr. Liaw, and

Captain Carter in their individual capacities for compensatory and punitive damages

for forcing him to be handcuffed behind his back in violation of the Eighth Amendment

on numerous occasions from October 21, 2017, to January 1, 2019, despite his need for

special accommodations because of an injury to his left elbow;

(2) GRANTS Michael Orr leave to proceed against Dr. Liaw and Physical

Therapist Bates in their individual capacities for compensatory and punitive damages

for violating the Eighth Amendment by fabricating health records to prevent him from

accessing needed medical treatment and by delaying his appointments to cause him

physical harm and unnecessary pain;

(3) GRANTS Michael Orr leave to proceed against Nurse Hutchison and Nurse

Lewis in their individual capacities for compensatory and punitive damages for

violating the Eighth Amendment by failing to schedule timely sick call appointments

and withholding non-prescribed pain relievers on November 12, 2017; November 14,

2017; November 21, 2017; February 8, 2018; February 23, 2018; May 15, 2018; May 28,

2018; June 5, 2018; June 12, 2018; July 16, 2018; July 16, 2018; August 10, 2018; December

31, 2018; and January 15, 2019;

(4) GRANTS Michael Orr leave to proceed against Wexford of Indiana on a

Monell claim for compensatory and punitive damages for enforcing six policies (Health

Care Records, HCSD-1.34; Access to Care, HCSD-2.04; Waiting List, HCSD-2.33;

Medication Management, HCSD-2.17; Off-site Medical, Hospital, and Specialty Care

Referrals, A1.05, and Health Evaluation of Offenders in Segregation, HCSD 2.25)

which denied him needed medical treatment for his left elbow;

(5) GRANTS Michael Orr leave to proceed against Warden Sevier in his official

capacity for injunctive relief to receive medical treatment for chronic pain in his left

elbow as required by the Eighth Amendment;

(6) DISMISSES all other claims;

(7) DIRECTS, pursuant to 28 U.S.C. § 1915(d), the clerk and the United States

Marshals Service to issue and serve process on Warden Sevier, Dr. Liaw, Captain

Carter, Physical Therapist Bates, Nurse Hutchison and Nurse Lewis at the Indiana

Department of Correction with a copy of this order and the amended complaint (ECF

13);

(8) DIRECTS, pursuant to 28 U.S.C. § 1915(d), the clerk and the United States

Marshals Service to issue and serve process on Wexford of Indiana at 9245 North

Meridian, Suite 111, Indianapolis, IN 46260, with a copy of this order and the amended

complaint (ECF 13);

(9) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Warden Sevier, Dr. Liaw,

and Captain Carter, Physical Therapist Bates, Nurse Hutchison, Nurse Lewis, 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.

SO ORDERED on July 5, 2019

/s/ JON E. DEGUILIO

JUDGE

UNITED STATES DISTRICT COURT