# Orr v. Sevier

> District Court, N.D. Indiana · July 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10158173

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** July 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10158173

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10158173. Public record. Not legal advice.