# Blasingame v. Galipeau

> District Court, N.D. Indiana · August 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10161243

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** August 19, 2021
- **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/10161243

## How later opinions describe it (automated extraction)

- observing that Monell requires a plaintiff to show that an official policy “was the ‘moving force’ behind his constitutional injury”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

WILLIAM BLASINGAME III,

Plaintiff,

v. CAUSE NO. 3:21-CV-341-JD-MGG

JOHN GALIPEAU, et al.,

Defendants

OPINION AND ORDER
William Blasingame III, a prisoner without a lawyer, moves for leave to amend
his complaint. (ECF 23.) He is permitted to amend his complaint “once as a matter of
course” at this early stage of the case. See FED. R. CIV. P. 15(a)(1)(A). Accordingly, the
motion will be granted, and the clerk will be directed to docket the proposed amended
complaint (ECF 23-1) as a separate docket entry.
Pursuant to 28 U.S.C. § 1915A, the court must screen the 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.
To proceed beyond the pleading stage, a complaint must contain sufficient factual
matter to “state a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must
nevertheless give a pro se complaint liberal construction. Erickson v. Pardus, 551 U.S. 89,
94 (2007).

As with his original complaint, Mr. Blasingame complains about the conditions
of his confinement at Westville Correctional Facility (“Westville”). He claims that since
arriving at the facility in February 2021, he has been exposed to excessive amounts of
dust, mold, mildew, debris in the air vents, and chipping paint. He claims that these
conditions have exacerbated his allergies and asthma. It is apparent from the complaint
that he has an asthma inhaler, as he claims he has had to use it more regularly because

of the dirty conditions. He claims that in March 2021, he sought additional medical
treatment from Nurse Practitioner Dishit Patel, but she would not give him anything
and instead told him to purchase over-the-counter medications from the commissary.
He filed several complaints about Nurse Practitioner Patel’s actions to Dorothy Livers, a
nurse and the Medical Director at the facility, and asked to be given regular breathing

treatments. She allegedly did nothing other than to tell him to avoid environmental
irritants, which he claims is impossible due to the dirty state of the prison. He claims to
have ongoing problems with asthma and allergies because of the conditions.
The Eighth Amendment entitles inmates to adequate medical care. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). To state a claim, a prisoner must allege (1) he had an

objectively seriously medical need and (2) the defendant acted with deliberate
indifference to that medical need. Id. A medical need is “serious” if it is one that a
physician has diagnosed as mandating treatment, or one that is so obvious even a lay
person would recognize as needing medical attention. Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). On the second prong, inmates are “not entitled to demand specific care,”
Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 965 (7th Cir. 2019), nor are they

entitled to “the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Courts generally “defer to medical professionals’ treatment decisions unless there is
evidence that no minimally competent professional would have so responded under
those circumstances.” Walker, 940 F.3d at 965 ( citation and internal quotation marks
omitted).
At the same time, a prisoner is not required to show that he was “literally

ignored” to establish deliberate indifference. Berry v. Peterman, 604 F.3d 435, 441 (7th
Cir. 2010). “[I]nexplicable delay in responding to an inmate’s serious medical condition
can reflect deliberate indifference,” particularly where “that delay exacerbates an
inmate’s medical condition or unnecessarily prolongs suffering.” Goodloe v. Sood, 947
F.3d 1026, 1031 (7th Cir. 2020) (citations and internal quotation marks omitted).

Additionally, a “prison physician cannot simply continue with a course of treatment
that he knows is ineffective in treating the inmate’s condition.” Arnett v. Webster, 658
F.3d 742, 754 (7th Cir. 2011). Thus, “a doctor’s choice of the easier and less efficacious
treatment for an objectively serious medical condition” can amount to deliberate
indifference. Berry, 604 F.3d at 441.

Mr. Blasingame was previously granted leave to proceed against Nurse
Practitioner Patel and Medical Director Livers, and giving him the inferences to which
he is entitled at this stage, he has again alleged a plausible Eighth Amendment claim
against them. He was also granted leave to proceed against Westville Warden John
Galipeau in his official capacity on a claim for permanent injunctive relief related to his
ongoing need for medical treatment in addition to his asthma inhaler. He will be

permitted to proceed past the pleading stage against these defendants.
The Eighth Amendment also prohibits conditions of confinement that deny
inmates “the minimal civilized measure of life’s necessities.” Townsend v. Fuchs, 522 F.3d
765, 773 (7th Cir. 2008) (citations omitted). In evaluating an Eighth Amendment claim,
courts conduct both an objective and a subjective inquiry. Farmer v. Brennan, 511 U.S.
825, 834 (1994). The objective prong asks whether the alleged deprivation is “sufficiently

serious” that the action or inaction of a prison official leads to “the denial of the
minimal civilized measure of life’s necessities.” Id. (citations omitted). Although “the
Constitution does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337,
349 (1981), inmates are entitled to a reasonably clean environment. Knight v. Wiseman,
590 F.3d 458, 463 (7th Cir. 2009); Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). On the

subjective prong, the prisoner must show the defendant acted with deliberate
indifference to his health or safety. Farmer, 511 U.S. at 834; Board v. Farnham, 394 F.3d
469, 478 (7th Cir. 2005).
Mr. Blasingame alleges that he is being housed under excessively dirty
conditions, and further, that the Warden is aware of the conditions because he visits the

dormitory daily. He was previously granted leave to proceed against the Warden in his
official capacity on a claim for permanent injunctive relief related to his ongoing need to
be housed in sanitary conditions, as well as on a damages claim against the Warden for
past injury. He will again be permitted to proceed on these claims.
Mr. Blasingame’s amended complaint names two additional defendants. First, he
sues the Indiana Department of Correction for allowing Westville to remain open

despite its poor condition. This state agency has Eleventh Amendment immunity from
damages claims in federal court. de Lima Silva v. Dep’t of Corr., 917 F.3d 546, 565 (7th Cir.
2019). Additionally, a state agency is not a “person” that can be sued for constitutional
violations under 42 U.S.C. § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70
(1989). This defendant will be dismissed.
He also sues Wexford of Indiana, LLC (“Wexford”), which employed medical

staff at Westville at the time of the incidents with Nurse Practitioner Patel and Medical
Director Livers.1 A private company may be held liable for constitutional violations
when it performs a state function. See Hildreth v. Butler, 960 F.3d 420, 422 (7th Cir. 2020).
However, there is no general supervisory liability under section 1983, and Wexford
cannot be held liable solely because it employed the medical staff involved in Mr.

Blasingame’s care. J.K.J. v. Polk Cty., 960 F.3d 367, 377 (7th Cir. 2020).
A private company performing a state function can also be held liable to the
same extent as a state actor 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). Under
Monell, municipal entities or private companies performing a government function

1 The court notes that Wexford’s contract with Indiana Department of Correction terminated on
July 1, 2021, and it was replaced by a different company, Centurion Health. See Centurion Health
Provides Correctional Health for Indiana Department of Correction, Cision PR Newswire, July 12, 2021,
available at https://www.prnewswire.com/news-releases/centurion-health-provides-correctional-health-for-indiana-
department-of-correction-301331594.html (last visited Aug. 16, 2021). The amended complaint does not
contain any allegations about Centurion Health.
“cannot be held liable for the unconstitutional acts of their employees unless those acts
were carried out pursuant to an official custom or policy.” Grieveson v. Anderson, 538

F.3d 763, 771 (7th Cir. 2008) (citations omitted). “The ‘official policy’ requirement for
liability under § 1983 is to distinguish acts of the municipality from acts of employees of
the municipality, and thereby make clear that municipal liability is limited to action for
which the municipality is actually responsible.” Id. (citations, internal quotation marks,
and emphasis omitted). There is no “heightened” pleading standard applicable to
Monell claims. White v. City of Chicago, 829 F.3d 837, 843 (7th Cir. 2016). Nevertheless, the

“plausibility” standard set forth in Twombly and Iqbal applies equally to Monell claims.
Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017); McCauley v. City of Chicago, 671
F.3d 611, 618 (7th Cir. 2011).
Mr. Blasingame includes boilerplate about an official policy of Wexford that “has
caused deliberate indifference to myself and other inmates for inadequate health care.”

He does not clearly define the policy or provide enough detail to plausibly suggest that
it was an official policy of Wexford that caused his injury in this case. Rather, his
complaint describes an injury caused by the failings of individual medical staff from
whom he sought care.2 Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016) (observing
that Monell requires a plaintiff to show that an official policy “was the ‘moving force’

behind his constitutional injury”).

2 He mentions an official policy by Wexford of failing to provide proper pain medication for
inmates with chronic pain, but neither his original complaint nor his amended complaint contained any
allegations about a need for pain medication. (See ECF 23-1 at 5.) There is thus no basis to conclude that
any such policy caused him injury. It appears Mr. Blasingame may have taken this language from a case
he found on a legal database.
To the extent he is trying to allege a widespread practice, his allegations are
again too vague to support a plausible Monell claim. To succeed on a widespread

practice theory of Monell liability, “the plaintiff must demonstrate that the practice is
widespread and that the specific violations complained of were not isolated incidents.”
Gill, 850 F.3d at 344. “At the pleading stage . . . a plaintiff pursuing this theory must
allege facts that permit the reasonable inference that the practice is so widespread so as
to constitute a governmental custom.” Id. The purpose of this requirement is to
“distinguish between the isolated wrongdoing of one or a few rogue employees and

other, more widespread practices.” Howell v. Wexford Health Sources, Inc., 987 F.3d 647,
654 (7th Cir. 2021).
In support of his Monell claim, Mr. Blasingame cites generally to three lawsuits
filed by other inmates located at Westville.3 (ECF 23-1 at 6.) These cases do not involve
breathing treatments or a systemic practice of denying inmates proper treatment for

breathing issues. Rather, two cases involve an inmate’s treatment for lupus, and the
third involves an inmate with a different autoimmune disorder called ankylosing
spondylitis. The mere fact that other inmates may have had complaints about their
medical care in the past does not, by itself, “show a sufficiently specific pattern of
conduct to support the general allegation of a custom or policy.” Flores v. City of S. Bend,

3 Although he does not provide the docket numbers, he appears to be referencing the following
cases brought by inmates Lance Walters and Richard Dodd: Walters v. Wexford of Indiana, LLC, No. 3:20-
CV-230-JD-MGG (N.D. Ind. closed Jan. 21, 2021); Walters v. Liaw, No. 3:20-CV-316-JD-MGG (N.D. Ind.
closed Jan. 21, 2021); and Dodd v. Wexford Med. Inc., No. 3:19-CV-299-PPS-MGG (N.D. Ind. filed Apr. 10,
2019). The first two cases settled out of court without any admission of liability by defendants, and the
third case remains pending.
997 F.3d 725, 733 (7th Cir. 2021). “Finding otherwise would stretch the law too far,
opening municipalities [and corporations performing a government function] to

liability for noncodified customs in all but the rarest of occasions, as long as a plaintiff
can find a few sporadic examples of an improper behavior.” Id. Mr. Blasingame has not
plausibly alleged a claim against this corporate defendant.
For these reasons, the court:
(1) GRANTS the motion to amend (ECF 23) and DIRECTS the clerk to docket the
proposed amended complaint (ECF 23-1) as a separate docket entry;

(2) GRANTS the plaintiff leave to proceed against Nurse Practitioner Dishit Patel
and Medical Director Dorothy Livers in their personal capacity for monetary damages
for failing to provide adequate medical treatment for his breathing problems from
March 2021 to the present in violation of the Eighth Amendment;
(3) GRANTS the plaintiff leave to proceed against Warden John Galipeau in his

personal capacity for monetary damages for housing him under unsanitary conditions
of confinement from February 2021 to the present in violation of the Eighth
Amendment;
(4) GRANTS the plaintiff leave to proceed against Warden John Galipeau in his
official capacity on an Eighth Amendment claim to obtain permanent injunctive relief to

address the unsanitary conditions of his confinement and his need for medical care for
breathing problems;
(5) DISMISSES all other claims;
(6) DISMISSES Indiana Department of Correction and Wexford of Indiana, LLC,
as defendants;

(7) DIRECTS the clerk to request a Waiver of Service from (and if necessary, the
United States Marshals Service to use any lawful means to locate and serve process on)
Nurse Practitioner Dishit Patel and Medical Director Dorothy Livers at Centurion
Health and to send them a copy of this order and the amended complaint pursuant to
28 U.S.C. § 1915(d);
(8) DIRECTS the clerk to request a Waiver of Service from (and if necessary, the

United States Marshals Service to use any lawful means to locate and serve process on)
Warden John Galipeau at Indiana Department of Correction and to send him a copy of
this order and the complaint pursuant to 28 U.S.C. § 1915(d);
(9) ORDERS the Indiana Department of Correction and Centurion Health to
provide the United States Marshal Service with the full name, date of birth, and last

known home address of any defendant who does not waive service, to the extent this
information is available; and
(10) ORDERS Warden John Galipeau, Nurse Practitioner Patel, and Medical
Director Livers to respond, as provided 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 August 19, 2021
/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10161243. Public record. Not legal advice.