Malone v. Ivers

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LAVELLE MALONE,

Plaintiff,

v. CAUSE NO. 3:22-CV-274-JD-JPK

JENNY McKINNEY, et al.,

Defendants.

OPINION AND ORDER

Lavelle Malone, a prisoner without a lawyer, filed a “Motion For Leave To Amend and

Request the Court for Permission to Amend Plaintiff’s Complaint and Supplemental Pleading To

Add Defendants” (Motion to Amend). [DE 23]. For the reasons that follow, Malone’s Motion to

Amend is denied.

PROCEDURAL HISTORY

Malone filed a pro se complaint on April 6, 2022, alleging Eighth Amendment deliberate

indifference claims against various individuals and entities associated with medical care he

received while incarcerated at the Miami Correctional Facility. [DE 2]. The Court’s original

screening order held that Malone had stated plausible claims against two unnamed nurses who

allegedly ignored Malone’s requests for pain medication and bandages to stop his bleeding for a

period of an hour and a half while Malone was waiting to be transported to the hospital. [DE 13 at

3].

The Court held, however, that Malone failed to state plausible claims for deliberate

indifference against (i) an unnamed doctor, and (ii) L. Ivers, Medical Service Administrator at the

Miami Correctional Facility, because he alleged no supporting facts against those two defendants.

See [id. (“It is not clear whether they were ever present during the incident, what they were told

about it, or what they personally did in response to it.”)]. As to the unnamed doctor, the Court

noted that, while Malone alleged that the unnamed nurses told him they needed the unnamed

doctor’s approval before he could be transported to the hospital, Malone did “not plausibly allege

the doctor failed to reasonably respond—especially since he admits he was transported to an

outside hospital for care an hour and a half after he arrived at medical.” [Id. at 3-4].

Finally, the Court’s original screening order held that Malone had failed to state a plausible

Monell claim against Centurion, the company responsible for medical care at the Miami

Correctional Facility. Although Malone alleged that Centurion’s “policies on training all named

defendants to respond reasonably to [his] serious medical need[s] are inadequate and pervasive,”

the Court held that he did not describe the policies in question “or provide any details to support

such an assertion.” [Id. at 5].

The Court’s original screening order thus: (1) granted leave to proceed against Jane Doe

Nurse #1 and Jane Doe Nurse #2; (2) dismissed Malone’s claims against Centurion, L. Ivers, and

John Doe Doctor; (3) dismissed all other claims including those against Centurion; (4) ordered

Centurion to identify the names of Jane Doe Nurse #1 and Jane Doe Nurse #2; and (5) ordered

Malone to file an amended complaint naming the correct nurses as defendants once they were

identified. [Id. at 6-7].

Centurion filed a notice identifying the Jane Doe nurses on January 20, 2023 [DE 18], and,

on February 8, 2023, Malone filed an Amended Complaint and Supplemental Pleading [DE 19]

naming those two individuals as defendants. Specifically, in the currently operative amended

complaint, Malone alleges that he was stabbed on the left side of his face above his eye by another

inmate at the Miami Correctional Facility on August 28, 2021. He was taken to medical. Once

there, he was placed on a stretcher and handcuffed. Malone asked Jenny McKinney, RN, and Nurse

Sakiru Taiwo Adetunji to help him several times. Despite the fact that he was “profusely bleeding”

and in “great pain,” they refused. [Id. at 2, 3]. They did not give him pain medication or attempt

to stop the bleeding in any way. Instead, they simply told him they “had to call the unknown doctor

to approve me to ride in an ambulance so I could go to an outside hospital for treatment.” [Id.].

After an hour and a half without any treatment from Nurse McKinney or Nurse Adetunji, Malone

was flown by a Lifeline Helicopter to a hospital in Indianapolis where he received care for his

injuries.

The Court held in a subsequent screening order dated February 8, 2023, that the amended

complaint’s allegations were sufficient to state a plausible claim for deliberate indifference. Thus,

the Court granted Malone leave to proceed against Nurse McKinney and Nurse Adetunji in their

individual capacities for compensatory and punitive damages for being deliberately indifferent to

the stab wound above his left eye on August 28, 2021, in violation of the Eighth Amendment. [DE

21].

Following the Court’s grant of leave to proceed with the deliberate indifference claims

against Nurses McKinney and Adetunji, Malone filed the present Motion to Amend, in which he

seeks to amend the Amended Complaint and Supplemental Pleading, i.e., file a Second Amended

Complaint, to add claims against the following additional defendants: (1) Centurion of Indiana,

LLC; (2) John Doe, Chief Medical Officer; (3) John Doe, Director; (4) William R. Hyatte, former

Warden of Miami Correctional Facility; and (5) Robert E. Carter Jr., Commissioner of the Indiana

Department of Corrections (IDOC). [DE 23 at 2-4]. Malone states that his Motion to Amend is

brought pursuant to “Footnote 1 and Footnote 2” in the Court’s original screening order, wherein

the Court stated the following:

“[I]f information demonstrating [the unnamed doctor’s or L. Iver’s]

liability becomes available—and Malone believes he can state a

claim against them based on (and consistent with) the events

described in this complaint—he may seek to amend his complaint

pursuant to the Federal and Local Rules”;

and

“To the extent Malone is attempting to assert a failure to train claim

[against Centurion], he has not plausibly done so” because he “has

not pled any facts to plausibly suggest Centurion’s failure to train its

employees caused his constitutional injury.”

[DE 13 at 4 n.1 and id. at 5 n.2].

DISCUSSION

Malone may only amend his complaint at this stage of the proceedings with the defendants’

written consent or the court’s leave. See Fed. R. Civ. P. 15(a)(2). He must also comply with both

the Federal and Local Rules. The Local Rules of this District provide that “[m]otions to amend a

pleading must include the original signed proposed amendment as an attachment.” N.D. Ind. L.R.

15-1(a). They also require that an amended pleading “reproduce the entire pleading as amended,”

rather than simply incorporating a prior pleading by reference. N.D. Ind. L.R. 15-1(b); see also

French v. Wachovia Bank, 574 F.3d 830, 835 (7th Cir. 2009) (a party cannot amend his complaint

in a piecemeal fashion because an amended complaint will supersede all earlier pleadings and

control the case from that point forward).

Malone’s Motion to Amend does not comply with the requirement of subsection (a) of

Local Rule 15-1 of attaching a proposed Second Amended Complaint. And, if the Court were to

construe the Motion to Amend itself as the proposed Second Amended Complaint, it would not

comport with the requirements of subsection (b) of Local Rule 15-1 of reproducing the entire

pleading as amended. Failure to comply with Local Rule 15-1, however, “is not grounds to deny

the motion.” N.D. Ind. L.R. 15-1(c).1 Nevertheless, the additional allegations provided in

Malone’s Motion to Amend do not give rise to any plausible claim against the newly identified

defendants. Thus, Malone’s Motion to Amend must be denied for this reason, as discussed more

fully below.

1. Monell Claim against Centurion

As noted in the Court’s original screening order, Centurion cannot be held liable solely

because it employed medical staff involved in Malone’s care. J.K.J. v. Polk Cnty., 960 F.3d 367,

377 (7th Cir. 2020). A private company performing a public function can be sued under Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), but such entities “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 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). “At the pleading stage . . . a

plaintiff pursuing [a Monell] theory must allege facts that permit the reasonable inference that the

practice is so widespread so as to constitute a governmental custom.” Gill v. City of Milwaukee,

850 F.3d 335, 344 (7th Cir. 2017). Additionally, the plaintiff must allege that an official policy

1 In addition to Local Rule 15-1, Local Rule 7-6 provides that “[t]he court may require parties

representing themselves to use clerk-supplied forms.” N.D. Ind. L.R. 7-6. Malone used the clerk-

supplied form for his original complaint. [DE 2]. He did not do so when he filed the Amended

Complaint and Supplemental Pleading [DE 19], but the Court in its discretion still approved it.

[DE 19, 21]. Should Malone submit any proposed amendment going forward, he should (1) comply

with Local Rule 15-1(b), i.e., reproduce the entire pleading as amended, and (ii) use the proper

clerk-supplied form when attaching a proposed Second Amended Complaint to his motion to

amend pursuant to Local Rule 15-1(a).

“was the ‘moving force’ behind his constitutional injury.” Dixon v. Cnty. of Cook, 819 F.3d 343,

348 (7th Cir. 2016).

Here, without any elaboration, Malone states “Policy and Administrative Procedure 01-02-

101” was the moving force behind the alleged constitutional violations he suffered. However, he

does not explain how or why that general policy, which describes “the standards and guidelines

used to provide, maintain, and improve the physical and mental health of adults and youths

confined by the Indiana Department of Correction,” caused him harm. See

https://www.in.gov/idoc/files/01-02-101-Health-Services-1-1-2018.pdf (last visited Mar. 29,

2023). Of note, the Policy states:

The health services provided shall include reasonable preventive

services, routine care as directed by qualified health care

professionals, necessary emergency care, specialist consultation

when indicated, and hospitalization, when necessary. The Division

staff shall distinguish between care that is necessary (and should be

provided) and care that is desirable and not necessary (and should

not be provided). Seriousness shall be the primary concern when

determining whether care should be provided. Seriousness can be

evidenced by loss of life or limb, production of significant pain, or

significant impact on activities of daily living. When determining

the necessity for care to be delivered through departmental

resources, Division staff shall take into account the likelihood of a

treatment’s benefit to the individual offender patient and the

likelihood of deleterious effects should treatments be delayed, either

later during confinement or after the offender patient’s release.

Id. Taking the allegations in Malone’s Amended Complaint and Supplemental Pleading [DE 19]

at face value, Nurse McKinney and Nurse Adetunji allegedly failed to provide Malone with

constitutionally adequate health care in spite of this Policy, not because of it. Importantly, isolated

instances of wrongdoing by a few employees cannot form the basis of a Monell claim. Howell, 987

F.3d at 654. Therefore, even if the additional allegations found in Malone’s current Motion to

Amend were credited, he has not stated a plausible Monell claim against Centurion based on the

conduct of Nurse McKinney and Nurse Adetunji.

2. Deliberate Indifference Claims Against the Additional Individual Defendants

As explained in the Court’s initial screening order, liability under 42 U.S.C. § 1983 is based

on personal responsibility and defendants cannot be held liable for the misdeeds of other staff.

Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018); Burks v. Raemisch, 555 F.3d 592, 596 (7th

Cir. 2009). Malone states that CMO John Doe, L. Ivers, Warden Hyatte, and Commissioner Carter

“knew of a substantial risk of harm to plaintiff and failed to act in disregard [of] that risk.” [DE 23

at 3–5]. But Malone does not provide any details to support those conclusory allegations. He claims

that these defendants’ “action or inaction” caused the delay in his treatment, but he does not explain

why. Id. These sparse allegations are insufficient to state any plausible claims for personal liability

against the individual defendants identified in Malone’s Motion to Amend. See generally Atkins

v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (noting that a plaintiff “must plead some

facts that suggest a right to relief that is beyond the speculative level”) (internal quotation marks

and citation omitted); Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir. 2009) (claim

must have “facial plausibility” to survive dismissal). Thus, even if the additional allegations found

in his Motion to Amend are credited, Malone has not stated any claims against CMO John Doe, L.

Ivers, Warden Hyatte, or Commissioner Carter.

3. “Final Policymaker” Allegation

The Motion to Amend also asserts that Commissioner Carter “acting under color of state

law is final policymaker.” [DE 23 at 4]. This could be construed as an attempt to invoke the “final

policymaker” basis for Monell liability. See, e.g., Milestone v. City of Monroe, Wis., 665 F.3d 774,

780 (7th Cir. 2011) (“For municipal liability under § 1983, the constitutional violation must be

caused by (1) an express municipal policy; (2) a widespread, though unwritten, custom or practice;

or (3) a decision by a municipal agent with ‘final policymaking authority.’” (quoting Darchak v.

City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009) (emphasis added))); Valentino v. Vill.

of S. Chi. Heights, 575 F.3d 664, 675 (7th Cir. 2009) (“It is well-established that when a particular

course of action is directed by those who set municipal policy, the municipality is responsible

under section 1983[.]” (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986))). But

Commissioner Carter is not a municipal agent for whom the final policymaker principle of Monell

liability may be invoked. Moreover, Malone does not allege that any decision by Commissioner

Carter, acting in his role as a final policymaker, was the cause of his allegedly unconstitutional

treatment. Indeed, as previously discussed, the only official policy mentioned in Malone’s Motion

to Amend is a policy that Malone alleges was ignored by the persons rendering him medical care,

not a policy that caused the alleged unconstitutional medical care.

An allegation of final policymaking authority against a state actor like Commissioner

Carter is insufficient to render that state actor liable, whether in his individual or official capacity.

To hold Commissioner Carter liable in his individual capacity, Malone would have to allege

personal participation in the specific alleged wrongful conduct, and, as previously discussed, he

has not done so. And any official capacity claim Malone intends to allege against Commissioner

Carter would be barred by the doctrine of sovereign immunity, regardless of that official’s alleged

“final policymaker” status. See Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (“The

Eleventh Amendment, which precludes a citizen from suing a state for money damages in federal

court without the state’s consent, bars [the plaintiff’s] claims against the Indiana State Prison and

the Indiana Department of Corrections, both state agencies,” and “[t]his principle also applies to

suits for money damages against state officials in their official capacities[.]”).

CONCLUSION

For the reasons stated above, the Motion to Amend [DE 23] is DENIED.

So ORDERED this 19th day of April, 2023.

s/ Joshua P. Kolar

MAGISTRATE JUDGE JOSHUA P. KOLAR

UNITED STATES DISTRICT COURT