WHITE-BEY v. HOLCOMB

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ROBERT WHITE-BEY, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00382-JPH-DLP

)

ERIC J. HOLCOMB, )

ROBERT E. CARTER, JR., )

BRIAN SMITH, )

CHRIS A. WILLIAMS, )

I. RANDOLPH, )

WEXFORD HEALTH SERVICES L.L.C., )

MOOTHERY, )

SUEZIE SMOOTH, )

PEREZ, )

PETTY, )

)

Defendants. )

ENTRY SCREENING COMPLAINT, DISMISSING INSUFFICIENT CLAIMS, AND

DIRECTING SERVICE OF PROCESS

The plaintiff, Robert White-Bey, is currently an inmate at Putnamville Correctional Facility

("PCF"). Because Mr. White-Bey is a "prisoner" as defined by 28 U.S.C. § 1915A(c), this Court

has an obligation under 28 U.S.C. § 1915A(a) to screen his complaint.

I. Screening Standard

Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous

or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is

immune from such relief. In determining whether the complaint states a claim, the Court applies

the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a

claim for relief that is plausible on its face. A claim has facial plausibility when the

plaintiff pleads factual content that 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). Pro se complaints such as that filed by Mr. White-

Bey are construed liberally and held to a less stringent standard than formal pleadings drafted by

lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).

II. The Complaint

The Court notes that Mr. White-Bey attached thirty pages of exhibits labeled health care

request forms to his complaint. Dkt. 2-1. The attachments to the complaint can be "stricken without

bothering to read." Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir. 2013) (exhibits attached to

the complaint are disregarded). These exhibits appear to be nothing more than evidence in support

of the claims alleged in the complaint. To consider the exhibits at this point would circumvent the

"simple and plain statement requirement" of Rule 8(a)(2) of the Federal Rules of Civil Procedure.

Mr. White-Bey names the following defendants in his complaint: (1) Governor Eric

Holcomb; (2) Indiana Department of Correction ("IDOC") Commissioner Robert E. Carter, Jr.;

(3) Warden Brian Smith; (4) Chris Williams, grievance specialist; (5) I. Randolph, final reviewing

authority of offender grievance process; (6) Wexford Health Services, LLC;1 (7) Nurse Moothery,

health service administrator; (8) Suezie Smooth; (9) Dr. Perez; and (10) Nurse Practitioner Petty.

Dkt. 2. At all times relevant to his complaint, Mr. White-Bey was incarcerated at PCF. Id. Mr.

White-Bey seeks monetary damages. Id. at 8.

Mr. White-Bey alleges that he suffers from rheumatoid arthritis, degeneration of the

cartilage in his knees, back pain, and numbness from his chest to his feet. Id. at 2-3. On March 18,

2020, Mr. White-Bey was seen by Dr. Perez because he "had three incident[s] where his legs had

1 The Court understands that Wexford Health Services, LLC, should properly be reflected on the

docket as Wexford of Indiana, LLC.

given out and he had fallen." Id. at 3. Mr. White-Bey states that Dr. Perez ordered x-rays but did

not take an x-ray of his back. Id. He claims that he saw Dr. Perez six times after this, tried many

medications including Cortisone shots in his knees, and only received minor relief. Id.

Mr. White-Bey alleges that Nurse Petty saw him on March 18, 2020, due to his worsening

back and leg pain and told him there was "nothing wrong" and "the problem was his weight." Id.

He claims she cancelled his inhaler and stopped his pain medications. Id.

Mr. White-Bey claims he was finally moved to a dorm on the ground floor on June 20,

2020. Id. at 4. After six months of trying to get a wheelchair, Mr. White-Bey alleges he received a

wheelchair on July 13, 2020 but it was inadequate because it was too small and it broke within a

week. Id. at 4. Mr. White-Bey does not state whether at the time of filing his complaint that he is

currently without a wheelchair. At the end of his complaint, Mr. White-Bey states "the bottom line

is this [he] is disabled acomidation [sic] should have been made, but they were not." Id. at 7.2

III. Discussion of Claims

A. Dismissed Claims

Mr. White-Bey names a number of individuals in the caption of his complaint and makes

no further specific allegations of wrongdoing against them in the body of his complaint. He makes

unspecified and general assertions that the "respondents" created customs and practices that placed

2 Even liberally construing this statement, the Court does not find that Mr. White-Bey has alleged

claims under the Americans With Disabilities Act (ADA) and/or the Rehabilitation Act (RA). 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." Love v. Westville Corr. Ctr., 103 F.3d 558, 560

(7th Cir. 1996) (citing 42 U.S.C. § 12132). The RA is functionally identical: it requires the plaintiff

to allege that "(1) he is a qualified person (2) with a disability and (3) the [state agency] denied

him access to a program or activity because of his disability." Jaros v. Ill. Dep't of Corr., 684 F.3d

667, 672 (7th Cir. 2012). To the extent Mr. White-Bey intended to make any such claims, those

claims are dismissed for failure to state a claim upon which relief may be granted.

him in imminent danger or that breached their employment contract. Id. at 5. He claims that

unidentified IDOC and Wexford staff observed him struggling in everyday life via the cameras in

the dorms and on the streets outside the dorms but did nothing to assist him. Id. at 6-7.

"Liability under § 1983 is direct rather than vicarious; supervisors are responsible for their

own acts but not for those of subordinates, or for failing to ensure that subordinates carry out their

tasks correctly." Horshaw v. Casper, 910 F.3d 1027, 1029 (7th Cir. 2018); see also Olive v.

Wexford Corp., 494 F. App'x. 671, 673 (7th Cir. 2012) ("[A] supervisor is not liable just because

a complaint is made and an effective solution is not forthcoming.").

To the extent that Mr. White-Bey claims his grievances were mishandled by those

individuals he lists who are responsible for making and reviewing grievance decisions, these

claims also fail. "Prison grievance procedures are not mandated by the First Amendment and do

not by their very existence create interests protected by the Due Process Clause." Owens v. Hinsley,

635 F.3d 950, 953-54 (7th Cir. 2011). An "alleged mishandling of [ ] grievances by persons who

otherwise did not cause or participate in the underlying conduct states no claim." Id. It is well-

settled that denying an inmate's grievance or refusing to investigate an incident after the fact does

not, by itself, amount to a constitutional violation. See, e.g., Burks v. Raemisch, 555 F.3d 592, 596

(7th Cir. 2009) (dismissing the "contention that any public employee who knows (or should know)

about a wrong must do something to fix it"); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)

("Ruling against a prisoner on an administrative complaint does not cause or contribute to the

violation.").

Mr. White-Bey has not established any individual wrongdoing on the part of Governor Eric

Holcomb, IDOC Commissioner Robert E. Carter, Jr., Warden Brian Smith, Chris A. Williams

(grievance specialist), I. Randolph (final review authority), Nurse Moothery (health service

administrator), or Suezie Smooth. All claims against these individuals are dismissed for failure to

state a claim upon which relief may be granted.

Mr. White-Bey alleges that Wexford has not given him an examination to diagnose his

medical condition, did not take x-rays of his back, and did not provide him with essential adequate

care according to its policies and practices. Dkt. 2. Wexford is not automatically liable under 42

U.S.C. § 1983 for the failings of its employees. To state a § 1983 damages claim against Wexford,

Mr. White-Bey must allege that a Wexford policy, practice, or custom caused a constitutional

violation. He points to no identifiable policy or practice to properly plead a damages claim against

Wexford upon which relief can be granted. Accordingly, all claims against Wexford are dismissed.

B. Claims that Shall Proceed

Mr. White-Bey's complaint makes specific allegations against only Dr. Perez and Nurse

Practitioner Petty, regarding their failure to provide him with adequate medical treatment or the

pursuit of an inadequate course of treatment constituting a deliberate indifference to his serious

medical needs.

The Court determines that Mr. White-Bey has asserted viable claims against these

defendants. Accordingly, Mr. White-Bey's deliberate indifference claims pursuant to the

Eighth Amendment as well as his state law claims of negligence shall proceed against both

defendants as pled in his complaint.

IV. Issuance of Service

The clerk is directed to issue process to defendants (1) Dr. Perez and (2) Nurse Practitioner

Petty in the manner specified by Federal Rule of Civil Procedure 4(d). Process shall consist of the

complaint (docket 2), applicable forms (Notice of Lawsuit and Request for Waiver of Service of

Summons and Waiver of Service of Summons), and this Entry.

These two defendants are identified as employees of Wexford of Indiana, LLC. The clerk

is directed to send a copy of this Entry to Wexford electronically. Wexford is ORDERED to

provide the full name and last known address of any defendant who does not waive service if they

have such information. This information may be provided to the Court informally or may be filed

ex parte.

V. Conclusion

The claims identified in Part III include all the viable claims identified by the Court. All

other claims are dismissed. If Mr. White-Bey believes that additional claims were alleged in the

complaint, but not identified by the Court, he shall have through December 10, 2020, to identify

those claims.

The clerk is directed to issue service of process to defendants: (1) Dr. Perez and (2) Nurse

Practitioner Petty in the manner specified in Part IV. The clerk is directed to terminate all other

defendants from the docket.

SO ORDERED.

Date: 11/16/2020

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

ROBERT WHITE-BEY

971622

PUTNAMVILLE - CF

PUTNAMVILLE CORRECTIONAL FACILITY

Electronic Service Participant – Court Only

Electronic Service to Wexford of Indiana, LLC

Copies by US mail to individual medical care providers:

Dr. Perez

Putnamville Correctional Facility

1946 West U.S. Hwy 40

Greencastle, IN 46135

Nurse Practitioner Petty

Putnamville Correctional Facility

1946 West U.S. Hwy 40

Greencastle, IN 46135