Dillion v. Lake County Jail

Filing 9

OPINION AND ORDER: Court GRANTS Robert David Dillion until 3/30/2016, to file an amended complaint; and CAUTIONS that if he does not respond by that deadline, this case will be dismissed without further notice. Signed by Senior Judge James T Moody on 2/22/2016. cc: Dillion along with form (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT DAVID DILLION,
Plaintiff,
v.
DR. ERSMAN,
Defendant.

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No. 2:15 CV 405

OPINION AND ORDER
Robert David Dillion, a prisoner at the Lake County Jail, filed a vague amended
complaint alleging that he received inadequate medical treatment for his arm. “A
document filed pro se 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.
The Federal Rules of Civil Procedure require a complaint to contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2) (emphasis added). Thus, it 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) (citing Twombly, 550 U.S. at 556). “Factual
allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (quotation marks, citations and footnote omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not shown—that the pleader is
entitled to relief.” Iqbal, 556 U.S. at 679 (quotation marks and brackets omitted). Thus, “a
plaintiff must do better than putting a few words on paper that, in the hands of an
imaginative reader, might suggest that something has happened to her that might be
redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010)
(emphasis in original).
“In order to state a claim under § 1983 a plaintiff must allege: (1) that defendants
deprived him of a federal constitutional right; and (2) that the defendants acted under
color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Dillion explains that
on October 2, 2015, he fell from his bunk and broke his arm. He states that he was
immediately taken to the hospital and treated. The next day, the head doctor at the Lake
County Jail, Dr. Ersman, saw him, prescribed him pain medication, and told him that he
would see him soon. Dr. Ersman is the only defendant named in this complaint. “For a
medical professional to be liable for deliberate indifference to an inmate’s medical
needs, he must make a decision that represents such a substantial departure from
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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) (quotation marks and citations omitted).
Dillion only saw Dr. Ersman one time. Dillion says that he has tried to see him
again, but he does not say what he did. Who did he speak to? What request forms did
he fill out? Who did he give them to? What responses did he get back? Dillion
speculates that Dr. Ersman has denied him pain medication. But he has not provided a
factual basis for why he believes that Dr. Ersman knows that he is in pain. Dillion
speculates that Dr. Ersman has allowed him to see an outside specialist only two times
since he went to the hospital. But he has not provided a factual basis for why he
believes that Dr. Ersman has been involved in his treatment since October 3, 2015. Who
is scheduling Dillion’s visits to the outside doctor? Has he seen another doctor at the
jail? Has he seen nurses? What has he told them? What treatment has he received?
Dillion states that his outside specialist wanted to see him more frequently. Did that
specialist communicate his concerns to Dr. Ersman? Did Dr. Ersman respond? Mere
speculation is insufficient to state a claim. Dillion must present facts from which it can
be reasonably inferred that Dr. Ersman violated his rights and is financially liable to
him.
This complaint does not state a claim. Nevertheless, because so many questions
remain unanswered, it is possible that Dillion has omitted relevant facts. Therefore, he
will be permitted to file an amended complaint if he has additional factual information
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to provide. See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). In his amended
complaint, if he files one, Dillion needs to set forth every claim that he is trying to bring
in this case. He needs to provide all the relevant facts. He needs to address the
questions raised in this order. Alternatively, if he has no additional claims or relevant
facts to submit for consideration, he need not respond, but the complaint will then be
subject to dismissal for failure to state a claim.
For these reasons, the court:
(1) DIRECTS the clerk to place this cause number on a blank Prisoner Complaint
42 U.S.C. § 1983 form and send it to Robert David Dillion;
(2) GRANTS Robert David Dillion until March 30, 2016, to file an amended
complaint; and
(3) CAUTIONS Robert David Dillion that if he does not respond by that
deadline, this case will be dismissed without further notice pursuant to 28 U.S.C. §
1915A because the current complaint does not state a claim.
SO ORDERED.
Date: February 22, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT