Scroggin v. Dawson et al

Filing 21

OPINION AND ORDER: DENYING 4 MOTION to Appoint Counsel; DIRECTING the Clerk to send Scroggin 10 copies of this screening order; DENYING the request for a preliminary injunction; DIRECTING the Clerk to send a copy of the 16 Amended Compliant an d 20 letter to the Superintendent of the Miami Correctional Facility; GRANTING Pltf leave to proceed on 8th Amendment claim against Peggy Dawson and Victoria Burdine in their individual capacities for money damages for money damage for continuing to administer crushed Wellbutrin; GRANTING Pltf leave to proceed on 8th Amendment claim against Peggy Dawson and Victoria Burdine for injunctive relief in connection with properly administering Wellbutrin; GRANTING Pltf leave to proceed on 8th Amendm ent claim against Lee Ann Ivers for injunctive relief to schedule medical treatment of damaged taste buds; DISMISSING all other claims; DISMISSING Kathy Griffin, Jennifer Fiscal, Marlene Parker, Richard Webber, and Corizon Health; DIRECTING the USM t o effect service of process on remaining defendants; ORDERING Dawson, Burdine and Ivers to respond only to the claim for which the pro se Pltf has been granted leave to proceed. Signed by Judge Rudy Lozano on 7/5/16. (cc: Scroggins with 10 copies of order; Superintendent - 16 and 20 and this order; USM)(jld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BRANDON LEE SCROGGIN,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
PEGGY DAWSON, et al.,
Defendants.

CAUSE NO. 2:15-CV-432

OPINION AND ORDER
Brandon Lee Scroggin, a pro se prisoner, filed an amended
complaint under 42 U.S.C. § 1983. (DE #16.) He has also requested
a preliminary injunction and to be appointed counsel. (DE ##4, 20.)
For the reasons set forth below, the Court:
(1) DENIES the motion for appointment of counsel (DE #4);
(2) DIRECTS the Clerk to send Scroggin ten copies of this
screening order;
(3) DENIES the request for a preliminary injunction;
(4) DIRECTS the Clerk to send a copy of Scroggin’s amended
complaint (DE #16) along with his letter (DE #20) a copy of this
order to the Superintendent of the Miami Correctional Facility;
(5) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Peggy Dawson and Victoria Burdine in their
individual

capacities

for

money

damages

for

continuing

to

administer crushed Wellbutrin that they were told had made his
condition worse;
-1-

(6) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Peggy Dawson and Victoria Burdine for
injunctive

relief

in

connection

with

properly

administering

Wellbutrin;
(7) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Lee Ann Ivers in her individual capacity
for money damages for denying him adequate medical care by ignoring
his health care requests for his damaged taste buds;
(8) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Lee Ann Ivers for injunctive relief to
schedule medical treatment of his damaged taste buds;
(9) DISMISSES all other claims;
(10) DISMISSES Kathy Griffin, Jennifer Fiscal, Marlene Parker,
Richard Webber, and Corizon Health;
(11) DIRECTS the United States Marshals Service, pursuant to
28 U.S.C. § 1915(d), to effect service of process on Peggy Dawson,
Victoria Burdine and Lee Ann Ivers; and
(12) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Peggy
Dawson, Victoria Burdine and Lee Ann Ivers respond, as provided for
in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10.1,
only to the claim for which the pro se plaintiff has been granted
leave to proceed in this screening order.

-2-

BACKGROUND
Brandon Lee Scroggin, a pro se prisoner, filed his amended
complaint

on

April

14,

2016.

(DE

#16.)

He

alleges

that

psychiatrists Peggy Dawson and Victoria Burdine have denied him
adequate

medical

Wellbutrin.

care

by

administering

crushed

time-released

He also alleges that Nursing Director Lee Ann Ivers

has ignored his requests to be seen by medical professionals for
his injured taste buds suffered as a result of taking crushed
Wellbutrin.

He

further

alleges

defendants have failed to help him.

the

rest

of

the

individual

And, finally, he brings suit

against Corizon Health as the defendants’ employer.

DISCUSSION
A.

Screening Pursuant to 28 U.S.C. § 1915A
Pursuant to 28 U.S.C. § 1915A, the Court must review 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.

28

U.S.C.

§

1915A.

In

determining

whether

the

complaint states a claim, the Court applies the same standard as
when deciding a motion to dismiss under FEDERAL RULE

OF

CIVIL PROCEDURE

12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
2006). To survive dismissal, a complaint must state a claim for
relief that is plausible on its face. Bissessur v. Indiana Univ.

-3-

Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “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.” Id. at 603. Thus,
the 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). The Court must bear in mind, however, that
“[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).
According

to

the

amended

complaint,

Scroggin

has

been

diagnosed with Major Depressive Disorder, along with being Bi-Polar
and anti-social. Prior to arriving at the Miami Correctional
Facility (“Miami”), he was prescribed Wellbutrin to deal with his
diagnosed conditions. According to GlaxoSmithKline, Wellbutrin’s
maker, and the Federal Drug Administration, Wellbutrin should not
be crushed.
Once he arrived at Miami, Scroggin was assigned and treated by
psychiatrist

Peggy

Dawson.

After

approximately

eight

or

nine

months, Dawson ordered Scroggin’s Wellbutrin to be crushed and
taken with water. Scroggin alleges that taking Wellbutrin in this

-4-

manner has permanently damaged his taste buds. He claims he cannot
taste anything. He further claims that taking crushed Wellbutrin is
not effective in controlling his diagnosed mental conditions.
Scroggin informed Dawson of these effects, but Dawson told him that
the medication would continue to be crushed and put into water
pursuant to Victoria Burdine’s orders.
Scroggin filled out healthcare request forms asking to be seen
by a doctor for his damaged taste buds. However, even though
Nursing Director Lee Ann Ivers was aware of his condition, she
ignored his healthcare requests. This has resulted in Scroggin not
receiving medical treatment.
On August 31, 2015, Scroggin filed an informal grievance
complaining about the crushed Wellbutrin and sent copies to Peggy
Dawson, Superintendent Kathy Griffin, Assistant Superintendent
Jennifer Fiscal, Director of Mental Health, and Marlene Parker.
None of these individuals intervened.
Based

on

these

allegations,

Scroggin

has

brought

Eighth

Amendment claims against Peggy Dawson, Lee Ann Ivers, Marlene
Parker, Richard Webber, Kathy Griffin, Jennifer Fiscal, Victoria
Burdine, and Corizon Health. Scroggin seeks money damages and
injunctive relief - to be medically treated for his damaged taste
buds and have his Wellbutrin administered properly.
Under the Eighth Amendment, inmates are entitled to adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To

-5-

establish liability, a prisoner must satisfy both an objective and
subjective

component

by

showing:

(1)

his

medical

need

was

objectively serious; and (2) the defendant acted with deliberate
indifference to that medical need. Farmer, 511 U.S. at 834. A
medical need is “serious” if it is one that a physician has
diagnosed as mandating treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005). Deliberate indifference means that the defendant “acted in
an intentional or criminally reckless manner, i.e., the defendant
must have known that the plaintiff was at serious risk of being
harmed and decided not to do anything to prevent that harm from
occurring even though he could have easily done so.” Board v.
Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (internal citation
omitted).
For a medical professional to be held liable for deliberate
indifference to a serious medical need, 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). A mere disagreement with medical professionals
about the appropriate course of treatment does not establish
deliberate

indifference,

nor

does

-6-

negligence

or

even

medical

practice. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). An
inmate who has received some form of treatment for a medical
condition

must

show

that

the

treatment

was

“so

blatantly

inappropriate as to evidence intentional mistreatment likely to
seriously aggravate his condition.” Id.
Here, Scroggin alleges that psychologists Peggy Dawson and
Victoria Burdine knew of the warnings against crushing Wellbutrin
and

also

knew

of

the

damages

it

was

causing

Scroggin,

but

nevertheless continued to administer crushed Wellbutrin. This
states a claim for deliberate indifference. Perez v. Fenoglio, 792
F.3d 768 (7th Cir. 2015). Although further factual development may
show that Burdine and Dawson were justified in administering
crushed Wellbutrin to Scroggin, giving him the inferences to which
he is entitled at this stage, he has alleged enough to proceed on
an Eighth Amendment claim against them.
Next, Scroggin brings suit against Lee Ann Ivers, the nursing
director, for failing to schedule him to see a medical provider for
his injured taste buds. He alleges that Ivers violated the Eighth
Amendment by ignoring his health care request forms for treatment.
Scroggin states that this resulted in him not receiving treatment,
which has caused him to suffer for a prolonged period of time.

A

delay in providing treatment can constitute deliberate indifference
when it causes unnecessary pain or suffering. Arnett v. Webster,
658 F.3d 742, 752-53 (7th Cir. 2011); Grieveson v. Anderson, 538

-7-

F.3d 763, 779 (7th Cir. 2008).

Thus, Scroggin has alleged an

Eighth Amendment claim against Ivers and he will be permitted to
proceed on a claim against her.
Next, Scroggin brings suit against Kathy Griffin, Jennifer
Fiscal, Marlene Parker, and Richard Webber for failing to intervene
in Burdine and Dawson’s decision to administer crushed Wellbutrin.
Scroggin does not allege, nor is it reasonable to infer from the
amended complaint, that any of these officials played a direct role
in the providing of medical care. Nevertheless, Scroggin asserts
that they had personal involvement sufficient to trigger liability
under

Section

1983

because

he

complained

to

them

about

his

treatment. “Section 1983 does not establish a system of vicarious
responsibility” and “public employees are responsible for their own
misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d
592, 593 (7th Cir. 2009). As the Seventh Circuit has explained:
Bureaucracies divide tasks; no prisoner is entitled to
insist that one employee do another’s job. The division
of labor is important not only to bureaucratic
organization but also to efficient performance of tasks;
people who stay within their roles can get more work
done, more effectively, and cannot be hit with damages
under §1983 for not being ombudsmen. [The] view that
everyone who knows about a prisoner’s problem must pay
damages implies that [a prisoner] could write letters to
the Governor of Wisconsin and 999 other public officials,
demand that every one of those 1,000 officials drop
everything he or she is doing in order to investigate a
single prisoner’s claims, and then collect damages from
all 1,000 recipients if the letter-writing campaign does
not lead to better medical care. That can’t be right. The
Governor, and for that matter the Superintendent of
Prisons and the Warden of each prison, is entitled to
relegate to the prison’s medical staff the provision of
-8-

good medical care.
Id. at 595.
Nothing in the complaint indicates that

Griffin, Fiscal,

Parker, Ivers, or Webber did anything to cause or exacerbate
Scroggin’s serious medical problems. At most, he alleges that they
knew about his complaints. Moreover, as noted above, Scroggin was
under the treatment of medical staff during this period, and nonmedical prison officials cannot be held liable for deferring to
their judgment. Id. at 596 (“[A] layperson’s failure to tell the
medical staff how to do its job cannot be called deliberate
indifference . . . .”); Greeno, 414 F.3d at 656 (“If a prisoner is
under the care of medical experts a non-medical prison official
will generally be justified in believing that the prisoner is in
capable hands.”). For these reasons, Scroggin fails to state a
claim against these defendants and they must be dismissed.
Finally, Scroggin sues Corizon. He is trying to hold the
company liable because it employs the individual medical staff
involved in his care. However, there is no general respondeat
superior liability under 42 U.S.C. § 1983. Chavez v. Illinois State
Police, 251 F.3d 612, 651 (7th Cir. 2001); see also Johnson v.
Dossey, 515 F.3d 778, 782 (7th Cir. 2008) (“[A] private corporation
is

not

vicariously

liable

under

§

1983

for

its

employees’

deprivations of others’ civil rights.”). The crux of his amended
complaint is that individual medical staff made poor decisions in

-9-

providing him care. Accordingly, Corizon will be dismissed as a
defendant.

B. Request for Preliminary Injunction
Scroggin seeks a preliminary injunction requiring officials at
Miami to treat his damaged taste buds and to also stop crushing his
Wellbutrin. “[A] preliminary injunction is an extraordinary and
drastic remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong,

520

U.S.

968,

972

(1997).

To

obtain

preliminary

injunctive relief, the moving party must demonstrate that he or she
has a reasonable likelihood of success on the merits, lacks an
adequate remedy at law, and will suffer irreparable harm if
immediate relief is not granted. Girl Scouts of Manitou Council,
Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1086 (7th Cir.
2008). Even assuming Scroggin met these threshold requirements, a
preliminary injunction would still not be appropriate.
When a prisoner seeks injunctive relief against correctional
officials the last factor, public interest, takes on particular
importance. Under the Prison Litigation Reform Act, injunctive
relief must be “narrowly drawn, extend no further than necessary to
remedy

the

constitutional

violation,

and

must

use

the

least

intrusive means to correct the violation of the federal right.”
Westefer v. Neal, 682 F.3d 679, 681 (7th Cir. 2012). As the U.S.

-10-

Supreme Court has observed, “the problems of prisons in America are
complex and intractable,” and “courts are particularly ill equipped
to deal with these problems[.]” Shaw v. Murphy, 532 U.S. 223, 229
(2001) (internal quote marks and citation omitted). Accordingly,
courts must afford prison officials “wide-ranging deference” in the
day-to-day operations of a correctional facility. Bell v. Wolfish,
441 U.S. 520, 547 (1979). Moreover, a preliminary injunction
ordering the defendant to take an affirmative act rather than
merely

refrain

from

certain

conduct

is

“cautiously

used

and

sparingly issued.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295
(7th Cir. 1993).
The method of how to administer drugs for a prison inmate and
whether to treat certain conditions is an exercise of medical
judgment. To obtain a preliminary injunction in such a situation
requires proof that prison officials have refused to appropriately
administer a drug, appropriately treat a condition, or “to follow
the advice of a specialist.” Arnett v. Webster, 658 F.3d 742, 753
(7th Cir. 2011). While Scroggin has alleged enough to get beyond
the pleading stage, he has not presented any evidence from any
medical professional that he should not be given crushed Wellbutrin
or that he needs medical attention for his taste buds. The Eighth
Amendment does not entitle inmates to demand specific care, id., or
authorize courts to decide questions of medical care on the basis
of lay opinion. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014);

-11-

Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). Moreover,
ordering prison officials to administer medication in a particular
manner is a substantial interference with prison administration.
Prisons,

at

times,

have

strong

incentives

to

crush

certain

medication to avoid the risk of hoarding. Craig v. Lane, No. 2:13CV-92, 2015 WL 5174049, at *5 (N.D. Ind. Sept. 2, 2015).
Here, public policy weighs against granting an injunction at
this preliminary stage. Getting involved in this matter is the type
of day-to-day operations the court tries to avoid. Such decisions
are better left to the correctional facility’s deference. For now,
the Superintendent will be provided with a copy of this order so
that he is aware of these issues and this litigation so he can best
decide how to proceed.

C.

Request for Counsel
Scroggin also requests the court appoint him counsel. Indigent

civil litigants have no constitutional or statutory right to be
represented by counsel in federal court. Jackson v. County of
McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). However, the court may
in its discretion appoint counsel under 28 U.S.C. § 1915. The
Seventh Circuit has directed:
When confronted with a request under § 1915(e)(1) for pro
bono counsel, the district court is to make the following
inquiries: (1) has the indigent plaintiff made a
reasonable attempt to obtain counsel or been effectively
precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear
-12-

competent to litigate it himself?
Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). When a litigant
fails to satisfy the first inquiry, the court is justified in
denying the motion. Jackson, 953 F.2d at 1073. Scroggin does not
address this first prong, and there is nothing in the motion to
indicate that he has made any efforts to obtain counsel on his own.
Accordingly, the motion will be denied. However, the Court will
direct the Clerk to send Scroggin ten copies of this screening
order so that he can enclose them in his letters to attorneys
asking them to represent him in this case.

CONCLUSION
For the foregoing reasons, the Court:
(1) DENIES the motion for appointment of counsel (DE #4);
(2) DIRECTS the Clerk to send Scroggin ten copies of this
screening order;
(3) DENIES the request for a preliminary injunction;
(4) DIRECTS the Clerk to send a copy of Scroggin’s amended
complaint (DE #16) along with his letter (DE #20) a copy of this
order to the Superintendent of the Miami Correctional Facility;
(5) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Peggy Dawson and Victoria Burdine in their
individual

capacities

for

money

damages

for

continuing

to

administer crushed Wellbutrin that they were told had made his
-13-

condition worse;
(6) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Peggy Dawson and Victoria Burdine for
injunctive

relief

in

connection

with

properly

administering

Wellbutrin;
(7) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Lee Ann Ivers in her individual capacity
for money damages for denying him adequate medical care by ignoring
his health care requests for his damaged taste buds;
(8) GRANTS Brandon Lee Scroggin leave to proceed on his Eighth
Amendment claim against Lee Ann Ivers for injunctive relief to
schedule medical treatment of his damaged taste buds;
(9) DISMISSES all other claims;
(10) DISMISSES Kathy Griffin, Jennifer Fiscal, Marlene Parker,
Richard Webber, and Corizon Health;
(11) DIRECTS the United States Marshals Service, pursuant to
28 U.S.C. § 1915(d), to effect service of process on Peggy Dawson,
Victoria Burdine and Lee Ann Ivers; and
(12) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Peggy
Dawson, Victoria Burdine and Lee Ann Ivers respond, as provided for
in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10.1,
only to the claim for which the pro se plaintiff has been granted
leave to proceed in this screening order.
DATED: July 5, 2016

/s/ RUDY LOZANO, Judge
United States District Court
-14-