Kelly v. Mitcheff
Filing
3
OPINION AND ORDER granting leave to proceed against Dr Mike Mitcheff in his individual capacity for compensatory damages for denying him access to pain medication and in his official capacity for injunctive relief to obtain medically reasonable treatment for his pain; dismisses all other claims. USM to effect service. Signed by Judge Rudy Lozano on 9/10/2013. (kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RICHARD LARRY KELLY,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
MD MIKE MITCHEFF,
Defendant.
NO. 3:13-CV-924
OPINION AND ORDER
This matter is before the Court on the complaint filed
pursuant to 42 U.S.C. § 1983 by Richard Larry Kelly, a pro se
prisoner, on September 3, 2013. For the reasons set forth below,
the Court: (1) GRANTS Richard Larry Kelly leave to proceed against
Dr. Mike Mitcheff in his individual capacity, for compensatory
damages, for denying him access to pain medication in violation of
the Eighth Amendment; (2) GRANTS Richard Larry Kelly leave to
proceed against Dr. Mike Mitcheff in his official capacity, for
injunctive relief to obtain medically reasonable treatment for his
pain; (3) DISMISSES all other claims; (4) DIRECTS the clerk to
transmit the summons and USM-285 for Dr. Mike Mitcheff to the
United States Marshals Service along with a copy of the complaint
and this order; (5) DIRECTS the United States Marshals Service,
pursuant to 28 U.S.C. § 1915(d), to effect service of process on
Dr.
Mike
Mitcheff;
and
(6)
ORDERS,
pursuant
to
42
U.S.C.
§
1997e(g)(2), that Dr. Mike Mitcheff respond, as provided for in the
Federal Rules of Civil Procedure and N.D. IND. L.R. 10-1(b), only
to the claim for which the plaintiff has been granted leave to
proceed in this screening order.
BACKGROUND
Kelly alleges that Dr. Mike Mitcheff is preventing him from
obtaining
the
pain
medication
that
he
needs
by
various
administrative means: refusing to permit the delivery of some
medications, the use of a formulary, requiring secondary review of
his medical treatment, limiting the cost of care, not permitting
specialist treatments, and denying him access to alternate housing.
He seeks compensatory damages. He also seeks injunctive relief
requiring treatment of his pain, moving him to a different housing
unit, and compelling that he be taken to a neurologist to receive
a specific course of treatment.
DISCUSSION
“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). However, pursuant to 28 U.S.C. § 1915A, the
court must review the merits of a prisoner complaint and dismiss it
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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. 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) (citing Twombly, 550 U.S. at
556). “[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do. 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
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(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).
A “disagreement with medical professionals [does not] state a
cognizable Eighth Amendment Claim under the deliberate indifference
standard of Estelle v. Gamble [429 U.S. 97 (1976)].” Ciarpaglini v.
Saini,
352
F.3d
professional
to
328,
be
331
liable
(7th
for
Cir.
2003).
deliberate
“For
a
indifference
medical
to
an
inmate’s medical needs, he 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) (quotation
marks and citations omitted).
Here, giving Kelly the benefit of the inferences to which he
is entitled at the pleading stage of this proceeding, he has stated
a claim against Dr. Mitcheff for denying him access to needed pain
medication and he will be permitted to proceed on a claim for
compensatory damages and injunctive relief to obtain medically
reasonable treatment for his pain. However, a prisoner “is not
entitled to demand specific care [nor] entitled to the best care
possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997).
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Therefore he may not proceed on a claim for injunctive relief to be
seen by a neurologist to receive a specific course of treatment.
Moreover, prison administrators are afforded wide-ranging deference
in managing prisons and deciding where to house inmates, see
Whitley v. Albers, 475 U.S. 312, 321–22 (1986) and Sandin v.
Conner, 515 U.S. 472, 485 (1995). Therefore he may not proceed on
an
injunctive
relief
claim
requiring
that
he
be
moved
to
a
different housing unit. That is to say, if Kelly can demonstrate
that the pain treatment he is receiving is a substantial departure
from accepted professional judgment, practice, or standards; then
the proper injunctive remedy would be to require that he get
medically reasonable treatment, not to specify what treatment, who
would provides it, or here it is provided.
CONCLUSION
For the reasons set forth above, the court: (1) GRANTS Richard
Larry Kelly leave to proceed against Dr. Mike Mitcheff in his
individual capacity, for compensatory damages, for denying him
access to pain medication in violation of the Eighth Amendment; (2)
GRANTS Richard Larry Kelly leave to proceed against Dr. Mike
Mitcheff in his official capacity, for injunctive relief to obtain
medically reasonable treatment for his pain; (3) DISMISSES all
other claims; (4) DIRECTS the clerk to transmit the summons and
USM-285 for Dr. Mike Mitcheff to the United States Marshals Service
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along with a copy of the complaint and this order; (5) DIRECTS the
United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to
effect service of process on Dr. Mike Mitcheff; and (6) ORDERS,
pursuant to 42 U.S.C. § 1997e(g)(2), that Dr. Mike Mitcheff
respond, as provided for in the Federal Rules of Civil Procedure
and N.D. IND. L.R. 10-1(b), only to the claim for which the
plaintiff has been granted leave to proceed in this screening
order.
DATED:
September 10, 2013
/s/RUDY LOZANO, Judge
United States District Court
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