Cashner v. Widup et al
Filing
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OPINION AND ORDER re 1 Pro Se Complaint. Court grants leave to proceed against Al-Shami, White and Widup in their individual capacities and dismises Party David E Lain (Sheriff, Porter County), Advanced Correctional Healthcare and Ronald Gaydos (Asst. Warden, Porter Co. Jail). Signed by Judge Rudy Lozano on 7/30/2014. (cc: USM)(kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
FREDERICK C. CASHNER,
Plaintiff,
vs.
JOHN J. WIDUP, et al.,
Defendants.
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CAUSE NO. 3:14-CV-1641
OPINION AND ORDER
Before the court is a complaint filed by Frederick C. Cashner,
a pro se prisoner, pursuant to 42 U.S.C. § 1983. (DE #1.)
For the
reasons set forth below, the Court: (1) GRANTS the plaintiff leave
to proceed against Dr. Nadir Al-Shami, Nurse Kimberly White, and
Warden John J. Widup in their individual capacities for monetary
damages for denying him proper medical treatment for chronic
headaches; (2) DISMISSES David E. Lain, Ronald Gaydos, and Advanced
Correctional Healthcare as defendants; (3) DISMISSES any and all
other claims contained in the complaint; (4) DIRECTS the United
States Marshals Service to effect service on Dr. Nadir Al-Shami,
Nurse Kimberly White, and Warden John J. Widup pursuant to 28
U.S.C. § 1915(d); and (5) ORDERS Dr. Nadir Al-Shami, Nurse Kimberly
White, and Warden John J. Widup to respond, as provided for in the
FEDERAL RULES
OF
CIVIL PROCEDURE, only to the claim for which the
plaintiff has been granted leave to proceed in this screening
order.
BACKGROUND
Frederick C. Cashner, a pro se prisoner, brought this action
in June 2014.
Indiana
(DE #1.)
Department
sentence.
of
He is presently in the custody of the
Correction
(“IDOC”)
serving
a
criminal
He alleges that he was denied proper medical care as a
pretrial detainee at the Porter County Jail between March 2011 to
February 2013.
He claims that he received treatment for chronic
headaches, but that the treatment provided was not effective.
In
May 2012, he met with the head nurse, Kim White; a jail physician
named Dr. Hamstrung (first name unknown); and a jail officer.
During this meeting the doctor recommended that Cashner see a
specialist.
Nurse White made an appointment with a neurologist in
June 2012, but for unknown reasons Cashner was not transported to
the appointment on the scheduled date.
Another appointment was
made for August 2012, and this time he was taken to see the
neurologist.
She prescribed two different medications and ordered
blood work and a magnetic resonance imaging test (“MRI”) to further
diagnose the problem.
In September, Cashner was seen by Nurse White, who drew blood
for the testing recommended by the neurologist.
the
office,
he
encountered
Dr.
Nadir
While he was in
Al-Shami,
another
jail
physician, who, in Cashner’s words, “started ranting, and stated
2
that he had traveled the world treating patients and he was a
better doctor than any neurologist, and wasn’t going to let any
other doctor tell him how to treat a patient of his.”
(DE #1 at
3.) Dr. Al-Shami allegedly canceled all of Cashner’s prescriptions
and the tests that had been ordered, and told him he would not be
going back to see the neurologist. He also told Cashner he thought
the headaches were “all in [his] head,” and stated that the jail
would not be paying for an MRI because this was very expensive.
Cashner later met with Warden John J. Widup to discuss the matter,
and the warden allegedly deferred to Dr. Al-Shami’s statement that
the jail would not pay for him to undergo an MRI.
He also
suggested that the headaches were caused by Cashner’s failure to
take his medication.
Shortly thereafter, Cashner raised the matter with the state
trial judge presiding over his criminal case, and he claims the
judge ordered him to be taken for a follow-up appointment with the
neurologist.
Nurse White then scheduled an appointment, but
Cashner claims she scheduled it as an initial appointment rather
than a follow-up, so he was required to wait another three months
to see the neurologist.
He claims the neurologist ordered testing
and prescribed medications for a second time, and ordered another
follow-up appointment in February 2013.
In January 2013 he was
convicted pursuant to a plea agreement. He claims that the testing
ordered by the neurologist was never conducted, and the follow-up
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appointment canceled.
On February 25, 2013, he was transferred to
the custody of the IDOC, where he remains to date.
DISCUSSION
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
12(b)(6).
2006).
OF
CIVIL PROCEDURE
Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
To survive dismissal, a complaint must state a claim for
relief that is plausible on its face.
Bissessur v. Indiana Univ.
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
defendant is liable for the misconduct alleged.”
that
the
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).
The court must bear in mind, however, that “[a] document
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filed pro se is to be liberally construed, and a pro se complaint,
however
inartfully
pleaded,
must
be
held
to
less
standards than formal pleadings drafted by lawyers.”
stringent
Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Because Cashner was a pretrial detainee when these events
occurred, the Fourteenth rather than the Eighth Amendment applies.
Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009).
The governing
standards are functionally equivalent, however, and “anything that
would
violate
the
Eighth
Fourteenth Amendment.”
Id.
Amendment
would
also
violate
the
Under the Eighth Amendment, inmates
are entitled to adequate medical care. Estelle v. Gamble, 429 U.S.
97, 104 (1976).
To establish liability, a prisoner must satisfy
both an objective and subjecting component by showing: (1) his
medical need was objectively serious; and (2) the defendant acted
with deliberate indifference to that medical need.
Brennan, 511 U.S. 825, 834 (1994).
Farmer v.
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).
On the subjective prong, the plaintiff must establish 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
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prevent that harm from occurring even though he could have easily
done so.”
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).
For a medical professional to be held liable for deliberate
indifference, he or she must make a decision that represents “such
a
substantial
practice,
from
standards,
or
departure
as
accepted
to
professional
demonstrate
that
judgment,
the
person
responsible actually did not base the decision on such a judgment.”
Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008).
Although
the Eighth Amendment does not entitle an inmate to demand a
specific form of treatment, prison medical staff cannot simply
continue
with
ineffective.
a
course
of
treatment
Greeno, 414 F.3d at 654-55.
that
is
known
to
be
Furthermore, 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 F.3d 763,
779 (7th Cir. 2008).
Giving Cashner the inferences to which he is entitled, he has
alleged a serious medical need, specifically, chronic headaches
that caused him significant pain and suffering, and for which a
neurologist prescribed medication.
On the subjective prong, he
alleges that Dr. Al-Shami and Warden Widup were both dismissive of
his medical problem and refused to provide him with effective
treatment and testing, instead blaming the problem on him.
Giving
him the inferences to which he is entitled at this stage, he has
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alleged enough to proceed further against these defendants.
Cashner also sues Nurse White. He attributes the various
delays he experienced in seeing the neurologist to her, asserting
that she did not act promptly in scheduling appointments or take
steps
to
ensure
appointment.
he
was
transported
for
the
first
scheduled
Although further factual development may show that
Nurse White acted properly and/or that the delays occurred for
reasons beyond her control, giving Cashner the inferences to which
he is entitled, he has alleged enough to proceed further against
Nurse White.1
He also sues Porter County Sheriff David Lain, as well as
Assistant Warden Ronald Gaydos.
He appears to believe these
defendants should be held responsible for the failure of jail staff
to transport him to his first appointment with the neurologist. He
also believes the sheriff should be held responsible for the
warden’s decision not to approve an MRI. However, “Section 1983
does not establish a system of vicarious responsibility.” Burks v.
Raemisch, 555 F.3d 592, 593 (7th Cir. 2009).
These officials
cannot be held liable for the actions of other jail staff simply
because they oversee operations at the jail.
Nor can they be held
liable simply because Cashner may have notified them about what
1
To the extent he is attempting to assert a state law medical
malpractice claim against Nurse White, Indiana law requires a plaintiff to
seek and obtain an opinion from a medical malpractice review panel before
bringing a medical malpractice claim. IND. CODE § 34-18-8-4. The complaint
makes no mention of having obtained such an opinion.
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occurred after the fact.
As the U.S. Court of Appeals for 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.
Id. at 595. Here, the complaint does not plausibly allege that the
sheriff or assistant warden were personally involved in the medical
decisions that were made, or that they were personally involved in
the scheduling problems that occurred related to his appointments.
Accordingly, they will be dismissed as defendants.
Finally,
Cashner
sues
Advanced Correctional Healthcare
(“ACH”), a private company that provides medical staff at the jail.
It appears he is trying to hold the company liable because it
employees Dr. Al-Shami and Nurse White.
However, as stated above,
there is no general respondeat superior liability under 42 U.S.C.
§ 1983.
Chavez v. Ill. 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.”).
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Thus, ACH cannot be held liable simply because it employs the
medical staff involved in these events.
A private company performing a governmental function can be
held liable to the same extent as a municipal entity under Monell
v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
See Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012)
(Monell framework applies to private company providing medical care
at correctional facility). Although Cashner states in very general
terms that ACH had an unconstitutional policy, merely putting a few
words
on
paper
is
insufficient
Swanson, 614 F.3d at 403.
to
state
a
plausible
claim.
The complaint does not provide a
plausible basis to infer that Cashner’s injury was caused by an
official practice or policy. Instead, he alleges that Dr. Al-Shami
became upset that an outside doctor was trying to influence his
treatment decisions, and refused to provide any of the recommended
treatment out of spite. He further claims Dr. Al-Shami believed he
was malingering or making up his symptoms, and therefore would not
approve an expensive diagnostic test. Cashner does not allege that
the doctor acted pursuant to an official policy, but rather, that
he was unprofessional and inappropriately dismissive of his medical
problem.
Accordingly, Cashner has not alleged a plausible claim
against ACH, and this defendant will be dismissed.
CONCLUSION
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For the reasons set forth above, the Court:
(1) GRANTS the plaintiff leave to proceed against Dr. Nadir
Al-Shami, Nurse Kimberly White, and Warden John J. Widup in their
individual capacities for monetary damages for denying him proper
medical treatment for chronic headaches;
(2) DISMISSES David E. Lain, Ronald Gaydos, and Advanced
Correctional Healthcare as defendants;
(3) DISMISSES any and all other claims contained in the
complaint;
(4) DIRECTS the United States Marshals Service to effect
service on Dr. Nadir Al-Shami, Nurse Kimberly White, and Warden
John J. Widup pursuant to 28 U.S.C. § 1915(d); and
(5) ORDERS Dr. Nadir Al-Shami, Nurse Kimberly White, and
Warden John J. Widup to respond, as provided for in the FEDERAL RULES
OF
CIVIL PROCEDURE, only to the claim for which the plaintiff has been
granted leave to proceed in this screening order.
DATED: July 30, 2014
/s/ RUDY LOZANO, Judge
United States District Court
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