Swann v. Brubaker APN/NP et al

Filing 15

OPINION AND ORDER: GRANTING pltf leave to proceed against Brubaker in her individual capacity for compensatory and punitive damages on 8th Amendment claim; GRANTING pltf leave to proceed against Moore and Bigheart in their individual capacities for compensatory and punitive damages on 8th Amendment claim; DISMISSING WITHOUT PREJUDICE Lowry and the First Amendment and Religious Land Use and Institutionalized Persons Act claims; DISMISSING all other claims; DISMISSING defts Corizion Health Care S ervice Provider, Ofc Larson, Bruce Lemmon, Mr Lowry, Capt Reeves; Officer Williams, Ofc Baity, and DeAngela Boyan; DIRECTING clerk to send blank 1983 packet to pltf; DIRECTING USM to effect service of process; ORDERING defts Burbaker, Moore & Bigheart to respond to complaint.. Signed by Judge Robert L Miller, Jr on 1/8/15. (jld) (form sent)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRANCE D. SWANN,

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Plaintiff,
vs.
BARBARA A. BRUBAKER, et al.,
Defendants.

NO. 3:14-CV-1889 RM

OPINION AND ORDER
Terrance D. Swann, a pro se prisoner, submitted an amended complaint under 42
U.S.C. § 1983. (DE 12.) The court must review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b). The 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 that the defendant
is liable for the misconduct alleged.” Id. at 603. In other words, 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). A pro
se complaint is entitled to liberal construction, “however inartfully pleaded.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007).

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Mr. Swann is an inmate at the Westville Correctional Facility (“Westville). He was
initially seen by Dr. Joseph M. Thompson on June 25, 2013, complaining of three lumps on
his testicles that caused him pain and disrupted his urine flow. Dr. Thompson prescribed
the medication Cardura. In August 2013, Mr. Swann began experiencing side effects from
the Cardura, which included fatigue, chest pains, stomach pains, pains in his rectum, blood
in his stool, digestion complications and breath and body odor. These side effects continue
to this date. Mr. Swann alleges Nurse Practitioner Brubaker continued to prescribe him
Cardura even though he reported it was causing him extreme pain and complications.
Mr. Swann says that from March 2014 to August 2014, he made several health care
requests surrounding his side effects from taking Cardura that went unanswered. He
alleges that because he had previously filed complaints and grievances against Nurses
Bigheart and Moore, these nurses intentionally disregarded his health care requests, which
resulted in delayed medical treatment.
During this time, Mr. Swann asserts he was verbally harassed by Nurse Bigheart,
Officer Baity, Officer Larson and Officer Williams, due to his body odor. They would make
comments about how Mr. Swann “stinks” and would also make gestures, such as turning
up their noses as they walked by Mr. Swann.
Mr. Swann made his complaints known to prison officials. He wrote to Health Care
Administrator, DeAngela Boyn, and complained about Nurse Bigheart’s verbal
harassment. He also complained to Indiana Department of Corrections Commissioner,
Bruce Lemmon, that the prison staff wouldn’t provide him with any form of odor control.

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Mr. Swann further complained to Captain Reeves, custody supervisor in the Westville
Control Unit, and Mr. Lowry, Complex Director of the Westville Control Unit, about being
harassed by officers, and not receiving requested medical care. None of these people
resolved Mr. Swann’s complaints about officer and medical staff misconduct.
To state a claim under 42 U.S.C. § 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). Swann first alleges being
denied proper medical care under the Eighth Amendment, due to Nurse Practitioner
Brubaker continuing to prescribe Cardura.
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 subjective
component by showing: (1) his medical need was objectively serious; and (2) the defendant
acted with deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825,
834 (1994). 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). “Conduct is deliberately indifferent when the official has 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). For a medical professional to be liable under the Eighth Amendment for

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deliberate indifference to an inmate’s medical needs, 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).
The complaint can be read to allege that Nurse Practitioner Brubaker failed or
refused to change Mr. Swann’s prescription medication of Cardura even though it was
making his condition worse. The Eighth Amendment doesn’t entitle an inmate to a specific
form of treatment, prison medical staff can’t simply continue with a course of treatment
that is known to be ineffective. Greeno v. Daley, 414 F.3d at 654-55. Giving Mr. Swann the
inferences to which he is entitled at this stage, he has alleged an Eighth Amendment claim
against Nurse Brubaker.
Mr. Swann also seeks injunctive relief, requiring Westville to provide him with some
sort of body odor control. Mr. Swann’s body odor isn’t an objectively serious medical need.
There is no allegation that his body odor caused him any pain. Instead, it is more akin to
a hygiene problem. An Eighth Amendment claim for lack of hygiene items requires a
denial of the “minimal civilized measure of life’s necessities.” Townsend v. Fuchs, 522 F.3d
765, 774 (7th Cir. 2008). Mr. Swann doesn’t allege he was deprived of any basic hygiene
materials. Instead, he complains that he was not given something special to alleviate his
body odor. This isn’t a denial of “life’s necessities” and doesn’t rise to the level of a
constitutional claim.
Mr. Swann next alleges that Nurses Bigheart and Moore violated the Eighth

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Amendment by ignoring many of his health care request forms because he had filed
grievances against both of them. Mr. Swann says this produced a delay in 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 F.3d 763, 779
(7th Cir. 2008). Mr. Swann has alleged an Eighth Amendment claim against Nurses
Bigheart and Moore.
Mr. Swann also brings suit against Nurse Bigheart, and Officers Baity, Larson and
Wilson due to their verbal harassment and making gestures regarding Mr. Swann’s body
odor. Such conduct might be unprofessional, but it doesn’t give rise to a constitutional
claim. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“[S]imple verbal harassment
does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the laws.”). These claims must be dismissed.
Mr. Swann brings suit against DeAngela Boyd, Captain Reeves, Mr. Lowry, and
Bruce Lemmon for failing to properly investigate Mr. Swann’s claims. Mr. Swann doesn’t
allege, and it’s unreasonable to infer from the complaint, that any of these officials played
a direct role in the providing of medical care. Mr. Swann asserts that they had personal
involvement sufficient to trigger liability under Section 1983 because he sent them letters
complaining 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).

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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 good medical care.
Id. at 595.
Nothing in the complaint indicates that defendants Boyd, Reeves, Lowry or
Lemmon did anything to cause or exacerbate Mr. Swann’s serious medical problems, nor
did they stand in the way of his treatment. At most, they knew about his odor problem,
which inst a serious objective medical condition. Mr. Swann was under the treatment of
medical staff during this period, and non-medical prison officials can’t 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 v. Daley, 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,
Mr. Swann’s complaint doesn’t state a claim against these defendants.
Mr. Swann brings suit against Corizon Health Services, because it employed Nurses
Bigheart, Moore and Brubaker. A private company like Corizon Health Services can be
held liable for constitutional violations when it performs a state function, see West v.
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Atkins, 487 U.S. 42 (1988), but there is no general supervisory liability under 42 U.S.C. §
1983. Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). Corizon can’t be held
liable simply because it employs the medical staff involved in this incident.
In his original complaint, Mr. Swann brought the claims discussed so far relating to
his medical condition. (DE 2.) He then filed an amended complaint pursuant to Rule
15(a)(1) of the Federal Rules of Civil Procedure. In his amended complaint, Mr. Swann adds
a claim that Westville officials have unduly interfered with his religious practice. Mr.
Swann, a Sunni Muslim, claims he has been denied the right to possess certain items in his
cell for use in his religious practice including a prayer matt, prayer beads, a Quran and
scented prayer oil. Evan Lowry, as the complex director, would be a proper defendant for
purposes of a claim for injunctive relief, since he could ensure that an order pertaining to
Mr. Swann’s religious practice is carried out. See Feit v. Ward, 886 F.2d 848, 858 (7th Cir.
1989). But these religious practices claims are unrelated to his medical claims and must be
pursued in a separate case.
Litigants can’t join unrelated claims against different defendants in one case. George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Accordingly, the religious claims in the amended
complaint will be dismissed without prejudice, and Mr. Swann will be provided a Section
1983 packet so he can pursue them in a separate lawsuit, if he so chooses.
For these reasons, the court:
(1) GRANTS the plaintiff leave to proceed against Nurse Practitioner Barbara
Brubaker in her individual capacity for compensatory and punitive for denying him

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adequate medical care in violation of the Eighth Amendment by continuing to
prescribe Cardura;
(2) GRANTS the plaintiff leave to proceed against Nurses Moore and
Bigheart in their individual capacities for compensatory and punitive damages for
denying him adequate medical care in violation of the Eighth Amendment by
disregarding plaintiff’s health care request forms;
(3) DISMISSES WITHOUT PREJUDICE Evan Lowry and the First
Amendment and Religious Land Use and Institutionalized Persons Act claims;
(4) DISMISSES all other claims;
(5) DISMISSES Corizon Heath Services, Bruce Lemmon, DeAngela Boyn,
Captain Reeves, Officer Baity, Officer Larson and Officer William;
(6) DIRECTS the clerk to send plaintiff a blank prisoner Complaint 42 U.S.C.
§ 1983 packet;
(7) DIRECTS the clerk to transmit the summons and USM-285 for Nurse
Barbara Brubaker, Nurse Moore and Nurse Bigheart to the United States Marshals
Service along with a copy of the amended complaint (DE 12) and this order;
(8) DIRECTS the U.S. Marshals Service to effect service of process on Nurse
Barbara Brubaker, Nurse Moore and Nurse Bigheart pursuant to 28 U.S.C. § 1915(d);
and
(9) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Nurse Barbara
Brubaker, Nurse Moore and Nurse Bigheart respond, as provided for in the Federal

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Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which the
plaintiff has been granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: January 8 , 2015.

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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