Absher v. Thomas MD et al

Filing 5

OPINION AND ORDER: GRANTING plaintiff leave to proceed against Dr. Thomas and the Regional Medical Director in their individual capacities for monetary damages under the 8th Amendment for failure to treat his broken hand and for injunctive relief f or treatment of his broken hand; DISMISSING Dawn Nelson; DISMISSING all other claims; DIRECTING USM to effect service of process on defendants; ORDERING defendants to respond only to the claims for which the plaintiff has been granted leave to proceed in this screening order. Signed by Senior Judge James T Moody on 6/22/16. (cc: USM, Pltf)(jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES ABSHER,
Plaintiff,
vs.
DR. THOMAS, MD, et al.
Defendants.

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No. 3:16 CV 150

OPINION AND ORDER
James Absher, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE # 1)
“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). Nevertheless, pursuant to
28 U.S.C. § 1915A, this court must review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant
who is immune from such relief. “In order 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).
Absher is currently incarcerated at the Indiana State Prison. He brings suit for
events that transpired while he was housed there in 2015. He alleges that his hand was
broken on July 18, 2015, and medical personnel placed a cast on his hand. When Dr.
Thomas removed the cast from Absher’s hand, Absher told Dr. Thomas that he was still

in pain and felt something was wrong. Dr. Thomas assured Absher that his hand was
healed. Weeks later, a new x-ray confirmed that Absher’s hand was still broken. In
addition, Absher’s hand was discolored and disfigured. Nevertheless, Dr. Thomas
contended his hand was fine. Absher was given prescription medication for a short
while, but was then told to buy pain medication from the commissary, even though Dr.
Thomas knew that Absher could not afford the medication at the commissary. Absher
continued to see Dr. Thomas, complaining about his hand. Dr. Thomas refused to treat
Absher, telling him that his hand was healed and that “all peoples hands are purple,
discolored and disfigured.” (DE # 1 at 4.)
Absher then asked the medical services director, Dawn Nelson, to intervene and
require Dr. Thomas to treat his pain. Nelson informed Absher that she was waiting to
see if the Regional Medical Director would approve him being treated by an outside
doctor. But, in the meantime, she would not interfere with Dr. Thomas’ treatment and
diagnosis. Despite knowing that Absher has a broken hand, the Regional Medical
Director has never made a decision to approve or deny an outside doctor evaluate and
treat Absher. Based on these allegations, Absher has brought an Eighth Amendment
claim against Dr. Thomas, Dawn Nelson and the Regional Medical Director seeking
both money damages and to be medically treated.
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 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).
As a threshold matter, Dawn Nelson is an administrator, not a health care
provider. Absher complains that Nelson was deliberately indifferent because she did
not intervene in Dr. Thomas’ treatment. This does not state a claim. Absher was being
treated by a doctor at the jail.
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. This follows naturally from the division of labor within a
prison. Inmate health and safety is promoted by dividing responsibility
for various aspects of inmate life among guards, administrators,
physicians, and so on. Holding a non-medical prison official liable in a
case where a prisoner was under a physician’s care would strain this
division of labor.
Greeno, 414 F.3d at 656 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004)). Based
on the facts alleged in this complaint, it is not plausible to infer that Dawn Nelson was
deliberately indifferent to Absher’s medical needs. To start, Absher was being treated
by the jail doctor. Moreover, when Absher voiced his need for additional medical
treatment, Ms. Nelson requested the Regional Medical Director to determine if an

outside physician should get involved in Absher’s treatment. Her decision not to get
involved in Dr. Thomas’ treatment of Absher until the Regional Medical Director gave a
medical opinion is reasonable. It is not deliberately indifferent. Because the complaint
does not allege a plausible Eighth Amendment claim against Dawn Nelson, the claim
against her will be dismissed.
For medical professionals, such as Dr. Thomas and the Regional Medical
Director, to be held liable for deliberate indifference to an inmate’s medical needs, they
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
best course of treatment does not establish deliberate indifference, nor does negligence
or even medical malpractice, since “the Eighth Amendment does not codify common
law torts.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)).
Here, giving Absher the inferences to which he is entitled, he has alleged a
serious medical need, namely, treatment of a broken hand. On the subjective prong, he
claims Dr. Thomas refused to provide him with necessary medical treatment even
though his need for treatment was obvious. He also claims that the Regional Medical
Director knew of his condition but still intentionally delayed him receiving necessary
outside medical care. Absher has alleged enough to proceed past the pleading stage
against Dr. Thomas and the Regional Medical Director on an Eighth Amendment claim.

Notably, Absher does not name the Regional Medical Director. Though it is
uncertain that service can be made on the Regional Medical Director, the court will
order the United States Marshals Service to try. Unlike John Doe or Correctional Officer,
Regional Medical Director may well be a specific enough description to identify the
proper defendant. If so, the Regional Medical Director will need to move to substitute
his or her name. If not, then Absher will need to conduct discovery against Dr. Thomas
to obtain the name. Thereafter he can amend his complaint and then service can be
effected.
For these reasons, the Court:
(1) GRANTS the Plaintiff leave to proceed against Dr. Thomas and the Regional
Medical Director, in their individual capacities for monetary damages under the Eighth
Amendment for failing to treat his broken hand;
(2) GRANTS the Plaintiff leave to proceed against Dr. Thomas and the Regional
Medical Director in their individual capacity for injunctive relief for treatment of his
broken hand because of the denial of medical treatment in violation of the Eighth
Amendment;
(3) DISMISSES Dawn Nelson;
(4) DISMISSES all other claims;
(5) DIRECTS the clerk to transmit the summons and USM-285 for Dr. Thomas
and the Regional Medical Director to the United States Marshals Service along with a
copy of this order and a copy of the complaint;
(6) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d),
to effect service of process on Dr. Thomas and the Regional Medical Director; and
(7) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Dr. Thomas and the
Regional Medical Director respond, as provided for in the Federal Rules of Civil
Procedure and N.D. IND. L.R. 10-1(b), only to the claims for which the plaintiff been
granted leave to proceed in this screening order.

SO ORDERED.
Dated: June 22, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT