Irby v. Neal et al

Filing 10

OPINION AND ORDER: Plaintiff is GRANTED until 1/9/2017 to file an amended complaint and is CAUTIONED that failure to file an amended complaint by that date will result in dismissal of this case without further notice pursuant to 28 U.S.C. § 1915A. Signed by Chief Judge Philip P Simon on 12/5/16. (jld) (cc: Irby)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
FREEMAN IRBY,
Plaintiff,
vs.
RON NEAL, et al.,
Defendants.

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Cause No. 3:16-cv-222

OPINION AND ORDER
Freeman Irby, a pro se prisoner, submitted a complaint alleging that he was
provided with deficient medical care while housed at the Indiana State Prison. (DE 1.)
Pursuant to 28 U.S.C. § 1915A, I 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. Under
federal pleadings standards, 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 [him] that might be redressed by the law.” Swanson v. Citibank, N.A., 614
F.3d 400, 403 (7th Cir. 2010) (emphasis in original) (citations omitted). Instead, the
plaintiff must provide sufficient factual matter to state a claim that is plausible on its
face. Ray v. City of Chicago, 629 F.3d 660, 662–63 (7th Cir. 2011) (internal quotation marks
and citations omitted).
Irby alleges that on September 11, 2015, he got into an altercation with another
inmate and, as a result, one of his fingertips was severed. (DE 1 at 5.) He informed

Officer Bass about his injury. (Id.) Officer Bass quickly placed the finger tip in a moist
paper towel and put it in a bag of ice, and Irby was then seen by Nurse Sue Whelm who
had Irby taken to an outside hospital. (Id.) At the hospital, the doctors informed Irby
that his finger tip could not be reattached because it was put directly on ice, which
damaged the nerves. (Id.) Irby alleges that Superintendent Ron Neal, Nurse Sue Whelm,
Officer Bass, and Indiana Department of Correction Commissioner Bruce Lemmon were
negligent in failing to preserve his severed finger, and he seeks money damages. (Id.)
In cases involving the provision of medical care to prisoners, the United States
Constitution is violated only when a defendant was deliberately indifferent to an inmate’s
serious medical needs. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). “[C]onduct
is deliberately indifferent when the official has acted in an intentional or criminally reckless
manner, i.e., . . . [knew] 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 quotation marks,
brackets, and citation omitted). It is not enough to show that a defendant failed to act
reasonably or was negligent. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995); Walker v.
Peters, 233 F.3d 494, 499 (7th Cir. 2000). Instead, the official must have “actually [known]
of a substantial risk of serious harm and consciously disregarded it nonetheless.” Pierson
v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004) (citation omitted).
The standard for medical professionals is virtually the same. “For a medical
professional to be liable for deliberate indifference to an inmate’s medical needs, he must
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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)
(internal quotation marks and citations omitted).
Here, Irby has not alleged facts showing deliberate indifference by anyone and
therefore has not alleged a constitutional claim. He admits he was immediately attended
to by Officer Bass and Nurse Whelm, who quickly sent him to an outside hospital for
treatment. (DE 1 at 5.) Although he claims that medical personnel were negligent in failing
to specify the proper procedure for preserving Irby’s severed fingertip, Irby has not
pleaded facts that even remotely suggest that any of the defendants acted with the
deliberate indifference required to make out a constitutional claim.
Even if he had, Irby’s official capacity claims against Superintendent Neal and
Commissioner Lemmon would fail to state a viable claim for the additional reason that
suits against state actors in their official capacities must allege the existence of an
unconstitutional official policy and practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978). Irby’s complaint contains no allegations of such a policy or practice.
Notwithstanding the shortcomings in Irby’s current complaint, he may file an
amended complaint if he thinks that he can plausibly allege a constitutional claim. See
Luevano v. Wal-Mart, 722 F.3d 1014, 1024 (7th Cir. 2013). If he decides to do so, he should
get a blank copy of this court’s complaint form from the law library and write the cause
number for this case in the caption on the first page. In the amended complaint, Irby should

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be sure to address the deficiencies noted in this order, and he should explain in his own
words what happened, when it happened, and where it happened, providing as much
detail as possible.
Accordingly, Freeman Irby is GRANTED until January 9, 2017, to file an amended
complaint and is CAUTIONED failure to file an amended complaint by that date will
result in dismissal of this case without further notice pursuant to 28 U.S.C. § 1915A.
SO ORDERED.
ENTERED: December 5, 2016.
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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