Irby v. Neal et al
Filing
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OPINION AND ORDER re 14 Amended Complaint Irby is GRANTED leave to proceed on an Eighth Amendment claim for money damages against Whelm in her individual capacity for denying Irby adequate medical care by failing to properly preserve his severed fingertip on September 11, 2015; all other claims are DISMISSED, and Corizon, Neal, and Bass areDISMISSED as defendants; the Clerk and the United States Marshals Service are DIRECTED, pursuant to 28 U.S.C. § 1915(d), to issue and serve process on Whelm; and Whelm is ORDERED, pursuant to 42 U.S.C. § 1997e(g)(2), to respond, as provided for in the Federal Rules of Civil Procedure and Local Rule 10.1, only to the claim for which Irby has been granted leave to proceed. Signed by Judge Philip P Simon on 05/30/2017. (Copy mailed as directed in Order)(lpw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
FREEMAN IRBY,
Plaintiff,
v.
RON NEAL, et al.,
Defendants.
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Cause No. 3:16-cv-222
OPINION AND ORDER
Freeman Irby, a pro se prisoner, has filed an amended complaint alleging he
received inadequate medical treatment at the Indiana State Prison. (DE 14.) Pursuant to
28 U.S.C. § 1915A, I must review prisoner complaints and dismiss any that 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 pleading
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). 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). That said, “[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).
Irby, who was housed at the minimum security unit at ISP, brings suit for money
damages against Nurse Sue Whelm, Officer C. Bass, Corizon, and Superintendent Ron
Neal, alleging that the defendants failed to provide him with adequate medical
treatment, resulting in the loss of a fingertip. (DE 14 at 1.) Irby alleges that on September
11, 2015, one of his fingertips was severed. (Id. at 2.) Because there was no medical staff
at the minimum security unit, Irby approached Bass about the injury, but Bass did not
know what to do. (Id.) Bass quickly placed the fingertip in a moist paper towel, put it in
a bag of ice, and called Whelm, who was in the main building. (Id.) Bass then took Irby
to see Nurse Whelm. (Id.) Irby alleges that Whelm noticed that the severed finger was
not prepared or stored correctly to be reattached yet failed to correct the mistake. (Id. at
2–3.) Irby was later informed that his fingertip could not be reattached because it was
put directly on ice, which damaged the nerves. (Id. at 2.)
In medical cases, the U.S. 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., the defendant [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). “Negligence on the part of an official does not violate the Constitution, and it
is not enough that he or she should have known of a risk. Instead, deliberate
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indifference requires evidence that an official actually knew of a substantial risk of
serious harm and consciously disregarded it nonetheless.” Pierson v. Hartley, 391 F.3d
898, 902 (7th Cir. 2004) (citations omitted). It is not enough to show that a defendant
merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995).
Irby has alleged a plausible claim against Nurse Whelm. “For a medical
professional to be liable for deliberate indifference 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). Irby alleges that,
when Whelm saw his severed finger packed in ice, she knew that it was inappropriately
stored but did nothing. Giving Irby the inferences to which he is entitled at this stage,
he has alleged enough to proceed on an Eighth Amendment claim against Whelm.
Irby’s claims against the other defendants do not fare as well. He alleges that,
when he was seen by Officer Bass, Bass did not know what to do, immediately tried to
preserve the severed finger by placing it on ice, and then sent Irby to see Whelm.
Although Irby complains that Bass did not know to preserve the severed finger, lack of
knowledge is insufficient to demonstrate deliberate indifference. The allegations against
Bass do not to the level of a constitutional violation.
Nor has Irby plausibly alleged a claim against Corizon, the private company that
employs the medical staff at ISP. “Private corporations acting under color of state law,
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may, like municipalities, be held liable for injuries resulting from their policies and
practices.” Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012) (citing Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978)). However, Irby does not
allege facts from which it can be plausibly inferred that Corizon had an unconstitutional
practice or policy that caused his injury. Thus, the complaint fails to state a claim
against Corizon.
Finally, Irby has failed to allege a claim against Superintendent Ron Neal. He is
shown in the caption as a defendant, but the complaint never mentions him again and
neither suggests that he was personally involved in the provision of medical care to Irby
nor knew about what had happened with Irby’s finger. Irby’s original complaint was
similarly silent about Neal’s role, alleging no personal involvement at all and saying
only that he “was & is responsible for ensuring the safety of every prison inmate” at the
prison. This is insufficient to allege a plausible claim against Neal. “A plaintiff bringing
a civil rights action must prove that the defendant personally participated in or caused
the unconstitutional actions.” Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008);
accord George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). Because there is no indication
that Ron Neal was personally involved, Irby has not stated a claim against him.
Accordingly:
(1) Irby is GRANTED leave to proceed on an Eighth Amendment claim for
money damages against Whelm in her individual capacity for denying Irby adequate
medical care by failing to properly preserve his severed fingertip on September 11, 2015;
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(2) all other claims are DISMISSED, and Corizon, Neal, and Bass are
DISMISSED as defendants;
(3) the Clerk and the United States Marshals Service are DIRECTED, pursuant to
28 U.S.C. § 1915(d), to issue and serve process on Whelm; and
(4) Whelm is ORDERED, pursuant to 42 U.S.C. § 1997e(g)(2), to respond, as
provided for in the Federal Rules of Civil Procedure and Local Rule 10.1, only to the
claim for which Irby has been granted leave to proceed.
SO ORDERED.
ENTERED: May 30, 2017.
s/ Philip P. Simon
JUDGE, UNITED STATES DISTRICT COURT
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