Wetterman v. Liaw et al

Filing 16

OPINION AND ORDER re 15 Amended Complaint; the court GRANTS Kenneth Wetterman leave to proceed against Nurse Saulsgiver in her individual capacity for compensatory damages for delaying medical treatment of his knee injury between October 24, 201 4 and June 3, 2015, in violation of the Eighth Amendment; GRANTS Kenneth Wetterman leave to proceed against Dr. Liaw in his individual capacity for compensatory damages for delaying medical treatment of his knee injury between November 12, 2014 and J une 3, 2015, in violation of the Eighth Amendment; GRANTS Kenneth Wetterman leave to proceed against Dr. A. J. Shahada in his individual capacity for compensatory damages for decreasing his pain medication on October 15, 2015, in violation of the Eig hth Amendment; GRANTS Kenneth Wetterman Leave to proceed against Corizon Health Services for compensatory damages for its policy or practice of denying diagnostic imaging of, and delaying treatment for, orthopaedic injuries in violation of the Eighth Amendment; DISMISSES all other claims; DIRECTS the clerk and the US Marshals Service to issue and serve process on Nurse Saulsgiver, Dr. Liaw, D. A. J. Shahada, and Corizon Health Services, with a copy of this order and the amended complaint ad ORDE RS that Nurse Saulsgiver, Dr. Liaw, Dr. A. J. Shahada, and Corizon Health Services respond only to the claims for which the plaintiff has been granted leave to proceed in this screening order. Signed by Judge Philip P Simon on 8/17/2017. (Copy mailed as directed in Order)(lpw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KENNETH M. WETTERMAN,
Plaintiff,
vs.
LIAW, et. al.,
Defendants.

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CAUSE NO. 3:16-CV-686-PPS

OPINION AND ORDER
Kenneth M. Wetterman, a prisoner without a lawyer, filed an amended complaint
against four defendants alleging that he was denied treatment and pain medication for his
knee injury. ECF 15. “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). Nevertheless, pursuant to 28 U.S.C. § 1915A, I must review
the merits of 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.
Wetterman alleges that after he injured his knee on October 20, 2014, he requested
medical attention. ECF 15 at 5. He was seen by Nurse Saulsgiver on October 24, 2014.
Wetterman requested an MRI, an x-ray, crutches, pain medication, and an opportunity to
consult a doctor. Saulsgiver told him that she could not order diagnostic image testing or
prescribe pain medication beyond Tylenol. When she saw him again on October 28, 2014,

he again requested imaging, pain medication, and a visit with a doctor. Saulsgiver told him
that, pursuant to Corizon Health Services’ policy, she could not provide him with any
additional treatment, including any additional over-the-counter pain medication.
Wetterman was seen by Nurse Saulsgiver again on November 2, 2014. Nurse Saulsgiver
reiterated her inability to provide him with additional treatment pursuant to Corizon
policy. However, during this visit she did schedule him to see a doctor.
On November 12, 2014 Wetterman was seen by Dr. Liaw. Wetterman requested
imaging of his knee and pain medication. While Dr. Liaw prescribed medication for the
inflamation, he told Wetterman that he could not order imaging due to Corizon policy.
Wetterman saw Nurse Saulsgiver again on November 20, 2014, and she scheduled him to
see Dr. Liaw. He saw Dr. Liaw on November 30, 2014. ECF 15 at 10. Dr. Liaw continued to
deny his request for imaging and additional pain medication, and instead scheduled him
for physical therapy. ECF 15 at 8. Wetterman claims that over the next seven months he met
with Dr. Liaw six additional times and at each visit he requested imaging tests and asked
when he would begin physical therapy. His first physical therapy appointment was on
June 3, 2015. The physical therapist ordered an MRI. In July, he received his MRI and was
seen by an orthopaedic specialist who told him that he needed knee surgery.
Wetterman received surgery on October 15, 2015. When he returned to the prison
that day, Dr. A.J. Shahada ordered that Wetterman’s pain medication be decreased by half,
so that he only received one 50 mg. Tramadol pill every 12 hours. He argues that this dose
was insufficient to manage his severe pain after his surgery.
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Wetterman asserts that Nurse Saulsgiver and Dr. Liaw were deliberately indifferent
to his serious medical needs by delaying his medical treatment. He claims that Dr. Shahada
was also deliberately indifferent to his medical needs by decreasing his pain medication
after the surgery. Under the Eighth Amendment, inmates are entitled to adequate medical
care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “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). Here, Wetterman has stated a plausible claim that defendants
Saulsgiver, Liaw, and Shahada were deliberately indifferent to his serious medical needs
in violation of the Eighth Amendment.
Wetterman’s complaint also alleges a policy claim against Corizon Health Services.
He claims that it was Corizon policy to delay any treatment of a suspected orthopaedic
injury, and to deny ordering diagnostic image testing. A private company performing a
state 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). Based on Wetterman’s allegation that Corizon had a
practice or policy of delaying necessary medical treatment, he has stated a claim.
For these reasons, the court:
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(1) GRANTS Kenneth Wetterman leave to proceed against Nurse Saulsgiver in her
individual capacity for compensatory damages for delaying medical treatment of his knee
injury between October 24, 2014, and June 3, 2015, in violation of the Eighth Amendment;
(2) GRANTS Kenneth Wetterman leave to proceed against Dr. Laiw in his
individual capacity for compensatory damages for delaying medical treatment of his knee
injury between November 12, 2014, and June 3, 2015, in violation of the Eighth
Amendment;
(3) GRANTS Kenneth Wetterman leave to proceed against Dr. A.J. Shahada in his
individual capacity for compensatory damages for decreasing his pain medication on
October 15, 2015, in violation of the Eighth Amendment;
(4) GRANTS Kenneth Wetterman leave to proceed against Corizon Health Services
for compensatory damages for its policy or practice of denying diagnostic imaging of, and
delaying treatment for, orthopaedic injuries in violation of the Eighth Amendment;
(5) DISMISSES all other claims;
(6) DIRECTS the clerk and the United States Marshals Service to issue and serve
process on Nurse Saulsgiver, Dr. Liaw, Dr. A.J. Shahada, and Corizon Health Services, with
a copy of this order and the amended complaint (ECF 15) as required by 28 U.S.C. §
1915(d); and
(7) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Nurse Saulsgiver, Dr. Liaw,
Dr. A.J. Shahada, and Corizon Health Services 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: August 17, 2017
_/s Philip P. Simon_________________
Judge
United States District Court

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