Neal v. Mitchiff et al

Filing 13

OPINION AND ORDER re 10 AMENDED COMPLAINT filed by Plaintiff David R Neal. Plaintiff's claim about not receiving Harvoni is DISMISSED WITHOUT PREJUDICE pursuant to 42 U.S.C. § 1997e(a) and his claim regarding having to pay for treatment is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §1915A. Clerk DIRECTED to close this case. Signed by Judge Robert L Miller, Jr on 5/25/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID R. NEAL,
Plaintiff,
vs.
CORIZON, et. al.,
Defendants.

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CAUSE NO. 3:17-CV-43 RLM

OPINION AND ORDER
David R. Neal, a pro se prisoner, originally filed a complaint against Dr. Noie
J. Marandet, Kim Myers and Corizon arising out of the medical treatment he
received at the Westville Correctional Facility. The court found that his original
complaint didn’t state a plausible claim, but gave Mr. Neal leave to file an
amended complaint in the spirit of Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir.
2013). Mr. Neal has now filed his amended complaint.
The court 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. 28
U.S.C. § 1915A(a), (b). Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, or any portion of a complaint, for failure to state a claim
upon which relief may be granted. Courts apply the same standard under § 1915A
as when addressing a motion under Rule 12(b)(6). Lagerstrom v. Kingston, 463
F.3d 621, 624 (7th Cir. 2006). To survive a motion to dismiss under Rule 12(b)(6),
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a 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). In determining
whether the complaint states a claim, the court must bear in mind that “[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). In order to state
a claim under § 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).
Mr. Neal, an inmate at Westville, has two complaints about his medical
treatment. First, he complains that he isn’t getting a Harvoni Treatment for his
Hepatitis-C. He says that Dr. Marandet and Kim Myers told him that he is a
candidate for Harvoni, but Corizon refuses to give him this treatment. He believes
that not receiving Harvoni violates his constitutional rights. Mr. Neal admits that
he did not exhaust his administrative remedies with respect to this claim before
filing suit. Mr. Neal explains that he initiated the grievance process but hasn’t yet
exhausted it; he is still awaiting a response from the final level of review. This
allegation makes clear that a grievance process is available at the prison, but that
Mr. Neal hadn’t completed it before filing this case.
Under the Prison Litigation Reform Act (“PLRA”), prisoners are prohibited
from bringing an action in federal court with respect to prison conditions until
“such administrative remedies as are available are exhausted.” 42 U.S.C. §
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1997e(a). Although the failure to exhaust is an affirmative defense, dismissal at
this stage is appropriate if the defense is “unmistakable” and “apparent from the
complaint itself.” Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002); see
also Cancer Found., Inc. v. Cerberus Cap. Mgmt., LP, 559 F.3d 671, 674 (7th Cir.
2009) (dismissal on the basis of an affirmative defense is appropriate when the
plaintiff pleads himself out of court). Mr. Neal’s complaint meets this standard.
Exhaustion isn’t optional; it’s a mandatory prerequisite to filing suit over
prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). To satisfy the
exhaustion requirement, “a prisoner must file complaints and appeals in the
place, and at the time, the prison’s administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “[U]nless the prisoner
completes the administrative process by following the rules the state has
established for that process, exhaustion has not occurred.” Id. at 1023. Mr. Neal
simply chose to file this lawsuit before his prison administrative process was
completed. Because it is apparent from the complaint that Mr. Neal hasn’t
exhausted his available administrative remedies before filing this lawsuit, Section
1997e(a) requires that this claim be dismissed without prejudice. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (noting that “it is essential to keep the
courthouse doors closed until those efforts have run their course.”).
Second, Mr. Neal alleges that he has chronic leg problems that have
required medical care since 1999. He complains that he is charged a $5 co-pay for
each medical appointment. Mr. Neal has exhausted his administrative remedies
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with respect to this claim, but his allegations don’t state an Eighth Amendment
claim.
In medical cases, the Constitution is violated only when a defendant was
deliberately indifferent to an inmate’s serious medical needs. “[C]onduct 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) (quotation marks, brackets, and citation omitted).
A “disagreement with medical professionals [does not] state a cognizable Eighth
Amendment Claim under the deliberate indifference standard of Estelle v. Gamble
[429 U.S. 97 (1976)].” Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). “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).
Mr. Neal doesn’t allege, and it cannot be reasonably inferred from the
complaint, that anyone denied him medical treatment with regards to his leg
problems. Instead, Mr. Neal’s complaint is that he isn’t getting free care for the
treatment of his legs. The Constitution guarantees that inmates receive necessary
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medical care, but it doesn’t guarantee free medical care. See City of Revere v.
Mass. Gen. Hosp., 463 U.S. 239, 245 n.7 (1983). Mr. Neal doesn’t allege that he
was denied care because he could not afford to pay for it, only that as a matter of
principle he shouldn’t have been charged. This does not state an Eighth
Amendment claim.
For the foregoing reasons, Mr. Neal’s claim about not receiving Harvoni is
DISMISSED WITHOUT PREJUDICE pursuant to 42 U.S.C. § 1997e(a) and his
claim regarding having to pay for treatment is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §1915A. The clerk is directed to CLOSE this case.
SO ORDERED.
ENTERED: May 25 , 2017
/s/ Robert L. Miller, Jr.
Judge,
United States District Court

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