Robertson v. Marandet MD et al

Filing 16

OPINION AND ORDER re 1 Pro Se Complaint, The Court GRANTS Donnell Robertson leave to proceed against Noe J. Marandet, M.D., and Kimberly Marand Myers, M.D., in their individual capacities for compensatory and punitive damages for personally lyin g to a guard on March 7, 2016, when they saidRobertson did not have a medical pass for a bottom bunk which caused him to fall from the top bunk on March 8, 2016, in violation of the Eighth Amendment;GRANTS Donnell Robertson leave to proceed against N oe J. Marandet, M.D.,and Kimberly Marand Myers, M.D., in their individual capacities for compensatory and punitive damages for causing him unnecessary pain by preventing him from receiving Prednisone and Ultram from July 20, 2017, until August 24, 20 17, in violation of the Eighth Amendment; GRANTS Donnell Robertson leave to proceed against Noe J. Marandet, M.D., and Kimberly Marand Myers, M.D., in their individual capacities for compensatory and punitive damages for retaliating against him by re fusing to provide him medical treatment in retaliation for his having filed a grievance against them on March 8, 2016, in violation of the First Amendment; DISMISSES all other claims;DIRECTS the Clerk and the United States Marshals Service to issue a nd serveprocess on Noe J. Marandet, M.D., and Kimberly Marand Myers, M.D., at the Indiana Department of Correction with a copy of this order and the complaint (ECF 1), pursuant to 28 U.S.C. § 1915(d); and ORDERS, pursuant to 42 U.S.C. § 199 7e(g)(2), that Noe J. Marandet, M.D., and Kimberly Marand Myers, M.D., 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 has been granted leave to proceed in this screening order. Signed by Judge Philip P Simon on 3/29/18. (Copy mailed to pro se party)(mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DONNELL ROBERTSON,
Plaintiff,
vs.
NOE J. MARANDET, M.D., and
KIMBERLY MARAND MYERS, M.D.,
Defendants.

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CAUSE NO. 3:17-CV-695 PPS-MGG

OPINION AND ORDER
Donnell Robertson, a prisoner without a lawyer, filed a complaint alleging he
was denied medical treatment by two doctors at the Miami Correctional Facility. A
filing by an unrepresented party “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, the Court
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.
In 2016, Robertson was suffering from dizziness as a result of a head injury
sustained in an automobile accident. As a result, he had medical orders requiring he be
housed on the bottom range in a bottom bunk. ECF 1-1 at 1 and 11. Nevertheless, when
he was moved on March 7, 2016, he was assigned to a top bunk. When Robertson

questioned this assignment, a guard called both Dr. Marandet and Dr. Myers to inquire.
Both doctors personally told the guard that Robertson did not have a medical pass for
either a bottom range or bottom bunk. Early the next morning, around 3:00 a.m.,
Robertson became dizzy and blacked out while climbing out of his top bunk. As a
result, he injured his head and back.
On July 20, 2017, Robertson saw a specialist who prescribed Prednisone and
Ultram. However, both Dr. Marandet and Dr. Myers personally prevented either
prescription from being ordered for 3 and a half weeks. As a result, they were not
delivered until August 24, 2017, and Robertson experienced unnecessary pain.
For medical professionals to be held liable for deliberate indifference to a serious
medical need, 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). Here, Robertson alleges these defendants
deliberately lied about his having a medical pass for a bottom bunk and that they
intentionally prevented his prescriptions from being ordered. These allegations state a
claim for violations of the Eighth Amendment.
Finally, Robertson alleges he “was never seen by any of the defendants.” ECF 1
at 12. He alleges this is in retaliation for his having filed a grievance on March 8, 2016,
against Dr. Marandet and Dr. Myers. “To establish a First Amendment retaliation claim,
the plaintiff must establish that he engaged in protected First Amendment activity,
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suffered a deprivation that would likely deter future First Amendment activity, and the
First Amendment activity was a motivating factor in the defendant’s decision to take
the retaliatory action.” Walker v. Groot, 867 F.3d 799, 803 (7th Cir. 2017). Here, these
allegations state a claim for retaliation.
Robertson is seeking both monetary damages and injunctive relief. However he
is no longer housed at the Miami Correctional Facility. Therefore his injunctive relief
claims are now moot. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) and Jones v.
Butler, 663 F. App’x 468, 470 (7th Cir. 2016).
For these reasons, the Court:
(1) GRANTS Donnell Robertson leave to proceed against Noe J. Marandet, M.D.,
and Kimberly Marand Myers, M.D., in their individual capacities for compensatory and
punitive damages for personally lying to a guard on March 7, 2016, when they said
Robertson did not have a medical pass for a bottom bunk which caused him to fall from
the top bunk on March 8, 2016, in violation of the Eighth Amendment;
(2) GRANTS Donnell Robertson leave to proceed against Noe J. Marandet, M.D.,
and Kimberly Marand Myers, M.D., in their individual capacities for compensatory and
punitive damages for causing him unnecessary pain by preventing him from receiving
Prednisone and Ultram from July 20, 2017, until August 24, 2017, in violation of the
Eighth Amendment;
(3) GRANTS Donnell Robertson leave to proceed against Noe J. Marandet, M.D.,
and Kimberly Marand Myers, M.D., in their individual capacities for compensatory and
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punitive damages for retaliating against him by refusing to provide him medical
treatment in retaliation for his having filed a grievance against them on March 8, 2016,
in violation of the First Amendment;
(4) DISMISSES all other claims;
(5) DIRECTS the Clerk and the United States Marshals Service to issue and serve
process on Noe J. Marandet, M.D., and Kimberly Marand Myers, M.D., at the Indiana
Department of Correction with a copy of this order and the complaint (ECF 1), pursuant
to 28 U.S.C. § 1915(d); and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Noe J. Marandet, M.D.,
and Kimberly Marand Myers, M.D., 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 has
been granted leave to proceed in this screening order.
SO ORDERED on March 29, 2018.
/s Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT

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