Dodd v. Wexford Medical Inc et al

Filing 62

OPINION AND ORDER: GRANTS the motion for leave to file an amended complaint 59 ; DIRECTS the clerk to separately docket the amended complaint 59 -1; LIFTS the stay in this case; GRANTS Richard Dodd leave to proceed against Dr. Andrew Liaw in his individual capacity for compensatory and punitive damages for deliberate indifference to his serious medical need for treatment for his pain associated with his ankylosing spondylitis, in violation of the Eighth Amendment; GRANTS Richard Dodd leave t o proceed against Dr. James Jackson in his individual capacity for compensatory and punitive damages for deliberate indifference to his serious medical need for treatment for his iritis and his pain associated with his ankylosing spondylitis, in viol ation of the Eighth Amendment; GRANTS Richard Dodd leave to proceed against Nurse Katherin Hutchinson in her individual capacity for compensatory and punitive damages for deliberate indifference to his serious medical need for treatment for his irit is associated with his ankylosing spondylitis, in violation of the Eighth Amendment; GRANTS Richard Dodd leave to proceed against Nurse Dorothy M. Livers in her individual capacity for compensatory and punitive damages for deliberate indifference to his serious medical need for treatment for his iritis and his pain associated with his ankylosing spondylitis, in violation of the Eighth Amendment; GRANTS Richard Dodd leave to proceed against Wexford of Indiana for compensatory and punitive damage s for following a custom or policy of denying necessary medical care, resulting in him receiving inadequate care for his iritis and ankylosing spondylitis; GRANTS Richard Dodd leave to proceed against Wexford of Indiana for injunctive relief to requi re it to stop following a policy of delaying necessary medical care, in violation of the Eighth Amendment; GRANTS Richard Dodd leave to proceed against Wexford of Indiana for compensatory damages for breaching its contract with the IDOC; DISMISSES Dr . Wilkinson; DISMISSES all other claims; DIRECTS the clerk to request Waiver of service from (and if necessary, the United States Marshals Service to serve process on) Dr. Andrew Liaw, Dr. James Jackson, Nurse Katherin Hutchinson, and Nurse Dorothy M. Livers at Wexford of Indiana, LLC, 9245 N. Meridian Street, Indianapolis, IN 46260 with a copy of this order and the amended complaint, pursuant to 28 U.S.C. § 1915(d); ORDERS Wexford of Indiana, LLC to provide the United States Marshal Serv ice with the full name, date of birth, social security number, last employment date, work location, and last known home address of any defendant that does not waive service, if it has such information; and ORDERS pursuant to 42 U.S.C. § 1997e(g) (2), that Dr. Andrew Liaw, Dr. James Jackson, Nurse Katherin Hutchinson, Nurse Dorothy M. Livers, and Wexford of Indiana 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 4/27/2021. (Copy sent as directed in order)(mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RICHARD DODD,
Plaintiff,
v.

CAUSE NO. 3:19CV299-PPS/MGG

WEXFORD MEDICAL INC, et al.,
Defendants.
OPINION AND ORDER
Richard Dodd, a prisoner without a lawyer, filed a motion for leave to amend
along with a proposed amended complaint. ECF 59, 59-1. Dodd seeks to amend his
original complaint by adding new claims and new defendants to his case. 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 his amended complaint, Dodd states he has a rare genetic autoimmune
disorder—ankylosing spondylitis—that makes him more prone to inflammatory
diseases affecting his spine, ribs, hips, shoulders, and joints. ECF 59-1 at 11. He explains
that one common complication of ankylosing spondylitis is iritis, an inflammation of

the eyes, which makes his eyes painful and sensitive to light, and causes blurry vision.
Id. Dodd states iritis requires immediate medical attention because it can cause severe
damage and injury to his eyes. Id. He asserts that ankylosing spondylitis also causes
him to have severe pain throughout his body. Id. 17-19. To help him with his pain, a
rheumatologist prescribed a treatment plan, which requires a monthly injection and a
prescription strength nonsteroidal anti-inflammatory medication. Id. at 17. Dodd
represents that Naproxen is the only effective medication that controls his pain and he
has a lifetime prescription for that medication. Id. He states he was incarcerated in 1997
and his prison medical record documents his numerous bouts of iritis as well as his
severe pain stemming from his condition. Id. at 11-13.
Dodd first asserts that, on March 9, 2018, Dr. Andrew Liaw, one of the prison’s
doctors, reduced his Naproxen prescription from two pills per day to 28 pills every 60
days. ECF 59-1 at 17. He states Dr. Liaw next discontinued his Naproxen prescription
and prescribed Mobic, which is a medication that has not been effective in controlling
his pain. Id. at 17-18. Dodd asserts that Dr. Liaw then allowed the Mobic prescription to
lapse even though Dr. Liaw neither examined him nor met with him to discuss his
ankylosing spondylitis and pain associated with his condition. Id. at 18. Furthermore, he
states that, without his medication, he experiences crippling pain to the point where he
was unable to stand up straight, walk, or even breathe, because ankylosing spondylitis
makes it feel as though his “ribs are fractured in hundreds of places.” Id.
On August 24, 2018, Dodd asserts he submitted a healthcare request form to the
medical unit because he was having another episode of iritis. ECF 59-1 at 11. He states
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he wrote “Chronic Care Issue” at the top of his request to put the medical staff on notice
that his condition was not new, and his medical record would provide his history along
with the proper treatment. Id. Dodd asserts that Nurse Katherin Hutchinson returned
the healthcare request form to him and told him to resubmit a request without “Chronic
Care” written on the form so that a co-payment could be charged. Id. at 11-12. Dodd
immediately submitted a second healthcare request form and noted on the form that his
eye condition needed to be addressed in a timely manner. Id. at 12. However, after he
submitted his second request, he contends nothing was done and he never heard
anything from Nurse Hutchinson or the medical staff. Id.
On September 5, 2018, Dodd spoke with a nurse about his iritis. ECF 59-1 at 12.
The nurse made a note of his condition in his medical record and contacted the urgent
care staff. Id. Because he did not receive prompt care, Dodd called his family and they,
in turn, called the prison. Id. Shortly thereafter, Dodd was contacted by medical staff
and asked to fill out a healthcare request form. Id. After evaluating Dodd’s eye, Nurse
Hutchinson prescribed a medication for pink eye even though his medical records
documented the multiple bouts of iritis and severe pain associated with his ankylosing
spondylitis. Id.
About ten days later, on September 16, 2018, Dodd submitted another healthcare
request form because the condition of his eye had not improved, the medication was
not helping him, and the inflammation had spread to his other eye. ECF 59-1 at 12-13.
On September 18, 2018, a correctional officer, who observed the severity of Dodd’s iritis,
notified the medical staff. Id. at 13. Dodd was then sent to the medical unit where Dr.
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James Jackson, a prison doctor, advised Nurse Dorothy M. Livers by phone to prescribe
artificial tears for Dodd’s eye inflammation. Id. at 13-14. Nurse Livers gave him a bottle
of artificial tears, which ultimately did not help his eye inflammation. Id. at 14.
Because his iris was beginning to turn white, Dodd called his family, who then
contacted the Indiana Department of Correction (IDOC) office in Indianapolis to report
that Dodd was not getting the medical care he needed for his iritis. ECF 59-1 at 13. The
IDOC office in turn contacted Wexford of Indiana. Id. On September 20, 2018, Dodd was
again taken to the medical unit where, after reviewing his medical history, the medical
staff prescribed the appropriate eye drops for his eye inflammation. Id.
On September 25, 2018, Dodd had a follow-up visit with the prison’s medical
staff. ECF 59-1 at 13. Dodd claims, however, at this point in time, his eye had worsened
and was in bad shape because there had been such a delay in properly treating his
condition. Id. The medical staff contacted Dr. Jackson, but he refused to treat Dodd. Id.
Instead, Dodd was placed on a list to see the prison’s eye doctor. Id.
Several days later, on October 4, 2018, Dodd had another follow-up visit with the
medical staff. ECF 59-1 at 13-14. Dodd states that his eye would no longer react to light
and he was going blind. Id. at 14. He was placed on an aggressive dose of steroids and a
nurse contacted Dr. Jackson by phone. Id. Dodd states that, although the nurse told Dr.
Jackson his eye would no longer react to light, Dr. Jackson still refused to walk down a
flight of stairs to examine his eye and told the nurse that he could wait until after the
eye doctor returned from vacation. Id.

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Dodd next asserts that, in October and November 2018, he sent four healthcare
request forms to the medical staff and also called for a medical emergency because he
was suffering from severe pain stemming from his ankylosing spondylitis. ECF 59-1 at
18. At the time, he was not being given Naproxen and one of his monthly injections was
late. Id. However, Dodd represents that the medical staff refused to treat him or even
talk with him. Id. He also claims that he was told he needed to order Naproxen from the
commissary without considering if he could afford to pay for it. Id. at 20. Dodd states he
was also told that Wexford ordered the medication for him, but he never received it. Id.
As a final matter, Dodd states that Wexford, Dr. Jackson, and Nurse Livers have
also ignored his serious medical needs by taking away his antacid medication, Pepcid,
which he needs to control his heartburn. ECF 59-1 at 19-20. He explains that the decades
of having to take prescription nonsteroidal anti-inflammatory medications to treat his
ankylosing spondylitis has caused him to have severe stomach problems. Id. However,
Dodd asserts that these defendants refused to treat his stomach problems and
compounded his problems by prescribing medication that has worsened his stomach
condition. Id. Dodd states he is in pain most of the time and has requested a
prescription for Pepcid. Id. But instead of prescribing the medication, the medical staff
has told him to stop ordering foods from the commissary that cause stomach issues. Id.
at 19-20.
Under the Eighth Amendment, inmates are entitled to adequate medical care.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must satisfy
both an objective and subjective component by showing: (1) his medical need was
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objectively serious; and (2) the defendant acted with deliberate indifference to that
medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is “serious” if
it is one that a physician has diagnosed as mandating treatment, or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Deliberate indifference
means that the defendant “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).
For a medical professional to be held liable for deliberate indifference to an
inmate’s medical needs, he or she 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). However, “[n]egligence 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 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). Even incompetence does not state a
claim of deliberate indifference. See Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir.
2004); Minix v. Canarecci, 597 F.3d 824, 831-32 (7th Cir. 2010). However, a delay in
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providing treatment can constitute deliberate indifference when it causes unnecessary
pain or suffering. Arnett v. Webster, 658 F.3d 742, 752-53 (7th Cir. 2011); Grieveson v.
Anderson, 538 F.3d 763, 779 (7th Cir. 2008).
Accepting Dodd’s allegations as true and giving him the benefit of the inferences
to which he is entitled, as I must at this stage of the proceedings, he has alleged facts
from which it can be inferred that Dr. Liaw was deliberately indifferent to Dodd’s
serious medical needs by refusing to prescribe appropriate medication for Dodd’s pain
associated with his ankylosing spondylitis. Dodd has also alleged facts from which it
can be inferred that Dr. Jackson was deliberately indifferent to his serious medical
needs by refusing to provide him with appropriate medical care for his iritis and his
pain associated with his ankylosing spondylitis.
With respect to Nurse Hutchinson and Nurse Livers, Dodd asserts they also
violated his Eighth Amendment rights by refusing to properly treat his ankylosing
spondylitis. ECF 59-1 at 11-12, 20, 26. Here, he asserts that Nurse Hutchinson failed to
process his healthcare request forms and respond to his urgent needs for treatment for
his iritis. Id. at 26. He claims she ignored his medical history and prescribed medication
to treat pink eye, which lead to eye damage and pain. Id. He further asserts that Nurse
Livers delayed proper treatment by prescribing artificial tears and refusing to prescribe
Pepcid to treat his heartburn. Id. at 13-14, 26. While additional fact finding may reveal
that these were simply errors in medical judgment, giving Dodd the benefit of the
inferences to which he is entitled at this stage, I find that Dodd has stated Eighth
Amendment claims against Nurse Hutchinson and Nurse Livers.
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Dodd has also sued Wexford of Indiana. ECF 59-1 at 15, 24-25. He alleges that
Wexford, as the private company that provides medical care to inmates, encourages its
medical staff to delay and deny necessary medical care. Id. A private company may be
held liable for constitutional violations when it performs a state function. West v. Atkins,
487 U.S. 42 (1988). Dodd has alleged that, consistent with Wexford’s custom or policy of
“denying or significantly delaying proper treatment for serious medical issues,” he was
denied appropriate care for his iritis and ankylosing spondylitis. Id. at 15. He explains
that Wexford refused to consider his medical history and prescribe the medications he
needed to treat his iritis and pain. Id. at 24-25. Thus, according to Dodd, his eyesight has
been damaged and he has been subjected to needless amounts of pain because Wexford
did not provide him with proper medical care. Id. I find that Dodd has stated a claim
against Wexford.
Dodd next asserts a state law claim against Wexford’s medical staff. ECF 59-1 at
20-21, 29-30. He claims the medical staff falsified state documents by making fraudulent
notations in his medical records. Id. at 21. Here, he states that some of his healthcare
request forms have been falsified because they indicate he had been “seen” or treated
when, in fact, he never received any medical treatment. Id. Under the Indiana Tort
Claims Act, a tort claim against a political subdivision is barred unless notice is filed
with the governing body of the political subdivision and its risk management
commission within 180 days of the loss. VanValkenburg v. Warner, 602 N.E.2d 1046, 1048
(Ind. Ct. App. 1992); Ind. Code § 34-13-3-8. The notice requirement applies not only to
political subdivisions but also to employees of political subdivisions as well. Id.
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However, Dodd’s amended complaint does not include any allegations that he
complied with the notice requirements of the Indiana Tort Claims Act. Therefore, his
state law claim will be dismissed.
Dodd also alleges that Wexford retaliated against him for filing this lawsuit. ECF
59-1 at 21-22. Here, he alleges that Wexford denied his request to participate in the
prison’s Recovery While Incarcerated (“RWI”) program even though his background
qualified him for participation in this program. Id. “To prevail on his First Amendment
retaliation claim, [Dodd] must show that (1) he engaged in activity protected by the
First Amendment; (2) he suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment activity was at least a
motivating factor in the Defendants’ decision to take the retaliatory action.” Gomez v.
Randle, 680 F.3d 859, 866 (7th Cir. 2012) (quotation marks and citations omitted).
Because Dodd has not alleged any facts to suggest there is a link between filing this
lawsuit and Wexford’s decision not to allow him to participate in the RWI program, he
cannot proceed on his retaliation claim.
Dodd has further asserted a breach of contract claim. ECF 59-1 at 28-29. He
alleges Wexford breached its contract with the IDOC because Wexford failed to train its
medical staff on how to identify and respond to medical emergencies.1 Id. Dodd also
claims that he is a third-party beneficiary to the contract because the contract solely

1 To the extent Dodd may be attempting to assert a “failure to train” claim against Wexford, “in
the Eighth Amendment context, such claims may only be maintained against a municipality.” Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) citing Farmer v. Brennan, 511 U.S. 825, 841 (1994). Wexford is
not a municipality. ECF 59-1 at 24.

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benefits him and other inmates. Id. Dodd further explains that Wexford has breached its
duty to provide him with adequate medical care. Id. While I have some doubt about
Dodd’s ability to demonstrate that he is an intended beneficiary of the contract, I will, at
this juncture, permit the claim to proceed. See Harper v. Corizon Health Inc., No. 2:17-CV228-JMS-DLP, 2018 WL 6019595, at *8-9 (S.D. Ind. Nov. 16, 2018) (dismissing a breach of
contract claim against Corizon on summary judgment because the plaintiff did not
demonstrate that he was a third-party beneficiary of the contract between Corizon and
the IDOC).
As a final matter, Dodd has sued Dr. Wilkinson, a prison dentist. ECF 59-1 at 1517. He asserts that Dr. Wilkinson was deliberately indifferent to his serious dental needs
because he had to wait more than six months to have a painful tooth extracted. Id. at 15.
Dodd reports that he filled out many healthcare request forms asking for treatment for
his multiple dental needs, but he waited months to receive treatment. However, Dodd’s
dental claims are unrelated to his claims against the defendants in this case. Therefore,
Dodd cannot proceed on his claim against Dr. Wilkinson because it is unrelated to the
claims on which he is currently proceeding in this lawsuit. George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in different
suits[.]”). If Dodd seeks legal recourse against Dr. Wilkinson, the proper course is to file
another lawsuit.
ACCORDINGLY, the court:
(1) GRANTS the motion for leave to file an amended complaint (ECF 59);
(2) DIRECTS the clerk to separately docket the amended complaint (ECF 59-1);
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(3) LIFTS the stay in this case;
(4) GRANTS Richard Dodd leave to proceed against Dr. Andrew Liaw in his
individual capacity for compensatory and punitive damages for deliberate indifference
to his serious medical need for treatment for his pain associated with his ankylosing
spondylitis, in violation of the Eighth Amendment;
(5) GRANTS Richard Dodd leave to proceed against Dr. James Jackson in his
individual capacity for compensatory and punitive damages for deliberate indifference
to his serious medical need for treatment for his iritis and his pain associated with his
ankylosing spondylitis, in violation of the Eighth Amendment;
(6) GRANTS Richard Dodd leave to proceed against Nurse Katherin Hutchinson
in her individual capacity for compensatory and punitive damages for deliberate
indifference to his serious medical need for treatment for his iritis associated with his
ankylosing spondylitis, in violation of the Eighth Amendment;
(7) GRANTS Richard Dodd leave to proceed against Nurse Dorothy M. Livers in
her individual capacity for compensatory and punitive damages for deliberate
indifference to his serious medical need for treatment for his iritis and his pain
associated with his ankylosing spondylitis, in violation of the Eighth Amendment;
(8) GRANTS Richard Dodd leave to proceed against Wexford of Indiana for
compensatory and punitive damages for following a custom or policy of denying
necessary medical care, resulting in him receiving inadequate care for his iritis and
ankylosing spondylitis;

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(9) GRANTS Richard Dodd leave to proceed against Wexford of Indiana for
injunctive relief to require it to stop following a policy of delaying necessary medical
care, in violation of the Eighth Amendment;
(10) GRANTS Richard Dodd leave to proceed against Wexford of Indiana for
compensatory damages for breaching its contract with the IDOC;
(11) DISMISSES Dr. Wilkinson;
(12) DISMISSES all other claims;
(13) DIRECTS the clerk to request Waiver of service from (and if necessary, the
United States Marshals Service to serve process on) Dr. Andrew Liaw, Dr. James
Jackson, Nurse Katherin Hutchinson, and Nurse Dorothy M. Livers at Wexford of
Indiana, LLC, 9245 N. Meridian Street, Indianapolis, IN 46260 with a copy of this order
and the amended complaint, pursuant to 28 U.S.C. § 1915(d);
(14) ORDERS Wexford of Indiana, LLC to provide the United States Marshal
Service with the full name, date of birth, social security number, last employment
date, work location, and last known home address of any defendant that does not
waive service, if it has such information; and
(15) ORDERS pursuant to 42 U.S.C. § 1997e(g)(2), that Dr. Andrew Liaw, Dr.
James Jackson, Nurse Katherin Hutchinson, Nurse Dorothy M. Livers, and Wexford of
Indiana 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.

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SO ORDERED on April 27, 2021.
/s/ Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT

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