Fultz v. Pearcy et al
OPINION AND ORDER: The court GRANTS Michael Fultz leave to proceed against Grievance Specialist Mr. T. Cambe, Grievance Specialist John R. Harvil, and Administrative Assistant Mr. D. Leonard in their individual capacities for nominal, compensatory , and punitive damages for taking no action to assist in obtaining necessary dental care for Mr. Fultz despite knowledge that he was suffering from serious dental pain and had not yet been evaluated by any medical staff, in violation of the Eighth Amendment, and for the alleged intentional infliction of emotional distress claim; DISMISSES all other claims; DISMISSES Dentist Jeff Pearcy, Health Service Administrator DeAngela Lewis,Unit Team Manager John L. Salyer, Correctional Officer Capta in Smiley, Dental Assistant John Doe, Jane/John Doe #1, Jane/John Doe #2, Wexford of Indiana, LLC, and the State of Indiana; DIRECTS Michael Fultz to make arrangements to serve Grievance Specialist Mr. T. Cambe, Grievance Specialist John R. Harvil, and Administrative Assistant Mr. D. Leonard; and ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Grievance Specialist Mr. T. Cambe, Grievance Specialist John R. Harvil, and Administrative Assistant Mr. D. Leonard to respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claim for which the plaintiff has been granted leave to proceed in this screening order. Signed by Judge Damon R Leichty on 4/1/2021. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL LEE FULTZ,
CAUSE NO. 3:20-CV-259 DRL-MGG
JEFF PEARCY et al.,
OPINION AND ORDER
Michael Lee Fultz, a prisoner without a lawyer incarcerated at the Westville
Correctional Facility, filed a complaint against twelve separate defendants alleging that
he was denied adequate dental care. 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). Under 28 U.S.C. § 1915A, the
court still 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 an immune defendant.
On April 24, 2018, Mr. Fultz broke his right front tooth. He sought care by
completing a request for health care form the same day. He received no response, so on
May 1, 2018 he filed a second request for healthcare. On May 8, 2018, Mr. Fultz still had
not received a response to either request for healthcare, so he filed a formal grievance.
The next day he received a response to his first request for healthcare indicating only that
he would be added to the list of inmates that need to see the dentist. On May 11, 2018,
Grievance Specialist Mr. Cambe responded to Mr. Fultz’s grievance by indicating that he
had been scheduled to see the dentist and his grievance was resolved. Because Mr. Fultz
believed he had been scheduled to see the dentist, he did not pursue this grievance
Mr. Fultz’s pain continued to worsen; and, on May 21, 2018, he filed a third request
for healthcare indicating that he was in severe pain, that his tooth was throbbing, and
that he was suffering from headaches. On June 4, 2018, having still received no response
to his third request for healthcare, he filed a fourth request for health care. In this request,
he indicated that he was in extreme pain and could not sleep at night. He received no
response, and on June 18, 2018, he filed a fifth request for health care indicated that he
had not received responses to his earlier requests. He again received no response.
On June 24, 2018, Mr. Fultz filed his second formal grievance. He indicated that it
had been 61 days since he broke his tooth, that his situation should have been addressed
as an emergency, and that he had made them aware of his continued and increasing
suffering. On June 27, 2018, the grievance was returned by Mr. Cambe because the issue
had been addressed by the previous grievance. Mr. Fultz appealed this decision, noting
that he had been suffering for 64 days without seeing a dentist.
Mr. Fultz also filed an informal grievance against Mr. Cambe for how he addressed
the second grievance. On June 28, 2018, Mr. Cambe returned Mr. Fultz’s grievance and
indicated that it was too late to appeal. Mr. Cambe did not otherwise address Mr. Fultz’s
informal grievance. Also, on June 28, 2018, Mr. Fultz filed another request for healthcare
indicating that it was his sixth request, that he had been suffering since April 24, 2018,
and that he had only received one response on May 3, 2018. On June 29, 2018, an unknown
individual responded by indicating that Mr. Fultz was on the list to see the dentist.
On July 4, 2018, Mr. Fultz filed two more grievances against Mr. Cambe for his
handling of his earlier grievances and attempts to appeal. On July 5, 2018, Mr. Fultz
received a response to his sixth request for healthcare from an unknown individual – it
too indicated that he was already on the list to see a dentist.
On July 10, 2018, Administrative Assistant Mr. Leonard returned Mr. Fultz’s third
grievance because he did not first attempt to resolve the matter informally.
On July 12, 2018, he talked to Unit Team Manager Salyer and Captain Smiley. They
said they would find out why it was taking so long and ask Mr. Harvil and Mr. Leonard
to respond to the grievances. On July 12, 2018, Mr. Fultz filed a sixth grievance, marking
it as an emergency grievance. It was returned because the issue had been ostensibly
addressed. On July 23, 2018, he filed his seventh, eighth, and ninth grievances by giving
them to Mr. Salyer. Mr. Harvil did not respond to these grievances. Mr. Fultz talked to
Salyer again about his need for dental care between July 23, 2018, and July 26, 2018.
On July 27, 2018 - 94 days after his tooth broke – Mr. Fultz was finally seen by Dr.
Pearcy. Dr. Pearcy indicated that the tooth needed to be pulled. Pulling the tooth resolved
Mr. Fultz’s pain.
Under the Eighth Amendment, inmates are entitled to constitutionally 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 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). On the subjective prong, the plaintiff must
establish 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) (internal quotation
marks, brackets, and citations omitted).
Mr. Fultz has named Dr. Pearcy as a defendant, but it is not entirely clear why he
is suing Dr. Pearcy. When Dr. Pearcy saw Mr. Fultz, he removed his tooth and Mr. Fultz‘s
pain was resolved. He is not complaining about the quality of care that Dr. Pearcy
delivered. To the extent that he is complaining about the delay in seeing him, it is unclear
that Dr. Pearcy had anything to do with that. While Mr. Fultz filed numerous requests
for healthcare and grievances, he does not allege that Dr. Pearcy played any role in
responding to those requests. Section 1983 “liability depends on each defendant’s
knowledge and actions, not on the knowledge or actions of persons they supervise.”
Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). “[P]ublic employees are responsible
for their own misdeeds but not for anyone else’s.” Id. at 596. Because Mr. Fultz has not
alleged that Dr. Pearcy caused the delay in treatment, Mr. Fultz cannot proceed against
Mr. Fultz has also sued Mr. Cambe, Mr. Harvill, and Mr. Leonard. To the extent
that he is suing them for their role in processing his grievances, he cannot state a claim.
“Prison grievance procedures are not mandated by the First Amendment and do not by
their very existence create interests protected by the Due Process Clause, and so the
alleged mishandling of . . . grievances by persons who otherwise did not cause or
participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir. 2011). However, Mr. Fultz has alleged that he filed numerous grievances, and it
can be plausibly inferred from a review of these grievances that Mr. Cambe, Mr. Harvill,
and Mr. Leonard were aware that Mr. Fultz was alleging that he was suffering great pain,
that considerably time had passed, and that he had not yet received so much as an initial
assessment by a member of the medical staff.
[I]f a prisoner is under the care of medical experts ... a non-medical prison
official will generally be justified in believing that the prisoner is in capable
hands. This follows naturally from the division of labor within a prison.
Inmate health and safety is promoted by dividing responsibility for various
aspects of inmate life among guards, administrators, physicians, and so on.
Holding a non-medical prison official liable in a case where a prisoner was
under a physician’s care would strain this division of labor.
Arnett, 658 F.3d at 755 (citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.2004)). However,
where non-medical prison officials receive communications that are sufficient in their
“content and manner of transmission” to give those officials “notice to alert him or her to
an excessive risk to inmate health or safety[,]” then there is a duty to take some action.
Arnett, 658 F.3d at 755 (internal quotation marks and citation omitted). Here, the
communications received by Mr. Cambe, Mr. Harvill, and Mr. Leonard are sufficient to
permit an inference that they were aware that he had received no medical care
whatsoever for a painful condition despite the passing of a considerable amount of time.
Thus, Mr. Fultz may proceed against Mr. Cambe, Mr. Harvill, and Mr. Leonard for
deliberate indifference to his serious medical condition.
Mr. Fultz has named Mr. Salyer and Captain Smiley as defendants too. But, Mr.
Fultz first addressed his concern with these defendants on July 12, 2018. They agreed to
find out what was taking so long and to request that Mr. Harvill and Mr. Leonard
respond to his grievances. And, Mr. Fultz talked with Mr. Salyer about his need for dental
care a second time between July 23, 2018, and July 26, 2018. He received care shortly
thereafter on July 27, 2018. In cannot be plausibly inferred from these facts that either Mr.
Salyer or Captain Smiley were deliberately indifferent to his suffering. On the contrary,
they seemed willing to be of assistance and may have played a role in him ultimately
receiving medical care on July 27, 2018.
Mr. Fultz has named Health Service Administrator Deangela Lewis as a defendant
too, but his complaint does not include any allegations regarding her conduct. As already
noted, “public employees are responsible for their own misdeeds but not for anyone
else’s.” Burks, 555 F.3d at 596. Therefore, Mr. Fultz may not proceed against Deangela
Mr. Fultz includes several Jane or John Doe defendants in the complaint too: a
dental assistant, and the individuals that were responsible for processing healthcare
requests and scheduling appointments. Mr. Fultz cannot proceed against unknown
defendants. See Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (“[I]t is pointless to
include lists of anonymous defendants in federal court; this type of placeholder does not
open the door to relation back under Fed. R. Civ. P. 15, nor can it otherwise help the
Mr. Fultz has also sued Wexford of Indiana, LLC. He alleges that Wexford violated
his rights “through its policy, practice, custom, or procedure, or failure to train, or
supervise its employees.” There is no general respondeat superior liability under 42 U.S.C.
§ 1983. Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001); see also Johnson v.
Dossey, 515 F.3d 778, 782 (7th Cir. 2008) (“[A] private corporation is not vicariously liable
under § 1983 for its employees’ deprivations of others’ civil rights.”).While Mr. Fultz
makes vague suggestions that his rights were violated due to a corporate policy or
custom, the facts of the complaint do not support this claim. Rather, the facts suggest that
he is suing Wexford because of the poor decisions that its staff allegedly made in
connection with his care. This is not a basis for permitting Mr. Fultz to proceed against
Mr. Fultz has named the Indiana Department of Correction as a defendant. But,
State agencies such as the IDOC are immune from suit pursuant to the Eleventh
Amendment. Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001). There are three
exceptions to the Eleventh Amendment immunity, see MCI Telecommunications Corp. v. Ill.
Commerce Comm’n, 183 F.3d 558, 563 (7th Cir. 1999), but none of them apply here. Thus,
he cannot proceed against the IDOC.
In addition to his federal claims, Mr. Fultz asserts various state law claims:
negligence, medical malpractice, and intentional inflection of emotional distress. Mr.
Fultz cannot proceed on a state law claim for negligence because, if the defendants’
actions were merely negligent, they would have been acting within the scope of their
employment. “Under the Indiana Tort Claims Act, there is no remedy against the
individual employee so long as he was acting within the scope of his employment.” Ball
v. City of Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014).
Hee cannot proceed on a state law claim for medical malpractice because he did
not first present the proposed complaint to the medical review panel and receive an
opinion from the panel. See Ind. Code § 34-18-8-4; Terry v. Community Health Network, 17
N.E.3d 389, 393 (Ind. Ct. App. 2014); Hines v. Elkhart Gen. Hosp., 603 F.2d 646, 647 (7th Cir.
As for intentional infliction of emotional distress as an independent tort under
Indiana law, this requires that the defendant (1) engage in extreme and outrageous
conduct (2) that intentionally or recklessly (3) causes (4) severe emotional distress to
another. Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). The requirements to
prove this tort are rigorous, and it is found only when the conduct “exceeds all bounds
typically tolerated by a decent society and causes mental distress of a very serious
kind.” Id. The allegations suffice to proceed with this claim against the remaining
Mr. Fultz is not proceeding in forma pauperis. Therefore, the court will not serve the
defendants pursuant to 28 U.S.C. § 1915(d). Rather, it is Mr. Fultz’s obligation to serve
Mr. Cambe, Mr. D. Leonard, and John R. Harvil. If Mr. Fultz desires the assistance of the
United States Marshals Service, he may contact them directly to make appropriate
For these reasons, the court:
(1) GRANTS Michael Fultz leave to proceed against Grievance Specialist Mr. T.
Cambe, Grievance Specialist John R. Harvil, and Administrative Assistant Mr. D.
Leonard in their individual capacities for nominal, compensatory, and punitive damages
for taking no action to assist in obtaining necessary dental care for Mr. Fultz despite
knowledge that he was suffering from serious dental pain and had not yet been evaluated
by any medical staff, in violation of the Eighth Amendment, and for the alleged
intentional infliction of emotional distress claim;
(2) DISMISSES all other claims;
(3) DISMISSES Dentist Jeff Pearcy, Health Service Administrator DeAngela Lewis,
Unit Team Manager John L. Salyer, Correctional Officer Captain Smiley, Dental Assistant
John Doe, Jane/John Doe #1, Jane/John Doe #2, Wexford of Indiana, LLC, and the State
(4) DIRECTS Michael Fultz to make arrangements to serve Grievance Specialist
Mr. T. Cambe, Grievance Specialist John R. Harvil, and Administrative Assistant Mr. D.
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Grievance Specialist Mr. T.
Cambe, Grievance Specialist John R. Harvil,
and Administrative Assistant Mr. D.
Leonard to respond, as provided for in the Federal Rules of Civil Procedure and N.D.
Ind. L.R. 10-1(b), only to the claim for which the plaintiff has been granted leave to
proceed in this screening order.
April 1, 2021
s/ Damon R. Leichty
Judge, United States District Court
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