Harris v. Livers et al

Filing 11

OPINION AND ORDER: The court: GRANTS Devontae C. Harris leave to proceed against Nurse Director Dorothy Livers, Nurse Director Michelle Rebac, Dr. Pearcy, and Dr. Wilkerson in their individual capacities for compensatory and punitive damages for deli berate indifference to his severe pain and need for dental treatment, in violation of the Eighth Amendment; DISMISSES all other claims; DIRECTS the clerk to request Waiver of Service from (and if necessary, the United States Marshals Service to use a ny lawful means to locate and serve process on) Nurse Director Dorothy Livers, Nurse Director Michelle Rebac, Dr. Pearcy, and Dr. Wilkerson at Wexford of Indiana, LLC with a copy of this order and the amended complaint 10 , pursuant to 28 U.S.C.
67; 1915(d); ORDERS Wexford of Indiana, LLC to provide the full name, date of birth, and last known home address of any defendant that does not waive service, if they have such information; and ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that N urse Director Dorothy Livers, Nurse Director Michelle Rebac, Dr. Pearcy, and Dr. Wilkerson 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 Chief Judge Jon E DeGuilio on 4/28/2021. (bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEVONTAE C. HARRIS,
Plaintiff,
v.

CAUSE NO. 3:20-CV-580-JD-MGG

DOROTHY LIVERS, et al.,
Defendants.
OPINION AND ORDER
Devontae C. Harris, a prisoner without a lawyer, filed an amended complaint
against Dr. Pearcy, Dr. Wilkinson, Nursing Director Dorothy Livers, and Nursing
Director Michelle Rebac alleging that he did not receive timely dental care. “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, 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.
According to the amended complaint, Harris developed dental pain that he
attributed to the growth of his wisdom teeth. On January 22, 2020, Harris submitted a
health care request form asking to have his wisdom teeth pulled due to collusion and
pain. He received a response indicating that he would be placed on the list. On May 8,
2020, he sent offender request forms to Nurse Directors Dorothy Livers and Michelle

Rebac, explaining that the two dentists, Dr. Pearcy and Dr. Wilkerson, were ignoring his
dental needs. It is unclear if he received a response.
On May 15, 2020, an abscess in Harris’s mouth burst. That evening, he fainted
twice, hitting his head on concrete. The dentists were emailed and told that Harris had
fainted due to severe dental pain. Harris submitted another health care request form.
He indicated that he was having pain in his mouth and that he was never seen by either
of the dentists. Still, Harris was not seen by a dentist. On June 15, 2020, he submitted a
third health care request form. Nurse Director Dorothy Livers responded to this form
by indicating that Harris had already been seen, even though Harris had not actually
been seen. Finally, on July 23, 2020, Harris was seen by Dr. Pearcy. Dr. Pearcy
recommended that Harris be transferred to the Indiana Youth Center where he could
receive surgery to remove a wisdom tooth that was growing in sideways. He was not
prescribed anything for the pain.
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
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
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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).
Here, giving Harris the benefit of the inferences to which he is entitled at this
stage of the proceedings, he has alleged facts from which it can be inferred that Nurse
Livers, Nurse Rebac, Dr. Pearcy, and Dr. Wilkinson were each deliberately indifferent to
his dental pain. Therefore, he will be granted leave to proceed against them on this
claim.
Harris also alleges that the delays in dental care that he experienced violate the
IDOC’s policies. As previously explained, the violation of the prison’s policies does not
state a claim. Policy violations do not amount to constitutional violations. Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (“However, 42 U.S.C. § 1983 protects plaintiffs
from constitutional violations, not violations of state laws or, in this case, departmental
regulations and police practices.”).
For these reasons, the court:
(1) GRANTS Devontae C. Harris leave to proceed against Nurse Director
Dorothy Livers, Nurse Director Michelle Rebac, Dr. Pearcy, and Dr. Wilkerson in their
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individual capacities for compensatory and punitive damages for deliberate
indifference to his severe pain and need for dental treatment, in violation of the Eighth
Amendment;
(2) DISMISSES all other claims;
(3) DIRECTS the clerk to request Waiver of Service from (and if necessary, the
United States Marshals Service to use any lawful means to locate and serve process on)
Nurse Director Dorothy Livers, Nurse Director Michelle Rebac, Dr. Pearcy, and Dr.
Wilkerson at Wexford of Indiana, LLC, 9245 N. Meridian Street, Indianapolis, IN 46260,
with a copy of this order and the amended complaint (ECF 10), pursuant to 28 U.S.C. §
1915(d);
(4) ORDERS Wexford of Indiana, LLC to provide the full name, date of birth, and
last known home address of any defendant that does not waive service, if they have
such information; and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Nurse Director Dorothy
Livers, Nurse Director Michelle Rebac, Dr. Pearcy, and Dr. Wilkerson 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 April 28, 2021

/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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