GORE v. CORRECTIONAL MEDICAL SERVICE et al

Filing 48

ENTRY DISCUSSING AMENDED COMPLAINT, DISMISSING INSUFFICIENT CLAIMS, AND DIRECTING FURTHER PROCEEDINGS. The Eighth Amendment claim against defendants TURNER and CORIZON is dismissed for failure to state a claim. The plaintiff's claims for inte ntional infliction of emotional distress is dismissed for failure to state a claim. The plaintiff's state law claim for negligent infliction of emotion distress as to CORIZON and TURNER is dismissed for failure to state a claim. CORIZON and TU RNER are dismissed as defendants. The Court is unaware of an independent state law claim of "outrageous conduct." If Gore disagrees with the Court's conclusion as to this claim he has until January 23, 2015, to notify the Court as to the legal basis of this state law claim. The Eighth Amendment deliberate indifference claim against Nurse Meyers and Dr. Wolfe may proceed. The state law claim for negligent infliction of emotional distress against Nurse Meyers and Dr. Wolf e may proceed. Defendants Meyers and Wolfe have already appeared in this action. They shall have 21 days from the issuance of this Entry to respond to the amended complaint. Signed by Judge Jane Magnus-Stinson on 12/19/2014.(BGT) Modified on 12/19/2014 (BGT).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JERRY A. GORE,
Plaintiff,
vs.
DR. WILLIAM WOLFE,
NURSE C. MEYERS,
Defendants.

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Entry Discussing Amended Complaint, Dismissing Insufficient Claims,
and Directing Further Proceedings
I. Screening
Plaintiff Jerry A. Gore filed an amended complaint on November 19, 2014, alleging that
his constitutional rights were violated by the defendants when they delayed medical care for the
treatment of heatstroke. Because Gore is a “prisoner” as defined by 28 U.S.C. § 1915(h) this court
has an obligation under 28 U.S.C. § 1915A to screen his complaint before service on the
defendants, and must dismiss the complaint if it is frivolous or malicious, fails to state a claim for
relief, or seeks monetary relief against a defendant who is immune from such relief. In determining
whether the complaint states a claim, the court applies the same standard as when addressing a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston,
463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal under federal pleadings standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by Gore are
construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.

Obriecht v. Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir. 2008). It must further be recognized that
the composition and content of the complaint are entirely the responsibility of the plaintiff, for
“even pro se litigants are masters of their own complaints and may choose who to sue-or not to
sue.” Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005).
Gore’s claims are brought pursuant to 42 U.S.C. § 1983. A cause of action is provided by
42 U.S.C. § 1983 against “[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, . . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws” of the United States. Section 1983
is not itself a source of substantive rights; instead, it is a means for vindicating federal rights
conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citing Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979)). The initial step in any § 1983 analysis is to identify the specific
constitutional right which was allegedly violated. Id. at 394; Kernats v. O’Sullivan, 35 F.3d 1171,
1175 (7th Cir. 1994); see also Gossmeyer v. McDonald, 128 F.3d 481, 489-90 (7th Cir. 1997).
The right implicated by Gore’s complaint is the Eighth Amendment’s proscription against
cruel and unusual punishment. Specifically, Gore alleges that the defendants were deliberately
indifferent to his serious medical needs. Constitutional claims are to be addressed under the most
applicable provision. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005); Helling v.
McKinney, 509 U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison
and the conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.”). The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994). A claim
based on deficient medical care must demonstrate two requirements: 1) an objectively serious

medical condition, and 2) an official’s deliberate indifference to that condition. Under the first
element, Gore has alleged that the defendants were deliberately indifferent to his serious medical
condition of heatstroke.
The second requirement is a subjective one:
a prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw
the inference.
Farmer, 114 S. Ct. at 1979. Prison officials may exhibit deliberate indifference to a known
condition through inaction, Gayton v. McCoy, 593 F.3d 610, 623–24 (7th Cir. 2010); Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009), or by persisting with inappropriate
treatment, Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir.2011); Greeno v. Daley, 414 F.3d
645, 653–54 (7th Cir. 2005). Prison officials might also show their deliberate indifference by
delaying necessary treatment and thus aggravating the injury or needlessly prolonging an inmate’s
pain. Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012).
Gore brings this amended civil rights complaint against the following defendants: 1)
Correctional Medical Services, Inc. (Corizon); 2); Dr. William Wolfe; 3) Nurse Christina Meyers;
and 4) Officer Steven Turner. He also asserts various state law claims. He seeks declaratory relief,
injunctive relief, and monetary damages.

II.
Insufficient Claims- Federal
A.
Gore alleges that Turner took him to the shower and closed the door. Gore commented to
Turner about the heat in the shower and asked him not to close the shower door. Turner responded
that it is policy for the shower door to be closed, and closed the door. Gore began showering and
passed out from the heat. After coming to, Gore called out for help. Turner returned to help Gore,
and after Gore passed out again, Turner called for help and assisted Gore to the range. Turner and
another officer carried Gore down the stairs to a fan and got him water to drink. Turner continued
to give Gore water to drink while they waited on medical personal to arrive. Nurse Meyers arrived
and evaluated Gore and stated he could return to his cell. Turner indicated to Nurse Meyers that
Gore needed further medical attention and should go to the infirmary because he did not look good.
Gore has not alleged any facts in the amended complaint upon which the Court could
conclude that Turner was deliberately indifference to Gore’s need for emergency medical
treatment. Quite the opposite, in fact. During this ordeal, Turner helped Gore by placing him in
front of a fan, providing him water to drink, and stated that Gore needed further medical attention
despite Nurse Meyers statements to the contrary. The Eighth Amendment claim against defendant
Turner is dismissed for failure to state a claim.
B.
Gore claims that Corizon’s medical policy results in inadequate training for the medical staff
with respect to the diagnosis and/or treatment of medical emergencies, in this case heatstroke. 1

1

To the extent Gore references in a footnote a variety of other medical emergencies involving other inmates,
they are not sufficiently related to an alleged policy or practice regarding the treatment of heatstroke.

This failure, he alleges, amounts to deliberate indifference to his serious medical needs in violation
of the Eighth Amendment. Regarding a policy of inadequate training, the Supreme Court stated:
[T]he word “policy” generally implies a course of action consciously chosen from
among various alternatives; it is therefore difficult in one sense even to accept the
submission that someone pursues a “policy” of “inadequate training,” unless
evidence be adduced which proves that the inadequacies resulted from conscious
choice-that is, proof that the policymakers deliberately chose a training program
which would prove inadequate.
Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2004)(quoting City of Okla. v. Tuttle, 471 U.S.
808, 823 (1985). Gore fails to set forth any factual allegations that suggest Corizon has a policy
not to train its medical staff or has chosen a training program that is inadequate. For example, Gore
writes “Corizon . . . was deliberately indifferent to Gore’s serious medical needs as he laid on the
floor in J-Cell house on July 6, 2012, suffering from heat stroke, by failing to properly train
Defendant Meyers in how to diagnose/assess/treat Gore in a timely manner for his heat stroke.”
As the Supreme Court recently explained, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice
if it tenders “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft, 556 U.S. at
678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). As such, the Eighth
Amendment claim against defendant Corizon is dismissed for failure to state a claim.
II.
Insufficient Claims-State
A.
Gore alleges he suffered emotional distress, but fails to specify if it is negligent or intentional.
The Indiana Supreme Court defined the tort of intentional infliction of emotional distress as
follows: “‘one who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress. . . .’ Restatement

(Second) of Torts § 46 (1965). It is the intent to harm one emotionally that constitutes the basis for
the tort of an intentional infliction of emotional distress.” Oliver v. McClung, 919 F. Supp. 1206,
1220 (N.D. Ind. 1995)(quoting Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991)). Gore makes
no allegations that the defendants actually intended to inflict emotional damage during the
allegedly deficient medical treatment. Gore’s claims for intentional infliction of emotional
distress is dismissed for failure to state a claim.
B.
Under Indiana law a party may pursue a claim for emotional distress under either the
“modified impact” rule or the “bystander” rule. Patterson v. Indiana Newspapers, Inc., 589 F.3d
357, 367 (7th Cir. 2009)(citing Atl. Coast Airlines v. Cook, 857 N.E.2d 989, 998 (Ind. 2006)). The
modified impact rule maintains the requirement that the plaintiff demonstrate a direct physical
injury, but the impact need not cause a physical injury and the emotional trauma need not result
from a physical injury of the impact. Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1263 (Ind. Ct.
App. 2002). In this case, the underlying constitutional tort against Turner and Corizon has been
dismissed and Gore’s negligent infliction claim is based on the alleged constitutional violation by
Corizon and Turner. Gore’s state law claim for negligent infliction of emotion distress as to
Corizon and Turner is dismissed for failure to state a claim. Corizon and Turner are dismissed
as defendants.
C.
The Court is unaware of an independent state law claim of “outrageous conduct.” If Gore
disagrees with the Court’s conclusion as to this claim he has until January 23, 2015, to notify the
Court as to the legal basis of this state law claim.

III. Claims that May Proceed
Gore alleges that Nurse Meyers and Dr. Wolfe were deliberately indifferent to his serious
medical need when he suffered from heatstroke. The Eighth Amendment deliberate indifference
claim against Nurse Meyers and Dr. Wolfe may proceed.
The state law claim for negligent infliction of emotional distress against Nurse Meyers and
Dr. Wolfe may proceed.
No final judgment shall issue at this time as to the claims dismissed in this Entry.
Defendants Meyers and Wolfe have already appeared in this action. They shall have 21 days
from the issuance of this Entry to respond to the amended complaint.
IT IS SO ORDERED.
December 19, 2014
Date: ________________
Distribution:
Jerry A. Gore, #988612
Electronic Service Participant
Count only
Electronically registered counsel

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana