NEIDIGE v. CORIZON INC. et al
Entry Granting Motion to Dismiss - Superintendent Brown's motion to dismiss [dkt. 28 ] is granted. Mr. Neidige's claims against him are dismissed with prejudice. The clerk is directed to terminate Superintendent Brown as a defendant in this action. No partial final judgment shall issue at this time (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge Jane Magnus-Stinson on 2/7/2017. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CORIZON INC., et al.
Entry Granting Motion to Dismiss
Defendant Superintendent Richard Brown moves to dismiss Plaintiff Gary Neidige’s
Eighth Amendment medical claim and state-law negligence claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). Superintendent Brown’s motion is fully briefed. For the reasons
explained, Superintendent Brown’s motion to dismiss [dkt. 28] is granted.
Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. Pro. 8(a)(2)). “Specific facts are not necessary, the statement need only ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Id. (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
A motion to dismiss asks whether the complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing the sufficiency of a
complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in
favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.
2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state
a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
Relevant Allegations in the Amended Complaint
The factual allegations contained in the Amended Complaint necessary to decide this
motion are brief and, as required by the legal standard, are taken as true for the purposes of this
motion. Mr. Neidige was an inmate at Wabash Valley Correctional Facility (“Wabash Valley”)
during all times relevant to his claims.
In September 2013, Mr. Neidige complained to medical staff at Wabash Valley regarding
sharp pain in his abdomen. For the next year, Mr. Neidige consistently complained to medical
staff of abdominal pain, rectal pain, and passing blood. He was primarily treated for hemorrhoids.
Eventually, in September and October 2014, Mr. Neidige was diagnosed with a swollen prostate
and had a colonoscopy. After multiple biopsies, Mr. Neidige was diagnosed with colon cancer
that was terminal and inoperable. Mr. Neidige was treated by several medical care providers at
Wabash Valley during this time, many of whom are defendants in this action.
Mr. Neidige’s pain continued over the next two years, leading him to file several more
healthcare requests. In the midst of this, and while he was otherwise submitting numerous health
care requests, Mr. Neidige reached out to Superintendent Brown about his medical problems. He
alleges that Superintendent Brown failed to “tak[e] heed [of] the Plaintiff’s complaints when the
Plaintiff informed him of the negligence going on in the Medical Department he has a duty to
oversee and check.”
Filing No. 12 at 4.
Specifically, the plaintiff asserts that he sent
Superintendent Brown a letter on September 3, 2015, “informing Supt. Brown of his diagnosis,
that ‘the doctors deliberately mistreated [him] and/or were negligent to [his] pleas,’ and that ‘[a]ll
he want[s] is to be treated appropriately.’” Filing No. 40 at 4. 1 Issues related to the treatment for
his colon cancer and pain management are ongoing.
The Court addresses in this Entry only those claims brought against Superintendent Brown.
He contends that both Mr. Neidige’s 42 U.S.C. § 1983 claim and his state-law negligence claim
fail to state a plausible claim for relief. The Court will address each claim in turn.
Superintendent Brown argues, among other things, that Mr. Neidige’s § 1983 claim against
him must be dismissed because the allegations do not show that he was personally involved in the
alleged constitutionally inadequate medical care. For the reasons explained, the Court agrees.
“A damages suit under § 1983 requires that a defendant be personally involved in the
alleged constitutional deprivation.” Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014); see Minix
v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (“[I]ndividual liability under § 1983 requires
‘personal involvement in the alleged constitutional deprivation.’”) (citation and quotation marks
The plaintiff’s allegation regarding the letter he sent Superintendent Brown on September 3,
2015, is not contained in his Amended Complaint; it is instead only found in his response brief.
The Court, of course, can only consider allegations in the operative pleading when deciding
whether dismissal under Rule 12(b)(6) is appropriate. However, because the Court would permit
the plaintiff to file a second amended complaint if this allegation was necessary to state a claim,
and because this allegation does not change the Court’s analysis, the Court will consider it in ruling
on the instant motion.
omitted). Whether supervisory personnel at a prison are sufficiently involved in an alleged
constitutional violation such that they may be liable for damages often depends on that person’s
knowledge of, and responsibilities regarding, the alleged harm. The Seventh Circuit has recently
discussed what factual circumstances are sufficient to make such a person legally responsible for
an alleged constitutional violation.
Mere “knowledge of a subordinate’s misconduct is not enough for liability.” Vance v.
Rumsfeld, 701 F.3d 193, 203 (7th Cir. 2012) (en banc). Indeed, “inaction following receipt of a
complaint about someone else’s conduct is [insufficient].”
Estate of Miller by Chassie v.
Marberry, --- F.3d ----, 2017 WL 396568, *3 (7th Cir. 2017); see Burks v. Raemisch, 555 F.3d
592, 595 (7th Cir. 2009) (“[The plaintiff’s] view that everyone who knows about a prisoner’s
problem must pay damages implies that he could write letters to the Governor . . . and 999 other
public officials, demand that every one of those 1,000 officials drop everything he or she is doing
in order to investigate a single prisoner’s claims, and then collect damages from all 1,000 recipients
if the letter-writing campaign does not lead to better medical care. That can’t be right.”).
Something more than generalized knowledge and inaction is required for personal
responsibility. Although what additional allegations are required are case-specific, two scenarios
are illustrative. First, the Superintendent could be actually engaged with the underlying issue such
that personal responsibility is present. See, e.g., Haywood v. Hathaway, 842 F.3d 1026, 1032-33
(7th Cir. 2016) (holding that the Warden could be held personally responsible for the harm caused
by cold prison conditions because the evidence showed he “had actual knowledge of the unusually
harsh weather conditions, that he had been apprised of the specific problem with the physical
condition of [the plaintiff’s] cell (i.e., the windows would not shut), and that, during the time period
of [the plaintiff’s] complaint, the warden toured the segregation unit himself”). Or second,
personal responsibility can be present when the underlying issue is the direct responsibility of the
individual in question, rather than one for his or her subordinates. Compare id.; Gray v. Hardy,
826 F.3d 1000, 1008 (7th Cir. 2016) (holding that the Warden was personally responsible for the
alleged cell conditions, and distinguishing Vance, because the Warden “not only knew about the
problems but was personally responsible for changing prison policies so that they would be
addressed”), with Burks, 555 F.3d at 595 (holding that the supervisor at issue was not personally
responsible; “[t]he Governor, and for that matter the Superintendent of Prisons and the Warden of
each prison, is entitled to relegate to the prison’s medical staff the provision of good medical
Here, Mr. Neidige has at most alleged that he made Superintendent Brown aware of his
allegedly deficient medical care—that is, assuming Superintendent Brown received Mr. Neidige’s
letter, which is unclear from the allegations—and no action on Superintendent Brown’s part
followed. But “inaction following receipt of a complaint about someone else’s conduct is not a
source of liability.” Marberry, 2017 WL 396568, at *3. Mr. Neidige’s allegations stand in contrast
to the above examples and suggest only that Superintendent Brown had generalized knowledge of
his medical issues and failed to act. This requires the dismissal of Mr. Neidige’s claim. See
Marberry, 2017 WL 396568, at *3 (holding that summary judgment for the Superintendent was
proper because the plaintiff’s allegations—that the Superintendent “brushed off his complaints,
leaving them to be handled through the chain of command”—were insufficient to demonstrate the
personal responsibility necessary to state a § 1983 claim; such allegations brought the plaintiff’s
“claim within the scope of Iqbal, Vance, and Burks rather than Haywood”); see also Olive v.
Wexford Corp., 494 Fed. Appx. 671, 673 (7th Cir. 2012) (“[The plaintiff] does contend that he
complained to [the head of the prison medical department] Shicker about [his treating doctor’s]
decisions and that Shicker did not intervene to help him. But both Iqbal and Burks hold that a
supervisor is not liable just because a complaint is made and an effective solution is not
forthcoming.”). Accordingly, the Amended Complaint fails to state a viable § 1983 claim against
Mr. Neidige also asserts a state-law medical negligence claim against Superintendent
Brown. Superintendent Brown moves to dismiss this claim, arguing that the allegations show he
is entitled to immunity under the Indiana Tort Claims Act (“ITCA”).
The ITCA “immunizes both the governmental entity and its officers acting ‘within the
scope of’ their employment from liability in a number of areas.” Cantrell v. Morris, 849 N.E.2d
488, 495 (Ind. 2006) (quoting Ind. Code § 34-13-3-3). Thus to state a claim “against an employee
personally,” the plaintiff must provide a “reasonable factual basis” that “an act or omission of the
employee” was, as relevant here, “wanton or willful.” Ind. Code § 34-13-3-5(c). “Willful or
wanton misconduct consists of either: “1) an intentional act done with reckless disregard of the
natural and probable consequence of injury to a known person under the circumstances known to
the actor at the time; or 2) an omission or failure to act when the actor has actual knowledge of the
natural and probable consequence of injury and his opportunity to avoid the risk.” Ellis v. City of
Martinsville, 940 N.E.2d 1197, 1204-05 (Ind. Ct. App. 2011). “The elements of willful or wanton
misconduct are: (1) the defendant must have knowledge of an impending danger or consciousness
of a course of misconduct calculated to result in probable injury; and (2) the actor’s conduct must
have exhibited an indifference to the consequences of his conduct.” Id. (citation and quotation
Mr. Neidige contends that he has sufficiently alleged a failure to act on the part of
Superintendent Brown to make his conduct wanton or willful such that he is not entitled to
immunity under the ITCA. The Court disagrees. Indiana law requires the plaintiff to provide a
“reasonable factual basis” supporting a contention that immunity does not apply. Ind. Code § 3413-3-5(c). At most, Mr. Neidige alleges that he sent Superintendent Brown a letter saying that the
medical staff was negligent in their treatment of his medical conditions. There is no basis to know
whether Superintendent Brown received the letter, how he reacted to it if he received it, and
whether that reaction exhibited “an indifference to the consequences of his conduct.” Ellis, 940
N.E.2d at 1205. There is thus not a reasonable factual basis to conclude that Superintendent
Brown’s conduct with respect to Mr. Neidige’s medical treatment was wanton or willful such that
immunity does not apply.
For these reasons, Mr. Neidige’s allegations show that Superintendent Brown is entitled to
immunity under the ITCA, and his claims against Superintendent Brown must therefore be
Superintendent Brown’s motion to dismiss [dkt. 28] is granted. Mr. Neidige’s claims
against him are dismissed with prejudice. The clerk is directed to terminate Superintendent
Brown as a defendant in this action. No partial final judgment shall issue at this time.
IT IS SO ORDERED.
Date: February 7, 2017
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
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