HUBBARD v. WEXFORD OF INDIANA, LLC. et al

Filing 10

ORDER SCREENING THE COMPLAINT, DISMISSING DEFICIENT CLAIM, AND DIRECTING SERVICE OF PROCESS - If the plaintiff believes that the complaint sets forth additional claims not identified by the Court, he shall have through October 5, 2020, to identify those claims. Mr. Hubbard's deliberate indifference claims shall proceed against Michael Mitcheff and Kim Hobson. All other claims are dismissed. The clerk is directed to terminate Wexford of Indiana, LLC, as a defendant on the docket. The cl erk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants Michael Mitcheff and Kim Hobson in the manner specified by Rule 4 (d). Distributed pursuant to distribution list. Signed by Judge James Patrick Hanlon on 9/14/2020.(KAA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
WILLIAM HUBBARD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
WEXFORD OF INDIANA, LLC., et al.
Defendants.

No. 2:20-cv-00227-JPH-DLP

ORDER SCREENING THE COMPLAINT,
DISMISSING DEFICIENT CLAIM,
AND DIRECTING SERVICE OF PROCESS
Plaintiff William Hubbard, an inmate at Wabash Valley Correctional Facility, brings this
action pursuant to 42 U.S.C. 1983, alleging deliberate indifference to his serious medical needs.
Because the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915A(c), this Court has an
obligation under 28 U.S.C. § 1915A(a) to screen the amended complaint before service on the
defendants.
I.
SCREENING STANDARD
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint, or any portion of
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). To survive dismissal,
[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.

1

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).
Pro se complaints such as that filed by the plaintiff are construed liberally and held to "a less
stringent standard than pleadings drafted by lawyers." Cesal, 851 F.3d at 720.
II.
THE COMPLAINT
The complaint names defendants Wexford of Indiana, LLC ("Wexford"), Michael
Mitcheff, and Kim Hobson. Mr. Mitcheff and Ms. Hobson are named in their individual and
official capacities. Mr. Hubbard is seeking compensatory and punitive damages.
Mr. Hubbard suffers from retinal edema, neovascularization, and retinal detachment, for
which he receives monthly injections of Avastin from an offsite ophthalmologist. Liberally
construed, the complaint alleges that in November 2019 and January 2020, Mr. Mitcheff and
Ms. Hobson conspired to prevent Mr. Hubbard from receiving these injections in order to spare
Wexford the expense of treatment. These monthly injections were denied over the objection of the
offsite ophthalmologist. A black ring developed in Mr. Hubbard's eye after he was denied his
injections in November 2019 and has not gone away.
III.
DISCUSSION
Mr. Hubbard's deliberate indifference claims shall proceed against Mr. Mitcheff and
Ms. Hobson in their individual capacities.
Mr. Hubbard's claim against Wexford, and his claims against Ms. Hobson and Mr. Mitcheff
in their official capacities, are dismissed. To be liable under § 1983, private corporations acting
under color of state law must have an express policy or custom that caused a constitutional
deprivation. Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002); Estate of
Moreland v. Dieter, 395 F.3d 747, 758-59 (7th Cir. 2004); see also Sow v. Fortville Police Dept.,

2

636 F.3d 293, 300 (7th Cir. 2011) (suing an individual in his official capacity "is another way of
pleading an action against an entity of which the officer is an agent."). The complaint does not
allege that Wexford maintains a policy or custom that caused Mr. Hubbard to suffer a constitutional
deprivation. Although the complaint references a Wexford policy about disputes between onsite
and offsite medical personnel, the complaint also alleges that this policy was not followed with
respect to Mr. Hubbard.
This summary includes all viable claims identified by the Court. All other claims are
dismissed. If the plaintiff believes that the complaint sets forth additional claims not identified
by the Court, he shall have through October 5, 2020, to identify those claims.
IV.
SUMMARY AND SERVICE OF PROCESS
Mr. Hubbard's deliberate indifference claims shall proceed against Michael Mitcheff and
Kim Hobson. All other claims are dismissed.
The clerk is directed to terminate Wexford of Indiana, LLC, as a defendant on the docket.
The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants
Michael Mitcheff and Kim Hobson in the manner specified by Rule 4(d). Process shall consist of
the complaint, dkt. [2], applicable forms (Notice of Lawsuit and Request for Waiver of Service of
Summons and Waiver of service of Summons), and this Entry.
SO ORDERED.
Date: 9/14/2020

3

Distribution:
WILLIAM HUBBARD
945818
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
MICHAEL MITCHEFF
Medical Staff
WABASH VALLEY – CF
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
KIM HOBSON
Medical Staff
WABASH VALLEY – CF
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838

4