UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION
LARRY VICKERY, ) ) Plaintiff, ) ) v. ) No. 2:20-cv-00566-JPH-MJD ) PEREZ, et al. ) ) Defendants. )
ORDER SCREENING THE AMENDED COMPLAINT AND DIRECTING SERVICE OF PROCESS
Plaintiff Larry Vickery, an inmate at Putnamville Correctional Facility ("PCF"), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to his serious medical needs. Because Mr. Vickery 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 his amended complaint before service on the defendants. I. SCREENING STANDARD
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the amended complaint, or any portion of the amended 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 amended 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 amended] 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); 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 AMENDED COMPLAINT
The amended complaint names the following defendants: Wexford of Indiana, LLC ("Wexford"), Dr. Perez, Dr. Mitcheff, Nurse Smoothery, Nurse Kerrigan, M. Feider, Nurse Pierce, Nurse Carrie McGarr, Nurse Cheryl Petty, Nurse Taylor Forquer, Nurse Jamie Gibbens, Mike Smith, Superintendent Brian Smith, and Commissioner Carter. Dkt. 36. Mr. Vickery is seeking compensatory and punitive damages and declaratory and injunctive relief. Mr. Vickery has diabetes. He receives insulin injections to treat this condition. He requires a type of insulin called Lantus because other types of insulin are ineffective and cause him to suffer allergic reactions. Upon his arrival at the Reception Diagnostic Center, and later at PCF, medical staff discontinued his Lantus prescription due to cost. The alternative insulin he received caused him to suffer allergic reactions including a rash, throat swelling, muscle pain, muscle spasms, blood and ketones in the urine, a toe infection, internal ocular bleeding, kidney stones, and calcification of the vas deferens. Liberally construed, the amended complaint alleges that Dr. Mitcheff was the final decisionmaker on issues of medication approval for Wexford, and he allegedly denied
Mr. Vickery's Lantus prescription, even though he knew Mr. Vickery was allergic to other forms of insulin and that other forms of insulin were ineffective at managing his diabetes. Other Wexford employees allegedly failed to reinstate Mr. Vickery's Lantus prescription despite his complaints, including Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, and Nurse Gibbens. Superintendent Smith, Commissioner Carter, and Mike Smith allegedly learned about the problem but did not immediately intervene. Mr. Vickery's Lantus prescription was eventually reinstated after his family contacted Commissioner Carter directly. III. DISCUSSION
This action is brought pursuant to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). "[T]he first step in any [§ 1983] claim is to identify the specific constitutional right infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). "The Eighth Amendment prohibits the unnecessary and wanton infliction of pain, which includes [d]eliberate indifference to serious medical needs of prisoners." Knight v. Grossman, 942 F.3d 336, 340 (7th Cir. 2019) (internal quotation omitted). "Individual liability under § 1983 . . . requires personal involvement in the alleged constitutional deprivation." Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017). A private company acting under color of state law has the same liability under § 1983 as a local or municipal government. See Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016). Thus, a private company acting under color of state law may be liable when an individual with final policy-making authority on the subject in question made a decision that caused the plaintiff to suffer a constitutional deprivation. Valentino v. Village of South Chicago
Heights, 575 F.3d 664, 674 (2009). Based on the screening standards set forth above, Mr. Vickery's Eighth Amendment deliberate indifference claims shall proceed against Dr. Mitcheff, Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, Nurse Gibbens, Superintendent Smith, Commissioner Carter, and Mike Smith in their individual capacities. His Eighth Amendment deliberate indifference claim shall proceed against Wexford on the theory that Mr. Vickery suffered a constitutional deprivation as the result of Dr. Mitcheff's decision in his role as Wexford's final policymaker on the issue of medication approval. IV. SUMMARY AND SERVICE OF PROCESS
Mr. Vickery's Eighth Amendment deliberate indifference claims shall proceed against Wexford of Indiana, LLC, and against Dr. Mitcheff, Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, Nurse Gibbens, Superintendent Smith, Commissioner Carter, and Mike Smith in their individual capacities. Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, Superintendent Smith, and Commissioner Carter have appeared in this action by counsel and answered the original complaint. They shall have 21 days from this issuance of this Order to respond to the amended complaint. The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants Wexford of Indiana, LLC, Dr.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION
LARRY VICKERY, ) ) Plaintiff, ) ) v. ) No. 2:20-cv-00566-JPH-MJD ) PEREZ, et al. ) ) Defendants. )
ORDER SCREENING THE AMENDED COMPLAINT AND DIRECTING SERVICE OF PROCESS
Plaintiff Larry Vickery, an inmate at Putnamville Correctional Facility ("PCF"), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to his serious medical needs. Because Mr. Vickery 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 his amended complaint before service on the defendants. I. SCREENING STANDARD
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the amended complaint, or any portion of the amended 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 amended 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 amended] 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); 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 AMENDED COMPLAINT
The amended complaint names the following defendants: Wexford of Indiana, LLC ("Wexford"), Dr. Perez, Dr. Mitcheff, Nurse Smoothery, Nurse Kerrigan, M. Feider, Nurse Pierce, Nurse Carrie McGarr, Nurse Cheryl Petty, Nurse Taylor Forquer, Nurse Jamie Gibbens, Mike Smith, Superintendent Brian Smith, and Commissioner Carter. Dkt. 36. Mr. Vickery is seeking compensatory and punitive damages and declaratory and injunctive relief. Mr. Vickery has diabetes. He receives insulin injections to treat this condition. He requires a type of insulin called Lantus because other types of insulin are ineffective and cause him to suffer allergic reactions. Upon his arrival at the Reception Diagnostic Center, and later at PCF, medical staff discontinued his Lantus prescription due to cost. The alternative insulin he received caused him to suffer allergic reactions including a rash, throat swelling, muscle pain, muscle spasms, blood and ketones in the urine, a toe infection, internal ocular bleeding, kidney stones, and calcification of the vas deferens. Liberally construed, the amended complaint alleges that Dr. Mitcheff was the final decisionmaker on issues of medication approval for Wexford, and he allegedly denied
Mr. Vickery's Lantus prescription, even though he knew Mr. Vickery was allergic to other forms of insulin and that other forms of insulin were ineffective at managing his diabetes. Other Wexford employees allegedly failed to reinstate Mr. Vickery's Lantus prescription despite his complaints, including Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, and Nurse Gibbens. Superintendent Smith, Commissioner Carter, and Mike Smith allegedly learned about the problem but did not immediately intervene. Mr. Vickery's Lantus prescription was eventually reinstated after his family contacted Commissioner Carter directly. III. DISCUSSION
This action is brought pursuant to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). "[T]he first step in any [§ 1983] claim is to identify the specific constitutional right infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). "The Eighth Amendment prohibits the unnecessary and wanton infliction of pain, which includes [d]eliberate indifference to serious medical needs of prisoners." Knight v. Grossman, 942 F.3d 336, 340 (7th Cir. 2019) (internal quotation omitted). "Individual liability under § 1983 . . . requires personal involvement in the alleged constitutional deprivation." Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017). A private company acting under color of state law has the same liability under § 1983 as a local or municipal government. See Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016). Thus, a private company acting under color of state law may be liable when an individual with final policy-making authority on the subject in question made a decision that caused the plaintiff to suffer a constitutional deprivation. Valentino v. Village of South Chicago
Heights, 575 F.3d 664, 674 (2009). Based on the screening standards set forth above, Mr. Vickery's Eighth Amendment deliberate indifference claims shall proceed against Dr. Mitcheff, Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, Nurse Gibbens, Superintendent Smith, Commissioner Carter, and Mike Smith in their individual capacities. His Eighth Amendment deliberate indifference claim shall proceed against Wexford on the theory that Mr. Vickery suffered a constitutional deprivation as the result of Dr. Mitcheff's decision in his role as Wexford's final policymaker on the issue of medication approval. IV. SUMMARY AND SERVICE OF PROCESS
Mr. Vickery's Eighth Amendment deliberate indifference claims shall proceed against Wexford of Indiana, LLC, and against Dr. Mitcheff, Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, Nurse Gibbens, Superintendent Smith, Commissioner Carter, and Mike Smith in their individual capacities. Dr. Perez, Nurse Smoothery, Nurse Feider, Nurse Pierce, Nurse McGarr, Nurse Petty, Nurse Forquer, Superintendent Smith, and Commissioner Carter have appeared in this action by counsel and answered the original complaint. They shall have 21 days from this issuance of this Order to respond to the amended complaint. The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants Wexford of Indiana, LLC, Dr. Michael Mitcheff, Nurse Jamie Gibbens, and Mike Smith in the manner specified by Rule 4(d). Process shall consist of the amended complaint, dkt. [36], applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of service of Summons), and this Order. The clerk is directed to add Wexford of Indiana, LLC, Dr. Michael Mitcheff, Nurse Jamie
Gibbens, and Mike Smith as defendants on the docket. SO ORDERED. Date: 4/28/2021 Slam ruck anor James Patrick Hanlon United States District Judge Southern District of Indiana Distribution: LARRY VICKERY 251617 PUTNAMVILLE - CF PUTNAMVILLE CORRECTIONAL FACILITY Electronic Service Participant — Court Only Douglass R. Bitner KATZ KORIN CUNNINGHAM, P.C. dbitner@kkclegal.com Conner Ross Dickerson INDIANA ATTORNEY GENERAL conner.dickerson @ atg.in.gov Molly Michelle McCann INDIANA ATTORNEY GENERAL molly.mccann @atg.in.gov DR. MICHAEL MITCHEFF Medical Staff Putnamville Correctional Facility 1946 US-40 Greencastle, IN 46135 NURSE JAMIE GIBBENS Medical Staff Putnamville Correctional Facility 1946 US-40 Greencastle, IN 46135 Electronic Service to Wexford of Indiana, LLC Electronic Service to the following IDOC Defendant Mike Smith (Putnamville Correctional Facility)