Opinion
IP 01-0509-C-B/S
March 25, 2002
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Defendants Wishard Memorial Hospital ("Wishard"), doctors Nicholas Haddad, and Kathy Gilkey, and nurse Karen Nicherson move to dismiss claims brought against them under 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments to the U.S. Constitution.
Ms. Nicherson had identified in earlier filings as "WMH ER Triage Nurse Who Signed Notes Dated 9/20/99." Amended Compl. ¶ 27.
Defendants contend that the factual allegations in Plaintiffs' Amended Complaint support at most a medical malpractice or negligence claim, not a claim for Eighth Amendment violations, that Defendants are entitled to qualified immunity, that Plaintiffs have improperly implicated Wishard as a defendant with regard to these claims, and that Plaintiffs have failed to state an Equal Protection claim. For the reasons set forth in detail below, we GRANT IN PART and DENY IN PART Defendants' Motion to Dismiss.
Factual Background
In 1999, Norman Norris, then 74 years old, was convicted a third time of Driving Under the Influence and received a three-year sentence, two years of which were suspended. Amended Compl. ¶¶ 33-34. On April 13, 1999, Mr. Norris began his term of incarceration at the Putnam County Jail. Id. ¶ 40. At the time of his incarceration, Mr. Norris' only medical problem was high blood pressure, which was treated by prescribed medication. Id. ¶ 39. However, on September 20, 1999, Mr. Norris sought treatment at the Wishard Memorial Hospital Emergency Room based for "uncontrolled pain, inability to move, and inability to eat." Id. ¶¶ 44, 91. Upon arrival, he complained to Ms. Nicherson of "pain in the shoulder then to chest then to arm." Id. ¶ 94. Wishard's standard protocol for a patient of Mr. Norris' age, symptoms, and medical history would include a complete cardiac assessment to determine the occurrence of heart attack or other heart disease. Id. ¶ 98. However, Wishard personnel did not order heart monitoring, EKG testing, or a chest X-ray. Id. ¶ 95. Mr. Norris was evaluated by Wishard medical personnel and diagnosed with musculoskeletal pain. He was kept in shackles and chains in the Wishard holding area for fourteen hours, during which time no record was made of his receiving pain medication or nursing care. Id. ¶ 97. Following evaluation, Mr. Norris was discharged from Wishard in stable condition and transferred to the Plainfield Correctional Facility. Id. ¶ 101-02.
Plaintiff Carmie Dalton is the mother of Norman Norris, and the remaining plaintiffs are Mr. Norris' daughters. Amended Compl. ¶¶ 5-10.
Diagnostic notes reflect participation by doctors Haddad and Gilkey in the diagnosis and treatment of Mr. Norris. See Amended Compl. Ex. C.
In the early morning hours of September 24, 1999, Mr. Norris was brought to Plainfield's Health Services Unit. Id. ¶ 45. His symptoms included "uncontrolled pain, inability to perform self-care, irregular pulse, and occasional shortness of breath." Id. ¶ 101. Soon after arriving at the Unit, Mr. Norris became unresponsive. Facility officials administered cardiopulmonary resuscitation ("CPR") and summoned the Fire-Rescue Unit to the scene. Id. ¶ 46. Upon arrival, paramedics found Mr. Norris in full cardiac arrest. Id. ¶ 47. They continued CPR, administered medication, and transported Mr. Norris to the Hendricks County Community Hospital Emergency Room. Id. Roughly three and one-half hours after being taken to the hospital, Mr. Norris was pronounced dead. Id. ¶ 48. In a written opinion, Hendricks County Coroner Steven S. Matthews identified the cause of Mr. Norris' death as "dilated cardiomyopathy." Id. ¶ 49.
Standard of Review
A party moving for dismissal under 12(b)(6) must show that "the pleadings themselves fail to provide a basis for any claim for relief under any set of facts." Owner-Operator Independent Drivers Ass'n v. Mayflower Transit, Inc., 161 F. Supp. d 948 (S.D.Ind. 2001), quoting Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986). Under this analysis, we examine only the sufficiency of the complaint, not the merits of the lawsuit. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998); Zoghlin v. Renaissance Worldwide, Inc., 1999 WL 1004624, at *3 (N.D.Ill. 1999). Dismissal is appropriate only if it appears to a certainty that the plaintiff cannot establish any set of facts which would entitle him to the relief sought. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). In applying this standard, we treat all well-pleaded factual allegations as true and we construe all inferences that reasonably may be drawn from those facts in a light most favorable to the party opposing the motion. Szumny v. American Gen. Finance, 246 F.3d 1065, 1067 (7th Cir. 2001); Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001). However, "a plaintiff can plead himself out of court by alleging facts which show that he has no claim, even though he was not required to allege those facts." Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995).
Legal Issues 1. Eighth Amendment claims
Defendants argue that, at most, Plaintiffs' allegations state only a claim for medical malpractice or negligence, neither of which supports a claim under the Eighth Amendment. To properly state an Eighth Amendment claim for inadequate medical treatment, a plaintiff must show that 1) the plaintiff had a serious medical need, and 2) the defendants were deliberately indifferent to it. Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). The Seventh Circuit has defined an "objectively serious medical need" as "'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Id., quoting Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000), quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Furthermore, deliberate indifference requires a plaintiff to show that officials were "subjectively aware of the prisoner's serious medical needs and disregarded an excessive risk that a lack of treatment posed to the prisoner's health or safety." Wynn, 251 F.3d at 593, citing Farmer v. Brennan, 511 U.S. 825, 837 (1994). Treatment that merely falls below an objectively reasonable standard of care, such as the variety that might give rise to a claim for medical malpractice, cannot support a § 1983 claim for inadequate medical care. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 (7th Cir. 1996), citing Estelle v. Gamble, 429 U.S. 97, 106 (1976). See also Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996).
Plaintiffs essentially allege two separate deficiencies in the medical treatment Defendants provided to Mr. Norris. First, Plaintiffs allege that "Wishard and its medical personnel failed to follow medical standards of care" with regard to Mr. Norris and "failed to perform routine medical tests for a patient in cardiac distress." Amended Compl. ¶¶ 92-93. They further allege that the decisions not to order such tests contravened Wishard's standard protocol for patients presenting symptoms similar to those exhibited by Mr. Norris. Id. ¶ 98. Even if true, such allegations do not give rise to an Eighth Amendment claim. Plaintiffs do not allege that Defendants were subjectively aware of Mr. Norris' medical needs and failed to take action, but that Defendants utilized the wrong means of assessing such needs and so were not aware of Mr. Norris' true condition. They essentially challenge the reasonableness of the actions taken by Defendants in response to Mr. Norris' symptoms in light of Wishard's customary procedures with regard to comparable patients. Even if Plaintiffs establish that Defendants deviated from reasonable standards of care, as we must assume they can for purposes of this Motion to Dismiss, these allegations amount to negligence, which numerous cases establish is not actionable under § 1983. Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000), Steele, 82 F.3d at 178. Accordingly, Defendants' Motion to Dismiss claims under § 1983 for inadequate diagnostic procedures is GRANTED.
Plaintiffs also allege that Defendants failed to administer necessary pain medication to Mr. Norris during his stay at Wishard Hospital. The Seventh Circuit has noted that the refusal "to dispense bromides for the sniffles or minor aches and pains or a tiny scratch or a mild headache or minor fatigue — the sorts of ailments for which many people who are not in prison do not seek medical attention — does not . . . violate the Constitution." Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996).
The Amended Complaint alleges that Mr. Norris spent fourteen hours in the Wishard holding area, during which time no record was made of anyone administering pain medication to him. Mr. Norris was initially transported to Wishard for "uncontrolled pain, inability to move, and inability to eat." Amended Compl. ¶ 91. Upon arrival at Wishard, Mr. Norris exhibited "pain in the shoulder then to chest then to arm." Id. ¶ 94. Although the Amended Complaint does not specify the precise degree of Mr. Norris' pain, the factual allegations at least suggest that Defendants ascertained his need for pain management and that Defendants may have acted with deliberate indifference in failing to provide him with pain medication during his several-hour stay at Wishard. Viewing the factual allegations in the light most favorable to Plaintiffs, the Amended Complaint may state an Eighth Amendment claim for the failure to administer pain medication. In other words, we cannot conclude based only on the pleadings that the pain Mr. Norris experienced was of such a minor degree as to fall outside Eighth Amendment concern. Because the Amended Complaint provides a factual basis for an Eighth Amendment claim on this ground, Defendants' Motion to Dismiss this claim is DENIED.
2. Qualified immunity
Defendants argue that the named medical personnel acted under qualified immunity and therefore cannot be held liable for any surviving claims for alleged constitutional violations. Qualified immunity is available only to officials with discretionary or policymaking authority when sued in their individual capacities under § 1983. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000). Essentially, this defense is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Officials acting under qualified immunity are not subjected to suit "unless their actions violate clearly established statutory or constitutional rights then known to a reasonable officer." Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 706 (7th Cir. 2001). The analysis of a qualified immunity defense requires an ordered, two-step inquiry. First, the Court must determine "whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz, 121 S.Ct. 2151, 2155 (2001). Assuming that a constitutional claim could be made out on a favorable view of the facts, "the next, sequential step is to ask whether the right was clearly established." Saucier, 121 S.Ct. at 2156.
In Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999), a prison guard attempted to invoke the qualified immunity defense in a suit brought against him by a prisoner for denial of medical care constituting cruel and unusual punishment. The district court granted summary judgment in favor of the defendant. Id. at 1161. In reviewing the decision, the Seventh Circuit found factual support to suggest a serious medical need sufficient to sustain a suit for injury under the Eighth Amendment. Turning to the second step in the qualified immunity inquiry, the court found that "[n]ot only the general standard of liability under the Eighth Amendment for refusal to render medical treatment, but also the application of the standard to pain medication, are both unchanged since the events giving rise to this suit and reasonably clear and definite" when applied to the case at hand. Id. at 1162 (internal citations omitted).
A careful reading of Defendants' qualified immunity argument reveals that they do not actually invoke the principles of qualified immunity, but instead rely on the earlier arguments regarding pleading deficiencies in the Amended Complaint. We have already found that Plaintiffs have properly stated an Eighth Amendment claim for the denial of pain medication. Therefore, our focus moves to the second prong of the qualified immunity analysis — whether the applicable constitutional right was clearly established. Defendants have not cited and we have not found any authority to suggest a lack of clarity in the Eighth Amendment right for prisoners not to be refused pain medication. The Seventh Circuit's decision in Ralston suggests that such principles remained clear at least through February 1999; we have no reason to believe that any dramatic shift or obfuscating case law emerged between February and September 1999. Accordingly, Defendants' Motion to Dismiss on the basis of qualified immunity is DENIED.
3. Wishard Hospital's liability
Defendants contend that Plaintiffs have failed to properly plead claims against Wishard Hospital because Wishard cannot be held accountable for the acts of its employees. It is well settled that § 1983 does not allow for an entity to be held liable for the acts of its agents based only on a theory of respondeat superior. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 690 (1978); Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001). In order to properly maintain a § 1983 action against an institutional body for the conduct of its employees, a plaintiff must demonstrate (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not expressly authorized, is so permanent and well-settled as to constitute a custom or usage; or (3) that the plaintiff's constitutional injury was caused by a person with final policy-making authority. Billings v. Madison Metropolitan Sch. Dist., 259 F.3d 807, 817 (7th Cir. 2001); Medina v. City of East Chicago, Ind., 2001 WL 1587880, at *8 (N.D.Ind. 2001).
Despite Defendants' contentions, the Amended Complaint does not name Wishard based merely on respondeat superior liability. Plaintiffs allege that Wishard itself maintained a policy or practice of deliberate indifference toward the medical needs of prisoner patients and that Wishard medical personnel executed that policy when rendering treatment to Ms. Norris. Defendants contend that Plaintiffs will be unable to prove the existence of such a policy or practice; however, we are not concerned with the parties' abilities to prove anything at this early stage of the litigation. Plaintiffs have pled sufficient facts to implicate Wishard in the alleged constitutional violations. Therefore, Defendants' Motion to Dismiss claims against Wishard Hospital is DENIED.
4. Equal protection claim
Defendants do not address Plaintiffs' Equal Protection claim except for a brief mention in the Reply Brief in Support of their Motion to Dismiss. Defendants contend that "the individual Wishard Defendants are entitled to qualified immunity on the grounds that [P]laintiffs' Complaint fails to properly plead an equal protection claim." Reply at 7. This statement suggests a direct relationship between the two findings that does not relate to the appropriate legal analysis of either issue. However, having already denied Defendants' Motion to Dismiss on qualified immunity grounds, we turn to consider whether Plaintiffs have properly stated an Equal Protection claim.
The federal rules generally require only that a plaintiff provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To state an equal protection claim, "a § 1983 plaintiff must allege that a state actor purposefully discriminated against him because of his identification with a particular . . . group." Dillard v. Ditella, 1998 WL 111704, at *3 (N.D.Ill. 1998), citing Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216 (7th Cir. 1994). Here, Plaintiffs allege that "Wishard's treatment of Mr. Norris was pursuant to its police and practice to deny prisoners medical treatment equal to that it provides other patients." Amended Compl. ¶ 99. On its face, this factual allegation satisfies the liberal notice-pleading standards by providing a short, plain statement of Plaintiffs' Equal Protection claim. Defendants provide no basis from which to conclude that this factual allegation fails to pass muster, other than a single off-handed remark in the Reply brief. Therefore, to the extent Defendants' Motion and Reply Brief seek to dismiss Plaintiffs' Equal Protection claim, such Motion is DENIED.
Conclusion
Defendants moved to dismiss claims brought under the Eighth Amendment to the United States Constitution based on alleged inadequacies in medical treatment afforded to Norman Norris. For the reasons set forth in detail above, we find that 1) Plaintiffs' claims against Defendants for inadequate diagnostic procedures do not state claims under the Eighth Amendment and § 1983; 2) Plaintiffs have adequately stated an Eighth Amendment claim for failure to administer pain medication; 3) Defendants may not rely on qualified immunity in advocating dismissal of the surviving claims, 4) Plaintiffs have properly pled sufficient facts to implicate Wishard Hospital in the alleged constitutional violations; and 5) Plaintiffs have adequately stated an Equal Protection claim. Accordingly, we GRANT IN PART and DENY IN PART Defendants' Motion to Dismiss.
Because Plaintiffs admit in the Response to the Motion to Dismiss that they must file their state law negligence claims pursuant to the Indiana Medical Malpractice Act and therefore have omitted them from the Amended Complaint, Defendants' Motion to Dismiss such claims is DENIED as moot.
It is so ORDERED this day of March, 2002