IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RICHARD LARRY KELLY, )

)

Plaintiff, )

)

vs. ) NO. 3:13-CV-924

)

MD MIKE MITCHEFF, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the complaint filed

pursuant to 42 U.S.C. § 1983 by Richard Larry Kelly, a pro se

prisoner, on September 3, 2013. For the reasons set forth below,

the Court: (1) GRANTS Richard Larry Kelly leave to proceed against

Dr. Mike Mitcheff in his individual capacity, for compensatory

damages, for denying him access to pain medication in violation of

the Eighth Amendment; (2) GRANTS Richard Larry Kelly leave to

proceed against Dr. Mike Mitcheff in his official capacity, for

injunctive relief to obtain medically reasonable treatment for his

pain; (3) DISMISSES all other claims; (4) DIRECTS the clerk to

transmit the summons and USM-285 for Dr. Mike Mitcheff to the

United States Marshals Service along with a copy of the complaint

and this order; (5) DIRECTS the United States Marshals Service,

pursuant to 28 U.S.C. § 1915(d), to effect service of process on

Dr. Mike Mitcheff; and (6) ORDERS, pursuant to 42 U.S.C. §
1997e(g)(2), that Dr. Mike Mitcheff respond, as provided for in the

Federal Rules of Civil Procedure and N.D. IND. L.R. 10-1(b), only

to the claim for which the plaintiff has been granted leave to

proceed in this screening order.

BACKGROUND

Kelly alleges that Dr. Mike Mitcheff is preventing him from

obtaining the pain medication that he needs by various

administrative means: refusing to permit the delivery of some

medications, the use of a formulary, requiring secondary review of

his medical treatment, limiting the cost of care, not permitting

specialist treatments, and denying him access to alternate housing.

He seeks compensatory damages. He also seeks injunctive relief

requiring treatment of his pain, moving him to a different housing

unit, and compelling that he be taken to a neurologist to receive

a specific course of treatment. 

DISCUSSION

“A document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and

citations omitted). However, pursuant to 28 U.S.C. § 1915A, the

court must review the merits of a prisoner complaint and dismiss it

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if the action is frivolous or malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against

a defendant who is immune from such relief. A complaint must

contain sufficient factual matter to “state a claim that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when the pleaded

factual content 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) (citing Twombly, 550 U.S. at

556). “[A] plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action

will not do. Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks, citations and footnote

omitted). “[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the

complaint has alleged — but it has not shown — that the pleader is

entitled to relief.’” Iqbal, 556 U.S. at 679 (quotation marks and

brackets omitted). Thus, “a plaintiff must do better than putting

a few words on paper that, in the hands of an imaginative reader,

might suggest that something has happened to her that might be

redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403

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(7th Cir. 2010) (emphasis in original). “In order to state a claim

under § 1983 a plaintiff must allege: (1) that defendants deprived

him of a federal constitutional right; and (2) that the defendants

acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670

(7th Cir. 2006).

A “disagreement with medical professionals [does not] state a

cognizable Eighth Amendment Claim under the deliberate indifference

standard of Estelle v. Gamble [429 U.S. 97 (1976)].” Ciarpaglini v.

Saini, 352 F.3d 328, 331 (7th Cir. 2003). “For a medical

professional to be liable for deliberate indifference to an

inmate’s medical needs, he must make a decision that represents

such a substantial departure from accepted professional judgment,

practice, or standards, as to demonstrate that the person

responsible actually did not base the decision on such a judgment.”

Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (quotation

marks and citations omitted). 

Here, giving Kelly the benefit of the inferences to which he

is entitled at the pleading stage of this proceeding, he has stated

a claim against Dr. Mitcheff for denying him access to needed pain

medication and he will be permitted to proceed on a claim for

compensatory damages and injunctive relief to obtain medically

reasonable treatment for his pain. However, a prisoner “is not

entitled to demand specific care [nor] entitled to the best care

possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997).

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Therefore he may not proceed on a claim for injunctive relief to be

seen by a neurologist to receive a specific course of treatment.

Moreover, prison administrators are afforded wide-ranging deference

in managing prisons and deciding where to house inmates, see

Whitley v. Albers, 475 U.S. 312, 321–22 (1986) and Sandin v.

Conner, 515 U.S. 472, 485 (1995). Therefore he may not proceed on

an injunctive relief claim requiring that he be moved to a

different housing unit. That is to say, if Kelly can demonstrate

that the pain treatment he is receiving is a substantial departure

from accepted professional judgment, practice, or standards; then

the proper injunctive remedy would be to require that he get

medically reasonable treatment, not to specify what treatment, who

would provides it, or here it is provided.

CONCLUSION

For the reasons set forth above, the court: (1) GRANTS Richard

Larry Kelly leave to proceed against Dr. Mike Mitcheff in his

individual capacity, for compensatory damages, for denying him

access to pain medication in violation of the Eighth Amendment; (2)

GRANTS Richard Larry Kelly leave to proceed against Dr. Mike

Mitcheff in his official capacity, for injunctive relief to obtain

medically reasonable treatment for his pain; (3) DISMISSES all

other claims; (4) DIRECTS the clerk to transmit the summons and

USM-285 for Dr. Mike Mitcheff to the United States Marshals Service

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along with a copy of the complaint and this order; (5) DIRECTS the

United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to

effect service of process on Dr. Mike Mitcheff; and (6) ORDERS,

pursuant to 42 U.S.C. § 1997e(g)(2), that Dr. Mike Mitcheff

respond, as provided for in the Federal Rules of Civil Procedure

and N.D. IND. L.R. 10-1(b), only to the claim for which the

plaintiff has been granted leave to proceed in this screening

order.

DATED: September 26, 2013 /s/RUDY LOZANO, Judge

United States District Court

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