IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FREDERICK C. CASHNER, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:14-CV-1641

)

JOHN J. WIDUP, et al., )

)

Defendants. )

OPINION AND ORDER

Before the court is a complaint filed by Frederick C. Cashner,

a pro se prisoner, pursuant to 42 U.S.C. § 1983. (DE #1.) For the

reasons set forth below, the Court: (1) GRANTS the plaintiff leave

to proceed against Dr. Nadir Al-Shami, Nurse Kimberly White, and

Warden John J. Widup in their individual capacities for monetary

damages for denying him proper medical treatment for chronic

headaches; (2) DISMISSES David E. Lain, Ronald Gaydos, and Advanced

Correctional Healthcare as defendants; (3) DISMISSES any and all

other claims contained in the complaint; (4) DIRECTS the United

States Marshals Service to effect service on Dr. Nadir Al-Shami,

Nurse Kimberly White, and Warden John J. Widup pursuant to 28

U.S.C. § 1915(d); and (5) ORDERS Dr. Nadir Al-Shami, Nurse Kimberly

White, and Warden John J. Widup to respond, as provided for in the

FEDERAL RULES OF CIVIL PROCEDURE, only to the claim for which the

plaintiff has been granted leave to proceed in this screening
order.

BACKGROUND

Frederick C. Cashner, a pro se prisoner, brought this action

in June 2014. (DE #1.) He is presently in the custody of the

Indiana Department of Correction (“IDOC”) serving a criminal

sentence. He alleges that he was denied proper medical care as a

pretrial detainee at the Porter County Jail between March 2011 to

February 2013. He claims that he received treatment for chronic

headaches, but that the treatment provided was not effective. In

May 2012, he met with the head nurse, Kim White; a jail physician

named Dr. Hamstrung (first name unknown); and a jail officer.

During this meeting the doctor recommended that Cashner see a

specialist. Nurse White made an appointment with a neurologist in

June 2012, but for unknown reasons Cashner was not transported to

the appointment on the scheduled date. Another appointment was

made for August 2012, and this time he was taken to see the

neurologist. She prescribed two different medications and ordered

blood work and a magnetic resonance imaging test (“MRI”) to further

diagnose the problem. 

In September, Cashner was seen by Nurse White, who drew blood

for the testing recommended by the neurologist. While he was in

the office, he encountered Dr. Nadir Al-Shami, another jail

physician, who, in Cashner’s words, “started ranting, and stated

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that he had traveled the world treating patients and he was a

better doctor than any neurologist, and wasn’t going to let any

other doctor tell him how to treat a patient of his.” (DE #1 at

3.) Dr. Al-Shami allegedly canceled all of Cashner’s prescriptions

and the tests that had been ordered, and told him he would not be

going back to see the neurologist. He also told Cashner he thought

the headaches were “all in [his] head,” and stated that the jail

would not be paying for an MRI because this was very expensive. 

Cashner later met with Warden John J. Widup to discuss the matter,

and the warden allegedly deferred to Dr. Al-Shami’s statement that

the jail would not pay for him to undergo an MRI. He also

suggested that the headaches were caused by Cashner’s failure to

take his medication. 

Shortly thereafter, Cashner raised the matter with the state

trial judge presiding over his criminal case, and he claims the

judge ordered him to be taken for a follow-up appointment with the

neurologist. Nurse White then scheduled an appointment, but

Cashner claims she scheduled it as an initial appointment rather

than a follow-up, so he was required to wait another three months

to see the neurologist. He claims the neurologist ordered testing

and prescribed medications for a second time, and ordered another

follow-up appointment in February 2013. In January 2013 he was

convicted pursuant to a plea agreement. He claims that the testing

ordered by the neurologist was never conducted, and the follow-up

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appointment canceled. On February 25, 2013, he was transferred to

the custody of the IDOC, where he remains to date.

DISCUSSION

Pursuant to 28 U.S.C. § 1915A, the court must review a

prisoner complaint and dismiss it 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. 28 U.S.C. § 1915A. In determining whether the

complaint states a claim, the court applies the same standard as

when deciding a motion to dismiss under FEDERAL RULE OF CIVIL PROCEDURE

12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.

2006). To survive dismissal, a complaint must state a claim for

relief that is plausible on its face. Bissessur v. Indiana Univ.

Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “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.” Id. at 603. 

Thus, the 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 (7th Cir.

2010). The court must bear in mind, however, that “[a] document

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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). 

Because Cashner was a pretrial detainee when these events

occurred, the Fourteenth rather than the Eighth Amendment applies. 

Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009). The governing

standards are functionally equivalent, however, and “anything that

would violate the Eighth Amendment would also violate the

Fourteenth Amendment.” Id. Under the Eighth Amendment, inmates

are entitled to adequate medical care. Estelle v. Gamble, 429 U.S.

97, 104 (1976). To establish liability, a prisoner must satisfy

both an objective and subjecting component by showing: (1) his

medical need was objectively serious; and (2) the defendant acted

with deliberate indifference to that medical need. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). A medical need is “serious” if

it is one that a physician has diagnosed as mandating treatment, or

one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention. Greeno v. Daley,

414 F.3d 645, 653 (7th Cir. 2005). 

On the subjective prong, the plaintiff must establish that the

defendant “acted in an intentional or criminally reckless manner,

i.e., the defendant must have known that the plaintiff was at

serious risk of being harmed and decided not to do anything to

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prevent that harm from occurring even though he could have easily

done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005). 

For a medical professional to be held liable for deliberate

indifference, he or she 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). Although

the Eighth Amendment does not entitle an inmate to demand a

specific form of treatment, prison medical staff cannot simply

continue with a course of treatment that is known to be

ineffective. Greeno, 414 F.3d at 654-55. Furthermore, a delay in

providing treatment can constitute deliberate indifference when it

causes unnecessary pain or suffering. Arnett v. Webster, 658 F.3d

742, 752-53 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d 763,

779 (7th Cir. 2008).

Giving Cashner the inferences to which he is entitled, he has

alleged a serious medical need, specifically, chronic headaches

that caused him significant pain and suffering, and for which a

neurologist prescribed medication. On the subjective prong, he

alleges that Dr. Al-Shami and Warden Widup were both dismissive of

his medical problem and refused to provide him with effective

treatment and testing, instead blaming the problem on him. Giving

him the inferences to which he is entitled at this stage, he has

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alleged enough to proceed further against these defendants. 

Cashner also sues Nurse White. He attributes the various

delays he experienced in seeing the neurologist to her, asserting

that she did not act promptly in scheduling appointments or take

steps to ensure he was transported for the first scheduled

appointment. Although further factual development may show that

Nurse White acted properly and/or that the delays occurred for

reasons beyond her control, giving Cashner the inferences to which

he is entitled, he has alleged enough to proceed further against

Nurse White.1

He also sues Porter County Sheriff David Lain, as well as

Assistant Warden Ronald Gaydos. He appears to believe these

defendants should be held responsible for the failure of jail staff

to transport him to his first appointment with the neurologist. He

also believes the sheriff should be held responsible for the

warden’s decision not to approve an MRI. However, “Section 1983

does not establish a system of vicarious responsibility.” Burks v.

Raemisch, 555 F.3d 592, 593 (7th Cir. 2009). These officials

cannot be held liable for the actions of other jail staff simply

because they oversee operations at the jail. Nor can they be held

liable simply because Cashner may have notified them about what

1 To the extent he is attempting to assert a state law medical

malpractice claim against Nurse White, Indiana law requires a plaintiff to

seek and obtain an opinion from a medical malpractice review panel before

bringing a medical malpractice claim. IND. CODE § 34-18-8-4. The complaint

makes no mention of having obtained such an opinion. 

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occurred after the fact. As the U.S. Court of Appeals for the

Seventh Circuit has explained:

Bureaucracies divide tasks; no prisoner is entitled to

insist that one employee do another’s job. The division

of labor is important not only to bureaucratic

organization but also to efficient performance of tasks;

people who stay within their roles can get more work

done, more effectively, and cannot be hit with damages

under §1983 for not being ombudsmen. [The] view that

everyone who knows about a prisoner’s problem must pay

damages implies that [a prisoner] could write letters to

the Governor of Wisconsin 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. 

Id. at 595. Here, the complaint does not plausibly allege that the

sheriff or assistant warden were personally involved in the medical

decisions that were made, or that they were personally involved in

the scheduling problems that occurred related to his appointments. 

Accordingly, they will be dismissed as defendants. 

 Finally, Cashner sues Advanced Correctional Healthcare

(“ACH”), a private company that provides medical staff at the jail. 

It appears he is trying to hold the company liable because it

employees Dr. Al-Shami and Nurse White. However, as stated above,

there is no general respondeat superior liability under 42 U.S.C.

§ 1983. Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.

2001); see also Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir.

2008) (“[A] private corporation is not vicariously liable under

§ 1983 for its employees’ deprivations of others’ civil rights.”). 

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Thus, ACH cannot be held liable simply because it employs the

medical staff involved in these events.

A private company performing a governmental function can be

held liable to the same extent as a municipal entity under Monell

v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

See Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012)

(Monell framework applies to private company providing medical care

at correctional facility). Although Cashner states in very general

terms that ACH had an unconstitutional policy, merely putting a few

words on paper is insufficient to state a plausible claim. 

Swanson, 614 F.3d at 403. The complaint does not provide a

plausible basis to infer that Cashner’s injury was caused by an

official practice or policy. Instead, he alleges that Dr. Al-Shami

became upset that an outside doctor was trying to influence his

treatment decisions, and refused to provide any of the recommended

treatment out of spite. He further claims Dr. Al-Shami believed he

was malingering or making up his symptoms, and therefore would not

approve an expensive diagnostic test. Cashner does not allege that

the doctor acted pursuant to an official policy, but rather, that

he was unprofessional and inappropriately dismissive of his medical

problem. Accordingly, Cashner has not alleged a plausible claim

against ACH, and this defendant will be dismissed. 

CONCLUSION

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For the reasons set forth above, the Court: 

(1) GRANTS the plaintiff leave to proceed against Dr. Nadir

Al-Shami, Nurse Kimberly White, and Warden John J. Widup in their

individual capacities for monetary damages for denying him proper

medical treatment for chronic headaches; 

(2) DISMISSES David E. Lain, Ronald Gaydos, and Advanced

Correctional Healthcare as defendants; 

(3) DISMISSES any and all other claims contained in the

complaint; 

(4) DIRECTS the United States Marshals Service to effect

service on Dr. Nadir Al-Shami, Nurse Kimberly White, and Warden

John J. Widup pursuant to 28 U.S.C. § 1915(d); and 

(5) ORDERS Dr. Nadir Al-Shami, Nurse Kimberly White, and

Warden John J. Widup to respond, as provided for in the FEDERAL RULES

OF CIVIL PROCEDURE, only to the claim for which the plaintiff has been

granted leave to proceed in this screening order.

DATED: July 30, 2014 /s/ RUDY LOZANO, Judge

 United States District Court

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