IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMIE JIMMERSON, )

)

Plaintiff, )

)

vs. ) NO. 3:14-CV-342

)

DR. MEYERS, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court is a complaint filed by Jamie

Jimmerson, 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. Michael Mitcheff, Dr. David

Meyers, Dr. Thompson (first name unknown), and Don Nelson in their

individual capacities for monetary damages for denying him pain

medication for throat and neck cancer; (2) GRANTS the plaintiff

leave to proceed against Dr. Michael Mitcheff in his official

capacity for injunctive relief related to his current need for pain

medication; (3) GRANTS the plaintiff leave to proceed against Don

Nelson in his individual capacity for monetary damages for

unlawfully retaliating against him for filing grievances about his

medical care; (4) DISMISSES any and all other claims contained in

the complaint; (5) DIRECTS the United States Marshals Service to

effect service on Dr. Michael Mitcheff, Dr. David Meyers, Dr.
Thompson (first name unknown), and Don Nelson pursuant to 28 U.S.C.

§ 1915(d); and (6) ORDERS Dr. Michael Mitcheff, Dr. David Meyers,

Dr. Thompson (first name unknown), and Don Nelson to respond, as

provided for in the FEDERAL RULES OF CIVIL PROCEDURE, only to the claims

for which the plaintiff has been granted leave to proceed in this

screening order.

BACKGROUND

Jamie Jimmerson, a pro se prisoner, filed this action on

February 12, 2014. (DE 1.) He alleges that medical staff within the

Indiana Department of Correction (“IDOC”) have denied him pain

medication for throat and neck cancer. He further alleges that

because he filed grievances about his medical care, he was fired

from his prison job.

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

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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. The

court must bear in mind, however, that “[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). 

The complaint is not a model of clarity, but it can be

discerned that Jimmerson, an inmate at Westville Correctional

Facility (“Westville”), has been diagnosed with throat and neck

cancer. He has been treated for this condition by physicians at an

outside hospital. He was previously housed at Indiana State

Prison(“ISP”), and during the time he was there, he was seen by a

cancer specialist at an outside hospital, who prescribed pain

medication to address the pain associated with his illness. He

asserts that staff at ISP refused to provide him with the pain

medication prescribed by the specialist. He claims that he made

repeated requests for pain medication to prison physicians Dr.

David Meyers and Dr. Thompson (first name unknown); Don Nelson, the

health care administrator at ISP; and Dr. Michael Mitcheff, the

regional medical director who oversees the provision of medical

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care at several correctional institutions. He claims they ignored

his requests or informed him that he would not be getting the pain

medication. He claims that his condition got worse and he

experienced significant pain. At some point thereafter, he was

transferred to Westville. The complaint can be read to allege that

he is still not receiving proper medication to control the pain

from his cancer.

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

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

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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 the plaintiff the inferences to which he is entitled at

this stage, he has alleged a serious medical need, specifically,

throat and neck cancer which has been diagnosed by a physician, and

which causes him significant pain. On the subjective prong, he

claims that he has complained repeatedly about his need for pain

medication, but the defendants have ignored him and/or refused to

provide him with an effective treatment. Accepting his allegations

as true, he has alleged a plausible deliberate indifference claim,

and he will be permitted to proceed against the defendants for

damages.

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Jimmerson also seeks injunctive relief pertaining to his

current need for pain medication. However, he is no longer housed

at ISP and he does not claim, nor is there any plausible basis to

infer, that he is likely to be transferred back to ISP anytime in

the near future. Accordingly, he has no claim for injunctive relief

against the defendants from ISP. Higgason v. Farley, 83 F.3d 807,

811 (7th Cir. 1995) (“If a prisoner is transferred to another

prison, his request for injunctive relief against officials of the

first prison is moot unless he can demonstrate that he is likely to

be retransferred.”). Dr. Mitcheff, who approves medication requests

for inmates at various prisons, appears to be a proper defendant

for purposes of a claim for injunctive relief, since he could

ensure that an order pertaining to Jimmerson’s medical care is

carried out. See Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989).

Accordingly, Jimmerson will be permitted to proceed on a claim for

injunctive relief against Dr. Mitcheff.

Finally, Jimmerson claims that defendant Nelson violated his

First Amendment rights by firing him from his prison job because he

filed grievances about his medical care. To establish a claim of

retaliation, the plaintiff must allege: (1) he engaged in activity

protected by the First Amendment, (2) he suffered a deprivation

that would likely deter First Amendment activity in the future, and

(3) the defendant’s action was motivated by the protected activity.

Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). A prisoner has

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a First Amendment right to use the prison grievance process. Id.

Here, Jimmerson claims that because he filed grievances complaining

about a serious medical problem, Nelson fired him from his prison

job. Although further factual development may show there were other

legitimate reasons that he lost his job, giving him the inferences

to which he is entitled at this stage, he has alleged a plausible

First Amendment retaliation claim.

CONCLUSION

For the reasons set forth above, the Court: 

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

Mitcheff, Dr. David Meyers, Dr. Thompson (first name unknown), and

Don Nelson in their individual capacities for monetary damages for

denying him pain medication for throat and neck cancer; 

(2) GRANTS the plaintiff leave to proceed against Dr. Michael

Mitcheff in his official capacity for injunctive relief related to

his current need for pain medication;

(3) GRANTS the plaintiff leave to proceed against Don Nelson

in his individual capacity for monetary damages for unlawfully

retaliating against him for filing grievances about his medical

care;

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

complaint;

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(5) DIRECTS the United States Marshals Service to effect

service on Dr. Michael Mitcheff, Dr. David Meyers, Dr. Thompson

(first name unknown), and Don Nelson pursuant to 28 U.S.C. §

1915(d); and

(6) ORDERS Dr. Michael Mitcheff, Dr. David Meyers, Dr.

Thompson (first name unknown), and Don Nelson to respond, as

provided for in the FEDERAL RULES OF CIVIL PROCEDURE, only to the claims

for which the plaintiff has been granted leave to proceed in this

screening order.

DATED: February 24, 2014 /s/RUDY LOZANO, Judge

United States District Court

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