UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FREEMAN IRBY, )

)

Plaintiff, )

) Cause No. 3:16-cv-222 

vs. )

)

RON NEAL, et al., )

)

Defendants. )

OPINION AND ORDER

 Freeman Irby, a pro se prisoner, submitted a complaint alleging that he was

provided with deficient medical care while housed at the Indiana State Prison. (DE 1.)

Pursuant to 28 U.S.C. § 1915A, I 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. Under

federal pleadings standards, 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 [him] that might be redressed by the law.” Swanson v. Citibank, N.A., 614

F.3d 400, 403 (7th Cir. 2010) (emphasis in original) (citations omitted). Instead, the

plaintiff must provide sufficient factual matter to state a claim that is plausible on its

face. Ray v. City of Chicago, 629 F.3d 660, 662–63 (7th Cir. 2011) (internal quotation marks

and citations omitted). 

Irby alleges that on September 11, 2015, he got into an altercation with another

inmate and, as a result, one of his fingertips was severed. (DE 1 at 5.) He informed
Officer Bass about his injury. (Id.) Officer Bass quickly placed the finger tip in a moist

paper towel and put it in a bag of ice, and Irby was then seen by Nurse Sue Whelm who

had Irby taken to an outside hospital. (Id.) At the hospital, the doctors informed Irby

that his finger tip could not be reattached because it was put directly on ice, which

damaged the nerves. (Id.) Irby alleges that Superintendent Ron Neal, Nurse Sue Whelm,

Officer Bass, and Indiana Department of Correction Commissioner Bruce Lemmon were

negligent in failing to preserve his severed finger, and he seeks money damages. (Id.)

In cases involving the provision of medical care to prisoners, the United States

Constitution is violated only when a defendant was deliberately indifferent to an inmate’s

serious medical needs. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). “[C]onduct

is deliberately indifferent when the official has acted in an intentional or criminally reckless

manner, i.e., . . . [knew] 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) (internal quotation marks,

brackets, and citation omitted). It is not enough to show that a defendant failed to act

reasonably or was negligent. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995); Walker v.

Peters, 233 F.3d 494, 499 (7th Cir. 2000). Instead, the official must have “actually [known]

of a substantial risk of serious harm and consciously disregarded it nonetheless.” Pierson

v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004) (citation omitted). 

The standard for medical professionals is virtually the same. “For a medical

professional to be liable for deliberate indifference to an inmate’s medical needs, he must

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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)

(internal quotation marks and citations omitted).

Here, Irby has not alleged facts showing deliberate indifference by anyone and

therefore has not alleged a constitutional claim. He admits he was immediately attended

to by Officer Bass and Nurse Whelm, who quickly sent him to an outside hospital for

treatment. (DE 1 at 5.) Although he claims that medical personnel were negligent in failing

to specify the proper procedure for preserving Irby’s severed fingertip, Irby has not

pleaded facts that even remotely suggest that any of the defendants acted with the

deliberate indifference required to make out a constitutional claim.

Even if he had, Irby’s official capacity claims against Superintendent Neal and

Commissioner Lemmon would fail to state a viable claim for the additional reason that

suits against state actors in their official capacities must allege the existence of an

unconstitutional official policy and practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978). Irby’s complaint contains no allegations of such a policy or practice.

Notwithstanding the shortcomings in Irby’s current complaint, he may file an

amended complaint if he thinks that he can plausibly allege a constitutional claim. See

Luevano v. Wal-Mart, 722 F.3d 1014, 1024 (7th Cir. 2013). If he decides to do so, he should

get a blank copy of this court’s complaint form from the law library and write the cause

number for this case in the caption on the first page. In the amended complaint, Irby should

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be sure to address the deficiencies noted in this order, and he should explain in his own

words what happened, when it happened, and where it happened, providing as much

detail as possible.

Accordingly, Freeman Irby is GRANTED until January 9, 2017, to file an amended

complaint and is CAUTIONED failure to file an amended complaint by that date will

result in dismissal of this case without further notice pursuant to 28 U.S.C. § 1915A.

SO ORDERED.

ENTERED: December 5, 2016.

s/ Philip P. Simon

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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