Opinion
IP 01-0509-C-B/S
October 1, 2002
Entry on Multiple Motions to Dismiss
Having previously ruled on one Motion to Dismiss in this matter, we now resolve several other, pending Motions to Dismiss, some of which involve multiple defendants. Plaintiffs brought claims against Defendants under 42 U.S.C. § 1983 for alleged violations of the Eighth and Fourteenth Amendments to the U.S. Constitution. Defendant John May moves to dismiss claims against him based on Plaintiffs' alleged failure to timely serve process on him. In addition, May joins with Defendants Prison Health Services ("PHS"), Robert Gerelman, and Michael Block in moving to dismiss claims under Rule 12(b)(6), arguing that Plaintiffs have not stated an Eighth Amendment claim. Defendant James Fenoglio also moves to dismiss on this basis, as well as on statute of limitations grounds. For the reasons set out in detail below, we DENY Defendant May's Motion to Dismiss for untimely service; we GRANT Defendant Gerleman's Motion to Dismiss for failure to state a claim; we DENY Motions to Dismiss by Defendants Block, May, and Fenoglio for failure to state an Eighth Amendment claim; we GRANT Defendant PHS's Motion to Dismiss for failure to plead an official custom, policy, practice, or action by a decisionmaker; and we GRANT Defendant Fenoglio's Motion to Dismiss based on the expiration of the applicable statute of limitations.
Factual and Procedural Background
Although we have recited the full factual background of the case at 2002 WL 472302 (S.D.Ind. 2002), because some of the same facts alleged in the Amended Complaint bear on our consideration of the present motions to dismiss, we repeat the relevant portions here.
Defendant Prison Health Services is a Tennessee corporation contractually hired by the Indiana Department of Corrections to provide health services to the prison population. Amended Compl. ¶ 14. At all times relevant to this action, Defendant Robert Gerleman was employed by the Indiana Department of Corrections as a Health Care Administrator at the Reception and Diagnostic Center ("RDC") in Plainfield, Indiana. Id. ¶ 21. Similarly, Defendant John May was a medical doctor employed by the Indiana Department of Corrections to treat patients at the Indianapolis Men's Work Release Center. Id. ¶ 24. Defendant Michael Block was a medical doctor employed by PHS to treat patients at the Plainfield Correctional Facility. Id. ¶ 31. Defendant James Fenoglio was a medical doctor employed by PHS to treat patients at the RDC in Plainfield, Indiana. Id. ¶ 18.
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. Id. ¶¶ 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. During his term of incarceration by the Indiana Department of Corrections, Mr. Norris was seen by a variety of medical personnel for skin lesions, blood pressure monitoring, pain management, and general medical care. Id. ¶ 50.
Plaintiff Carmie Dalton is the mother of Norman Norris, and the remaining plaintiffs are Mr. Norris' daughters. Amended Compl. ¶¶ 5-10.
On June 18, 1999, Mr. Norris was transferred to the RDC in Plainfield, Indiana. Id. ¶ 65. His medical records at the jail were not transferred along with him. Id. A medical history was completed that same day and Mr. Norris' blood pressure medication dosage was reduced, despite the fact that even the higher dosage was not controlling his blood pressure. Id. ¶ 66. On July 2, 1999, Mr. Norris experienced an outbreak of skin lesions. Id. ¶ 67. The physician who treated him, who, although unidentified when the original Complaint was filed, has since been identified as Defendant Fenoglio, prescribed Keflex, the same antibiotic that had proven unsuccessful in treating Mr. Norris' prior two outbreaks (one in 1995 following a surgical procedure and a recurrence in April 1999). Id. ¶¶ 51-52, 68. Fenoglio did not culture the affected areas of Mr. Norris' body, even though such repeated outbreaks can indicate systemic infection resistant to Keflex treatment. Id. ¶ 69.
On July 13, 1999, Plaintiff Carmie Gambrel and Tina Kinney, Mr. Norris' companion, contacted a Governor's Office staff member to voice their concerns over the treatment of Mr. Norris' staph infection. Id. ¶ 70. The staff member assured the women that he would "look into" their concerns. Id. ¶ 71. The next day, RDC Health Care Administrator Robert Gerleman contacted Ms. Kinney and stated his agreement that Mr. Norris' condition required further assessment. Id. ¶ 72. When Gerleman discovered that Ms. Kinney was not a Department of Corrections employee, but was actually a friend of Mr. Norris, "he told her that the DOC had thousands of inmates and did not have time to cater to just one." Id. ¶ 73. Ms. Kinney became upset by this statement, and Gerleman stated that "he would look into it." Id. ¶ 74. On July 14, 1999, an RDC physician performed an EKG on Mr. Norris, which produced abnormal results. Id. ¶ 75. Mr. Norris also exhibited elevated blood pressure and irregular pulse. Id. ¶ 76. Despite these results, no change in medication was ordered. Id. ¶ 77. On July 15, 1999, Mr. Norris was transferred to the Wabash Valley Correctional Facility in Carlisle, Indiana, where medical staff evaluated him and adjusted his medications. Id. ¶ 78.
On August 11, 1999, Mr. Norris was transferred to the Indiana Men's Work Release Center, where he received a medical screening. Id. ¶ 82. On August 25, 1999, Mr. Norris was seen by Dr. May for a rash covering the trunk of his body. Id. ¶ 85. Dr. May determined that the rash was most likely either sun-related or an allergic reaction to Altenolol, one of Mr. Norris' prescription medications.
Id. Dr. May did not culture the rash to determine its underlying cause. Id. ¶ 86. Despite noting that Mr. Norris had exhibited an abnormal EKG and observing that Mr. Norris had skipped heartbeats, Dr. May did not prescribe medication for irregular heartbeat. Id. ¶ 87. On September 18, 1999, Dr. May saw Mr. Norris for "sharp 'knife-like' pain in his left shoulder radiating to his left arm." Id. ¶ 88. Despite the fact that such conditions may constitute "classic cardiac distress symptoms," Dr. May did not take Mr. Norris' blood pressure, order cardiac labs, an EKG, or an evaluation at the hospital. Id. ¶ 89.
On September 20, 1999, Mr. Norris sought treatment at the Wishard Memorial Hospital Emergency Room for "uncontrolled pain, inability to move, and inability to eat." Id. ¶¶ 44, 91. Upon arrival, he complained to Nurse Karen 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.
Diagnostic notes reflect participation by doctors Haddad and Gilkey in the diagnosis and treatment of Mr. Norris. See Amended Compl. Ex. C.
Following evaluation, Mr. Norris was discharged from Wishard in stable condition and transferred to the Plainfield Correctional Facility, where he was assigned not to the infirmary, but to a general population dorm. Id. ¶¶ 101-02. Defendant Block sent a telephone order for Mr. Norris to take Motrin for pain, although notes indicated that Mr. Norris' pain had not been controlled by Motrin. Id. ¶ 107. Block did not order additional blood pressure medication for Mr. Norris, although his supply had run out eight days earlier. Id.
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.
Plaintiffs originally filed this action on April 13, 2001, naming, among other defendants Dr. May and "RDC physician who signed notes dated 7/6/99." On April 26, 2001, Plaintiffs attempted to serve May by certified mail at the Indiana Men's Work Release Center, his last known place of employment and the last address known to Plaintiffs. The green certified mail receipt addressed to May returned to Plaintiffs with a signature on it, indicating successful delivery. Based on the original filing date, the 120-day window for timely service closed on August 24, 2001.
On September 20, 2001, Plaintiffs filed the Amended Complaint, once again naming May as a defendant and replacing "RDC physician who signed notes dated 7/6/99" with Defendant Fenoglio. At the initial pretrial conference, defense counsel Roger Kanne indicated to Plaintiffs' counsel that May resided in Florida and had not properly been served. On October 24, 2001, Kanne provided Plaintiffs' counsel with May's Florida address, and on October 25, 2001, Plaintiffs made service of the summons and the Amended Complaint on May by certified mail at his Florida address.
On June 22, 2001, Defendants Wishard Memorial Hospital, Drs. Nicholas Haddad and Kathy Gilkey, and Nurse Nicherson ("Wishard defendants") filed a Motion to Dismiss on a variety of grounds. On March 25, 2002, the Court granted in part and denied in part this motion. In doing so, we found that Plaintiffs could not maintain an Eighth Amendment claim based on alleged inadequate diagnostic procedures, but that ineffective pain management may give rise to such a claim. In addition, we found that Plaintiffs pled sufficient facts to state an Equal Protection claim for allegedly differential medical treatment provided to Mr. Norris and also to overcome Defendants' attempt to rely on the qualified immunity affirmative defense.
On October 2, 2001, Defendants PHS and Robert Gerleman filed their Motion to Dismiss pursuant to Rule 12(b)(6). On November 14, 2001, Defendant May followed with a Motion to Dismiss based on untimely service of process under Rule 4(m). Defendant James Fenoglio filed a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) on January 4, 2002. Finally, Defendant Block filed a Motion to Dismiss under 12(b)(6) on March 5, 2002. On March 8, Defendant May joined in the motions previously filed by Defendants PHS, Gerleman, and Block.
Although originally a party to this Motion, Defendant Oliajulu Ezenwabachili was dismissed from this action by stipulation of the parties on April 8, 2002. His appearance as a named defendant in the remaining pending motions is therefore moot. See Entry of August 16, 2002.
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.2d 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 that 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).
Legal Issues 1. Timely service of process
Defendant John May contends that claims against him must be dismissed because Plaintiffs failed to serve him with process in a timely fashion. Rule 4(m) provides for dismissal of an action based on untimely service of process. The rule states, in relevant part:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time.
Fed.R.Civ.P. 4(m). If a plaintiff misses the 120-day deadline for service, there are two potential routes around dismissal. First, the rule provides that upon a showing of good cause, the court shall extend the time for service "for an appropriate period." Id.; Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). The burden rests on the plaintiff to establish good cause, Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988), and requires that a plaintiff "must at least show 'reasonable diligence' in attempting service." Hernandez v. Lara, 2001 WL 629309 (N.D.Ill. May 25, 2001), quoting Bachenski v. Malnati, 11 F.3d 1371, 1377 (7th Cir. 1993).
Absent good cause, Rule 4(m) authorizes the court to grant a discretionary extension of time for service. Panaras, 94 F.3d at 340; Roberson v. Arrow Trucking Co., 2001 WL 484468 (S.D.Ind. 2001). In deciding whether to exercise its discretion, the court examines several factors, including possible repercussions of attorney neglect to the plaintiff, participation in or benefit from neglect by the plaintiff, and prejudice or harm to the defendant. Oliver v. Cassidy Restaurant, Inc., 2000 WL 1568650, at *2 (S.D.Ind. 2000). Extension of time under Rule 4(m) may also be appropriate "if the applicable statute of limitations would bar a later filed action." Cardenas v. Benter Farms, 2000 WL 1693807, at *2 (S.D.Ind. 2000). The running of the applicable statute of limitations merits close examination, but does not mandate an extension of time. Panaras, 94 F.3d at 341.
Here, Plaintiffs have demonstrated reasonable diligence in attempting to serve process on May. It is undisputed that Plaintiffs first attempted to serve May on April 26, 2001, by certified mail, return receipt requested. The green certified mail receipt was returned to Plaintiffs shortly thereafter, bearing a signature, leading Plaintiffs to believe that May had properly been served. Plaintiffs filed the Amended Complaint on September 20, 2001, again naming May as a defendant. Plaintiffs did not become aware that May had not properly been served until the initial pretrial conference on October 23, 2001, in which defense counsel Roger Kanne provided updated information regarding May's whereabouts. Using May's updated address, Plaintiffs' counsel obtained a summons for May on October 25, 2001, and May was served with the summons by certified mail on November 8, 2001.
We need not determine whether these circumstances constitute "good cause" to excuse the admitted delay in service, because the factors designed to guide our discretion under Rule 4(m) counsel in favor of extending the service time to cover the delay period. There is no evidence that Plaintiffs participated in or benefitted from the delay in serving May. In addition, because Plaintiffs' claims against May arise from acts and omissions that occurred in September 1999, and because Indiana's two-year personal-injury statute of limitations governs this action, Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001), citing Wilson v. Garcia, 471 U.S. 261, 276 (1985), the applicable limitations period would have expired in September 2001, nearly two months before May was served with process. Therefore, were we to dismiss Plaintiff's claim against May without prejudice at this time, it would effectively act as a dismissal with prejudice because Plaintiffs' claims against May would be time-barred. We decline to do this, particularly in light of Plaintiffs' reasonably diligent efforts in attempting to serve May with the original complaint and the fact that the original return receipt reasonably led Plaintiffs to conclude that May had been served shortly after April 26, 2001. For these reasons, based on the discretion afforded by Rule 4(m), we extend the period for effective service with respect to Defendant May to encompass November 8, 2001, the date upon which May was actually served. Accordingly, Defendant May's Motion to Dismiss for untimely service is DENIED.
2. Failure to state a claim upon which relief can be granted
Defendants PHS, Gerleman, Block, May, and Fenoglio move to dismiss Plaintiffs' claims for failure to state claims upon which relief can be granted. First, Defendants contend that, because Plaintiffs' claims amount to negligent medical treatment or malpractice, Plaintiff cannot plead sufficient facts upon which to base a claim for violation of the Eighth Amendment. As we discussed in our previous Entry on Wishard, et al.'s Motion to Dismiss, 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). "Deliberate indifference" encompasses more than mere negligence, but instead requires a prison official to knowingly disregard an excessive risk to the prisoner's health. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). Negligence, even gross negligence, does not rise to the level of deliberate indifference; a defendant's conduct must approach criminal recklessness. DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000), citing Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996). Mere disagreement with medical personnel over what constitutes appropriate treatment does not establish deliberate indifference. Estelle, 429 U.S. at 107; Dunigan ex rel. Nyman v. Winnebago Co., 165 F.3d 587, 591 (7th Cir. 1999). Dissatisfaction with a course of treatment prescribed by a prison official only gives rise to a constitutional claim if the medical treatment at issue is "so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner's condition." Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (citation omitted). To determine whether a prison official acted with deliberate indifference, courts must examine a prisoner's care in its totality. Dunigan, 165 F.3d at 591. Whether prison officials acted with deliberate indifference presents a question of fact. Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000).
May joined in the PHS/Gerleman/Block Motion to Dismiss on March 8, 2002. Although Fenoglio has not joined in that Motion to Dismiss, the arguments Fenoglio advances substantially overlap portions of PHS' arguments. Because such 12(b)(6) arguments turn on the content of the pleadings and not on any factual questions unique to each defendant, in the interest of efficiency, we will address these arguments together.
a. Gerleman
First, with regard to Dr. Gerleman, Plaintiffs allege that, notwithstanding Gerleman's stated belief that Mr. Norris' condition required further assessment, Gerleman told Ms. Kinney that "DOC had thousands of inmates and did not have time to cater to just one." Amended Compl. ¶¶ 72, 73. However, Plaintiff also alleges that Gerleman assured her "he would look into it," and that the same day, an RDC physician performed an EKG on Mr. Norris. Id. ¶¶ 74, 75. These allegations simply do not support the conclusion that Gerleman showed deliberate indifference to Mr. Norris' constitutional rights. To the contrary, they illustrate no delay in response to Mr. Norris' need for diagnostic testing. Plaintiffs were not required to plead such specific facts to support their claim, but the presence of these facts actually undermines Plaintiffs' claim. See, e.g., Thompson v. Illinois Dept. of Professional Regulation, 300 F.3d 750, 754 (7th Cir. 2002) (summarizing authority for the proposition that a plaintiff may plead himself out of court by providing facts in the complaint that actually indicate he has no claim). Even construing this account and all reasonable inferences in Plaintiffs' favor, the factual allegations regarding Gerleman simply do not support a claim for deliberate indifference. They do not allege any act or omission on Gerleman's part, but, at worst, allege a sort of rudeness or callousness in responding to a request for Mr. Norris to receive testing. The alleged remark does not negate the fact that following Gerleman's assurance that he would look into Mr. Norris' condition, RDC personnel conducted further testing on Mr. Norris. Because Plaintiffs' factual allegations fail to support a deliberate indifference claim against Gerleman, the Motion to Dismiss such claims against Gerleman is GRANTED.
b. May, Block, and Fenoglio
By contrast, Plaintiffs' allegations regarding Defendants May, Block, and Fenoglio do provide a factual basis for claims of deliberate indifference. Specifically, Plaintiffs allege that May diagnosed Mr. Norris' rash as a sun-related or allergic reaction, failed to culture the rash to determine its actual cause, and did not take Mr. Norris' blood pressure, order cardiac labs, an EKG, or any other evaluation.
Plaintiffs allege that Block prescribed Motrin for Mr. Norris' pain, even though Motrin had been found ineffective and noted as such in the file, and did not order additional blood pressure medication for Mr. Norris, even though his supply had lapsed and he displayed signs of cardiac trouble. Finally, Plaintiffs allege that Fenoglio, previously identified as "the physician who signed RDC notes dated 7/6/99," diagnosed Mr. Norris' lesions, but failed to culture the rash to determine its cause, prescribed Keflex, an antibiotic, which previously had been found ineffective, and failed to treat Mr. Norris' heart condition despite Mr. Norris' abnormal EKG results.
Although the present Motion makes essentially the same arguments as the Wishard defendants made earlier in their Motion to Dismiss, we note that the allegations against Defendants Gerleman, May, Block, and Fenoglio differ in significant respects from those allegations against the Wishard defendants. In these cases, Plaintiffs do not allege that a singular choice not to administer certain diagnostic tests violated reasonable standards of medical care, but that Defendants knew or had notice of Mr. Norris' medical needs and made treatment decisions reflecting a deliberate indifference to those needs. Differing opinions on the proper course of treatment for a particular condition or allegations of malpractice, without more, do not give rise to an Eighth Amendment claim for inadequate medical services. However, "'deliberate indifference' can be evidenced by repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff, or it can be demonstrated by 'proving there are such systematic and gross deficiencies in staffing, facilities, equipment or procedures that the inmate population is effectively denied access to adequate medical care.'" Murphy v. Lane, 833 F.2d 106, 107-08 (7th Cir. 1987), citing Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980).
We simply cannot say, based only on the face of the Amended Complaint, that Plaintiff has not properly stated a viable claim for deliberate indifference. Of course, this determination does not address whether Plaintiffs may ultimately succeed on their claim. Deciding whether the evidence Plaintiffs offer in support of this claim would compel a reasonable jury to find for Plaintiffs requires the resolution of factual issues properly considered either on summary judgment or at trial, not a motion to dismiss. Given the fact-sensitive nature of the "deliberate indifference" inquiry, it is inappropriate to foreclose Plaintiffs claims prior to the development of a factual record. Accordingly, Defendants' Motions to Dismiss based on Plaintiffs' alleged inability to state a claim for deliberate indifference is DENIED.
3. Fenoglio
Defendant Fenoglio contends that Plaintiffs cannot plead any set of facts from which to infer that Mr. Norris presented a serious medical need when Fenoglio treated him. An "objectively serious medical need" is defined 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). See also Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citations omitted) (embracing Ninth Circuit standard defining "serious medical condition as illness where "the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain'"). A medical condition is "serious" if it may be "life threatening or pose[s] a risk of needless pain or lingering disability if not treated at once." Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991); Jones-Bey v. Conley, 144 F. Supp.2d 1035, (N.D.Ind. 2000).
Plaintiffs allege that Mr. Norris' heart and blood pressure conditions had been diagnosed and noted in his medical history. In addition, Plaintiffs allege that multiple doctors ordered Mr. Norris to undergo cardiac tests that repeatedly produced abnormal results and that several of them prescribed medications to control such conditions. Regardless of the obviousness of Mr. Norris' outward symptoms to a layperson, the Amended Complaint points to sufficient data in Mr. Norris' medical history and test results to alert his physicians to the nature of his cardiac problems. When viewed under the applicable Seventh Circuit standard, we conclude that Plaintiffs have pled facts indicating that Mr. Norris' cardiac condition had been diagnosed by a doctor as requiring treatment and was likely to result in severe pain or death if left untreated. Thus, as Plaintiffs have pled sufficient facts to establish that Mr. Norris' cardiac conditions constituted an "objectively serious medical need," Fenoglio's Motion to Dismiss based on Plaintiffs' alleged failure to properly plead this essential element is DENIED.
4. PHS
Defendant PHS contends that Plaintiffs cannot state a claim for constitutional injury against PHS, an institutional actor, because it has failed to plead the existence of any official policy, custom, or practice by PHS that led to Plaintiffs' injuries. It is well settled that PHS cannot be held liable for the actions of its employees, in this case Defendants Gerleman, Block, and Fenoglio, based only on respondeat superior liability. 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 state actor for the actions of its agents, a plaintiff must allege (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).
In general, the Seventh Circuit has made clear that a plaintiff need not "plead law or match facts to every element of a legal theory." Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Instead, Plaintiffs need only provide "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dewalt, 224 F.3d at 612, quoting Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993). However, a complaint must at least contain "facts to suggest that the policies of which [the plaintiff] complains actually exist." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Even conclusory allegations that a municipal policy or custom caused Planitiffs' injuries may survive a motion to dismiss where such allegations are sufficient to put a defendant on notice as to the content of Plaintiffs' claim. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000).
Absent direct evidence such as a written policy, "[t]he usual way [to show the existence of a governmental policy or custom] is by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned" the actions. Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995). Allegations of isolated incidents by non-policymakers do not suffice to assert a municipal policy or custom. E.g., Gustafson v. Jones, 117 F.3d 1015, 1022 (7th Cir. 1997) (holding that plaintiffs' allegations of two incidents failed to show the city had a custom or policy that caused their injuries).
Here, the Amended Complaint does not contain even conclusory allegations that Plaintiffs' injuries were caused by any express policy, custom, or widespread practice by PHS. Instead, Plaintiffs contend that the existence of a policy may be inferred from three incidents involving allegedly inadequate treatment of Mr. Norris by PHS personnel: Fenoglio's alleged inadequate services rendered on July 6, 1999; Gerleman's statement on July 14, 1999, that DOC "did not have time to cater to just one" inmate's medical needs; and Block's alleged inadequate treatment rendered on September 20, 1999. Plaintiffs do not allege any other incidents involving PHS personnel, or that any policy or widespread practice by PHS affected any prisoners other than Mr. Norris. Therefore, Plaintiffs have not only failed to plead in any conclusory fashion the existence of a widespread practice constituting a custom or policy by PHS, but they have failed to provide factual allegations from which we may reasonably infer the existence of a widespread practice.
Alternatively, Plaintiffs contend that the actions of Gerleman, an official policymaker for PHS, could satisfy the requirement of an official custom or policy to support a claim under § 1983. The primary problem with this argument is that the Amended Complaint does not even identify Gerleman as a PHS employee, let alone a policymaker within the organization. Moreover, as discussed earlier, the Amended Complaint fails to allege any action or omission by Gerleman that impacted Mr. Norris' treatment in any way. Plaintiffs mistakenly rely on Gerleman's alleged statement "that the DOC had thousands of inmates and did not have time to cater to just one," Id. ¶ 73, to illustrate some unconstitutional action taken by a policymaker. However, this allegation, in light of other facts alleged in the Amended Complaint, does not reasonably lead to this conclusion. Baxter by Baxter, 26 F.3d at 734-35. Because Plaintiffs have not pled the existence of either a policy or widespread practice or any action by a PHS policymaker sufficient to give rise to liability under § 1983, Defendant PHS' Motion to Dismiss on this ground is GRANTED.
3. Statute of limitations/relation back
Defendant Fenoglio moves to dismiss claims against him on the ground that he was not named as a defendant until after the applicable statute of limitations had run on Plaintiffs' claim. Seventh Circuit precedent indicates that Indiana's two-year personal-injury statute of limitations applies to actions arising under § 1983. Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001), citing Wilson v. Garcia, 471 U.S. 261, 276 (1985). The original complaint filed in this matter on April 13, 2001, included a defendant named "RDC physician who signed notes dated 7/6/99." Amended Compl. ¶ 18. The parties do not dispute that the acts and omission giving rise to claims against Fenoglio would have occurred in July 1999, which means that the statute of limitations applicable to such claims would have expired in July 2001. On September 20, 2001, Plaintiffs filed their Amended Complaint replacing Defendant Fenoglio for the previously unidentified "RDC physician who signed notes dated 7/6/99."
The parties do not address the interaction between the statute of limitations and the later amendment of the original complaint, but the Federal Rules of Civil Procedure contemplate just such a scenario. Rule 15(c)(3) allows amended pleadings to relate back to the date of an original timely-filed pleading when:
the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Fed.R.Civ.P. 15(c)(3). The Seventh Circuit has interpreted Rule 15(c)(3) to permit an amendment to relate back to the original complaint only where "there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake." King v. One Unknown Federal Correctional Officer, 201 F.3d 910, 914 (7th Cir. 2000), quoting Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998). "[T]he mistake requirement is independent from whether the purported substitute party knew that action would be brought against him." Id.
Plaintiffs have not addressed, let alone satisfied the requirement that the change of identification of the party after the statute of limitations resulted from some mistake of identity. It is clear from Plaintiffs' response to the Motion that they did not mistakenly sue the wrong party, they simply did not know the precise identity of the party they wished to sue. We must conclude, based on Plaintiffs' failure to discuss the factors that would permit their Amended Complaint to relate back to the original filing date, that Plaintiffs cannot make the necessary showing to justify such an exception to the statute of limitations. Accordingly, Defendant Fenoglio's Motion to Dismiss is GRANTED.
Defendant Fenoglio also moves to dismiss Plaintiffs' claims against him in his official capacity on the ground that such suits are prohibited by the Eleventh Amendment. The Amended Complaint does not specify the capacity in which Plaintiff intends to sue Fenoglio, and Plaintiff does not respond to this contention in its Response to Fenoglio's Motion to Dismiss. Although we note that it is well settled that the Eleventh Amendment bars actions for money damages against state officials and state agencies, save where the state has consented to such suit, Wynn v. Southward, 251 F.3d 588, 591 (7th Cir. 2001), because we dismiss Plaintiffs' claims against Fenoglio in their entirety based on their lack of timeliness, we need not reach the issue of whether claims against him in his official capacity must be dismissed.
Conclusion
Defendants PHS, Gerleman, Block, May, and Fenoglio moved to dismiss Plaintiffs' claims against them on a number of grounds. For the reasons set out in detail above, we find that 1) Plaintiffs have provided a sufficient explanation for the tardy service of Defendant May to warrant a discretionary extension of the service period under Rule 4(m); 2) Plaintiffs have not stated a claim upon which relief may be granted with regard to Defendant Gerleman; 3) Plaintiffs have stated claims against Defendants May, Block, and Fenoglio; 4) Plaintiffs have not sufficiently pled a policy, custom, or practice to maintain a claim against PHS under § 1983; 5) Plaintiffs' claims against Defendant Fenoglio are time-barred because Plaintiffs did not satisfy the requirements for his later appearance in the Amended Complaint to relate back to the original filing date; and 6) to the extent that Plaintiffs bring claims against Defendant Fenoglio in his official capacity, such claims are not authorized by § 1983. Accordingly, we DENY Defendant May's Motion to Dismiss for untimely service; we GRANT Defendant Gerleman's Motion to Dismiss for failure to state a claim; we DENY Motions to Dismiss by Defendants Block, May, and Fenoglio for failure to state an Eighth Amendment claim; we GRANT Defendant PHS's Motion to Dismiss for failure to plead an official custom, policy, practice, or action by a decisionmaker; and we GRANT Defendant Fenoglio's Motion to Dismiss based on the expiration of the applicable statute of limitations.
It is so ORDERED this 10th day of September, 2002.