White v. Dorthy et al

Filing 5

MERIT REVIEW AND CASE MANAGEMENT ORDER entered by Chief Judge James E. Shadid on 11/4/2016. IT IS ORDERED THAT: The Clerk of the Court is directed to: 1) Dismiss Defendants Dorthy and Hanna for failure to state a claim upon which relief can be grante d pursuant to by 28 U.S.C. §1915A; 2) Attempt service on Defendants pursuant to the standard procedures; 3) set an internal court deadline 60 days from the entry of this order for the court to check on the status of service and enter scheduling deadlines and 4) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE FULL WRITTEN ORDER.(SL, ilcd)

E-FILED

Friday, 04 November, 2016 02:18:22 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
RANDALL WHITE,
Plaintiff,

STEPHANIE DORTHY, et. al.,
Defendants

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Case No. 16-1304

MERIT REVIEW AND CASE MANAGEMENT ORDER
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted and. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to
state a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. §1915A.
The Plaintiff, a pro se prisoner, has identified five Defendants at the Henry Hill
Correctional Center including Warden Stephanie Dorthy, Food Supervisor Hanna,
Lieutenant Gibbs, Sergeant Hilgondorff, Correctional Officer Underwood, and Nurse
Dee Clark. Plaintiff says he was assigned to work in the Dietary Unit cleaning tables,
mopping the floor and restocking condiments. Plaintiff says he had no experience and
was not provided any training, but it is unclear whether any specific training was
necessary for this job. Plaintiff also says he was not provided gloves or non-slip boots
which are issued to the cooks.

On April 2, 2016, one of the cooks told Plaintiff to fill up an ice bin and dump the
water into a kettle. Plaintiff had to step onto a “curb” that was approximately four
inches high. (Comp., p. 4) Plaintiff slipped, hit his head on the floor, and was knocked
unconscious for a few minutes. Plaintiff notified staff he had fallen and he was taken to
Lieutenant Gibbs and Sergeant Hainline. The sergeant was about to call for emergency
medical services when Lieutenant Gibb told him it was not necessary, and instead
ordered Plaintiff to walk to the Health Care Unit (HCU).
When he arrived, a nurse examined him and discovered a four inch laceration on
his head which needed stiches. Since there was no doctor on duty, the nurse sent him
to an outside hospital where he received five staples to his head. Plaintiff was
discharged later that evening and told to report specific symptoms such as headaches,
vomiting, increased sleepiness, confusion, blurred vision, etc.
When Plaintiff arrived back at the correctional center, he was kept in the HCU
overnight for observation. Plaintiff was discharge the next morning, but during the
evening he began to experience headaches, blurred vision and dizziness. The next
morning, he returned to HCU so a nurse could check his staples and Plaintiff reported
his symptoms. Nurse Dee Clark told him to put in a request for sick call. Plaintiff
believes the nurse should have addressed his symptoms during the visit.
Nonetheless, Plaintiff submitted a sick call request. On April 6, 2016 and April 7,
2016, Plaintiff returned to HCU so a nurse could check his staples. Plaintiff again
reported his symptoms and he was told it would be addressed during sick call. Plaintiff

was scheduled to see the doctor later on April 7, 2016, but his appointment was
canceled without explanation.
Plaintiff again saw an unidentified nurse on April 10, 2016 to have his staples
removed. However, Plaintiff was not seen on sick call until April 16, 2016. At this
time, he was given Motrin for thirty days, but it did not help with his blurred vision or
dizziness.
Plaintiff filed a grievance complaining about the delay in medical care, and says
unidentified staff members began to retaliate against him. Plaintiff says he lost his job
and was denied a replacement job due to his grievance, but he does not state who made
either decision.
Plaintiff also says Lieutenant Gibbs, Sergeant Hilgondorff and Correctional
Officer Underwood have constantly harassed him, subjected him to daily searches, and
have denied him access to the chow hall due to his grievance. Plaintiff alleges both
Defendants have told him they are retaliating based on his grievance.
Based on his allegations, Plaintiff has listed five “counts.” First, Plaintiff says
Defendants Hanna and Dorthy violated his Eighth Amendment rights when they were
deliberately indifferent to his health and safety. Plaintiff says he should have been
trained and assigned work boots and gloves for his job. Plaintiff also alleges the ice bin
and kettle were unsafe. Consequently, Plaintiff says the unsafe conditions led to his
fall.
To demonstrate a constitutional violation, Plaintiff “must establish: (1) that he
was incarcerated under conditions posing a substantial risk of harm and (2) that the

defendants acted with deliberate indifference to his health or safety.” Santiago v. Walls,
599 F.3d 749, 756 (7th Cir. 2010). Mere negligence or inadvertence is not enough. Pinkston
v. Madry, 440 F.3d 879, 889 (7th Cir. 2006); Eddmonds v. Walker, 317 Fed.Appx. 556, 558
(7th Cir. 2009). In addition, the conditions alleged must be severe. See Carroll v. DeTella,
255 F.3d 470, 472 (7th Cir. 2001). Consequently, Courts have consistently held that
slippery floors or slip and fall claims do not implicate the Constitution. See Pyles v.
Fahim, 771 F.3d 403 (7th Cir.2014) (stating slippery surfaces do not constitute a
hazardous condition of confinement); Christopher v. Buss, 384 F.3d 879, 882 (7th Cir.2004)
(“A ‘protrusive lip’ on a Softball field, even if hazardous when a ball hits it in a certain
way, does not amount to a condition objectively serious enough to implicate the Eighth
Amendment.”); Coleman v. Sweetin, 745 F.3d 756, 764 (5th Cir.2014) (agreeing with
district court that, as a matter of law, “prisoner slip-and-fall claims almost never serve
as the predicate for constitutional violations,” thus upholding sua sponte dismissal of
deliberate-indifference claim brought by inmate who slipped and fell in shower);
LeMaire v. Maass, 12 F.3d 1444,1457 (9th Cir.1993) (“slippery prison floors ... do not state
even an arguable claim for cruel and unusual punishment”); Watkins v. Lancor, 558
Fed.Appx. 662, 665 (7th Cir. 2014)(“if a wet floor is not a sufficiently dangerous
condition, then neither could the shortage of protective overshoes for the wet floor
support a claim of deliberate indifference.”); Bonds v. Mollenhauer, 2011 WL 2326968, at
*1 (N.D.Ind. June 6, 2011)(no constitutional violation although officer took no steps to
eliminate standing water on dayroom floor). Therefore, Plaintiff has failed to clearly
articulate a constitutional violation based on his fall while working in the dietary unit.

Plaintiff next alleges Defendants Hanna and Dorthy were “negligent” when they
failed to provide a safe work environment, but “a defendant can never be held liable
under §1983 for negligence.” Williams v Shaw, 2010 WL 3835852 at 3 (S.D. Ill. Sept. 24,
2010).
Third, Plaintiff alleges Defendants Gibbs and Clark delayed medical treatment.
Plaintiff alleges only that Defendant Gibb told him to walk to HCU, rather than
transporting him in some other way. Plaintiff does not allege he was unable to walk, or
that walking aggravated his condition in some way. Based on the allegations in his
complaint, Plaintiff has failed to articulate a claim against Defendant Gibbs. Plaintiff
also alleges one contact with Defendant Nurse Clark. On this occasion, Nurse Clark
checked the condition of the staples in Plaintiff’s head. When he reported dizziness,
blurred vision and headaches, she told him to fill out a sick call request Plaintiff alleges
it was several days before he was seen on sick call, but admits he was regularly seen the
in the health care unit to check on the progress of his stiches.
It is not clear Plaintiff will be able to establish he suffered from a serious medical
condition, nor that he required additional treatment. It is also who was responsible for
the repeated delay in scheduling a sick call visit. Nonetheless, since Plaintiff had just
returned from the hospital with five staples in his head and the doctor told him to
immediately report the symptoms he was experiencing, it is possible Plaintiff could
demonstrate Nurse Dee was deliberately indifferent when she did not provide
immediate care or personally schedule a sick call visit. Consequently, Plaintiff has
adequately a claim against Nurse Clark for the purposes of notice pleading.

Fourth, Plaintiff alleges Defendants Gibbs, Hilgondorff and Underwood
retaliated against him in violation of his First Amendment rights. To state a retaliation
claim, a plaintiff must allege that “(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 First Amendment activity was at least a motivating
factor in the [d]efendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir.2009) (internal quotations omitted). Plaintiff has adequately
alleged Defendants retaliated against him for filing a grievance when they began
searching Plaintiff on a daily basis and refused to let him into the chow hall.
Finally, Plaintiff claims the incidents alleged took place in April of 2016, but he
filed his complaint four months later on August 16, 2016. If Plaintiff filed a grievance
using the standard grievance procedures it is somewhat doubtful he fully exhausted his
administrative remedies before filing his lawsuit. Nonetheless, this is an issue better
addressed in a dispositive motion. If Plaintiff did not exhaust, he may file a motion to
voluntarily dismiss his lawsuit within the next 14 days and the Court will dismiss the
case without accessing a filing fee.
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges: a) Defendant Nurse Dee Clark was deliberately
indifferent to his serious medical condition on April 3, 2016; and b) Defendants
Gibbs, Hilgondorff and Underwood retaliated against him in violation of his
First Amendment rights when they searched him on a daily basis and prevented

him from entering the chow hall. The claims are stated against the Defendants in
their individual capacities only. Any additional claims shall not be included in
the case, except at the Court’s discretion on motion by a party for good cause
shown or pursuant to Federal Rule of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for Defendants before filing any motions, in order to give
Defendants notice and an opportunity to respond to those motions. Motions
filed before Defendants' counsel has filed an appearance will generally be denied
as premature. Plaintiff need not submit any evidence to the Court at this time,
unless otherwise directed by the Court.
3) The Court will attempt service on Defendants by mailing each Defendant a
waiver of service. Defendants have 60 days from service to file an Answer. If
Defendants have not filed Answers or appeared through counsel within 90 days
of the entry of this order, Plaintiff may file a motion requesting the status of
service. After Defendants have been served, the Court will enter an order setting
discovery and dispositive motion deadlines.
4) With respect to a Defendant who no longer works at the address provided by
Plaintiff, the entity for whom that Defendant worked while at that address shall
provide to the Clerk said Defendant's current work address, or, if not known,
said Defendant's forwarding address. This information shall be used only for
effectuating service. Documentation of forwarding addresses shall be retained

only by the Clerk and shall not be maintained in the public docket nor disclosed
by the Clerk.
5) Defendants shall file an answer within 60 days of the date the waiver is sent by
the Clerk. A motion to dismiss is not an answer. The answer should include all
defenses appropriate under the Federal Rules.

The answer and subsequent

pleadings shall be to the issues and claims stated in this Order. In general, an
answer sets forth Defendants' positions. The Court does not rule on the merits of
those positions unless and until a motion is filed by Defendants. Therefore, no
response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk
will file Plaintiff's document electronically and send a notice of electronic filing
to defense counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place
of confinement. Counsel for Defendants shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of any change in his
mailing address and telephone number. Plaintiff's failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this
lawsuit, with prejudice.

9) Within 10 days of receiving from Defendants’ counsel an authorization to
release medical records, Plaintiff is directed to sign and return the authorization
to Defendants’ Counsel.
10) If Plaintiff did not exhaust his administrative remedies before filing his
lawsuit, he may file a motion to voluntarily dismiss his lawsuit within the next
14 days and the Court will dismiss the case without accessing a filing fee. The
Court will only waive the fee if the motion is received by the November 18, 2016
deadline.

The Clerk of the Court is directed to: 1) Dismiss Defendants Dorthy and
Hanna for failure to state a claim upon which relief can be granted pursuant
to by 28 U.S.C. §1915A; 2) Attempt service on Defendants pursuant to the
standard procedures; 3) set an internal court deadline 60 days from the entry of
this order for the court to check on the status of service and enter scheduling
deadlines and 4) enter the Court's standard qualified protective order pursuant
to the Health Insurance Portability and Accountability Act
ENTERED this 4th day of November, 2016.

s/ James E. Shadid
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JAMES E. SHADID
UNITED STATES DISTRICT JUDGE