Brown v. Holbart et al
Filing
7
MERIT REVIEW OPINION: Plaintiff's motion for the Court to appoint counsel is denied 4 . The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Rule 16 Deadline 10/16/2017. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 8/17/2017. (GL, ilcd)
E-FILED
Thursday, 17 August, 2017 10:27:34 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
OMMEN BROWN,
)
)
Plaintiff,
)
)
v.
)
)
CORRECTIONAL FOOD SERVICE
)
SUPERVISORS SUZANNE HOLBART )
AND HARBARGER, CORRECTIONAL )
OFFICER, SEREG,
)
)
Defendants.
)
17-CV-1296
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Pontiac
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
A prisoner who has had three prior actions dismissed for failure to
state a claim or as frivolous or malicious can no longer proceed in
forma pauperis unless the prisoner is under “imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
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1
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). However, conclusory statements and labels are insufficient.
Enough facts must be provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013) (quoted cite omitted).
Plaintiff alleges that he severely burned his left wrist while
working with hot gravy in the inmate kitchen at Pontiac
Correctional Center on June 12, 2016. The burn allegedly
penetrated Plaintiff’s skin and was very painful. Plaintiff showed
the burn to Defendant Suzanne Holbart and requested medical
treatment. Defendant Holbart denied Plaintiff’s request and ordered
Plaintiff to continue working.
Plaintiff allegedly continued to seek treatment that day as his
pain increased. After Plaintiff completed his work shift, Plaintiff
showed his injury to Defendant Sereg, who was the officer assigned
to Plaintiff’s cell house, and requested medical treatment.
Defendant Sereg also denied Plaintiff’s request for medical
treatment and instructed Plaintiff to make a formal sick call
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request. Plaintiff followed Defendant Sereg’s instructions and
submitted the request.
The next day, on June 13, 2016, Plaintiff made a request for
medical attention to Defendant Harbarger, who is an inmate
kitchen supervisor. Defendant Harbarger denied Plaintiff’s request
and ordered Plaintiff to continue working.
Plaintiff did not receive any medical treatment for his burn
until June 15, 2016, when a law library clerk observed Plaintiff’s
burn and contacted the medical director on Plaintiff’s behalf.
Plaintiff saw a doctor later that day. The doctor examined Plaintiff
and diagnosed him with a second-degree burn. The doctor
prescribed burn cream, bandages, pain medication, and seven days
leave from work. Plaintiff’s exhibits show that he required daily
dressing changes for a period of five days.
Plaintiff alleges that Defendants Holbart, Harbarger, and Sereg
were deliberately indifferent to his serious medical needs because
Defendants denied and delayed Plaintiff’s access to necessary
medical treatment, causing him unnecessary pain and suffering.
Deliberate indifference towards a prisoner’s serious medical needs
is a violation of the Eighth Amendment. Whiting v. Wexford Health
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Sources, Inc., 839 F.3d 658, 661 (7th Cir. 2016). To prove a claim
for deliberate indifference, a plaintiff must show that he suffered
from “‘(1) an objectively serious medical condition to which (2) a
state official was deliberately, that is subjectively, indifferent.’”
Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th
Cir. 2016) (quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th
Cir. 2008)).
Plaintiff’s allegations are sufficient to allow an inference that
he had an objectively serious medical condition. An objectively
serious medical condition is a condition that has either “been
diagnosed by a physician” and requires treatment, or is “so obvious
that even a lay person would easily [see the need] for a doctor’s
attention.” Cesal v. Moats, 851 F.3d 714, 721 (7th Cir. 2017).
Although a minor burn does not necessarily qualify as an
objectively serious medical condition, a more serious burn “may
implicate the Eighth Amendment.” Boyce v. Johnson, 2015 WL
7351679 *8 (N.D. Ill. 2015); see also O'Malley v. Litscher, 465 F.3d
799, 805 (7th Cir. 2006) (court assumed that pain resulting from
minor burns qualified as an objectively serious medical condition);
Cooper v. Morgan, 2016 WL 1181793 at *6 (N.D. Ill. 2016) (jury
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could determine that a burn resulting in blisters, a scar, and
discolored skin was a serious medical condition); Walker v. Vargas,
2013 WL 4792765 *8 (S.D.N.Y. 2013) (first and second degree
burns to prisoner’s foot that required daily bandage changes and a
supportive boot qualified as an objectively serious medical
condition); but see Harris v. Horney, 948 F.2d 1292 (7th Cir. 1991)
(finding a reasonable person would not find that a small, seconddegree burn the size of a quarter a serious medical condition). In
this case, Plaintiff allegedly suffered a second-degree burn
significant enough to require daily dressing changes and seven days
off from work. A layperson arguably may have recognized the need
for treatment.
Plaintiff also alleges facts sufficient to allow an inference that
Defendants acted with deliberate indifference. A prison official is
deliberately indifferent only if the official “‘knows and disregards an
excessive risk to [an inmate’s] health or safety.’” Whiting v. Wexford
Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate
indifference may include delays in treating an inmate’s non-lifethreatening medical conditions, even if the delay is only for a few
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days and does not worsen the inmate’s condition. Gomez v. Randle,
680 F.3d 859, 865, 577-78 (7th Cir. 2012); Diaz v. Godinez, 2017
WL 2116175 at *2 (7th Cir. 2017). However, “an inadvertent
mistake or negligence is not enough” to establish deliberate
indifference. Cooper, 2016 WL 1181793 at *6.
Plaintiff’s allegations that Defendants knew that Plaintiff had
been burned, was in pain, and needed medical treatment allow an
inference of deliberate indifference. See, e.g., Lewis v. McLean, 2017
WL 3097864 (7th Cir. 2017) (reversing grant of summary judgment
for officer and nurse who observed inmate’s serious pain and
inability to move but failed to do anything, indicating deliberate
indifference); Smith v. Butler, 2017 WL 1318270 *4 (S.D. Ill. 2017)
(inmate’s displaced finger was an objectively serious injury that
should have been obvious to prison officers who chose to take no
action because of change in shifts); Cooper, 2016 WL 1181793 *7 (a
reasonable jury could find that defendant nurses were deliberately
indifferent based on evidence showing defendants knew prisoner
was in pain but ignored prisoner’s complaints and refused to
provide basic treatment). This case will proceed for service on
Plaintiff’s Eighth Amendment claims.
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IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim for deliberate indifference to his serious medical
needs.
This case proceeds solely on the claims identified in this
paragraph. 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
the date the waiver is sent 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
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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 Opinion. 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.
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6)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
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
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or phone number will result in dismissal of this lawsuit, with
prejudice.
9)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
10)
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.
11)
Plaintiff’s motion for the Court to appoint counsel is
denied (4), with leave to renew after Plaintiff demonstrates that he
has made reasonable efforts to find counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires
writing to several lawyers and attaching the responses. If Plaintiff
renews his motion, he should set forth how far he has gone in
school, any jobs he has held inside and outside of prison, any
classes he has taken in prison, and any prior litigation experience
he has.
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12)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
13)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: August 17, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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