Buckhanan v. Bell et al
Filing
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MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 11/7/2013. The Clerk is directed to attempt service on defendants, show plaintiff's motion for appointment of counsel 4 as DENIED. See written opinion. (KMR, ilcd) Modified on 11/7/2013: Copy mailed to Plaintiff at Danville CC. (KMR, ilcd).
E-FILED
Thursday, 07 November, 2013 01:55:49 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
CHARLES BUCKHANAN,
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) No.: 13-2236-SEM-BGC
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Plaintiff,
v.
MICHELLE BELL, FELICIA
PEARSON, STEVE WHITE,
MARY MILLER, PAUL TALBOT,
and WEXFORD HEALTH
SOURCES, INC.,
Defendants.
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court for a merit review, pursuant to
28 U.S.C. § 1915A, of Plaintiff Charles Buckhanan’s claims.
I.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is
required to carefully screen a complaint filed by a plaintiff who
seeks to proceed in forma pauperis. The Court must dismiss a
complaint, or a portion thereof, if the plaintiff has raised claims that
are legally “frivolous or malicious,” that fails to state a claim upon
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which relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. Id. The test for
determining if an action is frivolous or without merit is whether the
plaintiff can make a rational argument on the law or facts in
support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A complaint fails to state a claim for relief if the complaint does not
allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In reviewing the complaint, the Court accepts the factual
allegations as true and liberally construes them in plaintiff’s favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. July 3, 2013).
Conclusory statements and labels are insufficient. Fed. R. Civ. P. 8;
Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st
Cir. 2012)(holding that, in order to determine if a complaint states a
plausible claim, the court must take non-conclusory, nonspeculative facts as true, draw all reasonable inferences in the
pleader’s favor, and isolate and ignore statements that simply
rehash claim elements or offer only legal labels and conclusions).
Instead, sufficient facts must be provided to “state a claim for relief
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that is plausible on its face.” Alexander v. United States, 721 F.3d
418, 422 (7th Cir. 2013)(internal quotation omitted).
II.
ANALYSIS
Buckhanan attempts to state two causes of action in his
Complaint. Buckhanan’s first cause of action is brought pursuant
to 28 U.S.C. § 1983 and is premised upon alleged violations of his
Eighth Amendment rights. Specifically, Buckhanan alleges that
Defendants Michelle Bell, Felicia Pearson, Steve White, Mary Miller,
and Dr. Paul Talbot misdiagnosed his stomach ailment and
symptoms as constipation when, in fact, he suffered from an
infected gallbladder. Buckhanan alleges that, after a week of pain,
suffering, and inappropriate treatments, he was rushed to the
hospital where he underwent emergency surgery to remove his
gallbladder. Buckhanan avers that, as a result of Defendants’
misdiagnosis and incorrect treatments, he has suffered permanent
physical and psychological injury.
Buckhanan’s second cause of action is also brought pursuant
to § 1983. Buckhanan alleges that Wexford maintains a policy and
practice of hiring people so incompetent that they routinely violate
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inmates’ constitutional rights. Buckhanan’s third claim is based
upon state law. Buckhanan claims that Defendant Wexford Health
Sources, Inc., “steadily employs incompetent people.” The Court
interprets Buckhanan’s claim against Wexford Health to be a
negligent hiring or a negligent supervision claim over which he
wants this Court to exercise supplemental jurisdiction. 28 U.S.C. §
1367.
The Eighth Amendment prohibits punishments that are
incompatible with “evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101
(1958). “The Eighth Amendment safeguards the prisoner against a
lack of medical care that may result in pain and suffering which no
one suggests would serve any penological purpose.” Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011)(internal quotations and
footnote omitted). “Prison officials violate the Constitution if they
are deliberately indifferent to prisoners’ serious medical needs.” Id.
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)); Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)
(“Deliberate indifference to serous medical needs of a prisoner
constitutes the unnecessary and wanton infliction of pain forbidden
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by the Constitution.”); Walker v. Benjamin, 293 F.3d 1030, 1036-37
(7th Cir. 2002)(noting that the Eighth Amendment applies to the
states through the Fourteenth Amendment).
The deliberate indifference standard requires an inmate to
clear a high threshold in order to maintain a claim for cruel and
unusual punishment under the Eighth Amendment. Dunigan ex rel.
Nyman v. Winnebago County, 165 F.3d 587, 590 (7th Cir. 1999). “In
order to prevail on a deliberate indifference claim, a plaintiff must
show (1) that his condition was ‘objectively, sufficiently serious’ and
(2) that the ‘prison officials acted with a sufficiently culpable state of
mind.” Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008)(quoting
Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005)); Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)(same).
“A medical condition is serious if it ‘has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would perceive the need for a doctor’s attention.’”
Lee, 533 F.3d at 509 (quoting Greeno, 414 F.3d at 653). “With
respect to the culpable state of mind, negligence or even gross
negligence is not enough; the conduct must be reckless in the
criminal sense.” Id.; Farmer v. Brennan, 511 U.S. 825, 836-37
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(1994)(“We hold . . . that a prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be
drawn that a substantial risk of harm exists, and he must also
draw the inference.”).
In other words,
[d]eliberate indifference is not medical malpractice; the
Eighth Amendment does not codify common law torts.
And although deliberate means more than negligent, it is
something less than purposeful. The point between these
two poles lies where the official knows of and disregards
an excessive risk to inmate health or safety or where the
official is both aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he . . . draw the inference. A jury can infer
deliberate indifference on the basis of a physician’s
treatment decision when the decision is so far afield of
accepted professional standards as to raise the inference
that it was not actually based on a medical judgment.
Duckworth, 532 F.3d at 679 (internal quotations and citations
omitted). The Seventh Circuit has cautioned, however, that “[a]
prisoner . . . need not prove that the prison officials intended, hoped
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for, or desired the harm that transpired. Nor does a prisoner need
to show that he was literally ignored. That the prisoner received
some treatment does not foreclose his deliberate indifference claim
if the treatment received was so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate his
condition.” Arnett, 658 F.3d at 751 (internal citations and
quotations omitted).
Buckhanan’s Complaint states a claim for deliberate
indifference to a serious medical need. Buckhanan’s main
complaint is that Defendants misdiagnosed and mistreated his
condition. But Buckhanan also alleges that Defendants
intentionally misdiagnosed his gallbladder condition and
intentionally mistreated him. If these allegations are true,
Defendants’ actions constitute more than medical malpractice, and
Buckhanan’s allegation is enough to state a cause of action for
deliberate indifference under the Eighth Amendment. Arnett, 658
F.3d at 751; Smith v. Jenkins, 919 F.2d 90, 92-93 (8th Cir. 1990)
(physician’s decision to intentionally mistreat inmate can constitute
deliberate indifference).
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The Court cannot summarily dismiss Buckhanan’s claims
against Wexford Health either. Buckhanan can establish liability
under this cause of action by identifying an official policy, a practice
or custom that is wide-spread and well-settled, or an official with
final policy-making authority. Thomas v. Cook County Sheriff’s
Dept., 604 F.3d 292, 303 (7th Cir. 2010). Buckhanan’s allegations
regarding Wexford Health’s policy or practice is sufficient at this
point.
Likewise, Buckhanan’s allegations are sufficient at this point
to state a cause of action for negligent hiring ro supervision under
state law.
Claims for negligent hiring and negligent retention
require a plaintiff to establish:
“(1) that the employer knew or should have known
that the employee had a particular unfitness for the
position so as to create a danger of harm to third
persons; (2) that such particular unfitness was
known or should have been known at the time of
the employee's hiring or retention; and (3) that this
particular unfitness proximately caused the
plaintiff's injury.” Van Horne v. Muller, 185 Ill.2d
299, 311, 235 Ill. Dec. 715, 705 N.E.2d 898, 904
(1998).
The tort of negligent supervision has not been
distinguished from the tort of negligent retention.
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Helfers-Beitz v. Degelman, 406 Ill.App.3d 264, 268, 939 N.E.2d
1087, 1091, 345 Ill. Dec. 907, 911 (Ill. App Ct. 2010).Buckhanan’s
Complaint contains facts regarding these essential elements
Finally, Buckhanan has filed a motion asking the Court to
appoint counsel to represent him. The Court does not possess the
authority to require an attorney to accept pro bono appointments
on civil cases such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). The most that the Court can do is to ask for volunteer
counsel. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.
1992)(holding that it is a “fundamental premise that indigent civil
litigants have no constitutional or statutory right to be represented
by counsel in federal court.”).
In determining whether the Court should attempt to find an
attorney to voluntarily take a case, “the question is whether the
difficulty of the case—factually and legally—exceeds the particular
plaintiff’s capacity as a layperson to coherently present it to the
judge or jury himself. . . . The question is whether the plaintiff
appears competent to litigate his own claims, given their degree of
difficulty, and this includes the tasks that normally attend
litigation: evidence gathering, preparing and responding to motions
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and other court filings, and trial.” Pruitt, 503 F.3d at 655 (emphasis
in original). In other words, this inquiry is an individualized one
based upon the record as a whole, the nature of the claims, and the
plaintiff’s ability to pursue his claims through all phases of the
case, including discovery and trial. Navejar v. Iyioloa, 718 F.3d 692,
696 (7th Cir. 2013).
Here, Buckhanan appears to be literate and has filed cogent
pleadings with the Court. His claim is not so novel or complex that
he cannot litigate it himself. Buckhanan has personal knowledge of
the facts supporting his claim and appears cable of cross-examining
Defendants regarding their version of the events. Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Accordingly, the
Court finds that, based upon the current record, Buckhanan
appears competent to litigate this case himself and denies his
motion for appointment of counsel.
IT IS, THEREFORE, ORDERED that:
1.
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff’s Complaint states a
claim against Defendants Bell, Pearson, White, Miller, and Talbot
for deliberate indifference to a serious medical need in violation of
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his Eighth Amendment rights and against Defendant Wexford
Health for maintaining a harmful policy or practice regarding the
hiring of its staff and against Wexford Health for negligent hiring or
negligent supervision. Any additional claim(s) shall not be included
in the case except at the Court’s discretion on a 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
a waiver of service. Defendants have 60 days from service to file an
Answer. If Defendants have not filed an Answer 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
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has been served, the Court will enter an order setting discovery and
dispositive motion deadlines.
4.
With respect to a Defendant(s) who no longer works at
the address provided by Plaintiff, the entity for whom that
Defendant(s) 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.
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6.
Once counsel has appeared for Defendants, 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.
IT IS FURTHER ORDERED THAT THE CLERK IS
DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO
THE STANDARD PROCEDURES;
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2) 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
3) SHOW PLAINTIFF’S MOTION FOR APPOINTMENT OF
COUNSEL [D/E 4] AS DENIED.
LASTLY, IT IS ORDERED THAT IF A DEFENDANT 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. MARHSAL’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).
ENTER: November 7, 2013
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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