Key v. Brown et al

Filing 11

MERIT REVIEW OPINION: Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. This case is therefore terminated. The clerk is directed to enter a judgment pursuant to F ed. R. Civ. P. 58. Plaintiffs Motion for a Temporary Restraining Order 5 is DENIED. All other pending motions are DENIED as moot. This dismissal shall count as one of the plaintiff's three allotted strikes pursuant to 28 U.S.C. Section 1915 (g). Plaintiff must still pay the full docketing fee of $350 even though his case has been dismissed. If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 3/5/2015. (GL, ilcd)

E-FILED

Thursday, 05 March, 2015 08:55:45 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DAJUAN KEY,
Plaintiff,
v.
CORP. BROWN, et al.,
Defendants.

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14-2286

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated in Jerome Combs
Detention Center, files this civil rights complaint pursuant to 42
U.S.C. § 1983, alleging deliberate indifference to a serious medical
need and failure to protect from harm in violation of the Fourteenth
Amendment. In addition, Plaintiff seeks a temporary restraining
order.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the
factual allegations as true, liberally construing them in Plaintiff's
favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
However, conclusory statements and labels are insufficient.

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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).
ALLEGATIONS
Plaintiff alleges that his previously prescribed psychotropic
medications were discontinued at the direction of Defendant John
Doe, the physician’s assistant at Jerome Combs Detention Center.
Plaintiff alleges that three weeks elapsed from the time the
medications were discontinued until Plaintiff was seen by the
physician’s assistant, at which point Plaintiff tried to explain that,
when administered, the dosage of the psychotropic medications was
too low. As a result, Plaintiff alleges that he obtained and ingested
medications from other prisoners. Plaintiff’s requests to be
examined by a licensed psychiatrist were denied, as were his
requests to take his medications in front of the medical staff.
Subsequently, Plaintiff alleges he informed the prison staff that he
was having suicidal thoughts, and began cutting his arms. Over
approximately the next eight (8) days, Plaintiff alleges that he was
placed in a restraint chair several times without medical staff

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supervision, improperly removed from suicide watch, and was
denied medical treatment.
ANALYSIS
At the time of the alleged constitutional violation, Plaintiff was
a pretrial detainee at Jerome Combs Detention Center. As a pretrial
detainee, a prisoner’s claim alleging unconstitutional conditions of
confinement is governed by the Fourteenth Amendment Due
Process Clause, rather than the Eighth Amendment prohibition
against cruel and unusual punishment. Mayoral v. Sheahan, 245
F.2d 934, 938 (7th Cir. 2001). Despite this distinction, there exists
“little practical difference between the two standards.” Id. (quoting
Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000)).
Deliberate Indifference to a Serious Medical Need
Plaintiff alleges that Defendant John Doe, the physician’s
assistant, was deliberately indifferent to his serious mental health
needs because he (Doe) discontinued Plaintiff’s medications without
first completing a medical assessment, refused to re-prescribe
Plaintiff’s psychotropic medications, and denied Plaintiff’s requests
to see a psychiatrist.

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To prevail, Plaintiff must show that prison officials acted with
deliberate indifference to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 104 (1976). Deliberate indifference is more than
negligence, but does not require the plaintiff to show that the
defendants intended to cause harm. Mayoral, 245 F.3d at 938.
Liability attaches under the Eighth Amendment when “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 serious harm
exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994).
Plaintiff alleges that he had previously been diagnosed with
schizoaffective disorder, bipolar disorder, and Post Traumatic Stress
Disorder, and, therefore, has shown that he suffers from a serious
medical need. See King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.
2012) (“An objectively serious medical need is 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.” (internal quotations omitted)).

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Plaintiff, however, has not shown that Defendant John Doe
was deliberately indifferent to his medical need. Plaintiff does not
allege that he received no medical treatment, only that the
treatment he received was not what he desired. A mere
disagreement with the course of treatment does not constitute a
claim for deliberate indifference to a serious medical need. Snipes
v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (citations omitted).
Plaintiff alleges that he went three weeks without receiving
psychotropic medication and alleges no ill effects. According to the
Complaint, Plaintiff’s alleged suicidal thoughts did not originate
until after the physician’s assistant refused to re-prescribe the
medication. Plaintiff has not alleged any facts that show Defendant
John Doe could have been aware of the risk of Plaintiff cutting
himself prior to his examination on October 31, 2014. Arguably,
the only risk readily apparent at that time was the risk involved
with Plaintiff taking unprescribed medications he obtained from
other prisoners, which, it appears, the defendant attempted to
remedy. Furthermore, Plaintiff’s claim that he was refused a
referral to a psychiatrist does not rise to the level of constitutional
scrutiny. See id. at 592 (“[T]he Constitution is not a medical code
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that mandates specific medical treatment.”); Pyles v. Fahim, 771
F.3d 403, 411 (7th Cir. 2014) (“A prison physician is not required to
authorize a visit to a specialist in order to render constitutionally
acceptable medical care.”). Plaintiff, therefore, has failed to state a
claim against Defendant John Doe.
As to the 14 remaining defendants, the exhibits Plaintiff
provided with his Complaint, as well as the allegations contained
therein, indicate that each time Plaintiff cut himself, prison staff
provided medical care to the Plaintiff. In addition, the only factual
allegation against Defendant Amy “Jane Doe” is that she was
present during Defendant John Doe’s examination of Plaintiff.
From the facts alleged, the Court cannot find that the remaining
defendants were deliberately indifferent to Plaintiff’s serious medical
need.
Failure to Protect
Prison officials have a duty to protect inmates from harm.
Farmer, 511 U.S.at 832. This duty includes protecting inmates
from self-inflicted harm. Cf. Hall v. Ryan, 957 F.2d 402, 405 (7th
Cir. 1992) (prison officials must protect inmate from harm,
including known suicidal tendencies). To succeed on a failure to
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protect claim, a plaintiff must show (1) “that he is incarcerated
under conditions posing a substantial risk of serious harm,” and,
(2) prison officials acted with “deliberate indifference” to that risk.
Farmer, 511 U.S. at 834.
Plaintiff alleges that Defendants Aramovich, Emery, Jurgens,
Mayo, O’Neil, Nolan, and Coash failed to protect him from inflicting
self-harm by not immediately granting Plaintiff’s requests to be
placed into a restraint chair. Plaintiff also alleges that Defendants
Brown, Lesage, and Voss “turned a blind eye” to his situation and,
therefore, were deliberately indifferent. According to the Complaint
and the exhibits submitted, the Defendants notified supervisors of
Plaintiff’s ongoing situation, provided prompt first aid, removed
potentially harmful items from Plaintiff’s cell, secured Plaintiff in a
restraint chair, and placed Plaintiff on suicide watch, when
appropriate. From this record, the Court cannot say that the
Defendants were deliberately indifferent.
Plaintiff alleges that Defendants Schultz (Assistant Chief of
Corrections), Kolitwenzew (Chief of Corrections), and Bukowski
(Sheriff) were deliberately indifferent because the jail did not have
“licensed mental health staff” at the jail. Plaintiff acknowledges that
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the jail had a physician’s assistant and psychological social worker
available. Plaintiff does not allege any specific personal involvement
on the part of these defendants, and they cannot be held liable
under a theory of respondeat superior. See Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009) (government officials cannot be held liable “for
the unconstitutional conduct of their subordinates under a theory
of respondeat superior.”).
Temporary Restraining Order/Preliminary Injunction
A preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997); accord Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction
is an extraordinary remedy never awarded as of right”). To prevail,
“the moving party must demonstrate: (1) a likelihood of success on
the merits; (2) a lack of an adequate remedy at law; and (3) an
irreparable harm will result if the injunction is not granted.”
Foodcomm Int’l v Barry, 328 F.3d 300, 303 (7th Cir. 2003)
(citations omitted). If the moving party meets the first three
requirements, then the district court balances the relative harms
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that could be caused to either party. Incredible Tech., Inc. v. Virtual
Tech., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005).
The Prisoner Litigation Reform Act (PLRA) limits the scope of
the court's authority to enter an injunction in the corrections
context. Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012).
Under the PLRA, preliminary injunction relief “must be narrowly
drawn, extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least intrusive
means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); see
also Westefer, 682 F.3d at 683 (the PLRA “enforces a point
repeatedly made by the Supreme Court in cases challenging prison
conditions: prison officials have broad administrative and
discretionary authority over the institutions they manage.” (internal
quotation marks and citation omitted)).
The purpose of a temporary restraining order and ultimately a
preliminary injunction is to preserve the status quo pending a final
hearing on the merits of the case. American Hospital Ass’n v
Harris, 625 F.2d 1328, 1330 (7th Cir. 1980). The relief Plaintiff
seeks here is different. The Seventh Circuit has described the type
of injunction Plaintiff seeks, where an injunction would require an
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affirmative act by the defendant, as a mandatory preliminary
injunction. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th
Cir. 1997). Mandatory injunctions are “cautiously viewed and
sparingly issued,” because they require the court to command a
defendant to take a particular action. Id. (citing Jordan v. Wolke,
593 F.2d 772, 774 (7th Cir. 1978)).
As discussed above, Plaintiff’s allegations and attached
exhibits do not show that Plaintiff has a reasonable likelihood of
success on the merits. Therefore, Plaintiff has not satisfied the first
prong of the analysis, and Plaintiff’s Motion for a Temporary
Restraining Order is denied.
IT IS THEREFORE ORDERED:
1)

Plaintiff's complaint is dismissed for failure to state a

claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A.
Any amendment to the Complaint would be futile because Plaintiff
is not constitutionally entitled to the relief he seeks. This case is
therefore terminated. The clerk is directed to enter a judgment
pursuant to Fed. R. Civ. P. 58. Plaintiff’s Motion for a Temporary
Restraining Order [5] is DENIED. All other pending motions are
DENIED as moot.
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2)

This dismissal shall count as one of the plaintiff's three

allotted “strikes” pursuant to 28 U.S.C. Section 1915(g). The Clerk
of the Court is directed to record Plaintiff's strike in the three-strike
log.
3)

Plaintiff must still pay the full docketing fee of $350 even

though his case has been dismissed. The agency having custody of
Plaintiff shall continue to make monthly payments to the Clerk of
Court, as directed in the Court's prior order.
4)

If Plaintiff wishes to appeal this dismissal, he must file a

notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in
forma pauperis should set forth the issues Plaintiff plans to present
on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose
to appeal, he will be liable for the $455 appellate filing fee
irrespective of the outcome of the appeal.
ENTERED:

March 5, 2015

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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