White v. Downy et al

Filing 7

ORDER MERIT REVIEW OPINION: Plaintiff's complaint is dismissed without prejudice for failure to state a claim. Plaintiff may file an amended complaint by March 17, 2017. If Plaintiff does not file an amended complaint or Plaintiff's amended complaint still fails to state a claim, then this action will be dismissed for failure to state a claim and a strike will be assessed against Plaintiff. Entered by Judge Sue E. Myerscough on 02/17/2017. (SKN, ilcd)

E-FILED

Friday, 17 February, 2017 03:45:28 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
LEWIS E. WHITE, JR.,
Plaintiff,
v.
SHERIFF DOWNEY, et al.,
Defendants.

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16-CV-2371

MERIT REVIEW OPINION
Plaintiff filed this case pro se from the Jerome Combs
Detention Center. The case is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A.1 This statute requires the Court to
review a complaint filed by a prisoner to identify the cognizable
claims and to dismiss part or all of the complaint if no claim is
stated.
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,

1

 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 (without prepaying the filing fee in full) unless the prisoner is under 
“imminent danger of serious physical injury.”  28 U.S.C. § 1915(g). 

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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 takes unidentified psychological
medicines with side effects that caused him to fall out of the top
bunk on September 15, 2016. He believes he never should have
been placed on the top bunk because of those medications. Plaintiff
also alleges that Correctional Officer Memenga and Nurse Becky2
moved Plaintiff off the floor after he fell even though Plaintiff was in
great pain, and that they did not get Plaintiff to a hospital or doctor
until four days later. Plaintiff alleges that he is still suffering from
his injuries.
The Court presumes that Plaintiff is a pretrial detainee, which
means that his claim arises from the Fourteenth Amendment’s Due
Process Clause, but the analysis is essentially indistinguishable
from an Eighth Amendment analysis. Thomas v. Cook County
Sheriff’s Dept., 604 F.3d 293, 301 n.2 (7th Cir. 2010); Chapman v.
Keltner, 241 F.3d 842, 845 (7th Cir. 2001). Plaintiff must allege

2

 This appears to be the nurse’s name, but the Complaint is somewhat illegible. 

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facts which allow a plausible inference of "(1) an objectively serious
injury or medical need was deprived; and (2) the [named defendant]
knew that the risk of injury was substantial but nevertheless failed
to take reasonable measures to prevent it." Chapman, 241 F.3d at
845.
To state a constitutional claim based on Plaintiff’s placement
on the top bunk, Plaintiff must allege facts to plausibly suggest that
the individual responsible for that placement was deliberately
indifferent to a substantial risk of serious harm. Deliberate
indifference means that the individual responsible for the placement
actually knew that Plaintiff’s placement on the top bunk presented
a serious risk of substantial harm and consciously disregarded that
risk. Thomas v. Cook County Sheriff's Dept., 604 F.3d 293, 301
(7th Cir. 2010). Negligence—a claim that the individual should
have known Plaintiff needed a bottom bunk—is not enough to state
a constitutional claim.  McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir. 2010)(“[N]egligence, even gross negligence, does not violate the
Constitution.”)
On Plaintiff’s claim of denial of medical care, he must allege
facts to plausibly suggest deliberate indifference to a serious
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medical need. A “serious medical need” is a need diagnosed by a
doctor as needing treatment, or a need so obvious that even a
layperson would recognize the need for treatment. Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014). Deliberate indifference means
that an individual actually knew that Plaintiff had a serious medical
need and consciously disregarded that need. Duckworth v. Ahmad,
532 F.3d 675, 679 (7th Cir.2008). An employee without medical
training is generally entitled to rely on the judgment of the medical
staff. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005)(“‘If a
prisoner is under the care of medical experts... a nonmedical prison
official will generally be justified in believing that the prisoner is in
capable hands.’”)(quoted cite omitted).
The individuals in charge such as the Sheriff, the Chief of
Corrections, and the Assistant Chief of Corrections cannot be held
liable simply because they are in charge. Brown v. Randle, --- F.3d
---, 2017 WL 491155 *3 (7th Cir. 2017). They must have personally
known that Plaintiff was assigned to the top bunk and also that the
top bunk presented a substantial risk of serious harm to Plaintiff.
They must have personally known that Plaintiff was being denied
access to medical care.
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The allegations in Plaintiff’s complaint do not allow a plausible
inference of deliberate indifference against the named Defendants.
Plaintiff does not explain how each of these Defendants knew about
Plaintiff’s medications or that the medications put Plaintiff at risk
from falling off the top bunk. Plaintiff does not explain his efforts to
obtain medical care after the injury and the responses he received.
He does not set forth what medical care he has received for the
injuries. Additionally, only the individuals responsible can be sued.
The “health care staff” cannot be sued.
In sum, no plausible inference arises on these allegations that
the named Defendants were actually aware of a substantial risk of
harm to Plaintiff or were aware that Plaintiff was not receiving
medical care for a serious medical need. Plaintiff’s complaint will be
dismissed for failure to state a claim, without prejudice to filing an
amended complaint providing more factual detail.
IT IS ORDERED:
1)

Plaintiff's complaint is dismissed without prejudice for

failure to state a claim pursuant to 28 U.S.C. § 1915A.

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2) Plaintiff may file an amended complaint by March 17,
2017. If Plaintiff does not file an amended complaint or Plaintiff’s
amended complaint still fails to state a claim, then this action will
be dismissed for failure to state a claim and a strike will be
assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If Plaintiff
files an amended complaint, the amended complaint will replace the
original complaint. Piecemeal amendments are not permitted.
ENTERED: February 17, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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