Span v. Baker et al
Filing
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OPINION: The merit review scheduled for February 27, 2012, is cancelled. The clerk is directed to vacate the writ and to notify Plaintiff's prison of the cancellation. Rule 16 Scheduling Conference set for 4/2/2012 01:30 PM (or as soon as the Court can reach the case) before Judge Sue E. Myerscough by video conference from Springfield (court to initiate conference). SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 2/22/12. (ME, ilcd)
E-FILED
Wednesday, 22 February, 2012 11:07:35 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
EARLIE SPAN, JR.,
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Plaintiff,
v.
DR. THOMAS BAKER,
DEBRA FUQUA, and
RICHARD YOUNG,
Defendants.
12-CV-3007
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently incarcerated in Western
Illinois Correctional Center, pursues claims arising from an alleged failure
to timely treat a bone infection in Plaintiff’s elbow. The case is before
the Court for a merit review pursuant to 28 U.S.C. § 1915A.
LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed by a
prisoner against a governmental entity or officer and, through such
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process, to identify cognizable claims, dismissing any claim that is
“frivolous, malicious, or fails to state a claim upon which relief may be
granted.” A hearing is held if necessary to assist the Court in this review,
but, in this case, the Court concludes that no hearing is necessary. The
Complaint and its attachments are clear enough on their own for this
Court to perform its merit review of Plaintiff’s Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a
claim, the allegations must set forth a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Factual allegations must give enough detail to give “‘fair notice
of what the . . . claim is and the grounds upon which it rests.’” EEOC v.
Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add’l citation
omitted). The factual “allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a ‘speculative
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level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged . . . . Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550
U.S. at 555-56. However, pro se pleadings are liberally construed when
applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009).
ALLEGATIONS
In or around May, 2011, Plaintiff began experiencing problems
with his left elbow, including painful swelling. Defendant Dr. Thomas
Baker ordered x-rays and prescribed pain medicine, then a string of
antibiotics after the swelling and pain continued to worsen. Eventually,
Dr. Baker told Plaintiff that the elbow was not infected, discontinued the
antibiotics, and refused to drain the swelling. Plaintiff’s elbow allegedly
continued to worsen. In September, 2011, some prison nurses allegedly
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arranged for Plaintiff to see another doctor, who performed some kind of
emergency surgery and ordered Vicodin and antibiotics. Plaintiff was
later taken to an orthopedic specialist, who determined that Plaintiff had
an infection in his bone and needed reconstructive surgery. He was
scheduled to have the surgery in December, 2011, but he is still waiting
and his pain and suffering continues. Plaintiff further alleges that
Defendant Fuqua, the health care administrator, failed to timely schedule
his examinations and treatments.
ANALYSIS
Plaintiff states a plausible Eighth Amendment claim against Dr.
Baker for deliberate indifference to Plaintiff’s serious medical needs
regarding his elbow. Plaintiff’s own description of his symptoms allows a
plausible inference that his elbow condition is serious, and Dr. Baker’s
alleged persistence in pursuing ineffective treatment allows a plausible
inference of deliberate indifference. Greeno v. Daley, 414 F.3d 645, 655
(7th Cir. 2005)(doctor’s persistence in prescribing ineffective treatment
that prolonged pain and suffering violated Eighth Amendment).
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Whether a claim is stated against Defendant Fuqua, the health care
administrator, is unclear. Fuqua is generally entitled to rely on Dr.
Baker’s professional treatment decisions. 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).
However, Plaintiff alleges that Defendant Fuqua failed to timely schedule
Plaintiff for examinations and treatment. At this point, an Eighth
Amendment claim against Defendant Fuqua will remain in the case for
further development.
As for Defendant Warden Young, he too is entitled to rely on Dr.
Baker’s determinations. However, an outside orthopedist has determined
that Plaintiff needs surgery, yet the surgery has not occurred. Whether
Warden Young is responsible for that cannot be determined on this
record. Additionally, Warden Young may need to be a defendant for
purposes of obtaining injunctive relief.
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IT IS THEREFORE ORDERED:
1) The merit review scheduled for February 27, 2012, is cancelled.
The clerk is directed to vacate the writ and to notify Plaintiff’s prison of
the cancellation.
2) Pursuant to its merit review of the Complaint under 28 U.S.C. §
1915A, the Court finds that Plaintiff states Eighth Amendment claims
for deliberate indifference to his serious medical needs. 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.
3) The Clerk is directed to send to each Defendant pursuant to this
District's internal procedures: 1) a Notice of Lawsuit and Request for
Waiver of Service; 2) a Waiver of Service; 3) a copy of the Complaint;
and, 4) this order.
4) 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 on that Defendant and will
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require that Defendant to pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2).
5) 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 effecting 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.
6) Defendants shall file an answer within the time prescribed by
Local Rule. 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.
7) Plaintiff shall serve upon any Defendant who has been served
but who is not represented by counsel a copy of every filing submitted by
Plaintiff for consideration by the Court, and shall also file a certificate of
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service stating the date on which the copy was mailed. Any paper
received by a District Judge or Magistrate Judge that has not been filed
with the Clerk or that fails to include a required certificate of service will
be stricken by the Court.
8) 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.
9) This cause is set for further scheduling procedures under Fed. R.
Civ. P. 16 on April 2, 2012 at 1:30 p.m. (or as soon as the Court can
reach the case) before U. S. District Judge Sue E. Myerscough, by video
conference. The Clerk is directed to give Plaintiff's place of confinement
notice of the date and time of the conference, and to issue the
appropriate process to secure the Plaintiff's presence at the conference.
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10) Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the depositions.
11) Plaintiff shall immediately notify the Court 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.
12) The Clerk is to notify the parties of their option to consent to
disposition of this case before a United States Magistrate Judge by
providing Plaintiff with a magistrate consent form. Upon receipt of a
signed consent from Plaintiff, the Clerk shall forward the consent to
Defendants for consideration.
ENTERED: 2/22/2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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