Chadwick v. Lochard et al

Filing 12

MERIT REVIEW OPINION entered by Judge Joe Billy McDade on 11/18/14. IT IS ORDERED that: Plaintiff's motions to file grievances and other documents in support of his complaint and to add factual allegations are granted 10 and 11 . Plaintiff&# 039;s "motion to introduce medical issue" is granted 9 to the extent Plaintiff seeks to inform the Court that he is legally blind. Plaintiff's motion for a status is denied as moot 6 . The Clerk is directed 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. SEE FULL WRITTEN ORDER. (FDT, ilcd)

E-FILED

Tuesday, 18 November, 2014 08:56:54 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DEAN JEFFERY CHADWICK,
Plaintiff,
v.
DR. HUGH LOCHARD, et al.,
Defendants.

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14-CV-3190

MERIT REVIEW OPINION
JOE BILLY MCDADE, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the Lincoln
Correctional Center. He pursues claims arising from an alleged
delay in diagnosing and treating his fractured knee.
Plaintiff alleges that, on January 29, 2014, he slipped on ice
while walking to the prison cafeteria, suffering injuries which
rendered him unable to walk. According to Plaintiff’s Complaint,
Plaintiff sought medical care for his alleged serious pain and
swelling, but he was “treated more like a nuisance than a person in
need of medical treatment.” (Compl. p. 9.) On February 13, 2014,
an x-ray was taken which showed that Plaintiff had fractured his
left knee.
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Deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment. Gomez v. Randle, 680 F.3d 859,
865 (7th Cir. 2012). Plaintiff’s own description of his injury allows
an inference that the injury was serious. However, inferring
deliberate indifference is more difficult. Deliberate indifference is
more than malpractice: Deliberate indifference is the conscious
disregard of an excessive risk to an inmate’s health. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011). Deliberate indifference
arises when a doctor’s decisions are a “‘such a substantial
departure from accepted professional judgment, practice, or
standards, as to demonstrate that the person responsible actually
did not base the decision on such a judgment.’” Sain v. Wood, 512
F.3d 886, 894-95 (7th Cir. 2009)(quoted cite omitted).
On September 16, 2014, the Court ordered Plaintiff to provide
more factual allegations describing what actions were taken by
Defendants during the two weeks between his slip and fall and the
taking of an x-ray. In response, Plaintiff submitted several
documents and some additional factual allegations.
One of the documents submitted—a response to Plaintiff’s
grievance—indicates that during the two weeks between Plaintiff’s
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fall and the x-ray Plaintiff received the following care: Motrin and
Tylenol for pain, instructions to keep his foot and knee elevated,
Bactrim and antibiotics to treat open sores, a slow walk pass, a
bottom bunk permit, and ice packs. He was also kept in the
infirmary for much, but not all, of the time. (d/e 10, p. 9.) X-ray
and labs were ordered on February 7, 2014, and Plaintiff was
admitted to the infirmary on a more permanent basis on February
14, 2014, after the x-ray showed an “acute left tibial plateau
fracture.” Id.
Plaintiff does not appear to dispute that he received the care
set forth in the above paragraph. What he seems to challenge is an
alleged delay in the diagnosis of the fracture; an alleged refusal to
prescribe effective pain medicine; the doctor’s alleged instruction to
Plaintiff to walk on his injured knee; and, an alleged delay in
providing Plaintiff a wheelchair.
In particular, Plaintiff alleges that he was sent from the
infirmary back to his cell on January 30 or 31, 2014, but that he
returned to the health care unit on February 3, 2014, complaining
that he could not stand on his leg. He was allegedly in so much
pain that tears were running down his face. (d/e 10, p. 11.) The
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nurses allegedly admitted Plaintiff to the infirmary but refused
Plaintiff’s pleas for stronger pain medicine and refused to empty his
urine bottle, forcing Plaintiff to urinate in a nearby trashcan. Id.
Plaintiff allegedly saw Dr. Obaisi on February 7, 2014, who told
Plaintiff that his ankles were badly sprained and that Plaintiff
should “walk it out.” On February 8, 2014, still in the infirmary,
Plaintiff was ordered to “ambulate” with a walker in order to help
relieve his pain. (d/e 11, p. 2.) Plaintiff’s requests for stronger pain
medicine were again allegedly refused. On February 12, 2014,
Plaintiff was allegedly released from the infirmary despite his
protestations and again told to “walk it off,” even though Plaintiff
told the health care staff that something was seriously wrong
because he could not walk on the leg or bear any weight on the leg.
Plaintiff alleges that he could not walk to the prison cafeteria or
stand for his shower. On February 13, 2014, Plaintiff did manage
to walk, allegedly with great difficulty and pain, to receive an x-ray,
which showed that his knee was fractured. Id. p. 3. A wheel chair
was allegedly still not ordered for Plaintiff until 45 days after his
injury. Id.

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In addition to these more detailed factual allegations, Plaintiff
has provided a March, 2014, preoperative report from an orthopedic
surgeon which seems to suggest that Plaintiff’s weight bearing after
the injury caused further harm to the structure of Plaintiff’s knee.
The report reads in pertinent part:
Since films that are given to us are on a CD, they are
reviewed and dated February 13, 2014, show an acuteappearing proximal tibial medial plateau fracture;
however, patient has been full weight bearing. Therefore,
x-rays are repeated and there is significant collapse of
the entire medial plateau, widening of the intercondylar
notch of the tibia. This is now a displaced and angulated
tibia apparent[ly] due to the patient’s full weight bearing.
I do not know what restrictions were placed on the
patient initially after injury or after the diagnosis made
with this x-ray.
(Dr. Olysav March 2014 Report, d/e 10, p. 19.) Another report
indicates that Plaintiff had knee surgery in May, 2014. (Dr.
Olysav July 2014 report, d/e 10, p. 20.)
The Court concludes that Plaintiff’s additional factual
allegations allow an inference that Defendants were
deliberately indifferent to his injury. Plaintiff alleges that he
suffered severe and unnecessary pain, as well as further
structural damage to his knee, as a result of the delay in
diagnosis, the instruction to “walk it off,” and the refusal to
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provide effective pain relief. “[A] delay in the provision of
medical treatment for painful conditions—even non-lifethreatening conditions—can support a deliberate-indifference
claim, . . . , so long as the medical condition is ‘sufficiently
serious or painful.’” Grieveson v. Anderson, 538 F.3d 763, 779
(7th Cir. 2008)(reversing summary judgment to the defendants
on a prisoner’s claim of a 1 ½ day delay in obtaining medical
care for the prisoner’s broken nose)(quoted and other cites
omitted); see also Williams v. Liefer, 491 F.3d 710, 715 (7th
Cir.2007)(whether a six-hour delay in obtaining medical
treatment for a prisoner’s chest pain prolonged and
exacerbated his pain and high blood pressure was a jury
question); Gil v. Reed, 381 F.3d 649, 662 (7th Cir.
2004)(unjustified delay in providing prescribed antibiotic could
allow jury to conclude that delay caused prisoner “many more
hours of needless suffering for no reason.”) Accordingly, this
case will proceed for service pursuant to the standard
procedures.
Plaintiff has also filed a “motion to introduce a medical
issue.” (d/e 9.) He states that he is legally blind, his left eye
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having been amputated. Plaintiff does not appear to be trying
to add this as a claim. He appears to simply be informing the
Court of his disability. The Court will take that disability into
account when ruling on Plaintiff’s renewed motion for counsel.
IT IS THEREFORE ORDERED:
1)

Plaintiff’s motions to file grievances and other documents

in support of his complaint and to add factual allegations are
granted (10, 11).
2)

Plaintiff’s “motion to introduce medical issue” is granted

(9) to the extent Plaintiff seeks to inform the Court that he is legally
blind.
3)

Plaintiff’s motion for a status is denied as moot (6).

4)

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 regarding the injury he suffered on January 29, 2014.

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.
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5)

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.
6)

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
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
7)

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
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addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
8)

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.
9)

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
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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.
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 deposition.
11)

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.
12)

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).

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13)

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.
14)

The clerk is directed to attempt service on

Defendants pursuant to the standard procedures.
15)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: November 18, 2014.
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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