Milsap v. Baker et al
Filing
7
MERIT REVIEW OPINION: 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. The Plaintiff's motion for appointment of counsel is denied with leave to renew 3 . Plaintiffs motion for a merit review order is denied as moot 6 .(SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 2/24/2015. (GL, ilcd)
E-FILED
Tuesday, 24 February, 2015 09:04:57 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JAMES MILSAP,
Plaintiff,
)
)
)
)
)
)
)
v.
Dr. BAKER,
Defendants.
14-CV-3376
MERIT REVIEW OPINION
Sue E. Myerscough, U.S. District Judge.
The case is 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.
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
The Plaintiff, a pro se prisoner, claims Defendants Dr. Baker,
Nurse Practioner Jane Doe, Warden Jeff Korte and Grievance
Counselor Tara Goins violated his constitutional rights at Western
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Illinois Correctional Center when they denied him adequate medical
care. The Plaintiff says he has a long history of body pain and
weakness and has repeatedly asked for an M.R.I, but his requests
were denied. The Plaintiff says he has received Tylenol for pain, but
the Tylenol does not help.
The Plaintiff has provided a copy of his March 16, 2014
grievance concerning his medical care which clarifies his claims.
The Plaintiff claims he suffers with “sharp and horrendous pain in
my lower back, hips and legs” which has sent him “falling to the
ground.” (Comp., p. 9-10). Grievance Counselor Goins referred the
Plaintiff’s complaints to Dr. Baker for a response. The doctor noted
the Plaintiff was recently seen in the Health Care Unit on February
13, 2014; February 21, 2014; March 7, 2014; and March 20, 2014.
A bilateral x-ray revealed the cause of the Plaintiff’s left shoulder
pain was an extra joint in his left shoulder which is a “kind of birth
defect.” (Comp, p. 14). The Plaintiff claimed his pain medication did
not help, so a new medication was prescribed. Dr. Baker says the
examination of Plaintiff’s complaint of left sided weakness in March
of 2014 did not show a significant difference from when the Plaintiff
was examined in June and August of 2013; in June of 2011; “nor
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even from the June 2005 exam by the neurosurgeon.” (Comp., p.
14). Dr. Baker states he has informed the Plaintiff that he does “not
believe surgery will help these chronic pain/weakness issues.”
(Comp., p. 14).
ANALYSIS
The Plaintiff is alleging that the Defendants have violated his
Eighth Amendment rights based on deliberate indifferent to a
serious medical condition. To establish a constitutional violation,
the Plaintiff must pass a two prong test. Rhodes v. Chapman, 452
U.S. 337, 346 (1981); Wilson v. Seiter, 501 U.S. 294, 297 (1991).
The Plaintiff must demonstrate the alleged deprivation was
sufficiently serious and the Defendants acted with deliberate
indifference. Farmer v Brennan, 511 U.S. 825, 828, 834 (1994).
Farmer, 511 U.S. at 828. “[A] finding of deliberate indifference
requires evidence that the official was aware of the risk and
consciously disregarded it nonetheless.” Mathis v. Fairman, 120
F.3d 88, 91 (7th Cir. 1997) (citing Farmer at 840-42).
Applying this standard to medical professionals, the Seventh
Circuit has stated that “[a] medical professional is entitled to
deference in treatment decisions unless no minimally competent
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professional would have so responded under those circumstances.”
Sain v Wood, 512 F.3d 886, 894-95(7th Cir. 2008) quoting Collignon
v Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998). For a
medical professional to be liable for deliberate indifference to an
inmate's medical needs, he must make a decision that represents
“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, 512 F.3d at 895 (7th Cir.2008)(internal citations omitted).
Consequently, the Eighth Amendment is not a vehicle for
bringing claims of medical malpractice. Snipes v. DeTella, 95 F.3d
586, 590 (7th Cir. 1996). Mere dissatisfaction or disagreement
with a doctor's course of treatment is generally insufficient. See
Snipes, 95 F.3d at 592. However, a successful plaintiff need not
“show that he was literally ignored” in his demands for medical
treatment, and a defendant's showing that a plaintiff received
“ some ” treatment does not resolve the issue conclusively if the
treatment was “blatantly inappropriate.” Greeno v Daley, 414 F.3d
645, 653-54 (7th Cir. 2005).
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Based upon the Plaintiff’s complaint, it is very possible he
simply disagrees with the treatment he has been provided. The
Plaintiff has repeatedly seen medical personnel who have declined
to approve an MRI or surgery, but have provided painkillers.
However, the court cannot credit the statements of Dr. Baker in
response to the Plaintiff’s grievance and ignore the Plaintiff’s claims
that he suffers with excruciating pain and can “hardly walk.”
(Comp., p. 12). Therefore, the Plaintiff has articulated an Eighth
Amendment claim based on the limited requirements of notice
pleading against Dr. Baker. However, the Plaintiff has not
articulated how the unknown Nurse Practioner, the Warden or
Grievance Officer Goins responsible for his claims. The Plaintiff
does not allege any of these individuals have prevented him from
receiving medical care and admits he is seen frequently in the
Health Care Unit. The Plaintiff’s only specific allegation against the
Nurse Practioner is his allegation that he has been charged a $5 copayment for his visits, but this does not state a constitutional
violation. see Poole v Isaacs, 703 F.3d 1024, 1027(7th Cir.
2012)(“the imposition of a modest fee for medical services, standing
alone, does not violate the Constitution.”) The remaining, nonPage 5 of 11
medical Defendants must rely on the Plaintiff’s doctor for treatment
decisions. See Johnson v. Doughty, 433 F.3d 1001, 1010 (7th
Cir.2006)( “We do not think [a prison official's] failure to take
further action once he had referred the matter to the medical
providers can be viewed as deliberate indifference.”) Anderson v.
Randle, 451 Fed.Appx. 570, 572 (7th Cir. 2011)(prison
administrators had no duty to second-guess the treatment
prescribed by plaintiff’s doctors, and allegations demonstrated
plaintiff was receiving treatment although not the surgical
treatment he preferred). Therefore, the Plaintiff may proceed only
with his claim that Dr. Baker violated his Eighth Amendment rights
when he was deliberately indifferent to the Plaintiff’s serious
medical condition.
The Plaintiff has also filed a motion for appointment of
counsel.[3]. In considering the Plaintiff’s motion, the court asks:
“(1) has the indigent Plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if so, (2)
given the difficulty of the case, does the plaintiff appear competent
to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). The
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Plaintiff has not provided any evidence that he has attempted to
find counsel on his own such as a list of attorneys contacted or
copies of letters sent or received. Therefore, the motion is denied
with leave to renew. [3]
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff alleges Dr. Baker was
deliberately indifferent to the Plaintiff’s claims of body pain and
weakness. 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.
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.
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3)
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.
4)
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
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 Opinion. In general, an
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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.
6)
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
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.
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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.
9)
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).
10)
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.
11)
The clerk is directed to attempt service on
Defendants pursuant to the standard procedures.
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12)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
13)
The Plaintiff’s motion for appointment of counsel is
denied with leave to renew. [3] Plaintiff’s motion for a merit
review order is denied as moot. [6].
ENTERED: February 24, 2015
FOR THE COURT:
s/Sue E. Myerscough
_______________________________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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