Carpenter v. Sullivan et al
Filing
25
MERIT REVIEW OPINION - AMENDED COMPLAINT entered by Judge Sue E. Myerscough on 2/15/2018. The Court VACATES its prior dismissal of the plaintiff's petition to proceed in forma pauperis. 3 is GRANTED. The Court finds that the Plaintiff has s tated an 8th Amendment deliberate claim against Defendants Sullivan and Taylor. Plaintiff's motion or status, d/e 23 is rendered MOOT. Service on the defendants is ordered. Rule 16 Deadline set for 4/16/2018. (SEE WRITTEN MERIT REVIEW OPINION) (MAS, ilcd)
E-FILED
Thursday, 15 February, 2018 01:50:20 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JERMAINE D. CARPENTER,
Plaintiff,
v.
DAWN SULLIVAN, et al.,
Defendants.
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No.: 16-cv-4067-SEM
MERIT REVIEW –AMENDED COMPLAINT
Plaintiff is a pro se detainee at the Rushville Treatment and
Detention Center. The District Court dismissed Plaintiff’s original
complaint and the Seventh Circuit Court of Appeals remanded the
matter as to Defendants Sullivan and Taylor, only. Plaintiff
subsequently filed an amended complaint alleging deliberate
indifference by these two Defendants. [ECF 21]. The Court now
undertakes a merit review of Plaintiff’s amended complaint.
In reviewing the amended 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
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plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
ALLEGATIONS
Plaintiff is civilly detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. On March 31, 2016,
Plaintiff underwent an oral root canal procedure by an outside
endodontist. When he returned to the facility he brought with him
a postsurgical instruction sheet and pain medication which the
escorting officer delivered to Defendant Nurse Dawn Sullivan. Later
that day, Plaintiff asked Defendant Sullivan for pain medication.
She allegedly refused to give him the medication sent by the
endodontist or any pain medication at all. Another nurse gave
Plaintiff pain medication several hours later.
Plaintiff also claims that Defendant should have referred the
endodontist’s treatment plan to be reviewed by the facility physician
Plaintiff does not, however, claim that he needed medical
intervention from a facility physician or suffered any injury from the
failure to have the treatment plan reviewed. Plaintiff also claims,
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without elaboration, that the specialist recommended a mouth rinse
and Defendant did not provide it until one month later.
Plaintiff alleges that he continued to experience pain and, two
days after the surgery, asked a staff member for pain medication.
This was at shift change, and Plaintiff was advised to make the
request of the next shift. He claims that he asked Defendant Nurse
Taylor for pain medication and, by the time he received it, four
hours had passed.
The Due Process Clause of the Fourteenth Amendment which
applies to civil detainees, applies the same standard as that for
convicted prisoners under the Eight Amendment. It is clearly
established that deliberate indifference to the serious medical needs
of prisoners constitutes a constitutional violation. Snipes v DeTella,
95 F.3d 586, 590 (7th Cir 1996), citing Estelle v. Gamble, 429 U.S.
at 104, 97 S.Ct. 285 (1976). A claim does not rise to the level of a
Constitutional violation, however, unless the punishment is
“deliberate or otherwise reckless in the criminal law sense, which
means that the defendant must have committed an act so
dangerous that his knowledge of the risk can be inferred or that the
defendant actually knew of an impending harm easily preventable.”
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Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). Mere
negligence or even gross negligence does not constitute deliberate
indifference. Id at 590. (Citations omitted).
Here, Plaintiff states a colorable claim that Defendant Sullivan
was deliberately indifferent for not providing him the pain
medication ordered by the endodontist and not providing him any
medication at all when he returned after the surgery. Plaintiff
pleads little as to his alleged request for a mouth rinse and does not
claim that the failure to provide it caused him harm. This claim will
be go forward, however, pending a more fully developed record.
Plaintiff’s claim that defendant Sullivan should have had the
treatment plan reviewed by a physician at the facility fails to state
a claim and is dismissed.
As to Defendant Taylor, it is questionable whether waiting
several hours for pain medication rises to the level of deliberate
indifference. See Burton v. Downey, 805 F.3d 776 (7th Cir. 2015)
(alleged two-day delay in providing non-narcotic pain medication to
detainee was not deliberate indifference.) This, especially, as it does
not appear that the entire four-hour wait can be attributed to
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Defendant Taylor. Nonetheless, this claim will also go forward at
this time.
IT IS THEREFORE ORDERED:
1.
The Court VACATES its prior dismissal of plaintiff’s
petition to Proceed in forma pauperis. [3] is GRANTED. The Court
finds that Plaintiff has stated an Eighth Amendment deliberate
claim against Defendants Sullivan and Taylor. 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. Plaintiff’s motion for status
[23] is rendered MOOT.
2.
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) a copy of this Order.
3.
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 require that Defendant pay the full costs of formal service
pursuant to Federal Rule of Civil Procedure 4(d)(2). If a Defendant
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no longer works at the address provided by Plaintiff, the entity for
which Defendant worked at the time identified in the Complaint
shall provide to the Clerk Defendant's current work address, or, if
not known, Defendant's forwarding address. This information will
be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained only by the Clerk and shall
not be maintained in the public docket nor disclosed by the Clerk.
4.
Defendants shall file an answer within the time
prescribed by Local Rule. A Motion to Dismiss is not an answer.
The answer is it to include all defenses appropriate under the
Federal Rules. The answer and subsequent pleadings are to
address the issues and claims identified in this Order.
5.
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 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.
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6.
Once counsel has appeared for a Defendant, Plaintiff
need not send copies of filings to that Defendant or to that
Defendant's counsel. Instead the Clerk will file Plaintiff's document
electronically and send notice of electronic filing to defense counsel.
The notice of electronic filing shall constitute notice to Defendant
pursuant to Local Rule 5.3. If electronic service on Defendants is
not available, Plaintiff will be notified and instructed accordingly.
7.
Counsel for Defendants is hereby granted leave to depose
Plaintiff at Plaintiff's place of confinement. Counsel for Defendants
shall arrange the time for the depositions.
8.
Plaintiff shall immediately notice the Court of any change
in mailing address or phone number. The Clerk is directed to set
an internal court deadline 60 days from the entry of this Order for
the Court to check on the status of service and enter scheduling
deadlines.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO
THE STANDARD PROCEDURES AND
2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM
THE ENTRY OF THIS ORDER FOR THE COURT TO CHECK ON
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THE STATUS OF SERVICE AND ENTER SCHEDULING
DEADLINES.
3)
LASTLY, IT IS ORDERED THAT 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 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).
February 15, 2018
ENTERED
s/Sue E. Myerscough__
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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