Wilson v. Hardy et al

Filing 14

WRITTEN Opinion entered by the Honorable Ronald A. Guzman: Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 11). is granted. The plaintiff is assessed an initial partial filing fee of $1.82. Plaintiff's trust fund ac count officer is instructed to make monthly deductions in accordance with this order. The Clerk is instructed to send a copy of this order to the Stateville Correctional Center. The complaint (Dkt No. 1), is dismissed with prejudice on initial review pursuant to 28 U.S.C. 1915A. This dismissal counts as a strike under 28 U.s.C. 1915(g). The Clerk is requested to enter a Rule 58 Judgment in favor of defendants against plaintiff. Plaintiff's motions for appointment of counsel, temporary restr aining order, preservation of evidence, and special medical care (Dkt. Nos. 3,4,8, 12,13), are denied and any other pending motions are denied as moot. The plaintiff was previously assessed a strike under 1915(g) in both Wilson v. Hosey, Ho. 02 C 800 3 (N.D. Ill. Nov. 20, 2002) (Guzman, J.), and Wilson v. Hardy, No. 11 C 742 (N.d. Ill. June 8, 2011) (Guzman, J.) This case is the plaintiff's third strike. He is warned that he must comply with the requirements of 28 U.S.C. 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th cir. 1999). Civil Case Terminated. [For further detail see text below] Mailed notices (gcy, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Ronald A. Guzman

CASE NUMBER

11 C 6862

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

2/7/12

Jackie Wilson (A91126) vs. Warden Marcus Hardy, et al.

DOCKET ENTRY TEXT

Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 11), is granted. The plaintiff is assessed
an initial partial filing fee of $1.82. Plaintiff’s trust fund account officer is instructed to make monthly
deductions in accordance with this order. The Clerk is instructed to send a copy of this order to the Stateville
Correctional Center. The complaint (Dkt. No. 1), is dismissed with prejudice on initial review pursuant to 28
U.S.C. § 1915A. This dismissal counts as a strike under 28 U.S.C. § 1915(g). The Clerk is requested to
enter a Rule 58 Judgment in favor of defendants against plaintiff. Plaintiff’s motions for appointment of
counsel, temporary restraining order, preservation of evidence, and special medical care (Dkt. Nos. 3, 4, 8,
12, 13), are denied and any other pending motions are denied as moot. The plaintiff was previously assessed
a strike under § 1915(g) in both Wilson v. Hosey, No. 02 C 8003 (N.D. Ill. Nov. 20, 2002) (Guzman, J.), and
Wilson v. Hardy, No. 11 C 742 (N.D. Ill. June 8, 2011) (Guzman, J.). This case is the plaintiff’s third strike.
He is warned that he must comply with the requirements of 28 U.S.C. § 1915(g), and Sloan v. Lesza, 181
F.3d 858 (7th Cir. 1999). Civil Case Terminated.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Pro se plaintiff Jackie Wilson, an inmate at the Stateville Correctional Center, has brought a civil
rights suit pursuant to 42 U.S.C. § 1983. Pending before the Court are plaintiff’s motions for leave to
proceeding in forma pauperis (Dkt. No. 11), complaint for initial review pursuant to 28 U.S.C. § 1915A,
(Dkt. No. 1), and associated motions.
The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 11), is granted. Pursuant to
28 U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $1.82. The trust fund officer at
the plaintiff’s place of incarceration is authorized and ordered to collect the partial filing fee from the
plaintiff’s trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial
filing fee, the plaintiff’s trust fund officer is directed to collect monthly payments from the plaintiff’s trust
fund account in an amount equal to 20% of the preceding month’s income credited to the account. Monthly
payments shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the
full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S.
Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly identify the
plaintiff’s name and this case number. This payment obligation will follow the plaintiff wherever he may be
transferred.
Turning to the initial review, the Court is required to dismiss a suit brought in forma pauperis if it
determines that the complaint is frivolous or malicious, fails to state a claim on which relief may be granted,
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or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A. The
following facts, drawn from plaintiff’s complaint (Dkt. No. 1), are accepted as true and all reasonable
inferences are made in the light most favorable to the plaintiff. Parish v. City of Elkhart, 614 F.3d 677, 679
(7th Cir. 2010) (citing Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001)). This Court also “construe[s]
pro se complaints liberally and hold[s] them to a less stringent standard than formal pleadings drafted by
lawyers.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Erickson v. Pardus, 551 U.S 89, 94
(2007) (per curiam); Obriecht v. Raemisch, 417 F.3d 489, 492 n.2 (7th Cir. 2008)).
“To satisfy the notice-pleading standard, a complaint must provide a ‘short and plain statement of the
claim showing that the pleader is entitled to relief,’ which is sufficient to provide the defendant with ‘fair
notice’ of the claim and its basis.” Bridges, 557 F.3d at 545 (quoting Erickson, 551 U.S at 89). “‘[A]
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir. 2010) (quoting Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “The
complaint must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a
right to relief above the speculative level.” Bridges, 557 F.3d at 546 (internal quotation marks and citations
omitted) (emphasis in original).
Plaintiff states that he has been on a hunger strike for approximately two years while incarcerated at
the Stateville Correctional Center. During this period, the medical staff at Stateville has inserted a feeding
tube into him to provide him with basic nourishment and nutrition. Understandably, plaintiff has lost a
significant amount of weight during his hunger strike. There is no medical reason why plaintiff cannot eat
food, it is his choice to go on strike.
Plaintiff’s condition is monitored on a daily basis by doctors, nurses and administrative staff at
Stateville. In August 2011, the medical staff at Stateville decided to change its approach to plaintiff and
removed his feeding tube. The doctors were concerned that plaintiff was developing infections from the
tube. Plaintiff refused to eat during this period and demanded that his feeding tube be reinserted. He
experienced pain and cramps. The medical staff explained that his pains were hunger pains. Plaintiff
continued to refuse to eat and his feeding tube was eventually reinserted so that he could receive
nourishment.
Plaintiff claims that the doctors tried to remove his feed tube twice in August and September 2011 in
an attempt to get him to eat. He asserts that the doctors were deliberately indifferent to his desire to have a
hunger strike. He also claims that they were deliberately indifferent to his medical needs because they
deprived him of nourishment that he would have received through his feeding tube during this period.
The foundation of plaintiff’s case is a belief that he has a right to engage in a hunger strike and to
receive his nourishment through a feeding tube. This is incorrect. A prisoner does not have a constitutional
right to engage in a hunger strike to the point of threatening his health. Owens v. Hinsley, 635 F.3d 950, 955
(7th Cir. 2011); Freeman v. Berge, 441 F.3d 543, 546-47 (7th Cir. 2006); Rodriguez v. Briley, 403 F.3d 952,
953 (7th Cir. 2005). Correctional officers are responsible for the prisoner and they cannot allow him to take
actions that would result in his own injury. Freeman, 411 F.3d at 547. Plaintiff’s primary claim, that
defendants interfered with his hunger strike by removing the feeding tube and trying to make him eat in
August and September 2011, does not state a claim for relief.
This leaves the quality of his medical treatment. This is a traditional deliberate indifference claim.
To make out a claim for deliberate indifference, plaintiff must allege that the defendant were intentionally
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indifferent to an objectively serious medical need or condition — negligence, gross negligence or medical
malpractice is insufficient. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008); Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007); Edwards v. Snyder, 478
F.3d 827, 831 (7th Cir. 2007).
Here, plaintiff sues both non medical correctional officials and the medical officials who provided
him care. He alleges that his care was directed by the medical officials as coordinated with the non medical
professionals. This is sufficient to find that non medical officials did not violate the constitution because they
may properly delegate duties to medical professionals as long as that delegation is not by its deliberately
indifferent. Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). There is no suggestion that the non
medical officials were deliberately indifferent in their delegation. Instead, the complaint alleges that they
were actively involved in monitoring the medical professional’s efforts with plaintiffs.
In considering whether a health care professional’s actions constitute deliberate indifference, the
“‘medical professional is entitled to deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances.’” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011) (quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008)). “‘Deliberate indifference may be
inferred based upon a medical professional’s erroneous treatment decision only when the medical
professional’s decision is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible did not base the decision on such a judgment.’”
Gayton v. McCoy, 593 F.3d 610, 622-23 (7th Cir. 2010) (quoting Estate of Cole by Pardue v. Fromm, 94
F.3d 254, 261-62 (7th Cir. 1996)). “‘Deliberate indifference is not medical malpractice. . . .’” Roe, 631 F.3d
at 857 (quoting Duckworth, 532 F.3d at 679).
There is no plausible suggestion of a substantial departure in medical professional defendants’ care of
plaintiff. The complaint, in pain staking detail, speaks of how plaintiff was seen numerous times a day by the
medical professions to insure that his health was not in danger once the feeding tube was removed. The
medical professionals were concerned that the use of a feeding tube resulted in infections and other harms to
plaintiff’s health. They attempted to address this by removing the tube and trying to convince plaintiff to eat
food. When plaintiff refused, they reinsert the tube to insure that he received a basic level of nutrition.
Plaintiff’s mere disagreement with their treatment strategy is not sufficient to allege deliberate
indifference. Even further, his disagreement is predicated upon his mistaken belief that he has a right to a
hunger strike and feeding tube. His allegations do not plausibly suggest any type of claim for relief. It is
clear that plaintiff cannot set forth a valid federal claim so giving him leave to amend his complaint would be
futile. Foman v. Davis, 371 U.S. 178, 182 (1962); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.
2010) (citations omitted); Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). His case is dismissed for
failure to state a claim on which relief may be granted.
Plaintiff is warned that if a prisoner accumulates a total of three federal cases or appeals dismissed as
frivolous, malicious, or failing to state a claim, (i.e, “strikes”), that prisoner may not file suit in federal court
without prepaying the filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C.
§1915(g). A prisoner with three strikes under § 1915(g) is also required to alert a federal court of this fact
when filing a new suit in that Court. See Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008) (citing
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999)). Failure to inform any new Court of the prior three
strikes will result in an automatic dismissal of the new case while still requiring payment of the filing fee, and
barring any future litigation (other than criminal cases and petitions challenging the terms of confinement)
until the filing fee is paid in full. Sloan, 181 F.3d at 859. Plaintiff was previously assessed a strike under §
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1915(g) in both Wilson v. Hosey, No. 02 C 8003 (N.D. Ill. Nov. 20, 2002) (Guzman, J.) (Dkt. No. 4), and
Wilson v. Hardy, No. 11 C 742 (N.D. Ill. June 8, 2011) (Guzman, J.) (Dkt. No. 9). This case is the plaintiff’s
third strike. He is warned that he must comply with the requirements of 28 U.S.C. § 1915(g), and Sloan v.
Lesza, 181 F.3d 858 (7th Cir. 1999).
If plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within thirty
days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis
should set forth the issues plaintiff plans to present on appeal, see Fed. R. App. P. 24(a)(1)(C), and must
comply with the requirements of 28 U.S.C. § 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th Cir. 1999), as
explained in the preceding paragraph. If the plaintiff does choose to appeal, he will be liable for the $455
appellate filing fee irrespective of the outcome of the appeal. Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998).

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