Dunlap v. Sims et al

Filing 47

MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 9/28/2015. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JIMMIE DUNLAP,
Plaintiff,
v.
KEVIN SIMS,
Defendant.

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No. 13-cv-06301
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff Jimmie Dunlap is a pre-trial detainee at the Cook County Jail (“CCJ”). He claims
that Defendant Kevin Sims, a physician’s assistant with Cermak Health – CCJ, acted with
deliberate indifference to his serious medical needs by discontinuing his prescriptions for heart
condition medication. Dunlap has sued Sims for this alleged violation of his constitutional rights
pursuant to 42 U.S.C. § 1983. Before the Court is Sims’s motion to dismiss the amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, alternatively, to strike certain
allegations and an exhibit pursuant to Federal Rule of Civil Procedure 12(f). (Dkt. No. 20.) For
the reasons stated below, Sims’s motion to dismiss is denied but his motion to strike is granted.
BACKGROUND
The following facts are taken from Dunlap’s Amended Complaint.1 In November 2012,
Dunlap was diagnosed by Dr. Jaroslav Isak Goldman (“Dr. Goldman”) as having a heart rhythm
disorder known as atrial fibrillation (“A-fib”) and palpitation. (Am. Compl. ¶ 10, Dkt. No. 13.)
Dr. Goldman prescribed several medications, including a blood thinner (Pradaxa), which Dunlap
was instructed to take twice daily at a dose of 75 miligrams (mg). (Id. ¶ 11.) According to the

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 For purposes of the present motion, the Court accepts as true all well-pleaded allegations set forth in the
Amended Complaint and draws all reasonable inferences in Dunlap’s favor. See Lavalais v. Vill. of
Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). 

discharge summary attached as an exhibit to the Amended Complaint, Dunlap was given 60
capsules (or a 30-day prescription) with no refills. (Am. Compl., Ex. C, Dkt. No. 13-3.)2
On May 28, 2013, Dunlap suffered a myocardial infarction (i.e., a heart attack) while in
custody at the Village of Skokie Police Department. (Am. Compl. ¶ 13, Dkt. No. 13.) Dunlap was
taken to NorthShore Evanston Hospital for treatment, and he believes that as part of his treatment
there he was prescribed “the same or similar medications that he had been prescribed in
November 2012.” (Id. ¶ 15.) He received his prescribed medications between May 28 and May
30, 2013, at which time he was discharged from NorthShore Evanston Hospital into police
custody. (Id. ¶¶ 16-17.)
After Dunlap was discharged, he was booked and transferred to Division 1 of the CCJ,
where he met with Sims, a physician’s assistant. (Id. ¶¶ 18-19.) Dunlap alleges that Sims told him
that he “could not believe [Dunlap] was taking so many medications” and that he “believed
[Dunlap] was fabricating his medical condition in order to be transferred to a different division.”
(Id. ¶¶ 20-21.) According to Dunlap, Sims also told him that it was not Sims’s job “to check
[Dunlap’s] medical record to see which medications had been prescribed to [Dunlap],” and then
Sims decided to discontinue Dunlap’s prescribed medications. (Id. ¶¶ 22-23.) Dunlap claims that
he made Sims aware that he was taking a prescription blood thinner at the time of his arrest and
furthermore that Sims saw his medical records confirming the prescription. (Id. ¶ 24.)
During the seven-day period from May 30, 2013 to June 5, 2013, Dunlap did not receive
any of his prescribed medications. (Id. ¶ 25.) Then, on or about June 5, Dunlap began to receive
some of his prescribed medications but his blood thinner was not among them. (Id. ¶ 26.) Dunlap
filed a grievance on June 7, 2013, in which he stated:

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Attachments to a complaint are effectively incorporated as part of the complaint, see Fed. R. Civ. P.
10(c), and properly considered for purposes of a Rule 12(b)(6) motion to dismiss. Wynn v. Southward, 251
F.3d 588, 594 (7th Cir. 2001).

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I’ve been complaining about my stomach pain for 3 day. I have high blood pressure, heart
problems, and shortness of breath every time I walk up and down these stairs I get short of
breath, I came to Cook County Jail from Evanston Hospital on 5-30-13 for a mild heart
attack. I have health problems I would like to be move[d to] where I could get medical
attention. I also have kidney stones.
(Am. Compl., Ex. A at 2, Dkt. No. 13-1.) The grievance form reflects a response from a
physician’s assistant on June 21, 2013 stating, “no current need for medical housing, will manage
problems in general population.” (Id.) It also shows, under the “Inmate’s Request for An Appeal”
section, Dunlap explaining, “I seen Doctor Sims he see that I take a blood thinner and Doctor
Sims say I would be sent to a medical unit and he found out I have kidney stone he found out all
this.” (Id.)
On or around July 2, 2013, Dunlap informed his criminal defense attorney that he was not
receiving his blood thinner medication. (Am. Compl. ¶ 31, Dkt. No. 13.) On or about July 11,
2013, a state circuit court judge ordered the CCJ to move Dunlap from Division 1 to Division 10,
which was an intermediate medical division, and to provide Dunlap with his blood thinner
medication.3 (Id. ¶ 32.) On July 11, 2013, Dunlap was prescribed a daily dose of 4 mg of warfarin,
another blood thinner medication. (Id. ¶ 33.) The warfarin dose was increased over time: from 5
mg per day starting July 22 to 10 mg per day starting August 7, with an additional dose of 2.5 mg
to be taken once a week starting October 13. (Id. ¶ 34.)
Dunlap claims that, as a result of not receiving his heart medications in a timely manner,
he “has suffered from chronic stomach pain since approximately June 4, and now requires higher
doses to achieve the benefit of medication.” (Id. ¶ 35.) He also alleges that Sims’s decision to
deny him all of his prescribed medications put him at a substantial risk of complications “with

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Dunlap’s appeal of his grievance was rejected on July 15, 2013 with a note to see an attached document
indicating that he had been moved to Division 10, an intermediate medical division at CCJ. (Am. Compl.,
Ex. A at 3, Dkt. No. 13-1.)

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potentially life-threatening consequences, including but not limited to stroke or systemic
embolism.” (Id. ¶ 38.) He states that the failure to receive blood thinner medication for the fiveweek period from May 30 to July 11 resulted in him experiencing pain, suffering, and physical
injury (including chronic stomach pain), and needing to ingest a larger daily dose of blood thinner
medication. (Id. ¶ 39.)
In his Amended Complaint, Dunlap also notes that “there is an ongoing class action
lawsuit against the Sheriff of the CCJ for implementing a policy of denying or delaying necessary
prescription medication to pre-trial detainees at the CCJ in violation of their Fourth Amendment
rights,” and references Parish v. Sheriff of Cook County, No. 07-cv-04369 (N.D. Ill. filed Aug. 3,
2007). (Id. ¶ 3.) Dunlap also makes allegations regarding a 2007 Department of Justice (“DOJ”)
investigation that identified deficiencies in the medical care provided at the CCJ, including the
failure to provide blood thinners and other medications to inmates. (Id. ¶ 9.) The Amended
Complaint attaches portions of a 2008 letter from DOJ to the Cook County Board President and
the Cook County Sheriff reporting the findings of the investigation. (Am. Compl., Ex. B, Dkt. No.
13-2.) 
DISCUSSION
I.

Defendant Sims’s Motion to Strike
Sims has filed a motion to dismiss or, in the alternative, to strike certain portions of the

Amended Complaint. The Court will consider the motion to strike first.
Sims complains that Dunlap’s references in the Amended Complaint to the 2007 class
action lawsuit and the 2007 DOJ investigation have no direct connection to him or his alleged
misconduct and therefore should be stricken. Under Rule 12(f), a district court “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

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Fed. R. Civ. P. 12(f). “Motions to strike are generally disfavored; however, Rule 12(f) can
nevertheless prove useful and expeditious to ‘remove unnecessary clutter from the case.’ . . . A
motion to strike is appropriate only when the matter at issue is insufficient on the pleadings.”
Salam v. Lifewatch, Inc., No. 13-cv-09305, 2014 WL 4960947, at *1 (N.D. Ill. Sep. 22, 2014)
(quoting Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989) (citation
omitted)). “[T]he movant must show that [the allegations being challenged are so unrelated to
plaintiff’s claim as to be void of merit and unworthy of any consideration’ and that the allegations
are unduly prejudicial.” Cumis Ins. Soc., Inc. v. Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997).
Dunlap argues that the ongoing class action lawsuit and DOJ investigation “are relevant to
show there are, or were within the recent past, constitutional deficiencies in providing medication
to detainees, particularly during intake procedures.” (Pl.’s Resp. at 5, Dkt. No. 23.) But Dunlap
has not alleged that the investigation or the lawsuit relate to or involve either him or Sims. Dunlap
has not filed a class action and he seeks to recover for injuries only to himself for alleged inaction
only by Sims in 2013. Dunlap’s assertions that his claims have “factual parallels” to both the
ongoing class action and the DOJ investigation do not justify including those allegations in the
Amended Complaint. Because neither the class action litigation nor the 2007 investigation are
directly relevant to Dunlap’s claims, and because of the potentially inflammatory nature of the
allegations raised in those matters, the motion to strike is granted. The Court therefore will not
consider paragraph three, paragraph nine, or Exhibit B when evaluating the motion to dismiss.
II.

Defendant Sims’s Motion to Dismiss
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual

allegations, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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Pleading facts merely consistent with a defendant’s liability and legal conclusions disguised as
factual allegations is insufficient. Id. at 678 (citing Twombly, 550 U.S. at 556). This pleading
standard does not necessarily require a complaint to contain detailed factual allegations. Twombly,
550 U.S. at 555. Rather, “[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.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting
Iqbal, 556 U.S. at 678).
Section 1983 provides a mechanism for prisoners to bring suit against individuals who
cause violations of their constitutional right not to be subjected to cruel and unusual punishment,
which includes “a right to adequate medical care.” See Berry v. Peterman, 604 F.3d 435, 439 (7th
Cir. 2010). “[A] claim based on deficient medical care must demonstrate two elements: (1) an
objectively serious medical condition; and (2) an official’s deliberate indifference to that
condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). Deliberate indifference is
subjective and to demonstrate it exists, “a plaintiff must show that the defendant ‘acted with a
sufficiently culpable state of mind,’ something akin to recklessness. A prison official acts with a
sufficiently culpable state of mind when he knows of a substantial risk of harm to an inmate and
either acts or fails to act in disregard of that risk.” Id. at 751 (quoting Johnson v. Snyder, 444 F.3d
579, 585 (7th Cir. 2006)). Mere negligence or medical malpractice is not enough to state a
deliberate indifference claim, as “the Eighth Amendment does not codify common law torts.”
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). “A jury can infer deliberate indifference
on the basis of a physician’s treatment decision [when] the decision [is] so far afield of accepted
professional standards as to raise the inference that it was not actually based on a medical
judgment. Arnett, 658 F.3d at 751 (quoting Duckworth, 532 F.3d at 679).

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Here, Dunlap alleges that he met with Sims on May 30, 2013, two days after he was
admitted to the hospital for a heart attack. Dunlap claims that he told Sims about his heart attack
and his prescribed medications, but Sims nonetheless chose to discontinue his medications while
stating that he believed Dunlap was fabricating his condition to facilitate a division transfer. As a
result, Dunlap did not receive any medication for seven days following his discharge from the
hospital, and did not receive his blood thinner for an additional five weeks and only then because
a state court judge ordered that he be provided with it. Dunlap alleges that, as a result of the
delays in treatment, he suffered stomach pain, shortness of breath, high blood pressure, and heart
problems. He also alleges that the delays put him at serious risk of a stroke or systemic embolism,
and resulted in him needing to take higher doses of blood thinner medication than would
otherwise be necessary.
These allegations, accepted as true, are sufficient for Dunlap’s claims to survive a motion
to dismiss. “Deliberate indifference can include the intentional delay in access to medical care. A
delay in treating non-life-threatening but painful conditions may constitute deliberate indifference
if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Arnett, 658 F.3d
at 753. “[T]he length of delay that is tolerable depends on the seriousness of the condition and the
ease of providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). A serious
medical need includes “[t]he existence of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of a medical condition that
significantly affects an individual’s daily activities; or the existence of chronic and substantial
pain.” Hayes v. Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008).
Dunlap has clearly pleaded a serious condition, given that he alleges that he suffered from
a heart attack two days prior to seeing Sims and that he informed Sims he was receiving heart

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medication as far back as a year prior to his heart attack. Treatment for a recent heart attack falls
into the category of important and noteworthy injuries, and Dunlap also alleges that he was
suffering from chronic and substantial pain. Furthermore, it would have been fairly easy for Sims
to have provided Dunlap with his prescribed medications.
Failure to provide heart medication can properly state an Eighth Amendment claim for
deliberate indifference to medical needs. See, e.g., Wynn v. Southward, 251 F.3d 588, 594 (7th
Cir. 2001) (plaintiff stated an Eighth Amendment claim for deliberate indifference to his medical
needs by alleging that prison officials refused to provide him with his prescribed heart
medication, resulting in his heart “fluttering” and putting him at risk of “heavy chest pains”);
Donald v. Cook Cnty. Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996) (plaintiff stated an Eighth
Amendment claim for deliberate indifference to his medical needs where he alleged that “he
begged to be allowed to keep his heart medication” but was denied by various officers, and that
he then “suffered a serious heart attack which he was unable to control due to the unavailability of
his medication.”). While Dunlap did not suffer from a second heart attack, “even if his condition
did not worsen from the delay, deliberate indifference to prolonged, unnecessary pain can itself be
the basis for an Eighth Amendment claim.” Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039-40 (7th
Cir. 2012). The allegations in this case are sufficient to state a deliberate indifference claim, as
Dunlap alleges that Sims deliberately discontinued his prescribed medications two days after he
suffered a heart attack, failed to provide any medication for a period of seven days, and failed to
provide blood thinner medication for five weeks, causing him pain and suffering and putting him
at risk of more serious harm.
A number of Sims’s arguments for dismissal would require the Court to construe
purported gaps in the facts alleged in the Amended Complaint against Dunlap. Sims contends, for

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example, that: (1) Dunlap has not alleged that he followed the November 2012 prescription, (2)
Dunlap continued to take prescription heart medication after the November 2012 prescription
expired, (3) Dunlap cannot show what, if any, medications he was prescribed while at NorthShore
Evanston Hospital, (4) Dunlap’s grievance did not specifically state that he was not receiving his
medicine, and (5) Dunlap had an “unexplained delay” in notifying his attorney about his failure to
receive blood medication. (See Def.’s Mot. to Dismiss at 9-10, Dkt. No. 20.) But Dunlap was not
required to plead these particular facts to state a claim against Sims and it would be inappropriate
to draw inferences against Dunlap—as Sims effectively proposes—at the motion to dismiss stage.
Dunlap has pleaded that Sims knew about his previous prescriptions and his heart attack
and yet withheld all medications for no stated reason other than that he believed Dunlap was
faking his condition. Despite Sims’s assertions to the contrary, Dunlap does not seek to hold Sims
accountable merely for choosing a different course of treatment than the prior treating physician.
Rather, Dunlap claims that Sims deliberately ignored his complaints and prior medical history
because Sims believed that Dunlap was faking a medical condition to obtain a transfer to a
different division. Dunlap’s allegations are sufficient to state a claim and survive a Rule 12(b)(6)
motion.

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CONCLUSION
For the reasons stated above, Sims’s motion to strike is granted. The allegations in
paragraphs three and nine of the Amended Complaint, as well as Exhibit B, are stricken. Sims’s
motion to dismiss is denied. As Dunlap is currently proceeding pro se due to the withdrawal of his
previously recruited counsel, the Court will recruit new counsel to represent Dunlap by separate
order and set a status date for the parties to appear to discuss a discovery schedule.

ENTERED:

Dated: September 28, 2015

__________________________
Andrea R. Wood
United States District Judge

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