Hill v. Illinois Department of Corrections et al

Filing 24

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson; dismissing Becky Sudbrink, Jane Doe and Terry Polk. Signed by Chief Judge David R Herndon on 10/16/08. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS WILLIAM HILL, Inmate #B-39288, a/k/a WENDELL HUDSON, Plaintiff, vs. MARY MILLER, et al., Defendants. ) ) ) ) ) ) ) ) ) )

CIVIL NO. 07-cv-563-DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge: Plaintiff, formerly an inmate in the Shawnee Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Despite having accumulated "three strikes," the Court granted his motion for leave to proceed in forma pauperis, finding his allegations regarding lack of dental care supported his claim that he is under "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g). However, in his original complaint (Doc. 1), Plaintiff made no specific allegations against any named defendant with respect to dental care. Therefore, he was granted leave to file an amended complaint regarding his dental care, with the directive that he identify specific defendants who denied him dental care. The amended complaint (Doc. 23) is currently before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A, which provides: (a) Screening.­ The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for Dismissal.­ On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint­

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the amended complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of the amended complaint are subject to summary dismissal. DENTAL CARE Plaintiff states that for over ten years, he has suffered from an untreated mouth infection, which has caused bleeding gums, tooth aches, and persistently offensive bad breath. As a result, numerous teeth have been extracted, and he fears that he may lose the rest of his teeth if his condition remains untreated. He further alleges that he has complained to Defendants Miller, Roman, and the John Doe dentists at Danville, Vienna and Shawnee Correctional Centers, but they have consistently failed to provide him with any treatment to cure his condition. The Supreme Court has recognized that "deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825 (1994). Moreover, courts recognize that dental care is "one of the most important medical needs of inmates." See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). A deliberate indifference claim requires both an objectively serious risk of harm and a subjectively culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A deliberate indifference claim premised upon inadequate medical treatment requires, to satisfy the objective element, a medical condition "that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would perceive the need for a doctor's attention." Greeno, 414 F.3d at 653. The subjective component of a 2

deliberate indifference claim requires that the prison official knew of "a substantial risk of harm to the inmate and disregarded the risk." Id.; Farmer, 511 U.S. at 834. Mere medical malpractice or a disagreement with a doctor's medical judgment is not deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 107 (1976); Greeno, 414 F.3d at 653; Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). Still, a plaintiff's receipt of some medical care does not automatically defeat a claim of deliberate indifference if a fact finder could infer the treatment was "so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate" a medical condition. Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (citation omitted). Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir. 2007). Applying these standards to the allegations made, the Court is unable to dismiss the claims against Miller, Roman, or the John Doe dentists at this time. OTHER DEFENDANTS Plaintiff lists Terry Polk and Becky Sudbrink as defendants in the jurisdictional portion of his amended complaint. However, the statement of claim does not include any allegations against these defendants. "A plaintiff cannot state a claim against a defendant by including the defendant's name in the caption." Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Accordingly, Polk and Subrink will be dismissed. Plaintiff also includes Defendant Jane Doe, a doctor at the Danville Correctional Center. His allegations against her are that she would not provide medical treatment to him after four days of a hunger strike. Although he claims he began his hunger strike to protest the lack of dental treatment, his allegations against Jane Doe do not relate to his dental treatment. Furthermore, that incident was an isolated event in November 2004; Plaintiff was not in imminent danger from Jane Doe's actions when he filed his amended complaint in September 2008. Accordingly, Jane Doe will be dismissed. Finally, Plaintiff mentions a John Doe counselor at Danville, a John Doe internal affairs 3

officer at Danville, and administrator Richard Orr. None of these individuals is listed as a defendant in the caption or jurisdictional portion of the amended complaint; consequently, the Court does not consider any of these individuals to be a party to this action. DISPOSITION IT IS HEREBY ORDERED that Defendants POLK, SUDBRINK, and JANE DOE are DISMISSED from this action with prejudice. IT IS FURTHER ORDERED that Plaintiff shall complete and submit a USM-285 form for Defendants MILLER and ROMAN within THIRTY (30) DAYS of the date of entry of this Memorandum and Order. The Clerk is DIRECTED to send Plaintiff ## USM-285 forms with Plaintiff's copy of this Memorandum and Order. Plaintiff is advised that service will not be made on a defendant until Plaintiff submits a properly completed USM-285 form for that defendant. The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons) for Defendants MILLER and ROMAN. The Clerk shall forward those forms, USM-285 forms submitted by Plaintiff, and sufficient copies of the complaint to the United States Marshal for service. The United States Marshal is DIRECTED, pursuant to Rule 4(c)(2) of the Federal Rules of Civil Procedure, to serve process on Defendants MILLER and ROMAN in the manner specified by Rule 4(d)(2) of the Federal Rules of Civil Procedure. Process in this case shall consist of the complaint, applicable forms 1A and 1B, and this Memorandum and Order. For purposes of computing the passage of time under Rule 4(d)(2), the Court and all parties will compute time as of the date it is mailed by the Marshal, as noted on the USM-285 form. Service shall not be made on the John Doe Defendants until such time as Plaintiff has identified them by name on a USM-285 4

form and in a properly filed amended complaint. Plaintiff is ADVISED that it is Plaintiff's responsibility to provide the Court with the names and service addresses for these individuals. With respect to former employees of Illinois Department of Corrections who no longer can be found at the work address provided by Plaintiff, the Department of Corrections shall furnish the Marshal with the Defendant's last-known address upon issuance of a court order which states that the information shall be used only for purposes of effectuating service (or for proof of service, should a dispute arise) and any documentation of the address shall be retained only by the Marshal. Address information obtained from I.D.O.C. pursuant to this order shall not be maintained in the court file, nor disclosed by the Marshal. The United States Marshal shall file returned waivers of service as well as any requests for waivers of service that are returned as undelivered as soon as they are received. If a waiver of service is not returned by a defendant within THIRTY (30) DAYS from the date of mailing the request for waiver, the United States Marshal shall: ! Request that the Clerk prepare a summons for that defendant who has not yet returned a waiver of service; the Clerk shall then prepare such summons as requested. Personally serve process and a copy of this Order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c). Within ten days after personal service is effected, the United States Marshal shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served defendant in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2) unless the defendant shows good cause for such failure.

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Plaintiff is ORDERED to serve upon defendant or, if appearance has been entered by counsel, upon 5

that attorney, a copy of every further pleading or other document submitted for consideration by this Court. He shall include with the original paper to be filed with the Clerk of the Court a certificate stating the date that a true and correct copy of any document was mailed to defendant or his counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court. Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint, and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to a United States Magistrate Judge for further pre-trial proceedings. Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral. Plaintiff is under a continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs. IT IS SO ORDERED. DATED: October 16, 2008. /s/ DavidRHerndon CHIEF JUDGE UNITED STATES DISTRICT COURT

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