Miller v. Shaw et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson; denying 4 MOTION to Appoint Counsel; finding moot 5 MOTION for Order. Signed by Chief Judge David R. Herndon on 11/15/10. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEREK MILLER, #B-87360, Plaintiff, vs. DOCTOR SHAW, et al., Defendants.

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CIVIL NO. 10-cv-346-DRH

MEMORANDUM AND ORDER HERNDON, Chief Judge: Plaintiff Derek Miller, formerly an inmate in the St. Clair County Jail, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the complaint 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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Upon careful review of the

complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal. TH E COMPLAINT On December 23, 2009, while he was in the day room at St. Clair County Jail, Miller was slammed from behind by another inmate. This assault knocked him to the ground, and he lost consciousness for a brief period of time. When he awoke and stood up, his shoulder was in such pain that he could not move it. Miller pressed the intercom button and advised the officer of his injury, opining that he thought his shoulder was broken. The officer told him they would send someone, but nobody came. After lunch, while he was in his call, Miller told another officer of his injury, and the officer said he would send the nurse, but the nurse never came. The next day two different nurses passed by and Miller told them of his injury, but neither did anything to help him. Miller then managed to rig a sling for himself in an attempt to ease the pain, but apparently he received no medical treatment from officials at the jail. Other inmates began to take advantage of his injury, beating on his shoulder and attempting to steal his meal trays. Miller finally got to the infirmary on December 31, where an x-ray revealed a broken collarbone. DISC U SSIO N Medical Care Miller's primary claim is that Defendants Shaw (the doctor) and St. Clair County Jail were deliberately indifferent to his medical needs, as he received no medical treatment for over a week for his injury. [F]or a pretrial detainee to establish a deprivation of his due process right to adequate medical care, he must demonstrate that a government official acted with deliberate indifference to his objectively serious medical needs. See Qian, 168 F.3d at 955. This
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inquiry includes an objective and subjective component. The objective aspect of the inquiry concerns the pretrial detainee's medical condition; it must be an injury that is, "objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations omitted); see also Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). "A `serious' medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir. 1997). Even if the plaintiff satisfies this objective component, he also must tender sufficient evidence to meet the subjective prong of this inquiry. In particular, the plaintiff must establish that the relevant official had "a sufficiently culpable state of mind[,] ... deliberate indifference to [the detainee's] health or safety." Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Evidence that the official acted negligently is insufficient to prove deliberate indifference. See Payne, 161 F.3d at 1040. Rather, as we have noted, " `deliberate indifference' is simply a synonym for intentional or reckless conduct, and that `reckless' describes conduct so dangerous that the deliberate nature of the defendant's actions can be inferred." Qian, 168 F.3d at 955. Consequently, to establish deliberate indifference, the plaintiff must proffer evidence "demonstrating that the defendants were aware of a substantial risk of serious injury to the detainee but nevertheless failed to take appropriate steps to protect him from a known danger." Payne, 161 F.3d at 1041. Simply put, an official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Higgins, 178 F.3d at 510. Even if he recognizes the substantial risk, an official is free from liability if he "responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 843, 114 S.Ct. 1970. Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764-65 (7th Cir. 2002). Based upon the allegations in the complaint, the Court is unable to dismiss Miller's medical care claim at this time. Failure to Protect Miller also alleges that the County is liable for his injury because they failed to protect him

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from assault by the other inmate. Miller is correct in that prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994); Luttrell v. Nickel, 129 F.3d 933, 935 (7th Cir. 1997). However, not every harm caused by another inmate translates into constitutional liability for the corrections officers responsible for the prisoner's safety. Farmer, 511 U.S. at 834. In order for a plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under conditions posing a substantial risk of serious harm, and that the defendants acted with "deliberate indifference" to that danger. Id.; Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999). A plaintiff also must prove that prison officials were aware of a specific, impending, and substantial threat to his safety, often by showing that he complained to prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know that there was a substantial risk that the inmate who attacked Miller would do so, yet failed to take any action. Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). Moreover, a "mere possibility of violence" or the occurrence of a random act of violence is not sufficient to impose liability on prison officials. See Estate of Davis v. Johnson, 745 F.2d 1066, 1071 (7th Cir. 1984); Ward v. Thomas, 708 F.Supp. 212, 214 (N.D.Ill. 1989). Miller makes no allegation that Defendants were aware of a specific threat to his safety by that inmate. In fact, Miller does not even allege that he was aware of the possibility of assault from this inmate. Thus, he has failed to state a claim upon which relief may be granted, and his failure-toprotect claim will be dismissed. APPO IN TM EN T OF COUNSEL Miller has also filed a motion for appointment of counsel (Doc. 4). There is no constitutional

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or statutory right to appointment of counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010). When presented with a request to appoint counsel, the Court must make the following inquiries: "(1) has the ... plaintiff made a reasonable attempt to obtain counsel or effectively been precluded from doing so and (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). With regard to the first step of the inquiry, Miller indicates that he has made some attempt, albeit unsuccessfully, to retain counsel on his own. He has written a few letters and not yet received any replies. The Court finds he has yet to comply with the first step of inquiry since has not yet made sufficient inquiries of lawyers and has yet to hear from any of his queries. With regard to the second step of the inquiry, "the difficulty of the case is considered against the plaintiff's litigation capabilities, and those capabilities are examined in light of the challenges specific to the case at hand." Id.; see also Santiago, 599 F.3d at 762-64. At this point in time, it is difficult for the Court to assess this factor. See Romanelli, 615 F.3d at 852 (noting infancy of case makes it impossible to make accurate determination of pro se litigant's ability to litigate case). Miller's claim does not appear to be factually complex, as discussed above. From a legal standpoint, the litigation of any constitutional claim falls in the range of complex. Nevertheless, Miller's complaint adequately articulates his claim. Defendants have not yet been served with process and, therefore, have not yet filed a reply or answer to the complaint. Future developments may change the Court's mind on whether counsel should be appointed or not. At this early stage and time, though, it is too early to determine if Plaintiff is competent to litigate his case. Therefore, his motion for appointment of counsel is DENIED, without prejudice.

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MOTION FOR RECORDS Finally before the Court is a letter from Miller (Doc. 5) seeking a status report on his case and asking for advice on how to obtain his medical records from the jail. This letter was construed as a motion for medical records, although Miller really only seeks guidance on how to proceed. Rule 26-37 of the Federal Rules of Civil Procedure set out the procedures for obtaining and disclosing information in preparation for trial. At this time, it would be premature for Miller to file a motion to compel discovery, as Defendants have not yet been served with the complaint. After service has been directed, a scheduling order will be entered in this action detailing the procedures for discovery. Thus, to the extent this letter was construed as a motion, it is now MOOT. DISPO SITIO N IT IS HEREBY ORDERED that the claim of failure-to-protect is DISMISSED from this action with prejudice. 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 SHAW and ST. CLAIR COUNTY JAIL. The Clerk shall forward those forms, USM-285 forms submitted by the 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 SHAW and ST. CLAIR COUNTY JAIL 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.
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With respect to former employees of St. Clair County Jail who no longer can be found at the work address provided by Plaintiff, the County shall furnish the Marshal with the Defendant's lastknown 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 the County 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 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 Fed. R. Civ. P. 4(d)(2) unless the defendant shows good cause for such failure. Plaintiff is ORDERED to serve upon defendant or, if appearance has been entered by counsel, upon 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

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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 ADVISED of his continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts during the pendency of this action. This notification shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs. Failure to provide such notice may result in dismissal of this action. See FED.R.CIV.P. 41(b). IT IS SO ORDERED. DATED: November 15, 2010.

David R. Herndon 2010.11.15 11:33:28 -06'00'
CHIEF JUDGE UNITED STATES DISTRICT COURT

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