Thomas v. Szoke et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, Donald G. Wilkerson added. Michael K. Nalley, Richard W Schott, Harrell Watts and Mary Chastain terminated without prejudice and Lisa JW Hollingworth terminated with prejudice. The Clerk of Court is DIRECTED to complete, on Plaintiffs behalf, a summons and form USM-285 for service of process on Defendants FIX and SZOKE; the Clerk shall issue the completed summons. The United States Marshal SHALL serve Defendants FIX and SZOKE pursua nt to Rule 4(e) of the Federal Rules of Civil Procedure. In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send by registered or certified mail addressed to the civil- process clerk at the of fice of the United States Attorney for the Southern District of Illinois a copy of the summons, the complaint, and this Memorandum and Order; and (2) send by registered or certified mail to the Attorney General of the United States at Washington, D.C., a copy of the summons, the complaint, and this Memorandum and Order. Signed by Judge G. Patrick Murphy on 4/19/2011. (tjk)

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

CLARENCE THOMAS, #07614-025
Plaintiff,
vs.
DAVID F. SZOKE, et al.,
Defendants.

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CIVIL NO. 10-838-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, an inmate in the United States Penitentiary in Marion, Illinois (USP Marion), brings
this action for alleged violations of his constitutional rights by persons acting under color of federal
authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He also asserts medical
malpractice claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. This case
is 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

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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, 127 S. Ct. 1955, 1974 (2007). Upon careful review of the
complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority to
dismiss certain claims under § 1915A. The complaint contains other claims, though, that cannot be
dismissed at this time.
FACTS ALLEGED IN COMPLAINT
On February 26, 2008, Plaintiff arrived at USP Marion wearing tinted eye lenses to protect
his eyes from the light. Plaintiff has a medical condition caused by an earlier injury – a gunshot
wound to his face – that makes him sensitive to light. He has worn tinted lenses since April 1998.
Plaintiff informed the USP Marion staff of his medical condition and his need for the tinted lenses.
Nonetheless, Plaintiff was not allowed to use his tinted lenses and was not seen for his condition
until May 22, 2008.
Plaintiff was seen by Defendant Fix, an optometrist, on May 22, 2008. Defendant Fix
determined that Plaintiff had mild photosensitivity; however, he denied Plaintiff’s request to use
tinted lenses. Plaintiff appealed this decision to the warden, Defendant Hollingsworth. Plaintiff
saw Defendant Fix again on November 6, 2008, when Defendant Fix determined that Plaintiff was
severely photosensitive. Defendant Fix recommended that Plaintiff be allowed to use tinted lenses;
this recommendation was denied by the clinical director, Defendant Szoke. Plaintiff claims that his
vision deteriorated during the time he did not wear tinted lenses from February 26, 2008, until
November 25, 2008, when he “had to purchase sunglasses [himself]” because “the medical
department refused to supply [him] with tinted lenses or the protective shades” (Doc. 1, p. 8).

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DISCUSSION
Plaintiff alleges that Defendants Fix, Szoke, and Hollingsworth were deliberately indifferent
to his medical needs. 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);
see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This encompasses a broader range
of conduct than intentional denial of necessary medical treatment, but it stops short of “negligen[ce]
in diagnosing or treating a medical condition.” Estelle, 429 U.S. at 106; accord Sanville v.
McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).
To prevail on an Eighth Amendment claim, a plaintiff must show that the responsible
prison officials were deliberately indifferent to his serious medical needs. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman v. Winnebago
County, 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference involves a twopart test. The plaintiff must show that (1) the medical condition was objectively
serious, and (2) the state officials acted with deliberate indifference to his medical
needs, which is a subjective standard.
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000). This test is not an insurmountable hurdle for
inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted or failed
to act believing that harm actually would befall an inmate; it is enough that the
official acted or failed to act despite his knowledge of a substantial risk of serious
harm.... Whether a prison official had the requisite knowledge of a substantial risk
is a question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, ... and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit requires evidence of a defendant’s actual knowledge of, or reckless
disregard for, a substantial risk of harm to satisfy the standard for deliberate indifference in the

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denial or delay of medical care. See Chavez v. Cady, 207 F.3d 901, 906 (7th Cir. 2000) (officers
were on notice of seriousness of condition of prisoner with ruptured appendix because he “did his
part to let the officers know he was suffering”). The Circuit also recognizes that a defendant’s
inadvertent error, negligence, or even ordinary malpractice is insufficient to rise to the level of an
Eighth Amendment violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008);
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (a disagreement with medical professionals’
course of treatment does not state a cognizable Eighth Amendment claim under the deliberate
indifference standard). However, a plaintiff inmate need not prove that a defendant intended the
harm that ultimately transpired or believed that the harm would occur. Walker v. Benjamin, 293
F.3d 1030, 1037 (7th Cir. 2002).
Plaintiff alleges that he saw Defendant Fix twice: the first time Defendant Fix determined
that Plaintiff had mild photosensitivity and denied Plaintiff’s request for tinted lenses; the second
time Defendant Fix determined that Plaintiff had severe photosensitivity and recommended that
Plaintiff be allowed to use tinted lenses. Defendant Szoke rejected the recommendation and denied
the request. Plaintiff disagrees with Dr. Fix’s first assessment and contends that his condition was
serious all along. But disagreement with a medical professional about medical needs is insufficient
to state an Eighth Amendment claim under the deliberate indifference standard. See Ciarpaglini,
352 F.3d at 331. Plaintiff’s Bivens claim against Defendant Fix for deliberate indifference to a
serious medical need in violation of the Eighth Amendment is dismissed with prejudice.
It is unclear why Defendant Szoke rejected Defendant Fix’s recommendation that Plaintiff
be allowed to use tinted lenses.

According to Plaintiff, Defendant Szoke “blocked the

recommendation.” At this early stage, Plaintiff’s allegations are sufficient to state a Bivens claim

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against Defendant Szoke.
Plaintiff wrote grievances to Defendant Hollingsworth after his first visit to Defendant Fix
and claims that Defendant Hollingsworth was deliberately indifferent to his medical needs by failing
to intervene to ensure that he received tinted lenses. It is well-established that “public employees
are responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592,
596 (7th Cir. 2009); see also Monell v. Department of Social Services, 436 U.S. 658 (1978); Sanville
v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (doctrine of respondeat superior does not apply
to § 1983 actions). As stated by Chief Judge Easterbrook:
Public officials do not have a free-floating obligation to put things to rights,
disregarding rules (such as time limits) along the way. Bureaucracies divide tasks;
no prisoner is entitled to insist that one employee do another’s job. The division of
labor is important not only to bureaucratic organization but also to efficient
performance of tasks; people who stay within their roles can get more work done,
more effectively, and cannot be hit with damages under § 1983 for not being
ombudsmen. [The plaintiff’s] view that everyone who knows about a prisoner’s
problem must pay damages implies that he could write letters to the Governor … and
999 other public officials, demand that every one of those 1,000 officials drop
everything he or she is doing in order to investigate a single prisoner’s claims, and
then collect damages from all 1,000 recipients if the letter-writing campaign does not
lead to better medical care. That can’t be right.
Burks, 555 F.3d at 595.
Plaintiff does not allege that Defendant Hollingsworth is personally responsible for the
withholding of his tinted lenses. Rather, he alleges that he made Defendant Hollingsworth aware
of the actions (or inactions) of Defendant Fix and that she failed to intervene. Under the rationale
outlined above, Plaintiff’s claim against Defendant Hollignsworth is dismissed with prejudice for
lack of personal involvement.
Construing the complaint liberally, as this Court must, see Haines v. Kerner, 404 U.S. 519,
520-21 (1972), Plaintiff also alleges that Defendants Fix and Szoke were negligent in providing him
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care. This claim is cognizable under the FTCA, and the United States may be substituted as the
proper defendant if the Attorney General certifies that Defendants were acting within the scope of
their employment at the time the challenged events occurred. 28 U.S.C. § 2679(d)(1). Notably, a
judgment against the United States in a FTCA action precludes recovery of a judgment against
individual defendants in a Bivens action for the same acts or omissions; therefore, Plaintiff cannot
receive a double recovery. See 28 U.S.C. § 2679(b)(1); Arevalo v. Woods, 811 F.2d 487, 490
(9th Cir. 1987). Nevertheless, Plaintiff may maintain both a FTCA claim and a Bivens claim in the
same action. Ting v. United States, 927 F.2d 1504, 1213 n.10 (9th Cir. 1991). At this point in the
litigation, the Court is unable to dismiss Plaintiff’s negligence claims. See generally 28 U.S.C.
§ 1915(e)(2).
There is an issue with certain parties named in the caption of Plaintiff’s complaint. Plaintiff
lists Chastain, Nalley, Watts, and Schott as defendants, but these parties do not appear anywhere else
in the complaint. Pro se plaintiffs, whose complaints are liberally construed, see Haines, 404 U.S.
at 520-21, are required to associate specific defendants with specific claims to put these defendants
on notice of the claims brought against them so they can properly answer the complaint. See
Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (a “short and plain” statement of the claim
suffices under Federal Rule of Civil Procedure 8 if it notifies the defendant of the principal events
upon which the claims are based); Brokaw v. Mercer County, 235 F.3d 1000, 1024 (7th Cir. 2000)
(“notice pleading requires the plaintiff to allege just enough to put the defendant on notice of facts
providing a right to recovery”). Merely invoking the name of a potential defendant is not sufficient
to state a claim against that individual. See Collins v. Kibort,143 F.3d 331, 334 (7th Cir. 1998) (“A
plaintiff cannot state a claim against a defendant by including the defendant’s name in the caption.”).

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Because Plaintiff has not named Chastain, Nalley, Watts, and Schott elsewhere in the complaint,
they are dismissed without prejudice for Plaintiff’s failure to state a claim against them.
DISPOSITION
IT IS HEREBY ORDERED that Defendant HOLLINGSWORTH is DISMISSED with
prejudice from this action.

IT IS FURTHER ORDERED that Defendants CHASTAIN,

NALLEY, WATTS, and SCHOTT are DISMISSED without prejudice. The following claims
shall proceed: (1) Plaintiff’s Bivens claim against Defendant Szoke for deliberate indifference to
a serious medical need in violation of the Eighth Amendment and (2) Plaintiff’s FTCA claims
against Defendants Fix and Szoke for negligence in providing care.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and form
USM-285 for service of process on Defendants FIX and SZOKE; the Clerk shall issue the
completed summons. The United States Marshal SHALL serve Defendants FIX and SZOKE
pursuant to Rule 4(e) of the Federal Rules of Civil Procedure.1 All costs of service shall be
advanced by the United States, and the Clerk shall provide all necessary materials and copies to the
United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally
deliver to or send by registered or certified mail addressed to the civil-process clerk at the office of

1

Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a
person whose waiver has been filed – may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or (2) doing
any of the following: (A) delivering a copy of the summons and of the complaint to the
individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of
each to an agent authorized by appointment or law to receive service of process.”
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the United States Attorney for the Southern District of Illinois a copy of the summons, the
complaint, and this Memorandum and Order; and (2) send by registered or certified mail to the
Attorney General of the United States at Washington, D.C., a copy of the summons, the complaint,
and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an appearance
has been entered by counsel, upon the attorney(s), a copy of every pleading or other document
submitted for consideration by this Court. Plaintiff shall include with the original paper to be filed
a certificate stating the date that a true and correct copy of the document was mailed to each
Defendant or counsel. Any paper received by a district judge or a 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 of the United States District Court for the Southern District of Illinois
72.1(a)(2), this action is REFERRED to United States Magistrate Judge Donald G. Wilkerson
for further pre-trial proceedings. Further, this entire matter is hereby REFERRED to Magistrate
Judge Wilkerson 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.
Finally, Plaintiff is ADVISED that he is under an obligation to keep the Clerk of Court and
each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer
or other change in address occurs. Failure to comply with this order will cause a delay in the

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transmission of court documents and may result in dismissal of this action for want of prosecution.
See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: 04/19/11
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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