Williams v. Feinerman et al

Filing 20

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, Denying 18 MOTION for Leave to File filed by Robert Williams. IT IS HEREBY ORDERED that Plaintiff fails to state a claim upon which relief may be granted against Defendant COWAN, theref ore, she is DISMISSED from this action without prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendant FEINERMAN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge G. Patrick Murphy on 5/18/2012. (tjk)

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

ROBERT WILLIAMS,

)
)
Plaintiff,
)
)
vs.
)
)
DR. FEINERMAN and JEANNETTE )
COWAN,
)
)
Defendants.
)

CIVIL NO. 11-448-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Robert Williams (“Plaintiff”), an inmate in Menard Correctional Center, brings this suit for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a twentyfive year sentence for criminal sexual assault, and five years for aggravated battery. 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
Page 1 of 10

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). Conversely, a complaint is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631
F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they
fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009). Additionally, Courts “should not accept as adequate abstract recitations of the elements of
a cause of action or conclusory legal statements.” Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and supporting exhibits, the Court finds it appropriate
to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.
The Complaint
Plaintiff injured his left middle finger on May 11, 2009, in a fight with another inmate. The
finger became caught in a handcuff chain and was bent, twisted, and dislocated, causing extreme
pain. Plaintiff claims his medical records showed a tendon was “destroyed” by this injury (Doc. 1,
p. 5).
On May 13, 2009, Plaintiff saw Defendant Feinerman (the prison medical director and
physician), who ordered x-rays. Defendant Feinerman and another doctor determined the finger was
not broken, and told Plaintiff it was all right. However, Plaintiff describes the finger as having been
abnormally bent back in a “diving board shape” (Doc. 1, p. 6). Plaintiff requested Defendant

Page 2 of 10

Feinerman to get him surgery and physical therapy for the finger, but Defendant Feinerman said he
did not need either treatment. He then grabbed Plaintiff’s finger and snapped it straight.
By May 27, 2009, the finger had bent back into the “diving board” shape. After Plaintiff
requested medical attention, he was seen by an orthopedic specialist on June 8, 2009, who
recommended surgery.
Plaintiff’s surgery was performed at an outside facility by Dr. Young, on June 26, 2009. Dr.
Young sent a letter to Defendant Feinerman requesting post-operative physical therapy for Plaintiff.
However, Defendant Feinerman denied Plaintiff any physical therapy. In addition, he was suffering
from pain after the operation, and states he received no further pain medication after he ran out of
the drugs given to him by Dr. Young. Eventually, Plaintiff’s finger went back to the way it was
before the surgery.1
Plaintiff also names Jeannette Cowan (grievance officer) as a Defendant. He seeks
compensatory and punitive damages.
Discussion
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 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. See also Sanville v. McCaughtry, 266 F.3d 724, 734

Plaintiff’s finger required another round of surgery in February 2010, which is the subject of a
separate action filed by Plaintiff in this Court, Williams v. Fahim, Case No. 11-cv-447-GPM
(S.D. Ill., filed May 25, 2011).

1

Page 3 of 10

(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
Cnty., 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference involves a two-part
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). However, the Supreme Court stressed that 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’s decisions following this standard for deliberate indifference in the
denial or delay of medical care require evidence of a defendant’s actual knowledge of, or reckless
disregard for, a substantial risk of harm. 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 constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675,
679 (7th Cir. 2008); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (courts will not take
sides in disagreements with medical personnel’s judgments or techniques). However, a plaintiff
inmate need not prove that a defendant intended the harm that ultimately transpired or believed the

Page 4 of 10

harm would occur. Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (discussing Haley v.
Gross, 86 F.3d 630, 641 (7th Cir. 1996)).
In the instant case, Plaintiff’s complaint meets the objective element of an Eighth
Amendment claim. He had a serious medical condition in that he had sustained an injury to his
finger that required corrective surgery. See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
Furthermore, according to the surgeon, he needed follow-up therapy to ensure the success of the
surgery. Thus, the key question is whether Defendant Feinerman’s failure to order the recommended
physical therapy amounted to deliberate indifference.
With respect to the subjective element of an Eighth Amendment claim, the Seventh Circuit
has frequently noted that “medical malpractice in the form of an incorrect diagnosis or improper
treatment does not state an Eighth Amendment claim.” Gutierrez, 111 F.3d at 1374. See also Snipes
v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996) (“Mere negligence or even gross negligence does not
constitute deliberate indifference.”).
Plaintiff asserts that Defendant Feinerman was informed in a letter from Dr. Young that
Plaintiff needed physical therapy in order for his finger to recover. Plaintiff’s medical records also
include a follow-up note from Dr. Young dated July 20, 2009, stating he “recommend[s] aggressive
therapy & reverse knuckle bender splint” (Doc. 1-1, p. 16). However, Plaintiff never received any
physical therapy, his finger returned to the condition it was in prior to the surgery, and another
surgery was necessary.
Where a prison doctor is aware of express post-operative instructions regarding an inmate’s
medical care, but deliberately disregards them, a fact-finder may conclude that the doctor had
sufficient knowledge of the risk of harm to sustain a deliberate indifference claim. See Gil v. Reed,

Page 5 of 10

381 F.3d 649, 662-64 (7th Cir. 2004) (prison doctor prescribed Tylenol despite surgeon’s express
warning to avoid that medication); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999) (prison doctor
refused to follow specialists’ instructions regarding inmate’s treatment).
On the other hand, the evidence may ultimately show that Defendant Feinerman’s failure to
order physical therapy as requested by Plaintiff’s surgeon did not amount to a conscious disregard
of a known risk to Plaintiff’s health, and instead was mere negligence or malpractice. At this stage
of the litigation, the Court cannot make a final determination as to this subjective element of the
claim.

However, Plaintiff’s allegations of deliberate indifference are sufficient to survive

preliminary review under § 1915A.
In addition, Plaintiff’s claim that he was denied pain medication may rise to the level of
deliberate indifference. The existence of chronic and substantial pain constitutes a serious medical
condition, Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997), and the knowing denial of pain
medication may be an Eighth Amendment violation. However, as stated above, a negligent failure
to provide pain relief would not be actionable as a civil rights claim. See Duckworth v. Ahmad, 532
F.3d 675, 679 (7th Cir. 2008).
Because Plaintiff’s allegations indicate that Defendant Feinerman may have been
deliberately indifferent to his medical needs, the claim against this Defendant shall receive further
consideration.
Defendant Cowan
Although Plaintiff names Jeannette Cowan as a Defendant in the caption of his complaint,
the body of his pleading is devoid of any allegations against her. Thus, the Court is unable to
ascertain what claims, if any, Plaintiff has against Defendant Cowan.

Page 6 of 10

The reason that plaintiffs, even those proceeding pro se, for whom the Court is required to
liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required to
associate specific defendants with specific claims is so these defendants are put on notice of the
claims brought against them and so they can properly answer the complaint. “Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, where a plaintiff has not included a defendant in
his statement of the claim, the defendant cannot be said to be adequately put on notice of which
claims in the complaint, if any, are directed against him or her. Furthermore, 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.”).
Because Plaintiff has not listed Defendant Cowan elsewhere in his complaint, he has not
adequately stated any claim against her, or put her on notice of any claims that Plaintiff may have
against her. For this reason, Defendant Cowan shall be dismissed from this action without prejudice.
Pending Motions
Plaintiff’s motion for leave to file addendum (Doc.18) states that he wishes to rephrase a
statement in “Number 9,” relating to events following his March 2010 finger surgery. That surgery
is the subject of a separate action filed by Plaintiff in this Court (Williams v. Fahim, Case No. 11-cv447-GPM, filed May 25, 2011). The Court cannot discern what statement, in any of Plaintiff’s
pleadings or other documents, he is referring to in this motion. Accordingly, the motion is

Page 7 of 10

DENIED.
Disposition
IT IS HEREBY ORDERED that Plaintiff fails to state a claim upon which relief may be
granted against Defendant COWAN, therefore, she is DISMISSED from this action without
prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendant
FEINERMAN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and
(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy
of the complaint, and this Memorandum and Order to Defendant’s place of employment as identified
by Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps
to effect formal service on Defendant, and the Court will require Defendant to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, if the Defendant cannot be found at the address
provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work
address, or, if not known, the Defendant’s last-known address. This information shall be used only
for sending the forms as directed above or for formally effecting service. Any documentation of the
address shall be retained only by the Clerk. Address information shall not be maintained in the court
file, nor disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant (or upon defense
counsel once an appearance is entered), a copy of every further pleading or other document
submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed

Page 8 of 10

a certificate stating the date on which a true and correct copy of any document was served on
Defendant or counsel. Any paper received by a district judge or magistrate judge that has not been
filed with the Clerk or that fails to include a certificate of service will be disregarded by the Court.
Defendant is 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 action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter shall be REFERRED to United States
Magistrate Judge Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), if all parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the full
amount of the costs, notwithstanding that his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give security
for the same, the applicant and his or her attorney were deemed to have entered into a stipulation
that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay
therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1).
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court and
each opposing party informed of any change in his address; the Court will not independently

Page 9 of 10

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
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: May 18, 2012
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

Page 10 of 10