Perez v. Fenoglio et al

Filing 13

ORDER DISMISSING CASE with prejudice. Plaintiff is advised that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). Plaintiff's obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $350 remains due and payable. Signed by Judge G. Patrick Murphy on 8/13/2012. (ktc)

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

MIGUEL PEREZ,
Plaintiff,
vs.
JAMES FENOGLIO, PHIL MARTIN,
WEXFORD HEALTH SOURCES, INC.,
LEE RYKER, PAMELA MORAN, C.
VAUGHN, GLADYSE C. TAYLOR, BRIAN
FAIRCHILD, and C. BROOKS,
Defendants.

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CIVIL NO. 11-819-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, Mr. Miguel Perez, currently incarcerated at Lawrence Correctional Center, has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that on May 16, 2010 he sustained a hand injury that resulted in a torn
ligament, dislocated thumb, an open (“gaping”) wound, and tissue damage. He was seen by
Defendant C. Brooks, a nurse at Lawrence that day. Brooks wrapped Plaintiff’s hand in gauze but
did not stitch it or give him pain medication. The following day, Plaintiff saw Defendant James
Fenoglio, doctor. Dr. Fenoglio did not stitch Plaintiff’s hand but did refer him to a hand surgeon.
According to Plaintiff, however, Defendants Fenoglio, Brooks, Phil Martin (the Health Care Unit
administrator), and Wexford Health failed to keep Plaintiff’s hand surgeon appointment. His
grievance regarding this failure was denied by Defendants Pamela Moran and C. Vaughn and his
appeal was denied by Defendants Brian Fairchild and Gladyse Taylor. Plaintiff continued to
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complain of pain to Dr. Fenoglio and was seen by a hand surgeon who recommended either
fabrication of a special splint or surgery. The follow-up appointment for splinting was not made;
Dr. Fenoglio instead bandaged Plaintiff’s hand. After further complaints of pain and further
grievances to Defendants Lee Ryker and Pamela Moran, Plaintiff did undergo hand surgery–seven
months after his injury. Plaintiff accuses all Defendants of deliberate indifference to his serious
medical need in violation of the Eighth Amendment.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the
complaint. As to Defendant Wexford Health Services, Plaintiff has not alleged any policy or
practice to deny medical treatment or healthcare and has thus failed to state a claim. See Woodward
v. Corr. Medical Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). Wexford Health Services is
DISMISSED. Though he only references a deliberate indifference claim, Plaintiff’s only complaint
against Defendants Gladyse Taylor, Brian Fairchild, Lee Ryker, and Pamela Moran is that they
denied his grievances related to treatment for his hand. In this allegation, he also fails to state a
claim under § 1983, and Defendants Taylor, Fairchild, Ryker, and Moran are therefore also
DISMISSED. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (plaintiff’s argument that
conspiracy by prison officials to deny administrative review of his grievances by dismissing them
was frivolous where plaintiff had access to the grievance procedure but did not obtain the outcome
he desired). In the caption of his complaint, Plaintiff names Defendant C. Vaughn who is identified
as a “counselor” at Lawrence. At no point in the complaint, however, does Plaintiff tie any claim
to Defendant Vaughn. With no allegations specific to Defendant Vaughn, that defendant could not
possibly be put on notice or properly respond. Defendant Vaughn shall also be DISMISSED. See
Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim against a

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defendant by including the defendant’s name in the caption.”).
The overriding issue with Plaintiff’s complaint, however, is that he fails to state a § 1983
Eighth Amendment claim for deliberate indifference to a serious medical need. “A prisoner’s claim
for deliberate indifference must establish (1) an objectively serious medical condition; and (2) an
official’s deliberate indifference to that condition.

Deliberate indifference is proven by

demonstrating that a prison official knows of a substantial risk of harm to an inmate and either acts
or fails to act in disregard of that risk. Delaying treatment may constitute deliberate indifference if
such delay exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle,
680 F.3d 859, 865 (7th Cir. 2012) (internal citations and quotations omitted). The need for treatment
to Plaintiff’s hand injury was likely sufficiently serious, as the injury required immediate medical
attention. The fact is, as pleaded by Plaintiff himself, he received immediate medical attention
and continuing medical attention for his injury. Defendants treated the wound, wrapped Plaintiff’s
hand, scheduled appointments with a hand surgeon, re-bandaged the hand, and ultimately scheduled
Plaintiff for surgery, which he received. The Eighth Amendment does not give prisoners entitlement
to “demand specific care” or “the best care possible,” but only requires “reasonable measures to
meet a substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Further, a difference of opinion between medical professionals concerning the treatment of an
inmate will not support a claim for deliberate indifference. Norfleet v. Webster, 439 F.3d 392, 396
(7th Cir. 2006); see also Garvin, 236 F.3d at 898.
IT IS HEREBY ORDERED that Plaintiff’s complaint fails to state a claim upon which
relief can be granted and thus is DISMISSED with prejudice.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under

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the provisions of 28 U.S.C. § 1915(g).

IT IS SO ORDERED.
DATED: August 13, 2012
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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