Dunmore v. Fahim et al
Filing
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ORDER DISMISSING CASE. Pursuant to 28 U.S.C. § 1915A(b)(1), this action is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Plaintiff James E. Dunmore is advised that the dismissal of this case counts as a "strike" within the meaning of 28 U.S.C. § 1915(g). The Clerk of Court will enter judgment in accordance with the attached order. Signed by Judge G. Patrick Murphy on 3/15/2012. (jhs)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES E. DUNMORE, IDOC # R64188, )
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Plaintiff,
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vs.
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MAGID FAHIM, et al.,
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Defendants.
)
CIVIL NO. 11-1000-GPM
MEMORANDUM AND ORDER
MURPHY, District Judge:
A.
Introduction
Plaintiff James E. Dunmore, a seventy-three year old inmate of the Menard Correctional
Center (“Menard”), brings this action pro se pursuant to 42 U.S.C. § 1983 for alleged deprivations
of his constitutional rights. Dunmore is serving a thirty-year sentence for murder, imposed on
November 9, 2004. This case is before the Court for screening of Dunmore’s operative complaint
(Doc. 22) 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[.].
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
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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 a 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. See 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. Nevertheless,
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).
B.
The Complaint
In Dunmore’s operative complaint in this case, he states that Defendants Dr. John Shepherd,
Dr. Sam Nwaobasi, and Dr. Fuentes expedited what Dunmore describes as his “much needed”
surgery for a lower back condition. On November 14, 2011, Dunmore was taken to Saint Louis
University Hospital (“SLU Hospital”) for surgery by his physician, Dr. Dirk H. Alander. Dunmore
was returned to Menard on November 17, 2011. Dunmore states that, due to an inoperable elevator,
he was not immediately taken to the hospital floor at the facility and was instead returned to his cell
until November 21, 2011, at which time he was placed in the hospital floor of the Health Care Unit
(“HCU”) at Menard. Dunmore remained on the hospital unit until December 8, 2011, at which time
he returned to his cell. Dunmore claims that Defendants have not followed orthopaedic trauma
discharge orders, nor dispensed the pain medication that Dr. Alander ordered for him. Dunmore
further alleges that he requires physical therapy and devices to assist with his ambulation.
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Dunmore complains that from November 17, 2011, until November 21, 2011, he suffered pain while
recovering from his back surgery in his cell. Dunmore requests a transfer to the Dixon Correctional
Center and monetary damages. Dunmore names as Defendants, in addition to Shepherd, Nwaobasi,
and Fuentes, S.A. Godinez, the director of the Illinois Department of Corrections (“IDOC”), but
states no particular claim against any one of these Defendants in his pleadings. Dunmore asserts
Eighth Amendment claims against Defendants generally, for deliberate indifference to his serious
medical needs.
C.
Discussion
A prisoner’s mere dissatisfaction with the medical care he or she receives in prison does not
amount to a violation of the prisoner’s constitutional right, even if the quality of the care given the
prisoner is substandard to the point of negligence or malpractice. See Estelle v. Gamble, 429 U.S.
97, 106 (1976); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001.
However, a
constitutional claim under the Eighth Amendment may lie if a prison official’s actions amount to
deliberate indifference to a prisoner’s serious medical needs:
To prevail on an Eighth Amendment claim, a plaintiff must show that the responsible
prison officials were deliberately indifferent to his serious medical needs. 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) (citations omitted). The Supreme Court of the
United States, however, has 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
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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 fact finder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.
Farmer v. Brennan, 511 U.S. 825, 842 (1994).
The United States Court of Appeals for the Seventh Circuit considers the following to be
indications of a serious medical need: (1) where failure to treat the condition could “result in further
significant injury or the unnecessary and wanton infliction of pain;” (2) “[e]xistence of an injury that
a reasonable doctor or patient would find important and worthy of comment or treatment;”
(3) “presence of a medical condition that significantly affects an individual’s daily activities;” or
(4) “the existence of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997).
In addition, a condition that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention is also considered a serious medical
need for Eighth Amendment purposes. See id.
Mere disagreement with a physician’s chosen course of medical treatment for a prisoner does
not amount to deliberate indifference under the Eighth Amendment. See Ciarpaglini v. Saini, 352
F.3d 328, 331 (7th Cir. 2003) (stating that “a [prisoner’s] disagreement with medical professionals
about his needs” does not rise to the level of a constitutional claim); Garvin v. Armstrong, 236 F.3d
896, 898 (7th Cir. 2001) (courts will not takes sides in disagreements about medical personnel’s
judgments or techniques); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (quoting Estelle, 429
U.S. at 107) (“Medical decisions that may be characterized as ‘classic examples of matters for
medical judgment,’ such as whether one course of treatment is preferable to another, are beyond the
[Eighth] Amendment’s purview. Such matters are questions of tort, not constitutional law.”)
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(brackets omitted). 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. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006);
Garvin, 236 F.3d at 898.
Dunmore has not described a condition that meets the criteria described in Gutierrez.
Dunmore received medical attention that resulted in a referral for surgical treatment by his specialist.
Dunmore was returned to his own cell until the facility could transport him to the hospital floor of
the HCU at Menard. Dunmore then received seventeen days of continuous care on the hospital floor
at Menard. Dunmore received a total of twenty-one days of hospital care, both at SLU Hospital and
on the hospital floor of the HCU at Menard. Dunmore’s complaint concerns his post-operative
recovery and rehabilitation, which may not have been symptom-free, but does not constitute a serious
medical condition. Even had Dunmore stated facts showing otherwise, he has not sufficiently
alleged deliberate indifference on the part of Defendants.
To show deliberate indifference, a prison official must “be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists” and must actually “draw the
inference.” Farmer, 511 U.S. at 837. The decisions of the Seventh Circuit Court of Appeals
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 the seriousness
of the condition of a prisoner with a ruptured appendix because he “did his part to let the officers
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know he was suffering”). This 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). Nor will an
inmate’s disagreement with a doctor’s course of treatment state a constitutional claim. See
Ciarpaglini, 352 F.3d at 331 (a prisoner’s disagreement with medical professionals about the
prisoner’s needs does not state cognizable Eighth Amendment claim under the deliberate
indifference standard); Garvin, 236 F.3d at 898 (courts will not take sides in disagreements with
medical personnel’s judgments or techniques). A plaintiff inmate, however, need not prove that a
defendant intended the harm that ultimately transpired or believed the harm would occur. See
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (discussing Haley v. Gross, 86 F.3d
630, 641 (7th Cir. 1996)).
In this case, Dunmore’s complaint consists of not being taken immediately to the hospital
floor at Menard following his release from SLU Hospital; this was due to an inoperable elevator.
Dunmore instead was returned to his cell for four days prior to his treatment in the HCU at Menard.
Additionally Dunmore claims that Defendants have denied him particular pain medication and
physical therapy.
A delay in providing medical treatment “may constitute deliberate indifference if the delay
exacerbated the injury or unnecessarily prolonged an inmate’s pain.” McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010) (discussing Estelle, 429 U.S. at 104-05); Gayton v. McCoy, 593 F.3d
610, 619 (7th Cir. 2010). See also Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (quoting
Snipes, 95 F.3d at 592) (“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
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inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ a medical
condition”) (emphasis in original).
Deliberate indifference is “something approaching a total unconcern for [a prisoner’s] welfare
in the face of serious risks, or a conscious, culpable refusal to prevent harm[.]” Duane v. Lane, 959
F.2d 673, 677 (7th Cir. 1992) (citations omitted). This total disregard for a prisoner’s safety is “the
functional equivalent of wanting harm to come to the prisoner.” McGill v. Duckworth, 944 F.2d
344, 347 (7th Cir. 1991). “[C]onduct is deliberately indifferent when the official has acted in an
intentional or criminally reckless manner, i.e., the defendant must have known that the plaintiff was
at serious risk of being harmed and decided not to do anything to prevent that harm from occurring
even though he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005)
(quotation and brackets omitted). Dunmore’s primary complaint is that Menard’s post-operative
efforts to relieve his pain following back surgery are inadequate. In this case, Dunmore received
seventeen days of care on the hospital floor after his temporary stay in his cell. Additionally, he
continues to see medical staff at Menard. This plainly does not sustain a claim of deliberate
indifference.
Furthermore, the pleadings fails to specify unconstitutional conduct by any Defendant.
Dunmore lists Godinez, the IDOC director, as a Defendant in the caption of his complaint.
However, the statement of claim does not include any allegations against Godinez. As to Defendants
Shepherd, Nwaobasi, and Fuentes, Dunmore makes no specific allegations as to their individual
unconstitutional conduct. 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
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caption.”). For these and the foregoing reasons, Dunmore’s claims shall be dismissed against all
Defendants.
D.
Disposition
IT IS HEREBY ORDERED that Dunmore’s complaint fails to state a claim upon which
relief may be granted, and therefore this action is DISMISSED with prejudice. Dunmore is advised
that this dismissal shall count as one of his allotted “strikes” under the provisions of 28 U.S.C.
§ 1915(g). Dunmore’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. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). The Clerk of Court will enter judgment in
accordance with this Order.
IT IS SO ORDERED.
DATED: March 15, 2012
/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge
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