Tucker v. Stevenson et al

Filing 8

ORDER DISMISSING CASE. Pursuant to 28 U.S.C. § 1915A(b)(1), this action is DISMISSED with prejudice as frivolous. Plaintiff Cedric Tucker 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
CEDRIC TUCKER, IDOC # B04297,
Plaintiff,
vs.
NURSE STEVENSON, et al.,
Defendants.

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CIVIL NO. 12-222-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Cedric Tucker, a prisoner in the custody of the Illinois Department of Corrections
(“IDOC”) who currently is incarcerated in the Lawrence Correctional Center (“Lawrence”), brings
this action pro se pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights
by persons acting under color of state law. Tucker’s complaint is before the Court for screening
pursuant to 28 U.S.C. § 1915A, which provides, in relevant part:
(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 upon 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). A complaint fails to state a claim upon which
relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
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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). Though a court is obligated to accept factual allegations as true, “some
factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to
defendants of the plaintiff’s claim.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Also, courts
“should not accept as adequate abstract recitations of the elements of a cause of action or conclusory
legal statements.” Id. However, the factual allegations of a pro se complaint are to be liberally
construed. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).
According to the allegations of Tucker’s pro se complaint in this case, in February 2011
while Tucker was incarcerated in the Dixon Correctional Center, Tucker advised medical personnel
at Dixon that he is allergic to a drug that Tucker calls “sulfamethoxzole.”1 In April 2011
Tucker was transferred to Lawrence.

On September 9, 2011, Tucker was examined by

Defendant Nurse Stevenson, an employee of Wexford Health Sources, Inc. (“Wexford”), who
furnishes medical services to inmates at Lawrence pursuant to a contract between Wexford and the
IDOC, for a urinary tract infection.

Stevenson, who was unaware of Tucker’s allergy to

sulfamethoxzole, prescribed the drug to Tucker for his urinary tract infection, whereupon Tucker
suffered an allergic reaction to the drug. Tucker was admitted to the health care unit (“HCU”) at
Lawrence for a twenty-four hour watch, and when the twenty-four hours were up,
Defendant Dr. Fenoglio, like Stevenson a Wexford employee who furnishes medical services to

1.
The Court’s own independent research has not disclosed the existence of a drug called
sulfamethoxzole.
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Lawrence

inmates

on

a

contract

basis,

ordered

Tucker

to

be

released

from

the HCU, although Tucker was still suffering some nausea and itching as a result of his
allergic reaction. On September 11, 2011, Tucker suffered an another allergic reaction to
sulfamethoxzole. The same day, Fenoglio ordered Tucker re-admitted to the HCU at Lawrence,
where Tucker spent ten days. Tucker wrote a grievance about the incident to an IDOC case worker
supervisor, Defendant Mr. Volkman, who denied the grievance. Volkman’s denial of Tucker’s
grievance subsequently was approved by Defendant Marc Hodge, the warden of Lawrence. Tucker
then appealed from the denial of his grievance to the IDOC’s administrative review board (“ARB”),
whereupon Tucker’s appeal was denied by Defendant Officer Johnson, an ARB member. Johnson’s
decision was approved by Defendant S. Godinez, the director of the IDOC. Tucker brings this action
pursuant to 42 U.S.C. § 1983 for alleged deliberate indifference to his serious medical needs on the
part of Stevenson, Fenoglio, Volkman, Hodge, Johnson, and Godinez, in violation of the
Eighth Amendment.
The Eighth Amendment “imposes upon prison officials the duty to ‘provide humane
conditions of confinement,’ including the obligation to provide medical care to those whom [they
have] incarcerated[.]” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (quoting Farmer v.
Brennan, 511 U.S. 825, 832 (1994)). Correspondingly, “deliberate indifference to serious medical
needs of prisoners” on the part of prison officials “constitutes the ‘unnecessary and wanton infliction
of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)). A prisoner raising an Eighth Amendment claim
against a prison official for deliberate indifference to the prisoner’s serious medical needs must
satisfy two requirements. The first requirement compels the prisoner to satisfy an objective standard:
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“[T]he deprivation alleged must be, objectively, ‘sufficiently serious[.]’” Farmer, 511 U.S. at 834
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Thus, “a prison official’s act or omission must
result in the denial of ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)). The second requirement demands that the prisoner satisfy a
subjective standard: “[A] prison official must have a ‘sufficiently culpable state of mind,’” one that
amounts to “‘deliberate indifference’ to inmate health or safety[.]” Id. (quoting Wilson, 501 U.S.
at 297). See also Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Estelle, 429 U.S. at 104)
(“[T]he appropriate inquiry when an inmate alleges that prison officials failed to attend to serious
medical needs is whether the officials exhibited ‘deliberate indifference.’”). “An objectively 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.’”
Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Zentmyer v. Kendall County,
Ill., 220 F.3d 805, 810 (7th Cir. 2000)) (internal citation omitted).
In the Seventh Circuit, “‘deliberate indifference’ . . . is merely a synonym for
intentional or criminally reckless conduct,” that is to say, “conduct ‘that reflects complete
indifference to risk – when the actor does not care whether the other person lives or dies, despite
knowing that there is a significant risk of death.’” Salazar v. City of Chicago, 940 F.2d 233, 238
(7th Cir. 1991) (quoting Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988)). See also
Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006) (quoting Collignon v. Milwaukee County, 163
F.3d 982, 988 (7th Cir. 1998)) (“Deliberate indifference ‘is more than negligence and approaches
intentional wrongdoing’ . . . . [D]eliberate indifference is ‘essentially a criminal recklessness
standard, that is, ignoring a known risk.’”); Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005)
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(quoting Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)) (a prison official’s conduct “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.’”) (brackets and internal citation omitted).
Here the conduct alleged by Tucker clearly does not satisfy the demanding standard of
deliberate indifference. Taking the facts pled in Tucker’s complaint as true, a nurse at Lawrence,
Stevenson, who, Tucker acknowledges in his complaint, was unaware of Tucker’s allergy to
sulfamethoxzole, accidentally prescribed the drug to him, provoking an allergic reaction. Fenoglio
promptly put Tucker on a twenty-four watch in the HCU at Lawrence and, when the twenty-four
hours were up, released Tucker frm the HCU, although Tucker was still displaying mild signs of an
allergic reaction to sulfamethoxzole.

When Tucker suffered a second allergic reaction to

sulfamethoxzole, Fenoglio promptly put Tucker in the HCU at Lawrence for ten days. None of this
shows deliberate indifference to Tucker’s serious medical needs and instead amounts at most to
negligence. However, “in the context of medical professionals, it is important to emphasize that
medical malpractice, negligence, or even gross negligence does not equate to deliberate
indifference.” Johnson v. Doughty, 433 F.3d 1001, 1012-13 (7th Cir. 2006). See also Benson v.
Cady, 761 F.2d 335, 339 (7th Cir. 1985) (“[N]egligence, evidenced by . . . simple inattention or
inadvertence, may not form the basis for an eighth amendment claim.”). Also, to find deliberate
indifference, there must be “substantial indifference in the individual case, indicating more than mere
negligent or isolated occurrences of neglect.”
(7th Cir. 1997).

Gutierrez v. Peters, 111 F.3d 1364, 1375

Thus, “[a] finding that a defendant’s neglect of a prisoner’s condition
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was an isolated occurrence, . . . or an isolated exception . . . to the defendant’s overall
treatment of the prisoner ordinarily militates against a finding of deliberate indifference.” Id.
(quotation omitted).2
Finally, as to Tucker’s claims against Volkman, Hodge, Johnson, and Godinez for rejecting
grievances that Tucker filed concerning the allergic reactions he suffered at Lawrence, here too
Tucker’s claim for relief fails. There is, of course, a constitutional right to address complaints to
state officials. See Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). However, the right to
petition the government for redress of grievances “does not require that a government official
respond to the grievance.” Jones v. Brown, 300 F. Supp. 2d 674, 679 (N.D. Ind. 2003). Also, “a
citizen’s right to petition the government does not guarantee . . . the right to compel government
officials to . . . adopt a citizen’s views.” Webb v. Randle, Civil No. 10-470-GPM, 2011 WL 678815,
at *4 (S.D. Ill. Feb. 16, 2011) (quoting Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999))
(brackets omitted). The United States Court of Appeals for the Seventh Circuit specifically has held
that a prison official’s denial of a prisoner’s grievances about the conditions of his or her
confinement, even if wrongful, is not a basis for a claim under 42 U.S.C. § 1983. “Only persons who

2. The Court notes in passing Tucker’s allegation that it was a violation of IDOC regulations for
Fenoglio to release Tucker from the HCU at Lawrence while Tucker still was displaying signs of an
allergic reaction. If true, this may be some evidence of negligence on the part of medical personnel
at Lawrence but, as already has been discussed, mere medical negligence does not rise to the level
of a deprivation of constitutional rights. In any event, it generally is not this Court’s business to
enforce the regulations of Illinois state agencies. “[I]t is difficult to think of a greater intrusion on
state sovereignty than when a federal court instructs state officials on how to conform their
conduct to state law.” Lee v. Gardinez, Civil No. 11-570-GPM, 2012 WL 143612, at *1
(S.D. Ill. Jan. 18, 2012) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 106 (1984)). See also Allison v. Snyder, 332 F.3d 1076, 1078-79 (7th Cir. 2003) (“[T]he
Constitution does not compel states to follow their own laws. Nor does it permit a federal court to
enforce state laws directly.”) (citations omitted).
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cause or participate in the violations [of a prisoner’s constitutional rights] are responsible [under
Section 1983]. Ruling against a prisoner on an administrative complaint does not cause or contribute
to the violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (citations omitted). Thus, “[a]
guard who stands and watches while another guard beats a prisoner violates the Constitution; a
guard who rejects an administrative complaint about a completed act of misconduct does not.” Id.
at 609-10. See also Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (“Public officials do not
have a free-floating obligation to put things to rights[.]”). In this case Tucker alleges merely that
Volkman, Hodge, Johnson, and Godinez rejected Tucker’s administrative complaints about
completed acts of supposed misconduct directed against Tucker while incarcerated at Lawrence.
This does not rise to the level of a violation of Tucker’s constitutional rights. Accordingly, Tucker’s
claims against Volkman, Hodge, Johnson, and Godinez based on allegedly wrongful denials of
Tucker’s grievances will be dismissed.
To conclude, pursuant to 28 U.S.C. § 1915A(b)(1), the Court finds that the complaint in this
case is frivolous, and therefore this action is DISMISSED with prejudice. Tucker is advised that
the dismissal of this case will count as one of his three allotted “strikes” under 28 U.S.C. § 1915(g).
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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