Mayfield v. Reader

Filing 8

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. COUNT 2 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Defendants WEXFORD HEALTH SOURCES, SHICKER, and HAMPTON are DISMISSED from this action w ith prejudice. Defendant SHAWNEE WARDEN is DISMISSED from this action without prejudice. The Clerk of Court shall prepare for Defendant READER: (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 2/6/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GARY MAYFIELD, JR., # R-48348,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES,
DR. LOUIS SHICKER,
SHAWNEE WARDEN, C/O READER,
and P. HAMPTON,
Defendants.

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Case No. 12-cv-1291-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Centralia Correctional Center (“Centralia”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, based on incidents that
occurred while he was confined at Shawnee Correctional Center (“Shawnee”). Plaintiff is
nearing the end of a 30 month sentence for violating an order of protection. Plaintiff claims that
certain Defendants failed to protect him from an assault by a fellow inmate, and that others were
deliberately indifferent to his serious medical needs for treatment of his injuries.
More specifically, Plaintiff claims that he made several requests to Defendant Reader to
move him away from his cellmate (Doc. 1, p. 7-8; Doc. 1-2, pp. 1-2). Plaintiff believed he was
in imminent danger from the cellmate, who was a known gang member. Plaintiff was not
moved, and on January 4, 2011, the cellmate attacked him, beating him in the face, jaw, and rib
area. Plaintiff was promptly taken to see the nurse, who gave him Motrin and an ice pack; he
was then placed in segregation for a day before being returned to general population (Doc. 1, p.
8). At this time, Plaintiff was in extreme pain and could not chew or swallow. He was not
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examined by a doctor until “several days later,” and was then admitted to the Health Care Unit
for 2-3 weeks. Id. He complains that he should have received more rapid emergency care and
should not have been returned to general population. Further, the inadequate medical treatment
violated the Illinois Medical Practice Act of 1987 (Doc. 1, p. 10).
Plaintiff states that an outside orthopedic specialist eventually identified fractures of his
left mandible and ribs (Doc. 1, p. 9). Plaintiff’s exhibits show that fractures were found of his
facial bones in a January 28, 2011 report (Doc. 1-1, p. 28).
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the Complaint.

Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has

articulated a colorable federal cause of action against Defendant Reader for failure to protect
Plaintiff from the assault by his cellmate (Count 1). However, Plaintiff s allegations that
Defendants Wexford Health Sources, Shicker, and Hampton were deliberately indifferent to his
medical needs (Count 2) fail to state a claim upon which relief may be granted. This claim shall
be dismissed, as will Defendants Wexford Health Sources, Shicker, Hampton, and the Shawnee
Warden.
“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).
Plaintiff’s condition following the assault by his cellmate clearly presented an objectively

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serious medical condition. However, Plaintiff’s pleadings and exhibits demonstrate that he
received medical care for the injuries to his face, jaw, and ribs, and do not indicate deliberate
indifference on the part of any Defendant. He was given pain medication and ice immediately
after the attack, and was segregated from other inmates. Two days after the incident, Plaintiff
was examined by an outside doctor who determined that his jaw was not broken (Doc. 1-1, p. 5).
He was then admitted to the prison Health Care Unit (“HCU”) on January 6, 2011, and received
care there until January 18, 2011 (Doc. 1-1, pp. 3-4; 26). It thus appears that he spent only one
day in general population before the admission to the HCU. Plaintiff’s medical records indicate
that the health care professionals were aware of his injuries and the possibility that he had
suffered a facial fracture, and took steps to determine whether he had any broken bones (Doc. 11, pp. 1, 3-16). Plaintiff was given a series of x-rays, which initially indicated no fracture (Doc.
1-1, pp. 24-25). However, a later evaluation showed evidence of a fracture (Doc. 1-1, p. 28).
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 v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001). Even if Defendant’s prescribed
course of treatment, or the initial diagnosis that he had no fracture, had constituted malpractice,
“medical malpractice does not become a constitutional violation merely because the victim is a
prisoner. In evaluating the evidence, we must remain sensitive to the line between malpractice
and treatment that is so far out of bounds that it was blatantly inappropriate or not even based on
medical judgment . . . this is a high standard.” King v. Kramer, 680 F.3d 1013, 1019 (7th Cir.

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2012) (internal citations and quotations omitted). Plaintiff’s claim does not meet this high
standard. He received extensive treatment, thus his deliberate indifference claim fails to pass
§ 1915A review.
As to the failure to protect claim against Defendant Shawnee Warden (see Count 1), the
doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citations omitted). Plaintiff has not alleged that Defendant
Shawnee Warden was informed of Plaintiff’s requests to be moved, or that he was involved in
the decision to leave Plaintiff in the cell with the inmate who later attacked him. Absent any
indication that the Warden, or any other Defendant, was “personally responsible for the
deprivation of a constitutional right,” no liability will attach. Id. Accordingly, the Shawnee
Warden shall be dismissed from this action without prejudice.
Pending Motions
Plaintiff’s motion for appointment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
The motion for service of process at the government’s expense (Doc. 4) is GRANTED
IN PART AND DENIED IN PART. Defendant Reader shall be served as ordered below.
However, the dismissed Defendants shall not be served with process.
Disposition
COUNT 2 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted. Defendants WEXFORD HEALTH SOURCES, SHICKER, and HAMPTON
are DISMISSED from this action with prejudice.

Defendant SHAWNEE WARDEN is

DISMISSED from this action without prejudice.
The Clerk of Court shall prepare for Defendant READER: (1) Form 5 (Notice of a

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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.
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.
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, 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.
Further, this entire matter is hereby REFERRED to United States Magistrate Judge

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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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 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
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: February 6, 2013

s/_____________________________
G. PATRICK MURPHY
United States District Judge

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