Andrews v. State of Illinois et al

Filing 21

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 1/31/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY ANDREWS, # B25116,

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Plaintiff,
vs.
JEFFREY J. BROWN,
DR. VIPIN SHAH, and
TONYA LEE HILL,
Defendants.

Case No. 13-cv-00593-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Corey Andrews, currently incarcerated at Graham Correctional Center, has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that, while
he was a pretrial detainee in the Bond County Jail for four months, he was denied medical
treatment for Hepatitis C. Andrews’ initial complaint (Doc. 1) was dismissed without prejudice
(see Doc. 9); his amended complaint (Doc. 20) is now before the Court for a preliminary review
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.

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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 its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to
relief must cross “the line between possibility and plausibility. Id. at 557.

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, 556 U.S. 662, 678 (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).
The Amended Complaint
Between January and May, 2013, Plaintiff Andrews was a pretrial detainee housed in the
Bond County Jail. Upon arrival, Plaintiff underwent a medical screening, at which time he was
told by Nurse Tonya Lee Hill that his Hepatitis C would not be treated by the doctor at the jail,
because Plaintiff was there on “temporary placement”—presumably referring to the fact that
Plaintiff was actually in federal custody (see Doc. 20, p. 13).

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Dr. Vipin Shah subsequently confirmed that he would not offer Plaintiff any treatment or
monitoring. Even when Plaintiff complained of pain, stomach problems, diarrhea, constipation
and dark stools, Dr. Shah denied him treatment.
Plaintiff wrote letters and grievances to Sheriff Jeffrey J. Brown, complaining that he had
been denied medical treatment for Hepatitis C (see Doc. 20, pp. 12-16). According to the
amended complaint, Brown showed deliberate indifference toward Plaintiff’s medical needs (see
Doc. 20, p. 6).
Based on the allegations in the amended complaint and attached documentation, the
Court finds it convenient to divide the pro se action into a single overarching count. The parties
and the Court will use this designation in all future pleadings and orders, unless otherwise
directed by a judicial officer of this Court. The designation of this count does not constitute an
opinion as to its merit.
Count 1: Bond County Sheriff Jeffrey J. Brown, Dr. Vipin Shah and Nurse
Tanya Lee Hill denied Plaintiff medical treatment for Hepatitis C,
in violation of the Fourteenth Amendment.
Discussion
Between January and May, 2013, Plaintiff Andrews was a pretrial detainee housed in the
Bond County Jail. Therefore, his claims arise under the Due Process Clause of the Fourteenth
Amendment. Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008). Eighth Amendment
case law can also generally be used in evaluating such Fourteenth Amendment claims for all
relevant purposes; the standards are interchangeable. See Rice ex rel. Rice v. Corr. Med. Servs.,
675 F.3d 650, 664 (7th Cir. 2012); Forest v. Prine, 620 F.3d 739, 744-45 (7th Cir. 2010). Jail
officials violate the Eighth Amendment (and Fourteenth Amendment) if they are deliberately
indifferent to adverse conditions that deny “the minimal civilized measure of life’s necessities,”
including medical care. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994). Prison officials
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violate this proscription when they act with deliberate indifference to the serious medical needs
of an inmate. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle v. Gamble, 429 U.S. (1976).
A medical condition need not be life-threatening to be serious; rather, it can be a
condition that would result in further significant injury or unnecessary and wanton infliction of
pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010). The Court will assume
that Hepatitis C and the pain and other symptoms Plaintiff complained about to Dr. Shah
constitute serious medical conditions.
Mere disagreement with a physician’s chosen course of an inmate’s medical treatment
does not amount to deliberate indifference. See Snipes v. DeTella, 95 F.3d 586, 591(7th Cir.
1996); Ciarpaglini v. Saini, 352 F.3d 328, 331(7th Cir. 2003); 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). However, blatantly inappropriate treatment, woefully inadequate
action, or inaction can violate the Constitution. See Reed v. McBride, 178 F.3d 849, 854 (7th Cir.
1999). Similarly, erroneous treatment constituting a substantial departure from accepted medical
judgment, practice, or standards may constitute deliberate indifference. See Gayton, 593 F.3d at
623; Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999).
Sheriff Brown and Nurse Hill
Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to be liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005) (citations omitted).

A review of the amended complaint and supporting

documents reveals that Nurse Hill and Sheriff Brown lack sufficient personal involvement.

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According to the amended complaint, Plaintiff informed Nurse Hill of his diagnosis, and
she merely informed Plaintiff of Dr. Shah’s policy that those only temporarily placed at the jail
would not be treated. It is not reasonable to infer deliberate indifference on Hill’s part. It is not
alleged that Plaintiff was seeking treatment from Nurse Hill; rather, Hill was gathering
information on a new detainee (see Doc. 20, pp. 9-10 (Booking Questionnaire)). Therefore, Hill
will be dismissed with prejudice.
Relative to Sheriff Brown, Plaintiff submits the job description for the sheriff, which
assigns to the sheriff the custody and control of the county jail (Doc. 20, p. 17). The doctrine of
respondeat superior, however, is not applicable to Section 1983 actions.

Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)). “[S]upervisors must know about the conduct and facilitate it, approve
it, condone it, or turn a blind eye for fear of what they might see. They must in other words act
either knowingly or with deliberate, reckless indifference.” Backes v. Village of Peoria Heights,
Illinois, 662 F.3d 866, 870 (7th Cir. 2011). For example, merely ruling against a prisoner’s
grievance does not cause or contribute to the underlying constitutional violation. See George v.
Smith, 506 F.3d 605, 609-10 (7th Cir. 2007).
It appears that Plaintiff did send Sheriff Brown a grievance/letter stating, “I also have
Hepatitis C virus but am being denied treatment for it.” (Doc. 20, p. 12). While this may suffice
for imputing knowledge to Sheriff Brown, there is nothing to reasonably suggest that Brown
caused or contributed to Plaintiff not being treated. There is no link between Brown and Dr.
Shah’s policy. Therefore, Sheriff Jeffrey J. Brown will be dismissed with prejudice.

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Dr. Shah
The amended complaint reflects that Dr. Shah had knowledge of Plaintiff’s Hepatitis C
and the pain and other symptoms, and he made the decision not to treat or monitor Plaintiff.
Therefore, a colorable Fourteenth Amendment claim has been pleaded. Count 1 shall proceed
against Dr. Shah.
Disposition
IT IS HEREBY ORDERED that JEFFREY J. BROWN and TONYA LEE HILL are
DISMISSED from this action with prejudice. As an administrative matter, the Clerk shall
TERMINATE JEFFRY BROWN as a separate defendant to this action, as it is clear that
Jeffrey J. Brown and Jeffry Brown are one and the same.
IT IS FURTHER ORDERED that COUNT 1 against DR. VIPIN SHAH shall
PROCEED.
The Clerk of Court shall prepare for Defendant DR. VIPIN SHAH: (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.
If Defendant Shah no longer can be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with Defendant’s current work address, or, if not known,
Defendant’s last-known address. This information shall be used only for sending the forms as
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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 or
disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every 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 the 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 a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate Judge 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.
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

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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).
Finally, 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: January 31, 2014
s/ J. Phil Gilbert
United States District Judge

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