Cortez v. Fuentes et al

Filing 5

ORDER DISMISSING CASE: IT IS HEREBY ORDERED that Plaintiff has failed to state a claim upon which relief can be granted against any of the defendants; consequently, this action is DISMISSED. All federal claims are DISMISSED with prejudice; supple mental jurisdiction over state law negligence claims is DECLINED and those claims are DISMISSED without prejudice. This dismissal shall count as one of Plaintiff's allotted "strikes" under 28 U.S.C. § 1915(g). Signed by Judge Michael J. Reagan on 12/2/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUAN CORTEZ,
No. K68421,

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Plaintiff,
vs.
DR. FUENTES,
DR. NWAOBASI,
K. CRISS,
DR. SHEARING,
DENISE MERVIS,
M.L. PRICE,
MICHAEL P. ATCHISON,
S.A. GODINEZ,
GINA ALLEN,
PRICILLA NIVES, M.A., and
UNKNOWN PARTY,
Defendants.

Case No. 13-cv-01117-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Juan Cortez, an inmate in Menard Correctional Center (“Menard”),
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983,
regarding his medical care.
This case is now before the Court for a preliminary review of the complaint
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–
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(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.
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 Complaint
Plaintiff is an HIV patient being treated by both the prison medical staff and an
outside specialist, Dr. Jeremy D. Young. According to the complaint, at some point in late 2011
Plaintiff prison doctors diagnosed him with a seizure disorder, for which Dr. Fuentes prescribed
the anti-convulsant medication Dilantin. On December 21, 2011, Dr. Young assessed Plaintiff in
the Telemedicine Clinic. According to Plaintiff, his “blood levels” had dropped. Dr. Young
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noted that Dilantin is contraindicated when one is also taking the HIV combination antiviral
medication Atripla. Dr. Young “highly recommended” Plaintiff be changed to “anti-epileptic
(e.g. Keppra) that does not interact with Atripla” (Doc. 1, pp. 15-16).

Dr. Young’s

recommendation was noted in Plaintiff’s medical records by Nurse Criss, and Plaintiff was
placed on the referral board regarding the suggested change in medication (Doc. 1, p. 22). The
next day, December 22, 2011, Dr. Young’s written report was printed out by Priscilla Nievas,
M.A. (Doc. 1, p. 17).
On December 29, 2011 (a week after seeing Dr. Young) Plaintiff suffered a
seizure, requiring hospitalization. According to Plaintiff, he almost died, but medical records
describe the seizure as a “non-emergency” (Doc. 1, p. 19). Nurse Criss admitted Plaintiff to the
health care unit (Doc. 1, p. 20). Dr. Nwaobasi ordered that Plaintiff be placed on Keppra at that
time, and the medication was administered by Nurse Criss (Doc. 1, p 19). Upon discharge the
next day, Dr. Nwaobasi ordered that Plaintiff be kept on Keppra (Doc. 1, p. 24).

Wexford

Pharmacy Director Denise Mervis approved the Keppra prescription, and it was secured from an
outside pharmacy (Doc. 1, p. 11). During a January 10, 2012, follow-up examination, Dr.
Shearing told Plaintiff that it was unlikely that there would be any “aftermath dangers” from
taking Dilantin, but further testing was ordered to see if Plaintiff’s vision had been affected by
the seizure.
Gina Allen explained the administrative grievance procedures to Plaintiff.
Beginning January 9, 2012, and continuing through May 2012, Plaintiff submitted multiple
grievances regarding his medical care, but Illinois Department of Corrections Director S.A.
Gondinez, Warden Michael P. Atchison, and Counselor M.L. Price did not respond.

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Plaintiff has now brought suit against every individual involved in the
“negligence/deprivation of care”—from the person who printed out Dr. Young’s report, to the
nurse and doctors who treated him, to the pharmacy director who approved the Keppra
prescription. Plaintiff also sues all those involved in his efforts to pursue a grievance regarding
his care, and unidentified prison officials who have never responded to Plaintiff’s request for
copies of his medical file. Plaintiff contends there has been an effort to block his grievance(s)
and legal action.
Based on the allegations in the complaint, the Court finds it convenient to divide
the pro se action into two overarching counts.

The parties and the Court will use these

designations in all future pleadings and orders, unless otherwise directed by a judicial officer of
this Court. The designation of these counts does not constitute an opinion as to their merit.
Count 1: Defendants Dr. Fuentes, Dr. Nwaobasi, Nurse K. Criss,
Dr. Shearing, Wexford Pharmacy Director Denise Mervis,
and Priscilla Nievas, M.A., were deliberately indifferent to
Plaintiff’s serious medical needs in violation of the Eighth
Amendment, and/or were negligent; and
Count 2: Defendants Gina Allen, Counselor M.L. Price, Warden
Michael P. Atchison, Director S.A. Godinez, and unknown
parties denied Plaintiff due process in violation of the
Fourteenth Amendment, and denied him access to the
Courts in violation of the First Amendment, when they
blocked his efforts to grieve his medical care.
Discussion
Based on the allegations and documentation attached to the complaint, and taking
all allegations as true, Plaintiff has failed to state a single federal claim upon which relief can be
granted. Consequently, the Court cannot assert supplemental jurisdiction over any negligence
claim that may be actionable under state law (see 28 U.S.C. § 1367).

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Medical Treatment Claims
The Eighth Amendment to the United States Constitution protects prisoners from
being subjected to cruel and unusual punishment. See also Berry v. Peterman, 604 F.3d 435, 439
(7th Cir. 2010). Prison officials violate the Eighth Amendment’s proscription against cruel and
unusual punishment when their conduct demonstrates “deliberate indifference to serious medical
needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A claim of deliberate indifference to a serious medical need contains both an
objective and a subjective component. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). To
satisfy the objective component, a prisoner must demonstrate that his medical condition is
“objectively, sufficiently serious.” Greeno, 414 F.3d at 653, citing Farmer v. Brennan, 511 U.S.
825, 834 (1994) (internal quotations omitted). A serious medical condition is one “that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would perceive the need for a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31
(7th Cir. 2007). To satisfy the subjective component, a prisoner must demonstrate that the prison
official “knew of a substantial risk of harm to the inmate and disregarded the risk.” Greeno, 414
F.3d at 653. “Deliberate indifference cannot rest on negligent actions or inactions, but must
instead rest on reckless indifference to the plight of an inmate.” Cavalieri v. Shepard, 321 F.3d
616, 626 (7th Cir. 2003) (emphasis added). A defendant can never be held liable under Section
1983 for negligence. Daniels v. Williams, 474 U.S. 327, 328 (1986).
Plaintiff takes issue with Dr. Fuentes, who prescribed Dilantin. He contends that
Dr. Fuentes failed to check if Dilantin was compatible with his other medications. He cites Dr.
Young’s statement that every doctor is supposed to check before prescribing medication,
particularly in Plaintiff’s situation, where he is on an HIV-related medication regimen. There is

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no suggestion that Dr. Fuentes knew of, and disregarded, a significant risk in prescribing
Dilantin.

Therefore, at best, Dr. Fuentes, the complaint alleges negligence, which is not

actionable under Section 1983.
Similarly, the allegations regarding the remaining defendants involved in
Plaintiff’s medical care, Dr. Nwaobasi, Nurse Criss, Dr. Shearing and Pharmacy Director
Mervis, do not suggest deliberate indifference.

Negligence is not even suggested.

Each

defendant took affirmative action to aid Plaintiff and effectuate Dr. Young’s recommendation
that Plaintiff be switched from Dilantin to Keppra.
Insofar as there was a week’s delay between when Dr. Young made his
recommendation and when Plaintiff suffered a seizure and was put on Keppra, that delay is not
attributed to any particular defendant. Nurse Criss properly noted Dr. Young’s suggestion, and
there is a medical note that Plaintiff was placed on the referral board regarding the medication
change.
Finally, any negligence claim under state law also fails. Where a district court has
original jurisdiction over a civil action such as a Section 1983 claim, it also has supplemental
jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state
claims “derive from a common nucleus of operative fact” with the original federal claims.
Wisconsin v. Ho–Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). For reasons that will be
explained, Plaintiff’s other Section 1983 claims regarding the grievance process also fail,
removing the necessary predicate for supplemental jurisdiction.

Even if this Court could

exercise supplemental jurisdiction over such a state-law claim pursuant to 28 U.S.C. § 1367, the
negligence claim(s) would have to be dismissed.

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Under Illinois law, “[i]n any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other
healing art malpractice,” the plaintiff must file an affidavit along with the complaint, declaring
one of the following: (1) that the affiant has consulted and reviewed the facts of the case with a
qualified health professional who has reviewed the claim and made a written report that the
claim is reasonable and meritorious (and the written report must be attached to the affidavit); (2)
that the affiant was unable to obtain such a consultation before the expiration of the statute of
limitations, and affiant has not previously voluntarily dismissed an action based on the same
claim (and in this case, the required written report shall be filed within 90 days after the filing of
the complaint); or (3) that the plaintiff has made a request for records but the respondent has not
complied within 60 days of receipt of the request (and in this case the written report shall be filed
within 90 days of receipt of the records). See 735 ILCS § 5/2–622(a) (as amended by P.A. 90–
579, effective May 1, 1998). 1 A separate affidavit and report shall be filed as to each defendant.
See 735 ILCS § 5/2–622(b). Plaintiff has not submitted the required affidavits
Grievance Process Claims
The allegations that defendants Director Godinez, Warden Atchison, Counselor
Price and Gina Allen somehow blocked Plaintiff’s grievances in an effort to ultimately block
litigation, also fail to state a cognizable constitutional claim.
The First Amendment does not mandate any sort of administrative grievance
process in prison. Owens v. Hinsley, 635 F.3d 950, 953-54 (7th Cir. 2011). “[A] state’s inmate
grievance procedures do not give rise to a liberty interest protected by the Due Process Clause.”
1

P.A. 94–677, effective August 25, 2005, which amended 735 ILCS § 5/2–622(a) and other
portions of the Illinois statute governing health care and medical malpractice actions, was held to
be unconstitutional in its entirety in Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010).
As a result of Lebron, the previous version of the statute is now in effect. See Hahn v. Walsh,
686 F.Supp.2d 829, 832 n. 1 (C.D. Ill. 2010).
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Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); see also Owens v. Hinsley, 635 F.3d at
953-54. The Constitution requires no procedure at all, and the failure of state prison officials to
follow their own procedures does not, by itself, violate the Constitution. Maust v. Headley, 959
F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982).
Furthermore, failure to respond to a grievance may prevent the exhaustion of
administrative grievance process, but it does not, by itself, block an inmate’s access to the courts
in violation of the First Amendment. Section 1997e(a) requires inmates to exhaust only those
remedies that are “available,” and when prison administrators indefinitely delay acting on a
grievance they have made the administrative process “unavailable,” which does not bar suit. See
Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.
2008).
Disposition
As an administrative matter, the Clerk of Court shall have the record reflect that
defendants “M.A. Nieves” and “Priscilla” are a single defendant, “Priscilla Nieves, M.A.” The
Clerk shall also have the record reflect that Defendant “Dr. Hwabosi” is “Dr. Nwaobasi.”
IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff has failed to
state a claim upon which relief can be granted against any of the defendants; consequently, this
action is DISMISSED.

All federal claims are DISMISSED with prejudice; supplemental

jurisdiction over state law negligence claims is DECLINED and those claims are DISMISSED
without prejudice. The parties shall bear their own costs. This dismissal shall count as one of

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Plaintiff’s allotted “strikes” under 28 U.S.C. § 1915(g). Judgment shall enter accordingly.
IT IS SO ORDERED.
DATED: December 2, 2013

s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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