Cross v. Rogers et al

Filing 15

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Michael J. Reagan on 5/2/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLARD CROSS, # S-03375,

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Plaintiff,
vs.
M. ROGERS,
and DR. SHAH,
Defendants.

Case No. 14-cv-150-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court for threshold review of Plaintiff’s First Amended
Complaint (Doc. 11), filed March 25, 2014. Plaintiff’s original complaint was dismissed on
March 5, 2014 (Doc. 9), for failure to state a claim upon which relief may be granted, and he was
given leave to file an amended complaint.
The events giving rise to the complaint occurred in Pinckneyville Correctional
Center (“Pinckneyville”). Plaintiff was recently transferred to Vandalia Correctional Center,
where he is currently incarcerated (Doc. 13).
The First Amended Complaint (Doc. 11)
Plaintiff’s allegations herein are substantially the same as in the original
complaint, however, he now clarifies that the previously-unnamed nurse who initially treated his
injury was in fact Defendant Rogers. Based on the amended complaint, it is also clear that this
Defendant should be designated as “M. Rogers” (a nurse) – not “Mr. Rogers” (the Health Care
Unit Administrator), as this party had been described in the original complaint.
In addition to filing the amended complaint, Plaintiff submitted a copy of the
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grievance he filed over the incident and the response he received (Doc. 12).
On January 5, 2014, while he was working in the prison dietary unit, Plaintiff
suffered a severe cut to his hand. The flesh was “cut to the bone,” which left “white meat and
tendons showing” (Doc. 11, p. 5). He was promptly sent to the Health Care Unit and treated by
Defendant Nurse Rogers, who bandaged the wound. Defendant Rogers told Plaintiff that she
wished she could give him stitches, but she could not perform that procedure. Nobody was
present who could stitch the wound, and Defendant Rogers told Plaintiff she would schedule him
to see the doctor the next day. However, Plaintiff was not called back for his doctor visit until
two days had passed. At that time, a nurse practitioner (A. Rector, who is not named as a
Defendant) informed Plaintiff that the wound could not be stitched after 24 hours (Doc. 11, p. 5).
Plaintiff asserts that Defendant Rogers knew the severity of his wound, yet failed
to put him on the list to see the doctor in a timely fashion, either through negligence or deliberate
indifference. This action caused an unreasonable delay in Plaintiff’s access to proper medical
treatment, thus he was never able to get stitches.

He levels the same accusation against

Defendant Doctor Shah. Both Defendant Shah and Defendant Rogers signed a medical lay-in
sheet authorizing Plaintiff to be absent from his work assignment due to the injury. Plaintiff
faced a risk of infection, and suffered pain and impairment in his ability to conduct normal tasks
as a result of the inadequate treatment.
He seeks damages from Defendants Rogers and Shah, as well as an order
requiring him to receive proper medical treatment during the remainder of his incarceration
(Doc. 11, p. 6).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the

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complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has
articulated a colorable federal cause of action against Defendant Rogers for deliberate
indifference to his medical needs, which shall receive further review. Plaintiff alleges both that
Defendant Rogers was negligent (which does not violate the Constitution), see Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008), and that she was deliberately indifferent to a known
risk of serious harm to him if he was unable to get stitches in time. Further factual development
is required in order to determine whether, as Plaintiff alleges, Defendant Rogers knew of the
risks he faced yet deliberately failed to take the necessary steps for him to see the doctor in a
timely fashion. Accordingly, Plaintiff may proceed on the deliberate indifference claim against
Defendant Rogers.
However, Plaintiff’s allegations fail to state a claim upon which relief may be
granted against Defendant Shah. Plaintiff does not state that he ever had any personal contact
with Defendant Shah, sent him a request for treatment, or took any other action which might
have made Defendant Shah aware of his need to have the wound stitched within 24 hours of his
injury. The only mention of Defendant Shah’s involvement in Plaintiff’s treatment is that he
signed the medical lay-in form to allow Plaintiff’s absence from work during his recovery. In
fact, the allegation that Defendant Rogers failed to place Plaintiff on the doctor-call list indicates
that Defendant Shah was ignorant of the risks Plaintiff faced if his treatment were delayed. A
defendant cannot be deliberately indifferent to an inmate’s medical needs unless that defendant
“knows of a substantial risk of harm to an inmate and either acts or fails to act in disregard of
that risk.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and quotations

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omitted).

The complaint simply fails to suggest that Defendant Shah had the requisite

knowledge to support a claim for deliberate indifference against him. Accordingly, Defendant
Shah shall be dismissed from the action without prejudice.
Finally, the Court notes that Plaintiff’s request for injunctive relief to ensure
proper medical care in the future is not cognizable in this action due to the fact that Plaintiff has
been transferred away from Pinckneyville and is no longer under the care of the named
Defendants.

“[W]hen a prisoner who seeks injunctive relief for a condition specific to a

particular prison is transferred out of that prison, the need for relief, and hence the prisoner’s
claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). See also Higgason v.
Farley, 83 F.3d 807, 811 (7th Cir. 1995). Only if Plaintiff can show a realistic possibility that he
would again be incarcerated at Pinckneyville under the conditions described in the complaint,
would it be proper for the Court to consider injunctive relief. See Maddox v. Love, 655 F.3d 709,
716 (7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to a United
States Magistrate Judge for further consideration.
Disposition
The Clerk is DIRECTED to correct Defendant ROGERS’ information to reflect
the name of “M. Rogers” (nurse) instead of “Mr. Rogers.”
IT IS HEREBY ORDERED that Defendant SHAH is DISMISSED from this
action without prejudice.
The Clerk of Court shall prepare for Defendant ROGERS: (1) Form 5 (Notice of
a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of

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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 a United States
Magistrate Judge for further pre-trial proceedings, which shall include a determination on the
pending motion for recruitment of counsel (Doc. 3).

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Further, this entire matter shall be REFERRED to the 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 § 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).
IT IS SO ORDERED.
DATED: May 2, 2014
s/ MICHAEL J. REAGAN
United States District Judge

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