Cross v. Rogers et al

Filing 9

IT IS HEREBY ORDERED that the complaint (Doc. 1 ) is DISMISSED without prejudice. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complaint within 35 days of the entry of this order. F ailure to file an amended complaint shall result in the dismissal of this action with prejudice. In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 4/9/2014). Signed by Judge Michael J. Reagan on 3/4/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLARD CROSS, # S-03375,
Plaintiff,
vs.
MR. ROGERS
and DR. SHAH,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-150-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff,

currently

incarcerated

at

Pinckneyville

Correctional

Center

(“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff is serving an eleven-year sentence for a drug offense. He claims that Defendants were
deliberately indifferent to a serious medical condition.
More specifically, Plaintiff claims that on January 5, 2014, while he was working
in the prison dietary unit, he suffered a severe cut to his hand. Plaintiff’s flesh in between his
thumb and index finger was “cut to the bone,” exposing “tendons and the white meat” (Doc. 1,
pp. 4-5, 8). He was promptly sent to the Health Care Unit and treated by a nurse, who bandaged
the wound (this nurse is not identified or included as a Defendant in the complaint). The nurse
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 the nurse scheduled Plaintiff 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 informed Plaintiff that the cut could not be stitched after
24 hours (Doc. 1, p. 4).
Page 1 of 6

Plaintiff asserts that the nurse unreasonably delayed his access to proper medical
care, and he was denied necessary treatment as a result. He seeks compensatory and punitive
damages from Defendant Rogers (the Health Care Unit Administrator) and Defendant Shah (the
prison doctor).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
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.
After fully considering the allegations in Plaintiff’s complaint, the Court
concludes that the complaint fails to state a constitutional claim upon which relief may be
granted. It shall therefore be dismissed without prejudice.
In order to state a claim for deliberate indifference to a serious medical need, an
inmate must show that he (1) suffered from an objectively serious medical condition; and (2) that
the defendant was deliberately indifferent to a risk of serious harm from 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). However, 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 defendant’s inadvertent error, negligence or even ordinary

Page 2 of 6

malpractice is insufficient to rise to the level of an Eighth Amendment constitutional violation.
See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
Here, Plaintiff describes an injury that clearly required medical attention. The
complaint thus satisfies the objective component of an Eighth Amendment claim. The remaining
question is whether Plaintiff’s prison medical providers acted or failed to act with deliberate
indifference to a known risk of serious harm. This is where Plaintiff’s claim falls short.
The pleading fails to describe how either of the named Defendants bore
responsibility for the delay in getting Plaintiff to a doctor in time to obtain stitches. In fact,
Plaintiff does not mention Defendants Rogers or Shah at all in his statement of claim. Plaintiffs
are required to associate specific defendants with specific claims, so that defendants are put on
notice of the claims brought against them and so they can properly answer the complaint. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a
plaintiff has not included a defendant in his statement of the claim, the defendant cannot be said
to be adequately put on notice of which claims in the complaint, if any, are directed against him.
Furthermore, merely invoking the name of a potential defendant is not sufficient to state a claim
against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
The fact that Defendant Rogers and/or Defendant Shah may have held a
supervisory position over the nurse or over the Health Care Unit is not sufficient for liability to
attach. 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
either of these Defendants was “personally responsible for the deprivation of a constitutional
right.” Id. For these reasons, Plaintiff fails to state a claim against Defendant Rogers or
Defendant Shah.

Page 3 of 6

Instead, Plaintiff blames the unidentified nurse for the two-day delay in calling
him back to the Health Care Unit for a follow-up visit. The facts described in the complaint,
however, do not suggest that the nurse was deliberately indifferent to Plaintiff’s condition. She
gave prompt treatment for his injury and scheduled an appointment with the doctor. As for the
failure to call Plaintiff back for his appointment within 24 hours, nothing indicates that this delay
was anything more than negligence or inadvertence on the part of the unnamed nurse or some
other health care employee.
For these reasons, the complaint shall be dismissed for failure to state a
constitutional claim upon which relief may be granted. However, Plaintiff shall be allowed an
opportunity to submit an amended complaint, to present any factual allegations that may exist to
support a claim for deliberate indifference to his medical needs. If the amended complaint still
fails to state a claim, or if Plaintiff does not submit an amended complaint, the entire case shall
be dismissed with prejudice, and the dismissal shall count as a strike pursuant to § 1915(g). The
amended complaint shall be subject to review pursuant to § 1915A.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be held in abeyance
pending the receipt of an amended complaint.
The motion for service of process at government expense (Doc. 4) is DENIED. It
is not necessary for a Plaintiff who has been granted leave to proceed in forma pauperis to file
such a motion. If Plaintiff submits an amended complaint that survives threshold review under
§ 1915A, the Court will order service.

Page 4 of 6

Disposition
IT IS HEREBY ORDERED that the complaint (Doc. 1) is DISMISSED
without prejudice.
IT IS FURTHER ORDERED that, should he wish to proceed with this case,
Plaintiff shall file his First Amended Complaint, stating any facts which may exist to support his
claim for deliberate indifference to medical needs, and naming the individual Defendant(s)
directly responsible for the alleged constitutional deprivations, within 35 days of the entry of this
order (on or before April 9, 2014). An amended complaint supersedes and replaces the original
complaint, rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of
Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to
the original complaint. Thus, the First Amended Complaint must stand on its own, without
reference to any other pleading. Should the First Amended Complaint not conform to these
requirements, it shall be stricken. Plaintiff must also re-file any exhibits he wishes the Court to
consider along with the First Amended Complaint.
Failure to file an amended complaint shall result in the dismissal of this action
with prejudice. Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the
meaning of 28 U.S.C. § 1915(g).
No service shall be ordered on any Defendant until after the Court completes its
§ 1915A review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
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

Page 5 of 6

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: March 4, 2014
s/ MICHAEL J. REAGAN
United States District Judge

Page 6 of 6