Ramirez v. Fleming

Filing 14

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge Michael J. Reagan on 6/17/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SALVADOR CUELLAR RAMIREZ, 1
# 71218-079,
Plaintiff,
vs.
THOMAS N. FLEMING,
Defendant.

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Case No. 14-cv-599-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, currently incarcerated at the CCA/Eden Detention Center in Texas,
(“Eden”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He filed the
suit on April 24, 2014, in the Northern District of Texas (Doc. 1). The case was transferred to
this Court on May 23, 2014 (Doc. 7). Plaintiff’s claim arose during his incarceration at FCIGreenville, Illinois (“Greenville”). He claims that he lost the vision in his left eye due to the
medical malpractice of Defendant Fleming, a private physician who performed surgery on
Plaintiff’s eye after a referral from the Greenville medical staff. He asserts that this incident
violated his Eighth Amendment right to be free from cruel and unusual punishment.
In his complaint, Plaintiff states that he sought medical attention from Dr. Kruse,
the Clinical Director at Greenville, for blurry vision in his left eye 2 (Doc. 1, p. 6). Dr. Kruse

When this case was initially opened, Plaintiff’s last name was listed as “Ramirez.” However, a reading
of the complaint discloses that, as is the custom with Hispanic surnames, his primary (paternal) surname
is “Cuellar,” and his second (maternal) surname is Ramirez. The Court’s records have been corrected to
reflect that Plaintiff’s last name is “Cuellar Ramirez.”

1

In Plaintiff’s Request for Administrative Remedy, he states that the problem was in his right eye (Doc.
1, p. 16).
2

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(who is not listed in the complaint as a Defendant) and other unnamed medical staff at Greenville
delayed treatment of Plaintiff’s eye problem.

In July 2011 he was sent to Defendant Dr.

Fleming, who diagnosed him with glaucoma and retinopathy, and recommended surgery (Doc. 1,
p. 6).
The warden’s response to Plaintiff’s Request for Administrative Remedy outlines
Plaintiff’s medical history (Doc. 1, p. 14). According to that summary, Plaintiff suffers from
Non-Insulin Dependent Diabetes, and was diagnosed with Proliferative Degenerative
Retinopathy to both eyes. In addition, he had blood in the interior of his left eye.
Defendant Fleming performed laser surgery on Plaintiff’s left eye in December
2011, but it did not go well. Plaintiff claims that Defendant Fleming used the laser too many
times, burning Plaintiff’s left eye and causing him to lose the vision in that eye (Doc. 1, pp. 6-7).
While Plaintiff blames Defendant Fleming’s incompetence for his injury, he also claims the
entire Greenville medical staff is responsible, because they failed to give him proper care before
the surgery (Doc. 1, p. 7).
To make matters worse, once Dr. Kruse became aware that Plaintiff had lost his
vision, he started to deny all Plaintiff’s requests for care, and delayed or denied Plaintiff’s
follow-up visits to the specialist (it is not clear whether this specialist was Defendant Fleming or
another doctor). Id.
Plaintiff seeks monetary damages for his loss of vision, pain, and suffering.
In the complaint, Plaintiff lists only one Defendant – Dr. Fleming. However, in
the captions of his motion for leave to proceed in forma pauperis (Doc. 4) and his motion
seeking the appointment of counsel (Doc. 5), he included five other individuals as Defendants, as
well as the Bureau of Prisons. These additional Defendants are John Cross (Greenville Warden),

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Dr. Kruse (Greenville Clinical Director), H.S.A. Poliman (H.S.A. presumably stands for Health
Service Administrator), P.A. Adesanya (the Court assumes this is a Physician’s Assistant), and
Dr. Paul Harvey (Regional Clinical Director) (Docs. 4, 5). In the body of the motion for
appointment of counsel, Plaintiff asserts his desire to bring a Federal Tort Claim as well as an
Eighth Amendment civil rights claim over his medical treatment (Doc. 5, p. 2). However, he
does not include any additional factual allegations against any specific Defendant other than Dr.
Fleming.
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 Plaintiff’s Eighth Amendment claim against Defendant Fleming (Count 1) is
subject to summary dismissal pursuant to § 1915A. However, the factual allegations of the
complaint indicate that Plaintiff may have a colorable federal claim against Greenville Doctor
Kruse for deliberate indifference to his serious medical needs (Count 2). Further, Plaintiff may
have a viable claim under the Federal Tort Claims Act for negligence on the part of Dr. Kruse,
and possibly for Defendant Fleming’s malpractice (Count 3). The latter two claims shall be
referred to the United States Magistrate Judge for further review.
Dismissal of Count 1 – Deliberate Indifference Claim Against Defendant Fleming
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.

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“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). 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). Importantly, a defendant’s inadvertent error, negligence or even 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).
Plaintiff’s eye condition clearly constituted an objectively serious ailment.
However, nothing in the complaint suggests that Defendant Fleming was deliberately indifferent
to Plaintiff’s condition – only that he performed the surgery in a negligent or incompetent
manner.

This does not violate the Constitution.

Plaintiff therefore cannot maintain a

constitutional deliberate indifference claim against Defendant Fleming, and Count 1 shall be
dismissed without prejudice.
Count 2 – Deliberate Indifference Claim Against Dr. Kruse for Delay and Denial of Care
Although Plaintiff did not name Dr. Kruse as a Defendant in his complaint, the
motions filed along with the complaint suggest that he intended to include claims against Dr.
Kruse. Further, the factual allegations in the complaint claim that Dr. Kruse knowingly and
purposely delayed care for Plaintiff’s eye problem, both before and after the surgery, despite his
awareness of the serious nature of Plaintiff’s condition. As noted above, a delay or denial of care
that worsened Plaintiff’s condition or caused him pain may give rise to a deliberate indifference

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claim.
In keeping with the Court’s obligation to liberally construe the factual allegations
of a pro se complaint, see Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009), the Clerk shall be directed to add Dr. Kruse as a Defendant in this action, and Plaintiff
shall be allowed to proceed with a deliberate indifference claim against him.
However, the complaint does not include any specific factual allegations against
the other purported Defendants (Cross, Poliman, Adesanya, or Harvey) that would support a
deliberate indifference claim against any of these individuals. Plaintiff mentions only that “the
whole Medical Clinical Staff” at Greenville is also responsible for his lost vision, because
“[t]hey never gave the proper care of attention to Mr. Cuellar before the Surgery” (Doc. 1, p. 7).
This statement might suggest that the other medical providers were negligent in caring for
Plaintiff, but does not describe any actions that would rise to the level of unconstitutional
deliberate indifference. Further, Warden Cross is not a medical provider, and cannot be held
liable merely because he was the administrator in charge of the prison.

See Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (doctrine of respondeat superior is not
applicable to § 1983 actions).
The present complaint thus fails to state a constitutional claim upon which relief
may be granted against Cross, Poliman, Adesanya, or Harvey.
Count 3 – Federal Tort Claims Act
Negligent conduct or medical malpractice may be actionable under the Federal
Tort Claims Act (“FTCA”), even though they cannot be pursued as civil rights claims. See 28
U.S.C. § 1346(b); § 2671 et seq. Federal prisoners may bring suit against the United States
under the FTCA for injuries they sustain while incarcerated. See Palay v. United States, 349

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F.3d 418, 425 (7th Cir. 2003). However, they must first present the claim to the federal agency
responsible for the injury. Id. Under the act,
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the government while
acting within the scope of his office or employment, unless the claimant shall
have first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by certified or
registered mail. The failure of an agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for purposes of this section.
28 U.S.C. § 2675(a).
Although Plaintiff complained about his treatment through the Administrative
Remedy process, and filed a “Claim for Damage, Injury, or Death” (Doc. 1, p. 17), it is not clear
whether he properly invoked the FTCA administrative claim procedure or whether he received a
final response. If this was not done, he may not be able to sustain an FTCA action. However,
given the nature of Plaintiff’s allegations, further review is appropriate to determine whether he
may have a viable FTCA claim.
As to Dr. Kruse, additional factual development will be required in order to
determine whether his actions amounted to unconstitutional deliberate indifference.

In the

alternative, he may have been negligent in his handling of Plaintiff’s requests for medical
attention, which would point to a potential FTCA claim. Likewise, the evidence may indicate
that one or more of the other medical staff members (Poliman, Adesanya, or Harvey) were
negligent in their handling of Plaintiff’s medical needs. It appears that Dr. Kruse, Poliman,
Adesanya, and Dr. Harvey are all “government employees” within the meaning of the FTCA.
However, there is insufficient information in the complaint to determine at this time whether
Defendant Fleming, a physician in private practice, was also a “government employee” whose

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actions may be the subject of an FTCA claim. While the negligence or malpractice of these
individuals forms the basis of the FTCA claim, the United States of America is the only proper
defendant in an FTCA action. See 28 U.S.C. § 2679(b).
These matters shall be referred to the United States Magistrate Judge for further
consideration. To that end, the Clerk shall be directed to add the United States as a party in order
for the FTCA claim to proceed.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 5) shall be referred to the
United States Magistrate Judge for further consideration.
Disposition
The Clerk is DIRECTED to add the following party Defendants: DR. KRUSE
(Greenville Clinical Director), and the UNITED STATES of AMERICA.
COUNT 1 for deliberate indifference against Defendant Fleming is DISMISSED
without prejudice for failure to state a claim upon which relief may be granted. Defendant
FLEMING is DISMISSED from this action without prejudice.
As to COUNTS 2 and 3, The Clerk of Court is DIRECTED to complete, on
Plaintiff’s behalf, a summons and form USM-285 for service of process on Defendant KRUSE,
as well as a summons for service of process on the UNITED STATES; the Clerk shall issue the
completed summons. The United States Marshal SHALL serve Defendant KRUSE pursuant to
Rule 4(e) of the Federal Rules of Civil Procedure. 3 All costs of service shall be advanced by the

Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state law
for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s
3

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United States, and the Clerk shall provide all necessary materials and copies to the United States
Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1)
personally deliver to or send by registered or certified mail addressed to the civil-process clerk at
the office of the United States Attorney for the Southern District of Illinois a copy of each
summons, the complaint, and this Memorandum and Order; and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of each
summons, the complaint, and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendant Kruse, or
if an appearance has been entered by counsel, upon his attorney, and shall serve upon the United
States Attorney for the Southern District of Illinois, a copy of every pleading or other document
submitted for consideration by this Court. Plaintiff shall include with the original paper to be
filed a certificate stating the date that a true and correct copy of the document was mailed to the
Defendant or his attorney, and on the United States Attorney. Any paper received by a district
judge or a magistrate judge which has not been filed with the Clerk or which fails to include a
certificate of service will be disregarded by the Court.
Defendants are 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 Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 5).
Further, this entire matter shall be REFERRED to United States Magistrate
dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment or law to receive service of process.”
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Judge Williams 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).
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: June 17, 2014
s/ MICHAEL J. REAGAN
United States District Judge

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