Tate v. Lofton et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 9/2/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUCIOUS TATE, # R-11656,
Plaintiff,
vs.
DOCTOR LOFTON,
and UNKNOWN PARTY NURSE,
Defendants.

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Case No. 14-cv-862-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff is currently incarcerated at Jacksonville Correctional Center (“Jacksonville”),
where he is serving a nine-year sentence for aggravated battery. He brings this pro se civil rights
action pursuant to 42 U.S.C. § 1983, against two prison medical providers employed at the
institution where he was previously confined, Robinson Correctional Center (“Robinson”). He
claims that Defendants were deliberately indifferent to a serious medical condition.
In lieu of a detailed factual statement, Plaintiff includes copies of a grievance which he
submitted to Robinson officials over his medical issues, as well as the report denying his
grievance, and his appeal of that denial (Doc. 1, pp. 5-10). Plaintiff submitted the grievance on
February 15, 2013, and appealed the denial on April 9, 2013.
In the February 2013 grievance, Plaintiff claims that in July 2011, while he was confined
at the Cook County Jail, he injured his right foot while playing basketball. He was taken to a
hospital and given an x-ray, but never learned the results (Doc. 1, p. 5). Several weeks later he
was transferred to the custody of the Illinois Department of Corrections (“IDOC”) to begin
serving his sentence. He was told by a nurse at his intake institution to wait to seek further
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medical attention until after he arrived at the next prison.
Soon thereafter, Plaintiff was placed at Robinson, where he immediately requested to see
the doctor.

He was instructed that he must first see a nurse, which he did.

The nurse

(presumably the Unknown Party/John Doe named in the complaint) referred Plaintiff to
Defendant Doctor Lofton, who then examined his right foot and leg. Defendant Lofton opined
that his symptoms must be coming from a back injury, and referred him to a neurologist.
Plaintiff claims that Defendant Lofton “totally ignored” his explanation that he had hurt his foot
while playing basketball (Doc. 1, p. 6).
On July 10, 2012 (approximately one year after the original foot injury, and four months
after Defendant Lofton’s referral), Plaintiff was examined by the neurologist at an outside
hospital. This physician was unable to diagnose the cause of Plaintiff’s ongoing pain, and
suggested that maybe it would get better over time (Doc. 1, p. 6). Two weeks later, Defendant
Lofton informed Plaintiff of the results of the neurologist’s exam, and advised him not to play
basketball, to take it easy for a while, and to sign up for sick call if he had further problems.
Plaintiff immediately filed a grievance, because Defendant Lofton had failed to obtain his
original x-ray results from the Cook County Jail, and would not listen to Plaintiff’s concerns
about the ongoing pain in his right foot. As a result of this grievance, Defendant Lofton for the
first time ordered an x-ray of Plaintiff’s right foot. It did not reveal any damage.
Three months later, on October 28, 2012, Plaintiff submitted a sick call request,
complaining of pain in his right leg and foot, and noting that his foot and leg were still numb
even after all the time that had passed since the injury (Doc. 1, p. 7). He received a response (he
does not say from whom) that he could take pain medication which may be purchased at
commissary or obtained through signing up for sick call.

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Plaintiff did not take any pain

medication, but on November 7, 2012, sent a request to Defendant Lofton asking her if she
thought he might have sustained nerve damage that was causing his numbness and pain. She
told him to sign up for sick call, which he did.
Defendant Lofton then saw Plaintiff again. She gave him “the same meager exam” as
before (Doc. 1, p. 7). She authorized him to be given pain medication. Plaintiff states, however,
that the medication did not stop the pain. More importantly, he complains that Defendant Lofton
never took any further steps to determine the medical reason for the pain and numbness that had
continued since July 2011. He feared that without proper treatment, he might eventually have
permanent lack of feeling in his right foot, leg, hip, and genital region, and could become
wheelchair-bound. Id.
Plaintiff’s grievance was denied on March 29, 2013 (Doc. 1, p. 8). In that narrative, the
grievance officer noted that the Cook County x-rays had been received, and were negative, like
the later results. Further, Plaintiff had been issued crutches and had been observed “walking
without difficulty.” Id. In his appeal of the grievance, Plaintiff objected that he did not need
crutches, and that his pain and numbness did not prevent him from walking all the time. He
explained that the pain and numbness “comes and goes,” causing him to need assistance with
walking when those spasms appear (Doc. 1, p. 10). He attributed his symptoms to possible
damage to a nerve, tendon, or ligament which could not be detected unless he was given an MRI.
The complaint states that Plaintiff has continued to experience the numbness and pain in
his right foot and leg to the present day, and he has never obtained any effective medical
treatment (Doc. 1, pp. 12-13). Defendants have never performed any further diagnostic testing to
address his pain and suffering. In addition, Plaintiff claims to now be experiencing pain and
suffering in his left leg (Doc. 1, p. 13). Although he implies that the left leg problems began

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while he was still under the care of Defendant Lofton at Robinson, he gives no further
information as to the onset or nature of those symptoms, nor does he describe any steps he may
have taken to bring this matter to the attention of either Defendant.
Plaintiff seeks injunctive relief in the form of “immediate medical treatment” for his right
foot, right leg, and left leg, as well as compensatory damages (Doc. 1, p. 14).
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. Accepting Plaintiff’s
allegations as true, the Court finds that the claim against Defendant Lofton for deliberate
indifference to Plaintiff’s serious medical need for treatment of his right leg and foot survives
§ 1915A review.
However, the Court notes that the injunctive relief sought by Plaintiff cannot be granted
by this Court, based on the current complaint and the circumstances of Plaintiff’s present
incarceration. “[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 Robinson under the conditions described in the complaint, would
it be proper for the Court to consider injunctive relief against any current Defendant. See
Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668
(7th Cir. 2009)).
The complaint does not disclose the date on which Plaintiff was transferred from

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Robinson to his present institution (Jacksonville), nor does he include any facts regarding any
attempts to seek treatment for his issues since the transfer. It is clear, however, that because of
Plaintiff’s transfer, he is no longer under the care of the Robinson medical department, including
the two Defendants named herein. Therefore, his request for an injunction ordering Defendant
Lofton and the Unknown Robinson Nurse to provide him with immediate medical care has
become moot. The Court shall not consider Plaintiff’s request for injunctive relief at this time.
Damages Claim for Deliberate Indifference to Serious Medical Needs
Generally, an inmate’s dissatisfaction with the medical care he receives in prison does not
state a constitutional claim for deliberate indifference to medical needs, even if the quality of
care was substandard to the point of negligence or malpractice. Estelle v. Gamble, 429 U.S. 97,
106 (1976); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001); Snipes v. DeTella, 95
F.3d 586, 591 (7th Cir. 1996). However, in certain instances, a constitutional claim may lie if a
prison official’s actions amount to a failure to treat a serious medical condition.
To prevail on an Eighth Amendment claim, a plaintiff must show that the
responsible prison officials were deliberately indifferent to his serious medical
needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman
v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference
involves a two-part test. The plaintiff must show that (1) the medical condition
was objectively serious, and (2) the state officials acted with deliberate
indifference to his medical needs, which is a subjective standard.
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
The Seventh Circuit considers the following to be indications of a serious medical need:
(1) where failure to treat the condition could “result in further significant injury or the
unnecessary and wanton infliction of pain;” (2) “[e]xistence of an injury that a reasonable doctor
or patient would find important and worthy of comment or treatment;” (3) “presence of a

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medical condition that significantly affects an individual’s daily activities;” or (4) “the existence
of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
Plaintiff’s ongoing pain and recurrent numbness in his right leg and foot is an objectively
serious medical need under the above standard. The duration of these symptoms is of particular
concern.
As to the subjective component of a deliberate indifference claim, a prison official must
“be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists” and must actually “draw the inference.” Farmer, 511 U.S. at 837. In other words, a
defendant must have actual knowledge of, or reckless disregard for, a substantial risk of harm.
Inadvertent error, negligence or even ordinary 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). Nor will an inmate’s disagreement with a doctor’s course of treatment state a
constitutional claim.

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 take sides in disagreements with
medical personnel’s judgments or techniques).
However, an Eighth Amendment claim may be stated where a prison doctor persists in a
course of treatment known to be ineffective, fails to order further testing or refuses to refer the
inmate to a specialist. Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (doctor continued
ineffective treatment, and refused to order endoscopy or specialist referral over a two-year period
during which plaintiff suffered from ulcer); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir.
1990) (inmate may prevail if he can prove that defendant “deliberately gave him a certain kind of
treatment knowing that it was ineffective” (citing Estelle v. Gamble, 429 U.S. 97, 104 n.10
(1976)). See also Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir. 2007) (“a plaintiff’s receipt of

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some medical care does not automatically defeat a claim of deliberate indifference if a fact finder
could infer the treatment was ‘so blatantly inappropriate as to evidence intentional mistreatment
likely to seriously aggravate’ a medical condition”)).
Based on the facts presented by Plaintiff, Defendant Lofton initially took steps to address
his complaints. She referred him to the neurologist, ordered and reviewed x-rays, and prescribed
pain medication. Those actions do not demonstrate that Defendant Lofton was deliberately
indifferent to Plaintiff’s condition. However, Plaintiff claims that since his sick call request of
October 2012, and to the present day, he has continued to experience numbness in his right leg
and foot, as well as pain that has not been relieved by the offered medications. He alleges that
Defendant Lofton offered no other treatment, testing, or referral to address these problems,
which had lasted for over 19 months as of February 2013. The complaint is silent as to how
much longer Plaintiff endured the ongoing pain and numbness while he was under Defendant
Lofton’s care at Robinson, before he was transferred. Based on the fact that Plaintiff filed his
grievance appeal from Robinson on April 9, 2013, he remained at that institution at least until
that date (Doc. 1, p. 9). By the time that appeal was denied over one year later (on April 15,
2014) Plaintiff was at Jacksonville (Doc. 1, p. 11).
At this juncture, Plaintiff has raised a claim against Defendant Lofton for deliberate
indifference to the continuing pain and numbness in his right leg and foot, that merits further
review. Because Plaintiff does not allege that he ever informed Defendant Lofton of any
problems with his left leg, he has failed to state a claim against her for deliberate indifference to
that particular condition.
Further, Plaintiff’s claim against the Unknown Party Robinson Nurse shall be dismissed
with prejudice. The complaint contains no allegations to suggest that any nurse was deliberately

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indifferent to Plaintiff’s need for medical attention for his persistent symptoms. He does not
describe any circumstance where a nurse refused to examine him or provide him with
medication, prevented him from seeing the doctor, or interfered with his treatment in any way.
Further, the requirement that Plaintiff follow institutional protocol, to submit a sick call request
and be screened by a nurse in order to obtain medical treatment, does not indicate that any person
was deliberately indifferent to his condition. Accordingly, the complaint shall proceed only
against Defendant Lofton.
Pending Motion
Plaintiff’s motion for leave to proceed in forma pauperis (“IFP”) (Doc. 2) shall be
addressed in a separate order. Plaintiff is REMINDED that he must submit his prisoner trust
fund account statement no later than September 22, 2014, in order to obtain a ruling on his IFP
motion and to avoid dismissal of this case (See Doc. 4).
Disposition
The deliberate indifference claim against DEFENDANT UNKNOWN PARTY
ROBINSON NURSE is DISMISSED with prejudice for failure to state a claim upon which
relief may be granted, and this Defendant is DISMISSED from the action with prejudice.
The Clerk of Court shall prepare for Defendant LOFTON: (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

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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.
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 any
grant of his application to proceed in forma pauperis. 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

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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: September 2, 2014
s/ J. Phil Gilbert
United States District Judge

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