Toliver v. Olmsted et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 10/27/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY TOLIVER, # R-23669,
Plaintiff,
vs.
C/O OLMSTED,
LT. JORDAN,
and JOHN DOE,
Defendants.

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Case No. 14-cv-01064-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Anthony Toliver, an inmate who is currently incarcerated at Pontiac Correctional
Center (“Pontiac”), brings this action pro se for alleged violations of his constitutional rights
under 42 U.S.C. § 1983 (Doc. 1). Specifically, Plaintiff claims that he was deprived of adequate
medical care for Bell’s palsy during his incarceration at Pinckneyville Correctional Center
(“Pinckneyville”) in 2013 (Doc. 1, pp. 5-7). Plaintiff now sues three Pinckneyville officials for
exhibiting deliberate indifference to his medical needs in violation of the Eighth Amendment.
These officials include Defendants Olmsted (correctional officer), Jordan (lieutenant), and Doe
(unidentified male nurse). Plaintiff seeks declaratory judgment and monetary damages (Doc. 1,
p. 8).
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to

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dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).
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). When reviewing the allegations in light of this standard, the
Court finds that the complaint survives preliminary review under Section 1915A.
The Complaint
According to the complaint, Plaintiff suffers from Bell’s palsy (Doc. 1, p. 5).
While incarcerated at Pinckneyville, he began experiencing swelling and severe pain on the left
side of his face on July 18, 2013. The same day, Defendant Doe provided Plaintiff with pain

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medication, but it was ineffective. Late that night, Plaintiff informed Defendant Olmsted that he
was diagnosed with Bell’s palsy and continued to suffer from severe pain. He asked to see a
medical professional immediately. In response, Defendant Olmsted said, “It’s just a headache”
(Doc. 1, p. 6). Throughout the night, Plaintiff pushed the emergency button in his cell, with no
response.
The following morning, Plaintiff approached Defendant Jordan in the chow hall.
Plaintiff told her that he was suffering from “constant” pain, and he requested immediate medical
attention. Defendant Jordan indicated that she was aware of his condition, and medical staff
would not see him until he filled out another sick call slip. She warned Plaintiff that he also
would not see medical staff unless he was dying. When Plaintiff repeated his request for
immediate medical attention for his “unbearable” pain, Defendant Jordan told him to stop
complaining or he would be sent to segregation. Plaintiff did not meet with medical staff until
one week later, on July 25, 2013.
Plaintiff now sues Defendants Olmsted, Jordan, and Doe for depriving him of adequate
medical care for his Bell’s palsy, in violation of the Eighth Amendment. As a result of the
inadequate treatment, he suffered from unnecessary pain for a week. He seeks declaratory
judgment and monetary damages (Doc. 1, p. 8).
Discussion
The complaint states a colorable Eighth Amendment medical needs claim (Count 1)
against Defendants Olmsted, Jordan, and Doe.

The Supreme Court has recognized that

“deliberate indifference to serious medical needs of prisoners” may constitute cruel and unusual
punishment under the Eighth Amendment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976);

Farmer v. Brennan, 511 U.S. 825, 837 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2006)

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(per curiam).

To state a claim, a 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 complaint suggests that Plaintiff suffered from an objectively serious medical
condition, i.e., Bell’s palsy. This condition caused Plaintiff to experience allegedly intolerable
pain. A condition that results in further significant injury or unnecessary and wanton infliction
of pain if left untreated can be serious, even if it is not life threatening. Gayton v. McCoy,
593 F.3d 610, 620 (7th Cir. 2010). The complaint suggests that Plaintiff’s condition, which
involved facial swelling and pain from July 18-25, 2013, was objectively serious.
The complaint also suggests that Defendants responded to Plaintiff’s complaints of pain
with deliberate indifference.

Defendant Doe met with Plaintiff and prescribed him pain

medication but, according to the complaint, allegedly ignored his subsequent complaints of pain
for a week. Defendant Olmsted allegedly refused to provide Plaintiff with any form of pain
relief, even after Plaintiff made him aware of the severity of his pain and ineffectiveness of his
pain relievers. Finally, Defendant Jordan responded to Plaintiff’s request for immediate medical
attention by threatening him with segregation for complaining; she also told him that he would
not see medical staff unless he was dying. See Brown v. Darnold, 505 Fed. Appx. 584, *3
(7th Cir. 2013) (“A deliberate refusal to treat treatable pain can rise to the level of an
Eighth Amendment violation.”). At this early stage, the complaint states sufficient allegations to
support a deliberate indifference claim against Defendants.
Based on the foregoing discussion, Plaintiff shall be allowed to proceed with Count 1
against Defendants Doe, Olmsted, and Jordan.

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Identification of Unknown Defendant
Plaintiff shall be allowed to proceed with Count 1 against Defendant John Doe
(unknown male nurse). But this party must be identified with particularity before service of the
complaint can be made on him.

Where a prisoner’s complaint states specific allegations

describing conduct of individual prison staff members sufficient to raise a constitutional claim
but the names of those defendants are not known, the prisoner should have the opportunity to
engage in limited discovery in order to ascertain the identity of those defendants.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).

In this case,

guidelines for discovery aimed at identifying this party will be set by the United States
Magistrate Judge, so that Plaintiff can amend the complaint to include all references to the
defendant.
Disposition
AS TO COUNT 1, the Clerk of Court shall prepare for DEFENDANTS
C/O OLMSTED and LT. JORDAN: (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
each Defendant’s place of employment as identified by Plaintiff. If a 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 that Defendant,
and the Court will require that Defendant to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
Service shall not be made on Defendant John Doe until such time as Plaintiff has
identified this defendant by name in a properly filed amended complaint, which includes

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identifying this defendant in the caption and inserting the individual’s name, where applicable,
throughout the complaint. Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide
the Court with the names and service addresses for these individuals.
With respect to a Defendant who no longer can be found at the work 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
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every 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 the document was served on Defendants 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.
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 Donald G. Wilkerson for further pre-trial proceedings, including discovery aimed at
identifying Defendant John Doe.

Further, this entire matter shall be REFERRED to

United States Magistrate Judge Wilkerson 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

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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: October 27, 2014

____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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