Owens v. Duncan et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 11/6/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OWENS,
No. K83253,

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Plaintiff,
vs.
WARDEN STEPHEN DUNCAN,
NURSE PRACTITIONER BURCHES,
JOHN COE,
C/O CORKFETER,
TONY KITTLE,
PHILLIPE,
JOHN DOE #1,
JOHN DOE #2,
JOHN DOE #3, and
JOHN DOE #4,
Defendants.

Case No. 14-cv-01093-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff James Owens, an inmate in Lawrence Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on how prison staff
and medical personnel treated him when he injured his left hip and thigh in January 2014, and
when he pulled or tore a muscle in May 2014. 1
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
1

At this juncture the Court will assume that the two injuries are related, thus at least temporarily
staving off severance of claims into separate cases and requiring an additional filing fee. See
George v. Smith, 507 F.3d 605 (7th Cir. 2007) (unrelated claims against different defendants
belong in separate lawsuits).
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a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
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). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). 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.

At this juncture, the factual

allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
According to the complaint, on January 20, 2014, while eating lunch, Plaintiff
experienced pain in his left hip and thigh, which worsened until Plaintiff could not stand on his
leg. Plaintiff informed John Doe #1 and John Doe #2 about his situation. John Doe #1
threatened to mace Plaintiff if he did not stand up. The two officers eventually had Plaintiff
lifted up onto a table near the door, and they left him there in excruciating pain for approximately
two hours, until the lunch shift ended.
A nurse or medical staff member, John Doe #3, arrived in the cafeteria with a wheelchair
to transport Plaintiff to the health care unit.

John Doe #3 did not help Plaintiff into the

wheelchair, nor did he/she assist Plaintiff into or out of the wheelchair on additional occasions
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during Plaintiff’s time in the health care unit.

John Doe #3 also forced Plaintiff to walk

unassisted 30 feet to an exam table.
A doctor examined Plaintiff and prescribed Vicodin and a muscle relaxer. Plaintiff
stayed in the health care unit overnight and was then examined by Dr. Coe. Dr. Coe ordered
Plaintiff a cane and gave him a blister pack of Naproxen, but he neglected to tell Plaintiff how to
take the medication. Dr. Coe apparently also ok’d a replacement foam mattress for Plaintiff, but
instructed Plaintiff that he had to get the mattress approved by security officials.
A guard confiscated Plaintiff’s blister pack of medication so Plaintiff signed up for sick
call, but he was never let out of his cell to attend the sick call. When he told C/O Corkfeter that
he needed to speak to a lieutenant about his situation, Corkfeter refused to summon a lieutenant.
An unidentified nurse subsequently made rounds and did explain to Plaintiff how to take
Naproxen, but the nurse never did anything about getting Plaintiff more Naproxen to replace the
confiscated blister pack.
Plaintiff attempted to speak to his counselor, Tony Kittle, about getting a foam mattress,
but Kittle refused to speak with Plaintiff. Plaintiff also submitted a grievance, but Kittle never
responded. Plaintiff attributes Kittle’s inaction to retaliation for Plaintiff having sued Kittle in
the past. Plaintiff further alleges that the fact that Kittle remains his counselor after Plaintiff has
sued him is evidence of a conspiracy.
Plaintiff never received the cane Dr. Coe had ordered in January, so Coe again ordered a
cane in mid-February. The cane was not received until mid-May, four months after Plaintiff’s
initial injury.
In May 2014, Plaintiff stopped short and pulled or tore a muscle in his lower back.
Plaintiff went to the health care unit, but Nurse Practitioner Phillipe refused to address the

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muscle injury, instead insisting that Plaintiff was there regarding a fungal infection.

Plaintiff

was eventually seen about a week later by Nurse Practitioner Burches. However, Burches only
prescribed Ibuprofen and a muscle relaxer for the muscle injury.
Plaintiff continued to experience pain from his muscle injury and nurses eventually
stopped renewing his medications. On May 30, 2014, Plaintiff saw Dr. Coe. Coe acknowledged
that Plaintiff had a muscle tear, but no pain medication was prescribed. Rather, Dr. Coe ordered
Plaintiff a back brace. When the brace never arrived, Dr. Coe re-ordered the brace twice in July,
but Plaintiff never received the brace—just as he never received the foam mattress.
Plaintiff submitted two requests for a foam mattress to John Doe #4, the clothing room
supervisor in charge of such items, but he never received a response.
During the entire time period, Plaintiff filed multiple grievances, which were either
denied or not answered by Warden Duncan.
Plaintiff sues Warden Duncan in his official capacity only, for purposes of injunctive
relief (see Doc. 1, pp. 2, 10), and he sues the other defendants in their individual and official
capacities, seeking declaratory and injunctive relief, as well as nominal, compensatory and
punitive damages.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into two counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
designation of these counts does not constitute an opinion as to their merit.
Count 1: Defendants Burches, Coe, Corkfeter, Kittle, Phillipe and John
Does #1-4 were deliberately indifferent to Plaintiff Owens’ serious
medical needs, in violation of the Eighth Amendment—Warden
Duncan, in his official capacity only, is a defendant to this count
for purposes of injunctive relief; and

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The

Count 2: Defendant Kittle, individually or in conspiracy, retaliated against
Plaintiff, in violation of the First Amendment.
Discussion
Count 1
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment.

U.S. CONST., amend. VIII. See also Berry v.

Peterman, 604 F.3d 435, 439 (7th Cir. 2010).

Eighth Amendment protection extends to

conditions of confinement that pose a substantial risk of serious harm, including health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012). Prison
officials can violate the Eighth Amendment’s proscription against cruel and unusual punishment
when their conduct demonstrates “deliberate indifference to serious medical needs of prisoners.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). A medical condition need not be life-threatening to
be serious; rather, it can be a condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010).
A prison official may be liable “only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer
v. Brennan, 511 U.S. 825, 847 (1994). Proving deliberate indifference requires more than a
showing of negligent or even grossly negligent behavior. Id. at 835. Rather, the corrections
official must have acted with the equivalent of criminal recklessness. Id. at 836–37. However,
the deliberate obstruction or delay of treatment may violate the Eighth Amendment.
McGowan v. Hulick, 612 F.3d 636, 640-41 (7th Cir.).
In the context of medical professionals, this standard also has been
described as the “professional judgment” standard: A medical professional is
entitled to deference in treatment decisions unless “no minimally competent
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See

professional would have so responded under those circumstances.” Collignon v.
Milwaukee County, 163 F.3d 982, 988 (7th Cir.1998). A medical professional
acting in his professional capacity may be held to have displayed deliberate
indifference only if “the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on such
a judgment.” Collignon, 163 F.3d at 988 (quoting Youngberg v. Romeo, 457 U.S.
307, 322–23, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)); see also Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir.2006).
Sain v. Wood, 512 F.3d 886, 894 -95 (7th Cir. 2008).
Although the Court will assume at this point that Plaintiff’s pain and muscle injuries
qualify as serious medical needs, the complaint does not sufficiently plead deliberate
indifference on the part of each defendant.
Nurse Practitioner Burches prescribed Ibuprofen and a muscle relaxer for Plaintiff’s
muscle pain in May 2014 (a three-day prescription). Although Plaintiff may disagree with
Burches’ treatment decision, it does not reasonably suggest deliberate indifference, and negligent
or even grossly negligent malpractice does not violate the Eighth Amendment. See Estelle, 429
U.S. at 106; Farmer, 511 U.S. at 836; Sain, 512 F.3d at 894-95. Therefore, the claim against
Burches will be dismissed with prejudice.
Similarly, the allegations regarding Dr. Coe do not state a colorable Eighth Amendment
claim. Coe prescribed Naproxen in January; the fact that he did not instruct Plaintiff how to take
the medication is, at worst, negligence, not deliberate indifference.

Dr. Coe ok’d a foam

mattress, but he explained that security had to also approve the mattress. The fact that others
failed to take action on Plaintiff’s request for a foam mattress does not fall on Dr. Coe. Dr. Coe
also ordered Plaintiff a cane and back brace, and he reordered those items when they were not
provided to Plaintiff. It is not alleged and nothing in the complaint suggests that Dr. Coe could
guarantee that the medical devices he ordered would be provided to Plaintiff.

Out of an

abundance of caution, the claims(s) against Dr. Coe will be dismissed without prejudice.
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The complaint otherwise satisfies the Twombly pleading standard relative to Defendants
Corkfeter, Kittle, Phillipe and John Does #1-4. Therefore, Count 1 shall proceed against those
defendants in their individual capacities.
Warden Duncan is specifically sued only in his official capacity for injunctive relief
(Doc. 1, pp. 2, 10).

When proper medical care is not provided in violation of the Eighth

Amendment, the warden of the institution is the proper defendant, in his official capacity, for
ensuring that any injunctive relief is carried out. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th
Cir. 2011). Because he is sued only for purposes of injunctive relief, no substantive Eighth
Amendment claim shall proceed against Warden Duncan because there is not allegation of a
policy, practice or custom of deliberate indifference that traces back to him. See generally
Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002). For similar reasons, the claims against all
of the other defendants in their official capacities will be dismissed because there are no
allegations of a policy, practice or custom of deliberate indifference—or anything else.
Count 2
It is allege that Counselor Tony Kittle was deliberately indifferent to Plaintiff’s medical
needs—the basis for Count 1. It is also alleged that Kittle’s inaction was motivated by retaliation
for Plaintiff having filed suit against him.
To prevail on a First Amendment retaliation claim a plaintiff must show: (1) he engaged
in activity protected by the First Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and the First Amendment activity was at least a
motivating factor in the Defendant’s decision to take the retaliatory action. Gomez v. Randle,
680 F.3d 859, 866 (7th Cir. 2012) (internal citations omitted). Suing prison officials is protected
activity under the First Amendment ( Lewis v. Casey, 518 U.S. 343, 350 (1996); Lekas v. Briley,

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405 F.3d 602, 614 (7th Cir.2005)), and it is reasonably possible that Kittle was motivated by
either prior litigation activity—something that cannot be conclusively determined at this early
juncture. Count 2, therefore must proceed against Kittle in his individual capacity.
The claim that Kittle remaining as Plaintiff’s counselor evinces a conspiracy will be
dismissed without prejudice. “To establish the existence of a conspiracy, a plaintiff must
demonstrate that the conspirators have an agreement to inflict injury or harm upon him.” Sow v.
Fortville Police Dept., 636 F.3d 293, 304–05 (7th Cir. 2011). “The agreement may be inferred
from circumstantial evidence, but only if there is sufficient evidence that would permit a
reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an
understanding to achieve the conspiracy’s objectives.” Id. at 305 (quoting Hernandez v. Joliet
Police Dept., 197 F.3d 256, 263 (7th Cir.1999)). Plaintiff offers nothing more than a bare
assertion that, as pleaded, does not satisfy the Twombly pleading standard—It is possible, but not
plausible.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, all claims against Defendant
NURSE PRACTITIONER BURCHES are DISMISSED with prejudice and BURCHES is
DISMISSED from this action.
IT IS FURTHER ORDERED that all claims against Defendant JOHN COE are
DISMISSED without prejudice, and COE is dismissed from this action.
IT IS FURTHER ORDERED that all claims against all defendants in their official
capacities are DISMISSED without prejudice, except WARDEN STEPHEN DUNCAN shall
remain a defendant in his official capacity relative to COUNT 1, for purposes of injunctive relief
only.

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IT IS FURTHER ORDERED that the allegation of conspiracy in COUNT 2 is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNTS 1 and 2 shall otherwise PROCEED
against Defendant WARDEN STEPHEN DUNCAN, in his official capacity only, and against
Defendants C/O CORKFETER, TONY KITTLE, PHILLIPE and JOHN DOES #1-4 in their
individual capacities.
The Clerk of Court shall prepare for Defendants WARDEN STEPHEN DUNCAN, in
his official capacity only, and Defendants C/O CORKFETER, TONY KITTLE, and
PHILLIPE in their individual capacities: (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.
Service shall not be made on the “John Doe” Defendants until such time as Plaintiff has
identified them by name in a properly filed amended complaint. Plaintiff is ADVISED that it is
his responsibility to provide the Court with the names and service addresses for these
individuals.
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.
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

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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 Stephen C. Williams for further pre-trial proceedings. The undersigned judge will rule on
Plaintiff’s recently filed motion for leave to proceed in forma pauperis (Doc. 3) by separate
order.
Further, this entire matter shall be REFERRED to a United States Magistrate 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have 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

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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: November 6, 2014

s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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