Howery v. Harrington et al

Filing 6

ORDER. The Complaint (Doc. 1 ) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. 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 (on or before December 18, 2014). The Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 12/18/2014.). Signed by Judge Nancy J. Rosenstengel on 11/13/14. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BERNON L. HOWERY, # B-12703,
Plaintiff,
vs.
RICKY HARRINGTON
and DR. SHEARING,
Defendants.

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Case No. 14-cv-1134-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff is currently incarcerated at Menard Correctional Center (“Menard”), serving a
life sentence for murder and aggravated arson. He has brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff also filed another lawsuit at the same time he brought
this case (Howery v. Atchinson, Case No. 14-cv-1133-JPG, filed Oct. 21, 2014). That matter is
also under consideration by Judge J. Phil Gilbert.
In the instant case, Plaintiff claims that Defendant Shearing (a Menard physician) has
been deliberately indifferent to his serious medical condition. He also seeks to hold Defendant
Harrington (the former Menard Warden) liable as the chief administrator of the prison.
Plaintiff’s claims stem from an injury he sustained on September 10, 2013. At that time,
Plaintiff was 62 years old. He attempted to lift his property box, which was being transported in
connection with his court writ, when something “snapped,” and he felt a sudden, intense pain in
his lower left back (Doc. 1, p. 9). He screamed in pain as his left leg “collapsed.” Id. Plaintiff
was immediately taken to the Health Care Unit in a wheelchair, where he was seen by Defendant
Shearing.
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Defendant Shearing ignored Plaintiff’s attempts to tell him about the back injury and the
location of his pain. When Defendant Shearing realized that Plaintiff could not get off the
examining table, he ordered x-rays of Plaintiff’s kidney area. Defendant Shearing “guessed” that
Plaintiff was suffering from kidney stones, despite Plaintiff’s protestations that he had never had
kidney or gallstones (Doc. 1, p. 10). Plaintiff’s pain had spread from his hip to the inside of his
left thigh and toward his left knee.
Defendant Shearing ordered an I.V. for Plaintiff to induce urination, and he kept Plaintiff
overnight in the infirmary. Plaintiff complains that Defendant Shearing gave him no pain
medication, however, he notes that a “med tech” gave him some brown pain pills that proved to
be ineffective (Doc. 1, p. 23). During the night, Plaintiff twice pulled the needle out of his hand
because the I.V. fluid was empty, and he feared that an air bubble would enter his bloodstream
and kill him. The next day, a different doctor discharged Plaintiff and ordered a few days’
supply of naproxen for his pain, which did not work. Id.
Plaintiff requested medical treatment again because his pain had spread and grown worse
(Doc. 1, p. 23). He was seen on September 20, 2013, by a med tech, who said he had injured his
sciatic nerve. The med tech ordered Plaintiff to rest and stay off his feet; the med tech also gave
Plaintiff pain medication for the next week. Id. Plaintiff was given a “medical lay-in” and
“feed-in-cell” permit for September 20 through 24 (Doc. 1, p. 17).
Plaintiff saw Defendant Shearing again a few days later. Dr. Shearing briefly examined
Plaintiff but offered no diagnosis (Doc. 1, p. 23). He ordered more x-rays and issued Plaintiff a
“slow walk” permit, but took Plaintiff off the eat-in-cell permit and did not order any more pain
medication (Doc. 1, pp. 11, 23).
The x-rays of Plaintiff’s back and left side were performed on October 3, 2013. When

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Plaintiff heard nothing about the results, he sent a request to Defendant Shearing on October 15,
2013. The next day, a med tech came to see Plaintiff and informed him that he had a type of
arthritis. She gave him a few Tylenols for pain, however, his hip, thigh, and knee continued to
hurt (Doc. 1, p. 23).
On October 21, 2013, Plaintiff filed a grievance claiming inadequate medical treatment
(Doc. 1, pp. 22-23). He filed a follow-up grievance on November 6, 2013 (Doc. 1, p. 35). He
never got any response to either grievance until May 8, 2014, when a new counselor spoke to
him about the matter (Doc. 1, p. 6). She later informed Plaintiff that he had no pending medical
grievances.
Plaintiff complains that Defendant Shearing’s response to his medical needs was
inadequate because he never diagnosed Plaintiff’s injury, never treated his pain, and offered no
other treatment after ordering the second x-ray and issuing the slow-walk permit in October
2013. According to Plaintiff, Defendant Harrington should have ensured that Plaintiff received
adequate treatment once he learned about Plaintiff’s grievances against Dr. Shearing. Plaintiff
now seeks injunctive relief to provide him with “immediate and thorough medical treatment
including functional pain medication and an MRI, braces (if needed), and therapy,” as well as
compensatory and punitive 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.
After fully considering the allegations in Plaintiff’s complaint and relevant exhibits, the
Court concludes that the complaint fails to state a constitutional claim upon which relief may be

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granted against either Defendant.

The complaint shall therefore be dismissed.

However,

Plaintiff shall be given the opportunity to submit an amended complaint as to his claim that
Defendant Shearing was deliberately indifferent 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 action
shall be dismissed, and the dismissal shall count as a “strike” pursuant to 28 U.S.C. § 1915(g).
The amended complaint shall be subject to review pursuant to § 1915A.
Deliberate Indifference to Serious Medical Needs
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.

An

objectively serious condition includes an ailment that significantly affects an individual’s daily
activities or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997). “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.” 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 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 and painful condition that clearly required medical
attention. The complaint thus satisfies the objective component of an Eighth Amendment claim.

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The remaining question is whether Defendant Shearing acted or failed to act with deliberate
indifference to a known risk of serious harm.
According to the complaint, Defendant Shearing treated Plaintiff promptly after he was
brought to the infirmary immediately following his injury.

Defendant Shearing’s apparent

misdiagnosis of kidney stones may have been a mistake or malpractice, but such an error does
not amount to deliberate indifference. While Plaintiff also faults Defendant Shearing for failing
at that time to order pain medication, Plaintiff states that he did in fact receive pain medication
from both the med tech and the other doctor who discharged him after the I.V. treatment. Even
though that pain treatment did not relieve Plaintiff’s discomfort, treatment that proves to be
ineffective also does not constitute deliberate indifference. See Duckworth, 532 F.3d at 680.
Plaintiff again received treatment shortly after he requested it, when the med tech saw
him on September 20, 2013. He saw Defendant Shearing for another examination a few days
later. At that time, Defendant Shearing ordered further x-rays and gave Plaintiff the slow walk
permit. Those actions demonstrate that Defendant Shearing was not deliberately indifferent to
the need to diagnose the source of Plaintiff’s problems. Likewise, even though Defendant
Shearing did not personally relay the x-ray results to him, Plaintiff was informed of the arthritis
diagnosis by the med tech on October 16, 2013.
Plaintiff is not satisfied with the diagnosis that he suffers from arthritis, and apparently he
disagrees that this is the cause of his symptoms. However, mere disagreement with a physician’s
diagnosis or chosen course of an inmate’s medical treatment does not amount to deliberate
indifference under the Eighth Amendment. See 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 takes sides in
disagreements about medical personnel’s judgments or techniques); Snipes v. DeTella, 95 F.3d

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586, 591 (7th Cir. 1996). Again, Plaintiff does not have the right to demand specific diagnostic
tests such as an MRI or to prescribe his own treatment. See Forbes v. Edgar, 112 F.3d 262, 267
(7th Cir. 1997).
This leaves Plaintiff’s allegation that Defendant Shearing failed to prescribe him any
more pain medication at the time he ordered the second x-ray. It also appears from the complaint
that Plaintiff continues to suffer pain but no measures (other than the slow-walk permit) have
been taken to provide him with any pain relief. If a medical provider is made aware of an
inmate’s ongoing pain yet fails to provide any treatment, such a failure to act may constitute
deliberate indifference.
The complaint, as pled, fails to contain any facts to indicate that Defendant Shearing was
notified of Plaintiff’s ongoing need for pain relief. Plaintiff does not state whether he put in
another sick call request at any time after he was given the Tylenol by the med tech on October
16, 2013. While Plaintiff did file two grievances after that date, the fact that he never got any
response until May 2014 suggests that those grievances were not effective to give notice to any
medical provider that Plaintiff was still in need of treatment. In order to establish that Defendant
Shearing was deliberately indifferent to Plaintiff’s ongoing pain, Defendant Shearing had to
know about that condition but fail to take reasonable steps to alleviate Plaintiff’s distress. See
Farmer v. Brennan, 511 U.S. 825, 842 (1994). As noted above, Plaintiff shall be allowed to
submit an amended complaint in order to include any facts that may support his deliberate
indifference claim against Defendant Shearing.
As to Defendant Harrington, his position as Warden and the supervisory authority he held
over other Menard officials are both insufficient to impose liability on him for any
unconstitutional acts or omissions by a Menard medical provider or other employee.

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The

doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citations omitted). In order for liability to attach, a Defendant
must be “personally responsible for the deprivation of a constitutional right.” Id.
The factual allegations in the complaint do not suggest that Defendant Harrington was a
medical provider or was in any way personally involved in any decision regarding Plaintiff’s
medical care or lack thereof. If a prisoner is under the care of prison medical professionals, a
non-medical prison official such as the warden “will generally be justified in believing that the
prisoner is in capable hands.” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (quoting
Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). This presumption might be overcome if an
administrator was made aware of the failure of medical staff to treat a prisoner’s problem – but
the complaint does not suggest this was the case. Plaintiff claims that Defendant Harrington
should have been aware of the inadequate treatment because he filed grievances. Since he also
states that the grievances were never answered and later could not be found, however, it is not
reasonable to infer that Defendant Harrington knew anything about Plaintiff’s complaints. Thus,
the pleading fails to state a deliberate indifference claim against Defendant Harrington.
Because Plaintiff has requested injunctive relief and will be allowed to submit an
amended complaint, Defendant Harrington shall not be dismissed from the action at this time.
See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for
injunctive relief is the government official responsible for ensuring any injunctive relief is
carried out).
Disposition
The Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim
upon which relief may be granted.

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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 (on or before
December 18, 2014). It is strongly recommended that Plaintiff use the form designed for use in
this district for civil rights actions. He should label the pleading “First Amended Complaint” and
include Case Number 14-cv-1134-NJR. Plaintiff should attempt to include the facts of his case
in chronological (date) order, inserting Defendants’ names where necessary to identify the actors
and the dates of any material acts or omissions. In particular, Plaintiff should include facts
bearing on the question of whether Defendant Shearing was aware of Plaintiff’s need for pain
relief from the time he ordered the second x-ray to the time Plaintiff filed the instant action.
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 also must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. Further, Plaintiff is urged to file only relevant exhibits; his initial
filing included many documents that had nothing to do with this action and related only to the
other case Plaintiff filed on the same day. 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.

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In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
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: November 13, 2014

_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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