Howery v. Harrington et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 7/16/2015. (tjk)

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:
This matter is now before the Court for consideration of Plaintiff’s First Amended
Complaint (Doc. 7), which was filed on December 3, 2014, at the direction of the Court. The
original complaint was dismissed pursuant to 28 U.S.C. § 1915A for failure to state a claim upon
which relief may be granted (Doc. 6).
Plaintiff’s claims arose at Menard Correctional Center (“Menard”), where he was
confined at the time he filed this action pursuant to 42 U.S.C. § 1983. He is still incarcerated at
Menard and is serving a life sentence for murder and aggravated arson. Plaintiff claims that
Defendant Shearing (a Menard physician) has been deliberately indifferent to his serious medical
condition and that Defendant Harrington (the former Menard Warden) should also be held liable
for the failure to effectively treat Plaintiff’s condition.
The First Amended Complaint (Doc. 7)
Plaintiff’s factual allegations in the amended pleading are largely identical to those in the
original complaint, but he has added and clarified some material. Plaintiff injured his back on
September 10, 2013, when he was 62 years of age. He was attempting to lift his property box
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when something “snapped” and he felt a sudden, intense pain in his lower left back (Doc. 7, p.
16). 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.
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. 7, p. 17). 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 kept him
overnight in the infirmary. Plaintiff complains that Defendant Shearing gave him no pain
medication. A “med tech” gave him some brown pain pills that proved to be ineffective (Doc. 7,
p. 10). 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 (Doc. 7,
pp. 10, 18). The next day, a different doctor discharged Plaintiff and ordered a few days’ supply
of naproxen for his pain, which did not work (Doc. 7, p. 10).
Plaintiff requested medical treatment again because his pain had spread and grown worse
(Doc. 7, p. 10). 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, gave him pain
medication for the next week, and gave him a temporary “eat-in-cell” permit. Id.
Plaintiff saw Defendant Shearing again a few days later. He briefly examined Plaintiff
but offered no diagnosis (Doc. 7, p. 10). He ordered a second set of X-rays, but took Plaintiff off
the eat-in-cell permit and did not order any more pain medication (Doc. 7, pp. 10, 18). Although

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Defendant Shearing told Plaintiff he would issue him a “slow-walk” permit, he never did this
(Doc. 7, p. 12).
The X-rays of Plaintiff’s back and left side were performed on October 3, 2013. When
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. 7, p. 10). Defendant Shearing never gave Plaintiff any treatment to relieve his pain
from the back injury, and the pain has continued (Doc. 7, p. 12).
On October 21, 2013, Plaintiff filed a grievance claiming inadequate medical treatment
(Doc. 7, pp. 9-10). He filed a follow-up grievance on November 6, 2013 (Doc. 7, p. 11). He
never got any response to either grievance until May 8, 2014, when a new counselor spoke to
him about the matter (Doc. 7, p. 7). She later informed Plaintiff that she had no pending medical
grievances from him. No medical staff ever responded to these grievances (Doc. 7, p. 6).
Plaintiff complains that Defendant Shearing’s response to his medical needs was
inadequate because he never diagnosed Plaintiff’s injury, never treated his pain, discontinued
Plaintiff’s temporary “lay-in” order, and never issued the slow-walk permit (Doc. 7, p.12).
Additionally, during Plaintiff’s stay in the infirmary, Defendant Shearing left Plaintiff’s I.V.
unattended; Plaintiff removed the needle from his arm “to prevent air from entering [his] vein”
(Doc. 7, p. 13). When the same thing occurred a second time, a person who may have been
Defendant Shearing or another attendant re-inserted the I.V. needle but failed to re-start the drip
(Doc. 7, p. 14).
Defendant Harrington failed to correct Defendant Shearing’s misconduct, after “being
made aware of [it] through the grievance process.” Id. Plaintiff now seeks injunctive relief to

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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. 7, pp. 20-22).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a threshold review of the amended
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.
Based on the factual allegations in the original complaint, the Court found that Plaintiff
had suffered a painful back injury that arguably qualified as an objectively serious medical
condition. See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The factual allegations
contained in the First Amended Complaint likewise support that conclusion.
A claim for deliberate indifference to a serious medical need also has a subjective
element. “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).
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). 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).
Defendant Shearing took some reasonable steps to address Plaintiff’s condition – he
ordered x-rays and tried the I.V. treatment when he suspected kidney stones as the source of

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Plaintiff’s pain. Neither the apparent misdiagnosis of kidney stones nor the lack of attention to
Plaintiff’s I.V. drip rose to the level of unconstitutional deliberate indifference. But Plaintiff’s
clarification that Defendant Shearing never issued Plaintiff the slow-walk permit (which might
have offered him some relief, as Defendant Shearing himself recognized) and never gave
Plaintiff any pain medication to relieve his significant and continuing discomfort (even after
diagnosing him with arthritis), indicates that the doctor may have been deliberately indifferent to
Plaintiff’s serious medical condition.

Accordingly, Plaintiff may proceed with his Eighth

Amendment claim against Defendant Shearing (designated as Count 1).
That leaves Plaintiff’s claim (Count 2) against Defendant Harrington, who was Warden
of Menard at the time Plaintiff sought medical treatment. Plaintiff names him in both his
individual and official capacities (Doc. 7, p. 1).
As noted in the order that dismissed Plaintiff’s original complaint, Plaintiff cannot hold
Defendant Harrington liable merely because he held supervisory authority over Defendant
Shearing. The doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). In order for liability to attach, a Defendant
must be “personally responsible for the deprivation of a constitutional right.” Id. None of the
factual allegations in the complaint suggests personal involvement by Defendant Harrington in
Plaintiff’s medical treatment (or lack thereof).
Plaintiff alleges that Defendant Harrington was aware of Defendant Shearing’s
“misconduct” because Plaintiff filed two grievances. This alone is not enough to impose liability
on the warden, even if he did review the grievances. And in Plaintiff’s case, he notes that he
never got any response to either grievance, and he was told by the counselor that no grievance
was on record for him. As such, it cannot be concluded that either grievance ever made it to

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Defendant Harrington’s desk to inform him of Plaintiff’s complaints. The amended pleading
thus fails to state a deliberate indifference claim against Defendant Harrington. Count 2 shall be
dismissed without prejudice.
Because Plaintiff is seeking injunctive relief, it is appropriate for the Warden of Menard
to remain as a Defendant in the action, in his/her official capacity only. 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).

As

Defendant Harrington is no longer serving as warden, the Clerk shall be directed to terminate
him from the action, and to substitute “Menard Warden (Official Capacity)” as a Defendant. See
FED. R. CIV. P. 21; FED. R. CIV. P. 17(d).
Disposition
COUNT 2 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.

DEFENDANT HARRINGTON is DISMISSED from the action

without prejudice.
The Clerk is DIRECTED to add as a Defendant the MENARD WARDEN (Official
Capacity).
The Clerk of Court shall prepare for Defendants SHEARING and MENARD
WARDEN: (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

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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
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.
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
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that

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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 REMINDED 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: July 16, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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