Smith v. Harrington et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams and DENYING as MOOT 4 MOTION Service of Process at Government Expense filed by Tyrin N Smith. Signed by Judge J. Phil Gilbert on 11/19/2014. (mkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRIN N. SMITH, # B-78535,
Plaintiff,
vs.
SALVADORE GODINEZ,
RICHARD HARRINGTON,
GAIL WALLS, ANGELA CRAIN,
DR. FUENTES, and DR. NWOABASI,
Defendants.

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Case No. 14-cv-1150-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Tyrin Smith, an inmate at Menard Correctional Center (“Menard”), brings this
civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges claims against Salvadore
Godinez (director of the Illinois Department of Corrections); Richard Harrington (warden at
Menard); Gail Walls (acting health care administrator); Angela Crain (RN and nursing
supervisor); Dr. Fuentes (a healthcare provider at Menard); and Dr. Nwaobasi (another
healthcare provider at Menard). (Doc. 1). Plaintiff claims that Defendants have repeatedly
refused to provide adequate medical treatment for Plaintiff’s severely prolapsed hemorrhoid. Id.
at 13. Plaintiff seeks monetary relief.
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for a 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
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
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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).
The Complaint
Plaintiff has submitted a lengthy complaint, which contains a detailed discussion of his
medical conditions, his attempts to secure medical treatment, and his various efforts to file
grievances regarding the situation.

For the purpose of the Court’s threshold review, the

following facts are relevant.
Since 2010, Plaintiff has suffered from hemorrhoids. (Doc. 1, p. 13). From 2010 until
2014, Plaintiff was examined multiple times by Drs. Fuentes and Nwaobosi at the Health Care
Unit (“HCU”) at Menard.1 Id. During that time, Plaintiff maintains that not only was his
medical condition not properly treated, but the prescribed treatments actually caused his
condition to worsen. Id. at 21. In mid-2011, Plaintiff states that his condition worsened from a
small internal hemorrhoid to a severely prolapsed/thrombosis hemorrhoid, which was bloody and
swollen and protruded nearly two inches outside of the anal cavity. Id. at 16. Plaintiff asserts
that he needlessly suffered through this extremely painful condition because neither Dr. Fuentes
nor Dr. Nwaobosi would order surgery for Plaintiff.

According to Defendant Nwaobosi,

Plaintiff’s request for surgery was denied because of cost and/or security considerations. Id. at
13.
It was not until Plaintiff saw Dr. Trost, a new doctor at Menard, that Plaintiff was able to
obtain any relief. Dr. Trost examined Plaintiff for the first time on March 24, 2014. Id. at 15.
Plaintiff claims that Dr. Trost immediately insisted that Plaintiff be sent out to a hospital that

1

Between July 26, 2010 and November 2, 2011, Plaintiff visited the Health Care Unit at Menard twelve times
seeking treatment for his condition. Plaintiff states that he visited the Health Care Unit many times after November
2, 2011, but he has not yet been able to obtain his medical records for this later period. Medical records prior to
2012 are attached to the complaint.
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very day, because the condition was too advanced to be treated at Menard. Id. Plaintiff was
taken to Chester Memorial Hospital that same day and seen by two doctors on staff who
concurred with Dr. Trost that Plaintiff’s condition warranted immediate surgery. Plaintiff was
prepped for surgery that same day, but for scheduling reasons, it had to be delayed. One of the
outside doctors prescribed Vicodin for Plaintiff to help treat the pain, but the healthcare
providers at Menard refused to fill it, and instead continued to prescribe Plaintiff Ibuprofen,
which is contraindicated for treatment of hemorrhoids. On April 2, 2014, Plaintiff was seen by
another outside doctor, Dr. Brewer, who performed the needed surgery on Plaintiff two days
later. Id.
Prior to the surgery and thereafter, outside doctors advised Plaintiff that he needed to eat
a high-fiber diet and wrote a prescription ordering such. Id. at 26. When Plaintiff gave the
prescription to Defendant Fuentes, she said, “You don’t need this stuff.” Id. at 26. When
Plaintiff protested, Defendant Fuentes responded, “Get out of here.” Id. Likewise, when Plaintiff
asked Defendant Nwoabasi about a high-fiber diet, Nwoabasi said, “Menard does have peanut
butter, bran cereal, fruit, you just won’t get it.” Id. at 27. On April 18, 2014, Plaintiff saw Dr.
Brewer for a post-surgery check-up. Id. at 13. Dr. Brewer noted that Plaintiff was healing fine
except for a bit of swelling. Dr. Brewer told Plaintiff that he “must” implement a high-fiber diet
to prevent a reoccurrence of the condition. Dr. Brewer wrote Plaintiff another prescription for a
high-fiber diet and Colace. Id. at 13. However, Plaintiff never received a high-fiber diet. Id. at
27. When Dr. Trost inquired on Plaintiff’s behalf, he was told that Plaintiff would have to
change his religion to receive a high-fiber diet. Id.
Plaintiff further recounts his diligent attempts to access medical assistance through the
inmate grievance process. The exhibits document a series of grievances filed up the chain of

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command. For example, in August 2011, Plaintiff filed an emergency grievance requesting
appropriate medical treatment.

Id. at Ex. 75.

Defendant Gail Walls, acting health care

administrator, reviewed Plaintiff’s medical records and responded, “There is no indication by the
health care professionals that have evaluated your complaint that you have a need for surgical
intervention at this time.” Id. at Ex. 76.

Plaintiff filed another emergency grievance in

September 2011, which was also denied. Id. at Ex. 79. Defendant Harrington concurred in
denying that grievance. Id. at 23. Following his surgery in April 2014, Plaintiff filed a grievance
on April 18, 2014 requesting a high-fiber diet. On July 2, 2014, Defendant Crain, nursing
supervisor, responded, “I have received your grievance and reviewed the medical record and
offer the following. . . .You have been treated conservatively for hemorrhoids since 2010 with
documentation of improvement and exacerbation. The discharge instructions from the hospital
do discuss High Fiber Diet. You have been prescribed fiber-lax tablets to help supplement the
fiber you may not get through your diet.” Id. at Ex. 99. At the time Plaintiff filed the complaint,
he still was not receiving a high-fiber diet. Id. at 27.
Discussion
To plead an Eighth Amendment medical needs claim, a complaint must allege two
elements: 1) an objectively serious medical condition; and 2) an official's deliberate indifference
to that condition. See Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.2006); see also Roe v.
Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The Seventh Circuit has held that a medical need is
objectively “serious” where it has either “been diagnosed by a physician as mandating treatment”
or where the need is “so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). To establish that
an official acted with deliberate indifference, a plaintiff “must demonstrate that prison officials

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acted with a ‘sufficiently culpable state of mind.’” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Specifically, officials must “know
of and disregard an excessive risk to inmate health” by being “‘aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists’” and “‘draw[ing] the
inference.’” Greeno, 414 F.3d at 653 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010); see also Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996); Perkins v. Johnston, 431 F.
Supp. 2d 898, 901-02 (N.D. Ind. 2006).
Accepting Plaintiff’s allegations as true, as the Court must at this stage, the Court finds
that Plaintiff has pled facts demonstrating that he suffered from an objectively serious medical
condition. The question, therefore, is whether the named Defendants acted with the requisite
intent to be held individually liable. The Court will consider each set of Defendants below.
Defendants Fuentes and Nwoabasi (medical doctors) treated Plaintiff from 2010 to 2014.
According to the complaint, they were well aware of Plaintiff’s painful and worsening medical
condition, and yet they continually failed to provide appropriate medical treatment. In addition,
following Plaintiff’s surgery, Defendants Fuentes and Nwoabasi refused to assist Plaintiff with
obtaining a high-fiber diet, which had been ordered by two different outside doctors. These
facts, if true, suggest that Drs. Fuentes and Nwoabasi acted with deliberate indifference to
Plaintiff’s serious medical needs. Plaintiff may proceed on his claim for damages against
Defendants Fuentes and Nwoabasi at this time.
It appears from the complaint that Plaintiff seeks to hold Defendants Walls (acting health
care administrator), Defendant Crain (nursing supervisor), Richard Harrington (warden at

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Menard), and Salvadore Godinez (director of the Illinois Department of Corrections) liable for
condoning Drs. Fuentes and Nwoabasi’s deliberate indifference to Plaintiff’s serious medical
need.
While the doctrine of respondeat superior does not apply to § 1983 actions, see Chavez v.
Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001) (citing Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995)), where a defendant has been alleged to have directed the conduct or to have
given knowing consent to the conduct which caused the constitutional violation, that defendant
has sufficient personal involvement to be responsible for the violation, even though that
defendant has not participated directly in the violation. Chavez, 251 F.3d at 652; McPhaul v. Bd.
of Comm’rs of Madison Cnty., 226 F.3d 558, 566 (7th Cir. 2000). A defendant in a supervisory
capacity may then be liable for “deliberate, reckless indifference” where he or she has
purposefully ignored the misconduct of his/her subordinates. Sanville v. McCaughtry, 266 F.3d
724, 740 (7th Cir. 2001) (discussing Chavez, 251 F.3d at 651 (“The supervisors must know about
the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might
see.”)).
Defendants Walls, Crain, and Harrington were advised of Plaintiff’s condition through
grievances Plaintiff filed and each reviewed and condoned a course of treatment that was illadvised.

The extent to which each of these Defendants was aware of Plaintiff’s medical

condition remains to be seen. But it would be premature to dismiss them at this time. Therefore,
Defendants Walls, Crain, and Harrington shall remain as defendants at this time.
Lastly, Plaintiff also lists Godinez (director of the Illinois Department of Corrections) as
a defendant, but makes no specific allegations against him in the body of the complaint.
Plaintiffs are required to associate specific defendants with specific claims, so that defendants are

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put on notice of the claims brought against them and in order for them to properly answer the
complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P.
8(a)(2). Merely invoking the name of a potential defendant is not sufficient to state a claim
against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Plaintiff has
not alleged that Defendant Godinez is “personally responsible for the deprivation of a
constitutional right.” Id. And, as discussed above, an individual cannot be held liable solely
because he supervised a person who caused a constitutional violation. Plaintiff does not suggest
that Godinez was made aware of his situation or that Godinez condoned the actions of any of the
defendants. Accordingly, Defendant Godinez, in his individual capacity, shall be dismissed from
this action without prejudice.
It does not appear that Plaintiff is seeking injunctive relief. Plaintiff states that he was
never provided a high-fiber diet, but he makes no mention of it in his prayer for relief.
Therefore, the Court will not consider a claim for injunctive relief.

In addition, Plaintiff

mentions a couple of unknown individuals (i.e., the HCU administrator after Gail Walls and the
dietary supervisor), but it is unclear whether he wishes to press a claim against any of these
unnamed individuals. If Plaintiff wishes to amend his complaint to add a request for injunctive
relief or to add additional defendants, he is advised that any proposed amendments or
supplements to his complaint must be properly filed pursuant to Federal Rule of Civil Procedure
15(a) or (d). In addition, pursuant to Southern District of Illinois Local Rule 15.1, the proposed
amendment to a pleading or amended pleading itself must be submitted at the time the motion to
amend is filed. The Court will not accept piecemeal amendments to the original complaint.

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In summary, Plaintiff may proceed on his Eighth Amendment claim against Defendants
Fuentes, Nwoabasi, Walls, Crain, and Harrington in their individual capacities only. Defendant
Godinez is dismissed from this matter without prejudice.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to a United States
Magistrate Judge for further consideration.
Plaintiff’s motion for service of process at government expense (Doc. 4) is unnecessary
and, therefore, DENIED as MOOT.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on his Eighth Amendment claim
for damages against Defendants FUENTES, NWOABASI, WALLS, CRAIN, and
HARRINGTON in their individual capacities only. Defendant GODINEZ is DISMISSED
without prejudice.
The Clerk of Court shall prepare for Defendants FUENTES, NWOABASI, WALLS,
CRAIN, and HARRINGTON: (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.
With respect to a Defendant who no longer can be found at the work address provided by

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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 a United States
Magistrate Judge for further pre-trial proceedings, including a decision on Plaintiff’s motion for
recruitment of counsel (Doc. 3).

Further, this entire matter shall be REFERRED to a

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, even if his application
to proceed in forma pauperis is 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

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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 19, 2014

s/J. Phil Gilbert
United States District Judge

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