Anduze v. Duncan et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 6/23/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALEXANDER J. ANDUZE,
No. B88839,

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Plaintiff,
vs.
STEVE DUNCAN, R.D. MOORE,
LAURA CUNNINGHAM, MS. NEW,
MS. DAVIS, and MS. ARNOLD,
Defendants.

Case No. 14-cv-01153-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Alexander J. Anduze, 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 officials responded to his cellmate’s two suicide attempts and his exposure to bloodborne
pathogens.
Plaintiff’s amended complaint (Doc. 12) is now before the Court for a preliminary review
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
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.

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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 amended complaint, on July 23, 2014, Plaintiff’s cellmate attempted
suicide with a razor. Blood covered the cell, as well as Plaintiff and his personal property.
Plaintiff was taken to the healthcare unit, but no blood tests were run to see if, for example,
Plaintiff had been exposed to HIV or hepatitis. Instead, a correctional officer escorted Plaintiff
to a shower and instructed him to wash the blood off his body—denying Plaintiff’s request for
soap, solvent or other disinfectant.
Plaintiff wrote to the Placement Office asking that his cellmate not be returned to their
cell because he posed a danger. In August 2014, “command and mental health staff” authorized
the suicidal cellmate’s return to general population and to be placed in a cell again with
Plaintiff—despite Warden Duncan, Assistant Warden Moore, and Medical Administrator
Cunningham being aware of the inmate’s mental condition, suicidal tendencies and aggressive
nature.

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On August 24, the cellmate again attempted suicide with a razor—a razor he had been
given by “officials.” After cutting his face and upper body, the cellmate awakened Plaintiff.
Because the cellmate was still holding the razor, Plaintiff feared that his life was in danger, so he
hit the panic alarm in the cell to summon help. When Plaintiff jumped down from his bunk, he
slipped on blood and fell to the floor. Covered in blood, Plaintiff was taken to the health care
unit and the whole scenario repeated itself. He was not tested for bloodborne diseases; he was
taken to a shower, but not given any soap. Plaintiff contends that how he was processed through
the healthcare unit was contrary to policies and procedures regarding exposure to blood.
Plaintiff returned to his cell, but the blood had not been cleaned up, so he was left to
clean his cell without any training, proper solvents, or protective equipment—exposing him to
bloodborne pathogens a third time.
Plaintiff has submitted multiple written requests directly to Medical Administrator
Cunningham and to sick call seeking testing for bloodborne diseases, all to no avail.
After the first suicide attempt, Plaintiff sought mental health treatment for emotional
trauma caused by the incident. On September 10, 2014, Plaintiff was seen for the first time.
Social Worker Arnold “dismissed” Plaintiff, “offering no proper counseling or treatment.”
Several more requests were made before Plaintiff was seen by Social Worker New on September
22. Ms. New diagnosed Plaintiff as having post-traumatic stress disorder (“PTSD”), but did not
offer any counseling or treatment options at that time. Ms. New only said she would place
Plaintiff on a call line to see her regularly, but Plaintiff has not seen her again. A week later,
however, on September 29, Plaintiff was seen by Social Worker Davis, who agreed that Plaintiff

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had PTSD. Ms. Davis recommended “EDM therapy,” 1 which requires 90-minute sessions every
two weeks for the best results—something that “current policies & procedures” did not permit.
Plaintiff has not seen Ms. Davis since then. On October 20, Plaintiff saw Ms. Arnold again;
Arnold gave him a packet of material about PTSD, but did not offer any treatment or medication.
On November 11, Plaintiff met with an unidentified psychologist via a video link. Plaintiff was
prescribed the antidepressant Remeron, but no other “proper treatment options” were offered.
Plaintiff contends Warden Duncan’s policies and procedures, which are purportedly
implemented by Assistant Warden Moore, allowed Plaintiff to be housed with a dangerous
inmate, not once, but twice, causing Plaintiff to develop PTSD. And, the medical and mental
healthcare departments, under the supervision of Medical Administrator Cunningham, failed to
provide any tests or treatment for exposure to bloodborne pathogens, or any therapy for
diagnosed PTSD.
The amended complaint lists as defendants Warden Duncan, Assistant Warden Moore,
Medical Administrator Cunningham and three social workers, Ms. New, Ms. Davis, and Ms.
Arnold.

Defendants are alleged to have been deliberately indifferent. Plaintiff seeks

compensatory damages and affirmative injunctive relief, including department-wide policy
changes regarding how suicide attempts are handled.
Based on the allegations in the amended complaint, the Court finds it convenient to
divide the pro se action into the following 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. The designation of these counts does not constitute an opinion as to their merit.

1

Eye movement desensitization (“EMD” ) is a nontraditional form of psychotherapy for PTSD, using
rapid, rhythmic eye movements to dampen emotional memories of past traumatic events. See
www.webmd.com/mental-health/emdr-what-is-it.

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Count 1: Warden Duncan and Assistant Warden Moore, acting with
deliberate indifference, exposed Plaintiff to a substantial risk of
harm to his safety and health relative to celling him with a suicidal
inmate on two occasions, in violation of the Eighth Amendment;
Count 2: Medical Administrator Cunningham, acting with deliberate
indifference, failed to treat Plaintiff’s serious medical needs after
he was exposed to bloodborne pathogens, in violation of the Eighth
Amendment;
Count 3: Medical Administrator Cunningham and Social Workers New,
Davis and Arnold, acting with deliberate indifference, failed to
treat Plaintiff’s serious psychological needs (PTSD), in violation of
the Eighth Amendment; and
Count 4: Warden Duncan, Assistant Warden Moore and Medical
Administrator Cunningham had inadequate policies and
procedures regarding how to handle exposure to blood-borne
pathogens, thereby endangering Plaintiff’s health and safety, in
violation of the Eighth Amendment.
Discussion
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). Furthermore, prison officials have a duty to protect prisoners
“from violence at the hands of other inmates.” See Washington v. LaPorte County Sheriff’s
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Dep’t, 306 F.3d 515, 517 (7th Cir. 2002). Negligence, even gross negligence, is insufficient for
Eighth Amendment liability. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). Rather, the
corrections official must have acted with the equivalent of criminal recklessness. Id. at 836–37.
Relative to celling Plaintiff with a suicidal (possibly homicidal) inmate with a razor, the
Seventh Circuit has stated, “If the prison officials ‘know that there is a cobra there or at least that
there is a high probability of a cobra there, and do nothing, that is deliberate indifference.’” Dale
v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (quoting Billman v. Ind. Dep’t of Corrections, 56
F.3d 785, 788 (7th Cir.1995)). Whether the sort of exposure to blood described in the amended
complaint poses a health hazard is certainly possible. See www.cdc.gov/niosh/topics/bbp. And,
PTSD has been accepted as a “serious health condition.” See, e.g., Lee v. City of Elkhart, Ind.,
602 F. App’x 335, 339 (7th Cir. 2015). Thus, as a general matter, Counts 1-4 implicate the
Eighth Amendment. But that does not end the Court’s analysis.
Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to be liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005) (citations omitted). The respondeat superior doctrine—supervisory liability—
does not apply to actions filed under 42 U.S.C. § 1983. See, e.g., Kinslow v. Pullara, 538 F.3d
687, 692 (7th Cir. 2008). Allegations that senior officials were personally responsible for
creating the policies, practices and customs that caused a constitutional deprivation can,
however, suffice to demonstrate personal involvement for purposes of Section 1983 liability.
See Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir. 2002).
Many of the specific incidents that Plaintiff takes issue with involve individuals not
identified and/or named as defendants. For example, the correctional officers who did not give
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Plaintiff soap to clean himself with, nurses who failed to treat Plaintiff, “placement” officials to
whom Plaintiff wrote, and the unidentified psychologist who conferred with Plaintiff, are not
listed as “John Doe” defendants to be identified later. The only defendants are Warden Duncan,
Assistant Warden Moore, Medical Administrator Cunningham, and Social Workers New, Davis
and Arnold.
Duncan, Moore, Cunningham, New, Davis, and Arnold are all mentioned in the narrative
of the amended complaint, but the allegations regarding the individual actions of Social Workers
New, Davis, and Arnold do not suggest deliberate indifference. Plaintiff complains that he was
not given “proper” treatment for his PTSD. Disagreement between a prisoner and his doctor, or
even between two medical professionals, about the proper course of treatment generally is
insufficient, by itself, to establish an Eighth Amendment violation. Johnson v. Doughty, 433
F.3d 1001, 1013 (7th Cir .2006). Otherwise, there is nothing to suggest that the three social
workers, personally, were more than negligent. Thus, as pleaded, the amended complaint fails to
state viable Eighth Amendment claims against Social Workers New, Davis, and Arnold, and they
shall each be dismissed without prejudice.
The allegations against the three administrators, Warden Duncan, Assistant Warden
Moore, and Medical Administrator Cunningham, are somewhat muddled. References to what
“command” did or did not do are too vague. Moreover, as already explained, the respondeat
superior doctrine does not apply; therefore, Duncan, Moore, and Cunningham cannot face
liability merely because they are supervisors—which is the primary thrust of the amended
complaint. With that said, a generous reading of the amended complaint as a whole reveals a
tenuous basis for attributing key decisions to the policies and practices of Warden Duncan and
Medical Administrator Cunningham. They were all purportedly aware that Plaintiff’s cellmate
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was unstable, suicidal, and aggressive, and on two occasions, they permitted him to be placed in
the general population, put in a cell with Plaintiff, and armed with a razor (see Doc 12, pp. 8, 9,
11). How Plaintiff’s exposure to bloodborne pathogens was handled in terms of medical care
and clean up, and how his PTSD was treated, all allegedly was driven by the policies and
practices of Warden Duncan and Medical Administrator Cunningham. The amended complaint,
however, offers only the bald assertion that policies and practices were implemented by Assistant
Warden. Thus, the claims against Moore fail to satisfy the Twombly pleading standard. Moore
will be dismissed without prejudice.

The claims against Warden Duncan and Medical

Administrator Cunningham (Counts 1-4) shall proceed, thereby allowing the Court to better sort
out who was personally responsible for creating the policies, practices, and customs that caused
the alleged constitutional deprivations.
Second Motion for Counsel
Plaintiff has filed a second motion for counsel (Doc. 11). There is no constitutional or
statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir.
2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the
district court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent
litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007) (en banc)). If so, the Court must examine “whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The
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question ... is whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation: evidence
gathering, preparing and responding to motions and other court filings, and trial.” Pruitt, 503
F.3d at 655. The Court also considers such factors as the plaintiff’s “literacy, communication
skills, education level, and litigation experience.” Id.
Plaintiff previously gave no indication that he had attempted to secure counsel, and his
second motion offers only an assertion that he has been unsuccessful in securing representation.
Failing to make that threshold showing alone dooms the motion. He otherwise only asserts that
he is financially unable to afford to retain an attorney, and that he lacks the knowledge to
properly represent himself. As demonstrated by the complaint and the amended complaint,
Plaintiff can articulately and adequately explain his claims factually and legally and follow the
directions from the Court. Plaintiff previously indicated that he has some college education, and
he is not currently on any medication. Although some medical matters are at issue, it is not
readily apparent that special medical knowledge is necessary. See Henderson v. Ghosh, 755 F.3d
559, 564-66 (7th Cir. 2014) (assessing an inmate’s ability to prosecute a medical claim).
Therefore, Plaintiff’s second motion for recruitment of counsel (Doc. 11) will be denied without
prejudice.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s second motion for recruitment of counsel
(Doc. 11) is DENIED without prejudice.
IT IS FURTHER ORDERED that, for the reasons stated, Defendants R.D. MOORE,
MS. NEW, MS. DAVIS, and MS. ARNOLD are each DISMISSED without prejudice.

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IT IS FURTHER ORDERED that, as discussed above, COUNTS 1-4 shall otherwise
PROCEED against Defendants STEVE DUNCAN and LAURA CUNNINGHAM.
The Clerk of Court shall prepare for Defendants STEVE DUNCAN and LAURA
CUNNINGHAM:

(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
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.
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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 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
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).
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IT IS SO ORDERED.
DATED: June 23, 2015
______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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