Hindes v. BOP Medical Staff et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 12/4/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD HINDES, # 07510-090,
Plaintiff,
vs.
BOP MEDICAL STAFF,
LESLEE DUNCAN,
PAUL HARVEY,
ROBERT KING,
and PATRICK CUNNINGHAM,
Defendants.

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Case No. 14-cv-01272-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Richard Hindes, who is currently incarcerated at the United States Penitentiary
in Lewisburg, Pennsylvania (“USP-Lewisburg”), brings this action pursuant to 28 U.S.C. § 1331.
In the complaint (Doc. 1), Plaintiff claims that several officials at the United States Penitentiary
in Marion, Illinois (“USP-Marion”), deprived him of adequate medical care in the form of
testosterone injections. Plaintiff now sues four of these officials in connection with this medical
claim, including Defendants Leslee Duncan (physician’s assistant), Paul Harvey (doctor), Patrick
Cunningham (registered nurse), and Robert King. He also names the BOP Medical Staff as a
defendant. Plaintiff seeks monetary damages (Doc. 1, p. 8).
Merits Review Under 28 U.S.C. § 1915A
This matter is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 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).
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). 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.

Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept
factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim.

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Additionally,

Courts “should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009). After considering the allegations in light of this standard, the Court
finds that the complaint survives preliminary review under Section 1915A.
The Complaint
In the complaint, Plaintiff alleges that his testicles were surgically removed as a result of
a childhood illness.

He has received testosterone injections during his entire adulthood.

For years, the dosage has not changed.

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Upon his arrival at USP-Marion, Plaintiff’s bloodwork showed testosterone levels that
the Federal Bureau of Prisons (“BOP”) deemed to be high. Plaintiff asked officials not to alter
his dosage. He expressed concern that his testosterone levels could drop dangerously low.
Defendant Duncan disagreed, and Defendant Harvey proceeded to reduce Plaintiff’s dosage
“multiple times.” Plaintiff asked Defendants Cunningham and King to intervene and correct the
dosage, but they, too, declined. Plaintiff was repeatedly told, “You won’t die” (Doc. 1, p. 5).
The injections were then administered on an inconsistent basis. Plaintiff was supposed to
receive them every fourteen days. Instead, he received a prescription for the injections when it
was convenient for the staff. As much as twenty-five days passed between prescriptions. As a
result, Plaintiff’s testosterone levels fell “below 30,” which he claims is dangerously low.
For six months, Plaintiff suffered from “lethargy, pain, night sweats, and extreme mood swings”
(Doc. 1, p. 5).
Plaintiff now sues Defendants Duncan, Harvey, King, and Cunningham. He also names
the BOP Medical Staff as a defendant. Plaintiff seeks $10 million in damages, and he alleges
that he intends to donate this money to children’s cancer research (Doc. 1, p. 6).
Discussion
The allegations in the complaint plead a violation of the Eighth Amendment’s
proscription against cruel and unusual punishment arising from the provision of inadequate
medical care and give rise to a cause of action under Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971) (Count 1). 1 In Bivens, the United States Supreme Court recognized an implied
cause of action for damages against federal officers who allegedly violated the petitioner’s
1

A Bivens action is the federal equivalent of a civil rights action brought pursuant to 42 U.S.C. § 1983.
Therefore, the Court frequently refers to Section 1983 case law in its analysis. See Hartman v. Moore,
547 U.S. 250, 254 n.2 (2002) (With limited exceptions, “a Bivens action is the federal analog to suits
brought against state officials under . . . 42 U.S.C. § 1983”); Glaus v. Anderson, 408 F.3d 382, 386
(7th Cir. 2005); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (collecting cases).

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Fourth Amendment rights. See Bivens, 403 U.S. at 397. The Supreme Court subsequently found
such a remedy available for violations of an individual’s rights under the Cruel and Unusual
Punishments Clause of the Eighth Amendment and the Due Process Clause.

See Hui v.

Castaneda, 559 U.S. 799, 803 n.2 (2010) (citing Carlson v. Green, 446 U.S. 14, 17-19 (1980)).
It is on this basis that Plaintiff shall be allowed to proceed with Count 1 against
Defendants Duncan, Harvey, Cunningham, and King.
Relevant to Plaintiff’s claim, the Supreme Court has recognized that “deliberate
indifference to serious medical needs of prisoners” may constitute cruel and unusual
punishment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825,
837

(1994);

see

Erickson

v.

Pardus,

551

U.S.

89,

94

(2006)

(per

curiam).

Deliberate indifference involves a two-part test. The plaintiff must show that: (1) the medical
condition was objectively serious, and (2) the state officials acted with deliberate indifference to
his medical needs, which is a subjective standard.

Sherrod v. Lingle, 223 F.3d 605, 619

(7th Cir. 2000).
The pleadings satisfy both threshold requirements for an Eighth Amendment deliberate
indifference to medical needs claim against Defendants Duncan, Harvey, Cunningham, and
King. The allegations suggest that Plaintiff’s need for testosterone injections was objectively
serious; the condition required monitoring by a physician and regular hormone treatments.
Further, the complaint suggests that these defendants responded to Plaintiff’s condition with
deliberate indifference by manipulating the dosage of testosterone and supplying the injections
inconsistently, despite their alleged awareness of the consequences to Plaintiff. Although the
Court takes no position regarding the ultimate merits of this claim, Plaintiff shall be allowed to
proceed with Count 1 against Defendants Duncan, Harvey, King, and Cunningham at this time.

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Defendant BOP Medical Staff shall be dismissed. This defendant is listed in the case
caption. However, no allegations in the narrative portion of the complaint address the conduct of
any specific BOP Staff Member who is not already named as a defendant in this action.
The reason that plaintiffs, even those proceeding pro se, for whom the Court is required to
liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required to
associate specific defendants with specific claims is so these defendants are put on notice of the
claims brought against them and so they can properly answer the complaint. “Federal Rule of
Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the
pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Thus, where a plaintiff has not included a defendant in his statement of the
claim, the defendant cannot be said to be adequately put on notice of which claims in the
complaint, if any, are directed against that defendant. Furthermore, merely invoking the name of
a potential defendant -- or group of defendants -- is not sufficient to state a claim against that
defendant. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a
claim against a defendant by including the defendant’s name in the caption.”). For this reason,
Defendant BOP Medical Staff shall be dismissed from this action.
Pending Motion
Plaintiff filed a motion for recruitment of counsel (Doc. 3), which shall be referred to
United States Magistrate Judge Donald G. Wilkerson for a decision.
Disposition
IT IS ORDERED that Defendant BOP MEDICAL STAFF is DISMISSED with
prejudice from this action, based on Plaintiff’s failure to state any claim against this defendant

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upon which relief may be granted.
As to COUNT 1, the Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a
summons and form USM-285 for service of process on Defendants DUNCAN, HARVEY,
KING, and CUNNINGHAM; the Clerk shall issue the completed summons. The United States
Marshal SHALL serve Defendants DUNCAN, HARVEY, KING, and CUNNINGHAM
pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. 2 All costs of service shall be
advanced by the United States, and the Clerk shall provide all necessary materials and copies to
the United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall
(1) personally deliver to or send by registered or certified mail addressed to the civil-process
clerk at the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the complaint, and this Memorandum and Order; and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
summons, the complaint, and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an
appearance has been entered by counsel, upon that attorney, a copy of every pleading or other
document submitted for consideration by this Court. Plaintiff shall include with the original
paper to be filed a certificate stating the date that a true and correct copy of the document was
mailed to each defendant or counsel. Any paper received by a district judge or a magistrate
judge which has not been filed with the Clerk or which fails to include a certificate of service
2

Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state law
for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment or law to receive service of process.”

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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, including a decision on
Plaintiff’s motion for recruitment of counsel (Doc. 3).
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
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: December 4, 2014

NANCY J. ROSENSTENGEL
United States District Judge

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