Myrick v. Butalid et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, DENYING as MOOT 5 MOTION for Service of Process at Government Expense, and REFERRING 4 MOTION for Recruitment of Counsel. Signed by Judge J. Phil Gilbert on 12/22/2014. (mkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PERCY MYRICK, #B-34667,

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Plaintiff,
vs.
DR. BUTALID, DR. SHAH,
MS. KERR, RAND GROUND,
SARAH JOHNSON, and
S.A. GODINEZ,
Defendants.

Case No. 14-cv-1303-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Percy Myrick, an inmate at Robinson Correctional Center (“Robinson”), brings
this pro se civil rights action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights. Plaintiff claims that Defendants have denied him adequate medical care. (Doc. 1).
Plaintiff seeks monetary and declaratory relief.
The complaint comes now before the Court for a preliminary review 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 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
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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 the same time, 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).

The Complaint
For the purpose of the Court’s threshold review, the following facts are relevant: On
January 29, 2014, Plaintiff was transferred from Danville Correctional Center (“Danville”) to
Robinson. (Doc. 1, p. 7). While Plaintiff was at Danville, a doctor there ordered a hernia belt
and skin medication for Plaintiff. Id. On February 8, 2014, following his transfer to Robinson,
Plaintiff was called to the Health Care Unit (“HCU”) to see Defendant Dr. Butalid.1 Id. at 6.
Defendant Butalid informed Plaintiff that he had stopped the order on the hernia belt and that he
would not dispense the skin medication that had been previously ordered. Id. Plaintiff asserts
that Defendant Butalid never examined him or his medical records. Id. at 7. Instead, Butalid
directed Plaintiff to purchase the medical items from the prison commissary. Id.

Plaintiff

returned to see Defendant Butalid on July 17, 2014 and again requested a hernia belt and skin
medication. (Doc. 1, p. 8). Butalid refused to order the hernia belt, but he did prescribe a skin
ointment. Id. at 9. Plaintiff used the skin ointment for two to three months, but found that it
made his skin condition worsen. On October 8, 2014, Plaintiff returned to the HCU and was
seen by Defendant Dr. Shah. Id. Defendant Shah had also previously denied Plaintiff’s request
for a hernia belt and skin ointment, see id. at 12, and again refused to order a hernia belt and the
requested skin ointment for Plaintiff, id. at 9.
1

The dates in the complaint and in the exhibits regarding when Plaintiff saw Drs. Butalid and Shah do not always
correspond. For example, in the complaint, Plaintiff states that he saw Dr. Butalid on February 8, 2014 (Doc. 1, p.
6), but the medical records indicate that he was seen instead by Dr. Shah on that date. (Doc. 2, Ex. B-3). Although
the dates are muddled, for purposes of the Court’s threshold review, Plaintiff has alleged, and the exhibits confirm,
that at various times he was seen by Drs. Butalid and Shah and that both doctors were aware of Plaintiff’s medical
condition and denied him appropriate medical treatment.
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When Plaintiff was initially denied the hernia belt and skin ointment on February 8, 2014,
he immediately filed a grievance, which was subsequently denied. The response to Plaintiff’s
grievance stated, “His condition is not an emergent condition and offender could prioritize his
expenditures to buy items at Commissary as directed by Dr. Butalid.” (Doc. 2, Ex. A-3).
Defendant Ground (head warden) signed off on this response on April 4, 2014. Id. Through this
grievance, Plaintiff asserts that Defendant Kerr (health care administrator) and Ground were
notified that Plaintiff had been denied adequate medical treatment, which was causing him
serious pain. Plaintiff claims that both Defendant Kerr and Ground “failed to intervene, and had
the power to correct the problem but failed to do so.” Id. at 11. In addition, Plaintiff asserts that
Defendant Kerr and Ground knew that the inmate commissary did not sell a hernia belt or skin
medications “thereby deliberately turning a blind eye” to Defendant Butalid’s misconduct. Id. at
11-12.
Plaintiff appealed the denial of the grievance to the Administrative Review Board.
Defendant Johnson and Godinez signed off on a letter from the Board finding that the issue was
appropriately addressed by the institutional administration and recommending that the grievance
be denied. (Doc. 2, Ex. B-5). Through this appeal, Plaintiff asserts that Defendant Johnson and
Godinez were notified that the other Defendants were failing to treat Plaintiff’s medical
condition, but refused to investigate and/or intervene. (Doc. 1, p. 17).
Plaintiff asserts that he is unable to purchase the supplies for himself. He maintains that
he is indigent; moreover, he has attached documentation from the prison commissary which
indicates that they do not sell hernia belts or skin ointment. (Doc. 2, p. 44).

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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
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).
The Court begins by noting that this is not the first time doctors within the Illinois
Department of Corrections have denied Plaintiff a hernia belt and skin ointment; nor it is the first
time Plaintiff Myrick has turned to the courts for relief. See Myrick v. Anglin, 496 F. App'x 670
(7th Cir. 2012). In Myrick v. Anglin, a 2011 case, Myrick asserted an Eighth Amendment
medical needs claim related to the denial of a hernia belt and skin ointment (and other medical

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issues) against prison medical staff and administrators. In that case, the Seventh Circuit vacated
the district court’s order (Myrick v. Anglin, Case No. 11-2284-CSB, C.D. Ill.) dismissing
Plaintiff’s complaint for failure to state a claim and remanded the case for further proceedings.
Myrick, 496 F. App'x at 676. The Seventh Circuit noted:
A hernia can be a serious medical problem. And Myrick alleged that his untreated
herpes and hernia were painful and had been recognized by medical staff as
requiring treatment; if his allegations are true, these conditions were objectively
serious. Likewise, Myrick's claim of “excruciating pain” from his skin infections,
including the MRSA infections, presented a sufficiently serious condition to
support an Eighth Amendment claim.
Myrick, 496 F. App'x at 674 (internal citations omitted). In addition, the Seventh Circuit found
that Myrick had adequately alleged deliberate indifference on the part of the doctors who had
delayed treatment and the healthcare administrator who had failed to intervene. Id. Following
this guidance, the Court turns now to the present case.
Accepting Plaintiff’s allegations as true, as the Court must at this stage, the Court finds
that Plaintiff has pled facts suggesting that he suffered from an objectively serious medical
condition. The next question is whether the named Defendants acted with the requisite intent to
be held individually liable. Over several months, Plaintiff was seen by Defendants Butalid and
Shah (medical doctors). Plaintiff informed both doctors that he had previously been prescribed a
hernia belt and skin ointment, and that he was in pain; yet they refused to adequately treat his
condition and instead directed him to buy the medical supplies for himself from the prison
commissary, which did not even carry the supplies. These facts, if true, suggest that Drs. Butalid
and Shah may have acted with deliberate indifference to Plaintiff’s serious medical needs. These
are factual questions that cannot be resolved at this stage. Plaintiff, therefore, may proceed on
his claim for damages against Defendants Butalid and Shah at this time.

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It appears from the complaint that Plaintiff seeks to hold Defendants Kerr (health care
administrator), Johnson (administrator), Ground (warden), and Godinez (director of the Illinois
Department of Corrections) liable for condoning Drs. Butalid and Shah’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 Kerr, Johnson, Ground, and Godinez were advised of Plaintiff’s condition
through grievances Plaintiff filed and each reviewed and condoned the denial of treatment. 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 these Defendants at this time. Therefore, Plaintiff
may also proceed on his claim against Defendants Kerr, Johnson, Ground, and Godinez.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 4) shall be referred to a United States

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Magistrate Judge for further consideration.
Plaintiff’s motion for service of process at government expense (Doc. 5) is unnecessary
and, therefore, is DENIED as MOOT.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on his Eighth Amendment
medical needs claim against Defendants BUTALID, SHAH, KERR, JOHNSON, GROUND,
and GODINEZ in their individual capacities only. Defendant GODINEZ shall also remain in
his official capacity, for the purpose of equitable relief.
The Clerk of Court shall prepare for Defendants BUTALID, SHAH, KERR,
JOHNSON, GROUND, and GODINEZ: (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.

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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, 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

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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: December 22, 2014

s/J. Phil Gilbert
United States District Judge

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