Cole v. Tredway

Filing 13

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 2/18/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMEON COLE, #R-13404,
also known as DIVINE DESIRE COLE,
Plaintiff,
vs.
BETH TREDWAY,
Defendant.

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Case No. 14-cv-01313-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Before the Court for consideration is Dameon Cole’s1 second amended complaint2
(Doc. 12). The pleading focuses on a single claim against Beth Tredway, an assistant warden at
Lawrence Correctional Center (“Lawrence”), for allegedly responding to Plaintiff Cole’s
requests for mental health treatment with deliberate indifference. This Eighth Amendment claim
was severed from an action that was filed by Jarvis Postlewaite and Dameon Cole together on
November 17, 2014. See Postlewaite, et al. v. Godinez, et al., Case No. 14-cv-1281-JPG
(S.D. Ill. 2014) (“original action”). In the original action and severance order, the claim is
referred to as “Count 6” (Doc. 3, p. 9, original action) (Doc. 1, p. 9).
The second amended complaint (Doc. 12) is now ripe for review pursuant to 28 U.S.C.
§ 1915A. Under Section 1915A, the Court is required to promptly screen prisoner complaints to

1

Plaintiff’s legal name is Dameon Cole. However, Plaintiff Cole is a transgender inmate, who prefers to
be called Divine Desire Cole (Doc. 12, p. 1). Although the Court must use Plaintiff’s legal name,
feminine pronouns will be used in reference to Plaintiff Cole.
2
According to CM/ECF, two amended complaints have been filed in this action to date. The first
amended complaint (Doc. 7) was dismissed without prejudice on December 22, 2014, because it exceeded
the scope of claims and parties allowed in Document 1. The second amended complaint (Doc. 12) was
filed on January 16, 2015, and is now before the Court for review. The Court shall refer to Document 12
as the “second amended complaint” throughout this order.

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filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court must dismiss any portion of
the pleading 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). When reviewing the allegations in light of this standard, the Court finds
that the second amended complaint survives preliminary review.
Second Amended Complaint
According to the second amended complaint (Doc. 12), Plaintiff has received no mental
health treatment at Lawrence Correctional Center (“Lawrence”) (Doc. 12, p. 5). She suffers
from multiple personality disorder, anxiety, depression, mood swings, and episodes of lost time.
Plaintiff has repeatedly submitted requests for an appointment with a psychiatrist to
Defendant Tredway, the assistant warden in charge of inmate healthcare and mental health.
Plaintiff has also pointed out that the prison is required to have an on-site psychiatrist. She spoke
directly to Defendant Tredway on December 21, 2014, and reiterated these requests for
treatment.

Defendant Tredway has ignored each of Plaintiff’s requests.

Likewise, all of

Plaintiff’s grievances addressing this issue have been ignored.3
In the second amended complaint, Plaintiff raises an Eighth Amendment deliberate
indifference to medical needs claim against Defendant Tredway (Doc. 12, p. 5). She seeks
declaratory judgment, monetary damages, and injunctive relief, including a preliminary and
permanent injunction.

3

Plaintiff claims that she exhausted her available administrative remedies before commencing this action,
as the Prison Litigation Reform Act requires her to do. See 42 U.S.C. § 1997e(a). However, Plaintiff also
indicates in her second amended complaint that she filed “a grievance” to address this matter that is “still
pending” (Doc. 12, p. 4). It is unclear, at this early stage, whether Plaintiff did, in fact, fully exhaust her
administrative remedies. However, the Court will save this issue for another day and a fuller record.

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Discussion
The second amended complaint states a colorable Eighth Amendment deliberate
indifference to medical needs claim (Count 1) against Defendant Tredway for failing to provide
Plaintiff with adequate mental health treatment at Lawrence. The Supreme Court has recognized
that “deliberate indifference to serious medical needs of prisoners” may constitute cruel and
unusual punishment under the Eighth Amendment. 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 Seventh Circuit has long held that “[t]he need for a mental illness to be treated could
certainly be considered a serious medical need.” See Sanville v. McCaughtry, 266 F.3d 724, 734
(7th Cir. 2001) (citing Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999)). Further, the
complaint suggests that Defendant Tredway was aware of Plaintiff’s need for treatment, but
recklessly disregarded her numerous verbal and written complaints about the absolute lack of
care. A nonmedical administrator is normally justified in deferring to the professional judgment
of a prison medical staff, so long as Plaintiff’s needs are not being ignored. Berry v. Peterman,
604 F.3d 435, 440 (7th Cir. 2010) (citing Hayes v. Snyder, 546 F.3d 516, 527-28 (7th Cir. 2008);
Johnson v. Doughty, 433 F.3d 1001, 1010-11 (7th Cir. 2006); Greeno v. Daley, 414 F.3d 645,
655-56 (7th Cir. 2005); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). Here, the complaint
clearly alleges that Plaintiff’s requests for mental health treatment were ignored. At this early
stage, Plaintiff shall be allowed to proceed with Count 1 against Defendant Tredway.

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Disposition
AS TO COUNT 1, the Clerk of Court shall prepare for Defendant TREDWAY:
(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
second amended complaint (Doc. 12), and this Memorandum and Order to Defendant’s place of
employment as identified by Plaintiff. If 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 Defendant, and the Court will
require Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further 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 any document was served on Defendant 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.
Defendant is 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).

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Pursuant

to

Local

Rule

72.1(a)(2),

this

action

is

REFERRED

to

a

United States Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to a United States Magistrate Judge
for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
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 her 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 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).
Plaintiff is ADVISED that she 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: February 18, 2015
s/J. Phil Gilbert
United States District Judge

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