Jones v. Pinckneyville Correctional Center et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 2/3/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEVERT J. JONES, # M-41707,
Plaintiff,
vs.
PINCKNEYVILLE CORRECTIONAL
CENTER, DONALD GAETZ,
CHRISTINA BROWN,
and DR. SHAH,
Defendants.

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Case No. 15-cv-00025-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Levert Jones, an inmate currently incarcerated at Pinckneyville Correctional
Center, brings this action pursuant to 42 U.S.C. § 1983 (Doc. 1). According to the complaint,
Plaintiff underwent a colostomy just before he was incarcerated.
colostomy bag.

As a result, he wears a

Plaintiff alleges that he was supposed to undergo surgery to remove the

colostomy bag more than a year ago, but the surgery has been delayed unnecessarily. Plaintiff
now sues Pinckneyville Correctional Center (“Pinckneyville”), Donald Gaetz (warden), Dr. Shah
(physician), and Christina Brown (nursing director) for allegedly violating his right to receive
adequate medical care under the Eighth and Fourteenth Amendments. He seeks declaratory
judgment, monetary damages, and injunctive 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 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

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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 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.
577 F.3d 816, 821 (7th Cir. 2009).

See Rodriguez v. Plymouth Ambulance Serv.,

The complaint survives preliminary review under this

standard.
The Complaint
According to the complaint, Plaintiff was shot in the back while committing the crime
that led to his imprisonment (Doc. 1, p. 5). He underwent an emergency colostomy1 just before
1

A colostomy is a surgical procedure in which one end of the large intestines is pulled through an
opening (stoma) made in the abdominal wall. Stools pass through an intestinal drain through the stoma

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he was incarcerated. Plaintiff now wears a colostomy bag on his stomach. The bag must be
changed three or four times each day.
Plaintiff maintains that this device was supposed to be surgically removed more than a
year ago. For reasons not disclosed in the complaint, surgery was delayed. Plaintiff now suffers
from a variety of symptoms that he attributes to this condition, including a runny nose,
headaches, dizziness, blackouts, bad stomach pain, and “wrong” bowel movements (Doc. 1,
p. 5). He also claims that he is suffering from psychological distress.
Plaintiff now sues Warden Gaetz, Dr. Shah, and Nurse Brown for violating his right to
receive medical care under the Eighth and Fourteenth Amendments. He claims that he “did
everything in [his] power to get these said individual[s] to p[er]form th[e]ir duty and provide
[him] with medical treatment and . . . surgery” (Doc. 1, p. 1). He also names Pinckneyville
Correctional Center as a defendant. Plaintiff seeks declaratory judgment, monetary damages,
and injunctive relief (Doc. 1, p. 8).
Discussion
The complaint states a viable Eighth Amendment deliberate indifference to medical
needs claim (Count 1) against Defendants Shah, Brown, and Gaetz. The Eighth Amendment to
the United States Constitution, which is applicable to the states through the Due Process Clause
of the Fourteenth Amendment, protects prisoners from cruel and unusual punishment. See Berry
v. Peterman, 604 F.3d 435 (7th Cir. 2010). The Supreme Court has recognized that “deliberate
indifference to serious medical needs of prisoners” may constitute cruel and unusual punishment
in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Erickson
v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, a prisoner must show that the:
and into a colostomy bag that is attached to the abdomen. Depending on the disease or injury
necessitating the procedure, a colostomy can either be temporary or permanent.
See
http://www.mayoclinic.org/tests-procedures/colectomy/multimedia/colostomy/img-20007593.

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(1) medical condition was objectively serious, and; (2) state officials acted with deliberate
indifference to the

prisoner’s health or

safety, which

is a

subjective standard.

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845
(7th Cir. 2001).
The Seventh Circuit has held that a medical need is “serious” when 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). When the failure to treat a condition could “result in
further significant injury or the unnecessary and wanton infliction of pain,” the condition is
sufficiently “serious” to support an Eighth Amendment claim. Id. Plaintiff alleges that he
should have received surgery more than a year ago to remove his colostomy bag. Because he has
not received this surgery, he continues to require medical attention three or four times each day.
In addition, Plaintiff claims to now suffer from a range of symptoms that he attributes to the
delay. The Court will not venture to guess whether all of the described symptoms actually relate
to Plaintiff’s need for surgery. 2 The underlying condition and unnecessary delay in surgery
satisfy the objective standard for an Eighth Amendment medical needs claim at this early stage.
With regard to the subjective standard, the complaint 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)). This state of mind is
deliberate indifference. Deliberate indifference is established when prison officials “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, 511 U.S. at 834). At this early stage,
2

For example, it is difficult to image how a runny nose relates, in any way, to Plaintiff’s colostomy.

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deliberate indifference claims have been stated against Defendants Shah, Brown, and Gaetz for
denying Plaintiff’s request for follow-up surgery.
However, Pinckneyville must be dismissed from this action with prejudice. Setting aside
the fact that no allegations are included in the statement of claim against this defendant,
Pinckneyville, which is a division of the Illinois Department of Corrections (“IDOC”), is not a
“person” within the meaning of the Civil Rights Act. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989). Therefore, Pinckneyville is not subject to suit.
Based on the foregoing discussion, Plaintiff shall be allowed to proceed with Count 1
against Defendants Shah, Brown, and Gaetz, but Pinckneyville Correctional Center shall be
dismissed with prejudice.
Interim Relief
Plaintiff did not file a motion for temporary restraining order (“TRO”) or preliminary
injunction with his complaint. He also included no request for a TRO or a preliminary injunction
in the complaint.

The Court takes Plaintiff’s allegations very seriously, particularly his

complaints regarding blackouts, stomach pain, dizziness, and headaches. Should Plaintiff need
medical care during the pending action that is being denied at Pinckneyville, Plaintiff should file
a separate motion for a TRO and/or a preliminary injunction pursuant to Federal Rule of Civil
Procedure 65. The motion should be filed in this action and not a separate or new action. In it,
Plaintiff must set forth the specific request for relief, as well as the factual allegations that
support the request.
Pending Motions
Plaintiff has filed a motion for leave to proceed in forma pauperis (Doc. 2), which shall
be addressed in a separate order of this Court.

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Plaintiff has also filed a motion for recruitment of counsel (Doc. 3), which shall be
referred to United States Magistrate Judge Donald G. Wilkerson for a decision.
Finally, Plaintiff has filed a motion for service of process at government expense
(Doc. 4), which is hereby GRANTED in part, with respect to Defendants GAETZ, BROWN,
and SHAH, and DENIED, in part, as it pertains to Defendant PINCKNEYVILLE
CORRECTIONAL CENTER.
Disposition
IT IS HEREBY ORDERED that Defendant PINCKNEYVILLE CORRECTIONAL
CENTER is DISMISSED with prejudice from this action.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
Defendants DONALD GAETZ, CHRISTINA BROWN, and DR. SHAH: (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

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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 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, regardless of whether
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
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).

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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: February 3, 2015

NANCY J. ROSENSTENGEL
United State District Judge

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