Jackson v. Duncan et al

Filing 6

ORDER DISMISSING CASE : the complaint and all claims against STEVE DUNCAN and DEBBIE ISAACS are DISMISSED with prejudice, and a STRIKE shall be assessed against Plaintiff in accordance with 28 U.S.C. § 1915(g). Plaintiff is again WARNED that further frivolous litigation will result in sanctions (including monetary sanctions and/or a filing ban). Signed by Judge Nancy J. Rosenstengel on 4/21/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HOWARD JACKSON,
No. R18773 ,
Plaintiff,
vs.
STEVE DUNCAN, and
DEBBIE ISAACS,
Defendants.

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Case No. 15-cv-00343-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Howard Jackson is an inmate currently housed in Lawrence Correctional Center.
Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his constitutional
rights with respect to his being denied an x-ray of his testicles on two occasions—once at
Lawrence, and once at Big Muddy River Correctional Center.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. 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). 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

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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 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).
Discussion
The Complaint and Related Litigation History
According to the very succinct complaint, on January 9, 2012, while Plaintiff Jackson
was housed at Big Muddy River Correctional Center, Debbie Isaacs, a registered nurse and the
health care unit administrator, denied Plaintiff’s “knot for testles x-ray.” On or about March 26,
2015, Steve Duncan, warden of Lawrence Correctional Center, denied Plaintiff’s “knot for
testles x-ray.” The only apparent demand for relief is for an x-ray to be taken (see Doc. 1, pp. 4,
9).
Documents attached to the complaint make clear that when Plaintiff refers to “testles” or
“privacy balls,” he means his testicles (see Doc. 1, pp. 10-29).

Since 2011, Plaintiff has

complained to medical personnel that he has a “knot” in his testicles, but medical personnel have
not found anything and, therefore, have refused to x-ray Plaintiff’s testicles.
Plaintiff Jackson and his demand for an x-ray of his testicles are far too familiar to the
Court. By Plaintiff’s own admission, he has filed six other complaints pertaining to this same
issue (see Doc. 1, p. 3). In this district alone, Plaintiff has now accumulated three “strikes” under
28 U.S.C. § 1915(g) for filing frivolous claims about x-raying his testicles: Jackson v. Wexford
Healthcare Sources, Inc., et al., Case No. 13-cv-01134-MJR (S.D. Ill. 2013); Jackson v.
Kraznician, et al., Case No. 14-cv-00007-MJR (S.D. Ill. 2014); and Jackson v. Lawrence
Correctional Center Health Care, et al., Case No. 15-cv-00082-JPG (S.D. Ill. 2015).

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Consequently, he is no longer eligible to pay a filing fee in installments using the in forma
pauperis provisions of 28 U.S.C. § 1915(a) and (b), unless he can establish that he is “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
The present action was filed two days before Plaintiff acquired his third strike; therefore,
the Section 1915(g) restrictions do not apply to the filing fee for this action. However, in
Jackson v. Kraznician, et al., Case No. 14-cv-00007-MJR (Docs. 14, 17, 21), and Jackson v.
Lawrence Correctional Center Health Care , et al., Case No. 15-cv-00082-JPG (Doc. 15), the
Court warned Plaintiff that, consistent with Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186
(7th Cir. 1995), further frivolous litigation will result in sanctions (including monetary sanctions
and/or a filing ban). For the reasons stated below, Plaintiff’s most recent complaint fails to state
a claim upon which relief can be granted, thereby raising the specter of a filing ban.
The Eighth Amendment “imposes a duty on government officials to provide medical
care to prisoners.” Townsend v. Cooper, 759 F.3d 678, 688 (7th Cir. 2014) (citing Estelle
v. Gamble, 429 U.S. 97, 104-05 (1976)). Prison officials violate the Constitution when
they are deliberately indifferent to a prisoner’s serious medical needs. Arnett v. Webster,
658 F.3d 742, 750 (7th Cir. 2011) (citing Estelle, 429 U.S. at 104). A claim of deliberate
indifference to a serious medical need contains both an objective and a subjective component.
“To satisfy the objective component, a prisoner must demonstrate that his
medical condition is ‘objectively, sufficiently serious.’” Greeno v. Daley, 414 F.3d 645,
653 (7th Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The Seventh
Circuit has held that a medical need is “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

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1364, 1373 (7th Cir. 1997). The complaint does not include allegations suggesting that
Plaintiff is actually suffering from a serious medical condition. It includes little more than a
demand for an x-ray. 1
Even if the Court assumes, without deciding, that Plaintiff’s medical condition is
serious, the complaint still does not satisfy the subjective “deliberate indifference”
component of the Eighth Amendment test, which requires a prisoner to demonstrate that
prison officials acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834;
Greeno, 414 F.3d at 653. Specifically, the officials “must know of and disregard an excessive
risk to inmate health.” Greeno, 414 F.3d at 653. They must “both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists” and “must
also draw the inference.” Id. (quoting Farmer, 511 U.S. at 837). All the complaint alleges is
that each defendant denied Plaintiff’s request for an x-ray. Those bald assertions do not satisfy
the Twombly pleading standard.
Plaintiff never alleges, nor do the medical records attached to the complaint suggest,
that an x-ray has been recommended by a medical professional, that an x-ray is the proper
diagnostic test for Plaintiff’s condition, or that any defendant’s refusal to provide the x-ray
amounted to deliberate indifference. To the contrary, the communication from Deborah
Isaacs indicates that Plaintiff’s testicles were examined, no knot was found, and the
recommended treatment was refused by Plaintiff (Doc. 1, pp. 16, 18). With respect to Warden
Duncan, it appears that he merely concluded that Plaintiff’s administrative grievance was not
an emergency and should be pursued through the normal administrative process (Doc. 1, p.

1

The request for “emergency help for a privacy testles x-ray for ball” is construed as seeking prompt
action by the Court, not as a description of an emergent medical condition (see Doc. 1, p. 9).

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17). Prison directors and wardens are entitled to rely upon medical staff for the provision of
proper medical care. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009).
The Eighth Amendment does not give prisoners entitlement to “demand specific care”
or “the best care possible,” but only requires “reasonable measures to meet a substantial
risk of serious harm.”

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).

Mere

disagreement with a physician’s chosen course of medical treatment does not amount to
deliberate indifference under the Eighth Amendment. See Ciarpaglini v. Saini, 352 F.3d 328,
331 (7th Cir. 2003); Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001) (courts will not
takes sides in disagreements about medical personnel’s judgments or techniques); Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996).
The Effect of Dismissal and the Possibility of Amendment
Typically, when a complaint is dismissed upon preliminary review, dismissal is without
prejudice, and the plaintiff is granted leave to amend. See generally FED.R.CIV.P. 15(a)(2) (a
Court should freely grant leave to amend “when justice so requires”). For example, most
recently in Jackson v. Lawrence Correctional Center Health Care, et al., Case No. 15-cv-00082JPG, Plaintiff filed four amended complaints (Docs. 7, 12, 13 (Doc. 12 contained two amended
complaints)). But leave to amend need not be granted when amendment would be futile. See
McCree v. Grissom, 657 F.3d 623, 624 (7th Cir. 2011) (complaint dismissed pursuant to Section
1915A; leave to amend was denied as futile).
Viewed in isolation, dismissal of the complaint without prejudice and with leave to
amend might appear appropriate—even though, for example, the two-year statute of limitations
appears to have run out on any claim against Defendant Isaacs.

Nevertheless, Plaintiff’s

litigation history cannot be ignored. This action represents just another attempt by Plaintiff to

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assert the same frivolous claim demanding an x-ray of his testicles that he has shopped around in
three other cases. More importantly, the documentation attached to the complaint essentially
pleads Plaintiff out of Court. As discussed above, Warden Duncan was merely responding to a
grievance, and Health Care Administrator Isaacs was similarly uninvolved in treatment
decisions. All of these legal shortcomings have been explained to Plaintiff in each of his cases,
to no avail. The complaint, therefore, will be dismissed with prejudice—meaning that Plaintiff
will not be permitted to amend, final judgment will be entered, and this case will be closed.
Another “strike” will be assessed against Plaintiff for purposes of Section 1915(g).
Because of the unusual timing of when this case was filed and when the Court cautioned Plaintiff
that he would be subject to a filing ban, the Court will not subject Plaintiff to a filing ban in this
instance. Also, only one filing fee will be collected, even though there is justification for
severing the claims against Isaacs and Duncan into separate cases and assessing a filing fee for
each case. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the complaint and all claims
against STEVE DUNCAN and DEBBIE ISAACS are DISMISSED with prejudice.
Judgement shall enter accordingly, and a STRIKE shall be assessed against Plaintiff in
accordance with 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that Plaintiff’s pending motion for counsel (Doc. 3) is
DENIED. A mere assertion of poverty is not grounds for recruitment of counsel.
Plaintiff is ADVISED that if he wishes to appeal this Order, he may file a notice of
appeal with this Court within thirty days of the entry of judgment. FED. R. APP. P. 4(A)(4). If
Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee irrespective

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of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v.
Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir.
1999); Lucien, 133 F.3d at 467. Finally, if the appeal is found to be nonmeritorious, Plaintiff
may also incur another “strike.” A timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4).
Plaintiff is again WARNED that further frivolous litigation will result in sanctions
(including monetary sanctions and/or a filing ban). See Support Sys. Int’l, Inc. v. Mack, 45 F.3d
185, 186 (7th Cir. 1995).
IT IS SO ORDERED.
DATED: April 21, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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