Butusov v. Coe et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 6/24/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH BUTUSOV,
No. K55823,
Plaintiff,
vs.
DR. JOHN COE,
TRAVIS JAMES,
STEPHEN DUNCAN,
DR. PHIL MARTIN, and
DR. LOUIS SHICKER,
Defendants.

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Case No. 15-cv-00580-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Kenneth Butusov is an inmate currently housed in Lawrence Correctional
Center. Pursuant to 42 U.S.C. § 1983, Plaintiff, who is a paraplegic, brings this action for
deprivations of his constitutional rights with respect to how his osteomyelitis 1 has been treated.
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
1

Osteomyelitis is an infection of the bone, commonly treated with antibiotics, and which may
require surgery to remove parts of the bone that have died. Complications include bone death
requiring amputation, and septic arthritis, where the infection spreads to nearby joints.
http://www.mayoclinic.org/diseases-conditions/osteomyelitis/basics/definition/con-20025518.
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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
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).
The Complaint
According to the complaint, in March 2015 an outside wound care center diagnosed
Plaintiff as having osteomyelitis. The diagnosis was confirmed by an MRI. The doctor at the
wound care center recommended immediate, aggressive treatment with antibiotics, and
debridement by a surgeon. Lawrence Medical Director Dr. John Coe and Physician’s Assistant
Travis James have not followed through with the treatment recommendations, despite multiple
requests from Plaintiff. P.A. James has explained that Dr. Coe is “the boss.”
The infection has caused Plaintiff to run a fever for weeks. In December 2014, Plaintiff
was admitted to the prison infirmary with a fever of 104-106º. Dr. Coe denied Plaintiff’s request
to be taken to the emergency room. No blood tests were performed, and no wound cultures were
taken; Plaintiff was not even given IV fluids.
Plaintiff sent two emergency grievances to Warden Stephen Duncan, but he was told to
proceed using the normal grievance procedures. Plaintiff then wrote to IDOC Director Godinez
(who is not a named defendant); that letter was forwarded Medical Director Dr. Louis Shicker.
Dr. Shicker wrote to Plaintiff, dismissing Plaintiff’s concerns. Similarly, Lawrence Health Care
Administrator Phil Martin dismissed Plaintiff’s complaints. Plaintiff asserts that the nurses all
agree that he is not being treated properly, but no one wants to cross Dr. Coe.

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Plaintiff contends he is in imminent danger and should be transferred and given
immediate treatment for his osteomyelitis. He also seeks compensatory damages.
Based on the allegations in the complaint, the Court finds it convenient to frame the
allegations into the following overarching claim.
Count 1: Defendants Coe, James, Duncan, Martin and Shicker were
deliberately indifferent to Plaintiff’s serious medical needs, in
violation of the Eighth Amendment.

Discussion
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment.

U.S. CONST., amend. VIII. See also Berry v.

Peterman, 604 F.3d 435, 439 (7th Cir. 2010).

Prison officials can violate the Eighth

Amendment’s proscription against cruel and unusual punishment when their conduct
demonstrates “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble,
429 U.S. 97, 104 (1976).
A medical condition need not be life-threatening to be serious; rather, it can be a
condition that would result in further significant injury or unnecessary and wanton infliction of
pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

Thus, at this early

juncture Plaintiff’s osteomyelitis and related infection and fever appear sufficiently serious to
implicate the Eighth Amendment.
Proving deliberate indifference requires more than a showing of negligent or even grossly
negligent behavior, the equivalent of criminal recklessness must ultimately be proved. Farmer v.
Brennan, 511 U.S. 825, 835-37 (1994). Case law illustrates that when medical care is at issue, a
defendant’s skill level and ability to act are relevant to liability.

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As a general matter, a prison official may be liable “only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable measures to
abate it.” Id. at 847. However, because personal involvement is required for liability to attach,
the respondeat superior doctrine—supervisor liability—is not applicable to Section 1983
actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)). Accordingly, a warden, for example, cannot face
liability merely because he is the chief administrative officer of the prison. Wardens and top
level administrators are “entitled to relegate to the prison’s medical staff the provision of good
medical care.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009).
Relative to medical professionals, erroneous treatment constituting a substantial departure
from accepted medical judgment, practice, or standards may constitute deliberate indifference.
See Gayton, 593 F.3d at 623; Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Physicians,
however, are entitled to deference in treatment decisions “unless no minimally competent
professional would have so responded under similar circumstances.” Sain v. Wood, 512 F.3d
886, 894–95 (7th Cir.2008); see Duckworth v. Ahmad, 532 F.3d 675, 682 (7th Cir. 2008). Mere
disagreement with a physician’s chosen course of an inmate’s medical treatment does not
amount to deliberate indifference. See Snipes v. DeTella, 95 F.3d 586, 591(7th Cir. 1996);
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). However, for example, “nurses may generally defer to instructions
given by physicians, ‘but that deference may not be blind or unthinking, particularly if it is
apparent that the physician's order will likely harm the patient.’” Holloway v. Delaware County

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Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012) (quoting Berry v. Peterman, 604 F.3d 435, 443 (7th
Cir. 2010)).
Questions of fact abound regarding the propriety of the course of treatment that has been
followed, and the role of each defendant in treatment decisions. Thus, the complaint, and the
accompanying documentation, appear to offer a sufficient basis for alleging deliberate
indifference by each of the defendants, even the administrators and the physician’s assistant who
were notified of what appears to be a objectively serious situation. Count 1, therefore, will
proceed against all named defendants.
Imminent Danger
Although Plaintiff has not moved for injunctive relief, Plaintiff’s reference to imminent
danger causes the Court to sua sponte consider whether a temporary restraining order is
warranted.
A temporary restraining order (“TRO”) is an order issued without notice to the party to
be enjoined that may last no more than 14 days. FED.R.CIV.P. 65(b)(2). A TRO may issue
without notice only if “specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” FED.R.CIV.P. 65(b)(1)(A). Such injunctive relief is also
warranted “to prevent a substantial risk of serious injury from ripening into actual harm.”
Farmerv. Brennan, 511 U.S. 825, 845 (1994).
The complaint indicates that the high fever Plaintiff had in December has subsided, and
there is no indication that he is in pain or in any other imminent harm that warrants immediate
intervention by the Court. Consequently, no TRO will be issued.

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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the Eighth Amendment claim
in COUNT 1 shall PROCEED against Defendants DR, JOHN COE, TRAVIS JAMES,
STEPHEN DUNCAN, DR. PHIL MARTIN and DR. LOUIS SHICKER.
The Clerk of Court shall prepare for Defendants DR, JOHN COE, TRAVIS JAMES,
STEPHEN DUNCAN, DR. PHIL MARTIN and DR. LOUIS SHICKER: (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.
Consequently, Plaintiff’s motion for service of process at government expense (Doc. 5) is
DENIED.
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.
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.

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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 Stephen C. Williams for further pre-trial proceedings, including
consideration of Plaintiff’s motion for counsel (Doc. 3).
Further, this entire matter shall be REFERRED to a United States Magistrate 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have 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: June 24, 2015
s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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