Green v. Godinez et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 7/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERMELL GREEN,
Plaintiff,
vs.
SALVADOR A. GODINEZ,
THOMAS SPILLER,
WEXFORD HEALTH SOURCES, INC.,
VENERIO M. SANTOS,
T.B. FINNEY,
A. SHAW,
DR. SHAH,
ANGEL RECTOR,
MARSHA HILL,
L. RIDGEWAY,
CENTRALIA WARDEN,
JANE DOE 1,
JANE DOE 2,
JANE DOE 3, and
JANE DOE 4, 1
Defendants.

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Case No. 3:15-cv-00589-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Jermell Green is currently incarcerated at the Pinckneyville Correctional Center
in Pinckneyville, Illinois, but was previously incarcerated at the Centralia Correctional Center in
Centralia, Illinois. (Doc. 1 at 1-2.) Proceeding pro se, Green has filed a complaint pursuant to
42 U.S.C. § 1983 against a number of prison officials and medical staff, alleging that all involved
improperly treated his hernia during his tenure at both prisons. (Id. at 4-10.) Green seeks a
declaratory judgment, monetary damages, and preliminary injunctive relief. (Id. at 10-11.)
1

The caption groups the Jane Does into an Unknown Party designation. Because Green refers to
the Jane Does by number in his complaint, the CLERK is DIRECTED to remove the Unknown
Party designation and add Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 to the case.
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This matter is now before the Court for a preliminary review of Green’s complaint
pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a government entity.” During this preliminary review under § 1915A, the court
“shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,” if
the complaint “is frivolous, malicious, or fails to state a claim on which relief may be granted” or
if it “seeks monetary relief from a defendant who is immune from such relief.”
Background
Green’s hernia issues began while he was working out in the Centralia Correctional
Center’s institutional gym in early 2014. (Id. at 4.) While lifting weights, Green experienced a
sharp pain in his groin, and asked for medical assistance. (Id.) Green saw a health care nurse on
March 12, 2014, who Green has dubbed Jane Doe 4 in his narrative. 2 (Id.) The nurse referred
Green to a physician at the prison. (Id. at 7.) Green saw Dr. Santos the same day – Santos
diagnosed Green with an inguinal hernia and prescribed him a hernia belt for treatment. (Id. at
4.) Shortly thereafter, Green was placed in Centralia’s segregation unit for reasons that he says
are unrelated to this case, and was later moved to Pinckneyville. (Id.)
After his arrival at Pinckneyville, Green suffered from pain and bleeding from his penis.
(Id.) He complained to prison officials and was seen by medical staff at Pinckneyville; an
unnamed doctor in the medical unit told Green that nothing could be done. (Id. at 4-5.) After his
visit with the unnamed doctor, Green returned to segregation, and yet again experienced bleeding
2

Green says he saw Jane Doe 4 on February 11, 2014. He cites an exhibit for this point, but that
exhibit states that the visit occurred on March 12, 2014. He takes no issue with the exhibit’s
accuracy, so the February 11, 2014 date appears to be a typo. Moreover, Green relies on the
exhibit for support, so the March 12, 2015 date controls. Phillips v. Prudential Ins. Co. of Am.,
714 F.3d 1017, 1020 (7th Cir. 2013) (“To the extent that an exhibit attached to or referenced by
the complaint contradicts the complaint’s allegations, the exhibit takes precedence.”).
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from his groin. (Id. at 5.) He showed his underwear to Corrections Officer Miller to prove it,
and Miller took Green to see Dr. Shah, the “segregation unit doctor.” (Id.) Green showed Shah
his bloody underwear and Shah examined Green’s groin area. (Id.) Shah told Green that all he
could do was prescribe an ice pack and pain pills, and sent Green on his way. (Id.)
From June 2014 to September 2014, Green returned several times to the unit at
Pinckneyville, still suffering from problems with his hernia. Nurse Hill saw Green on June 29,
2014 and noted the appearance of a lump and blood on Green’s underwear. (Id.) Three Jane
Doe nurses – designated Jane Doe 1, 2, and 3 in Green’s complaint – saw Green on July 30, July
31, and August 12, 2014, respectively. (Id. at 6.) Jane Doe 1 and 2 observed blood on Green’s
underwear, while Jane Doe 3 noted bleeding from his penis and a hernia.

(Id.)

Nurse

Practitioner Rector saw Green on August 13, 2014, and noted his hernia, his bleeding, and his
fear related to these symptoms. (Id. at 6-7.) Green was then seen by radiology, and x-rays
indicated a hernia. (Id. at 7.) Nurse Peek and Nurse Ridgeway saw Green on September 1 and
September 22, 2014, respectively, and documented blood on his boxers. (Id. at 6.) Both nurses
chalked the blood up to excessive masturbation, and told Green to let the irritation heal. (Id.)
By 2015, Green’s problems had still not improved. On February 4, 2015, he again saw
Rector; he told her that he was experiencing intense pain, that he had been in pain for over a
year, and that he wanted surgery. (Id. at 7.) Rector told Green there was nothing she could do
and that he should continue to wear the hernia belt. (Id.) On February 18, 2015, Green saw Jane
Doe 3, a nurse in the unit, again requesting surgery. (Id.) On March 2, 2015, Green saw
Ridgeway, telling her that his hernia was “a golf-ball size” and that he wanted help. (Id.)
Despite his many visits, Green claims that all of the medical staff “refuse[d] to treat” him. (Id.)

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Green says he filed grievances about his lack of hernia treatment, but received no relief
through the prison administrative process. (Id. at 4.) Unsatisfied with the prison’s response,
Green filed his § 1983 complaint in this Court on May 28, 2015. (Id. at 1.)
Discussion
Green has tried to subdivide his case into two discrete counts, but both of his separate
counts are species of Eighth Amendment deliberate indifference claims, so his effort to subdivide
is a bit confusing. He has also failed to tease out his claim against Wexford Health Sources,
whose liability is evaluated under a slightly different test than his claims against prison staff. To
facilitate the management of future proceedings, and in accordance with the objectives of Federal
Rules of Civil Procedure 8 and 10, the Court finds it appropriate to re-divide the claims in
Green’s pro se complaint into the following counts, as shown below. The parties and the Court
will use these designations in all pleadings and orders, unless otherwise directed by the Court.
The designation of these counts does not constitute an opinion as to their merit.
COUNT 1:

Godinez, the Centralia Warden, Spiller, Santos, Shah, Rector, Ridgeway,
Shaw, Finney, Hill, and Jane Does 1 through 4 failed to provide treatment
or provided inadequate treatment for Green’s hernia condition, in violation
of the Eighth Amendment of the United States Constitution.

COUNT 2:

Wexford Health Sources promulgated rules, regulations, policies, and
procedures for the medical care of prisoners, and in doing so violated the
Eighth Amendment of the United States Constitution.

Green’s complaint focuses primarily on individual capacity claims against various prison
staff for failure to treat his hernia condition, so the Court will start there (Count 1). To put forth
a viable medical claim under the Eighth Amendment, Green must allege that prison officials
were “deliberately indifferent to his serious medical needs.” Sherrod v. Lingle, 223 F.3d 605,
610 (7th Cir. 2000). This claim involves a two-part inquiry: the plaintiff must first show that his

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condition “was objectively serious,” and he must then demonstrate that each named defendant
acted with a sufficiently culpable state of mind concerning that condition. Id.
For screening purposes, Green has alleged the existence of an objectively serious medical
condition. An objectively serious condition is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001).
Factors that indicate a serious condition include “the existence of an injury that a reasonable
doctor or patient would find important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual’s daily activities; or the existence of
chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Here,
Green’s hernia condition qualifies as a serious condition for screening review purposes.
To bring an Eighth Amendment claim, Green must also allege that each of the named
defendants was deliberately indifferent to his serious medical condition – in other words, that
each named defendant acted with “intentional or criminally reckless disregard.” Estrada v. Reed,
346 F. App’x 87, 91 (7th Cir. 2009). This is a defendant-by-defendant inquiry, so the Court will
evaluate the allegations against each group of defendants named in Green’s case in turn.
The allegations against the Centralia medical staff, who first dealt with Green’s hernia
before his transfer to Pinckneyville, do not suggest anything like deliberately indifferent conduct.
Deliberate indifference is a weighty state of mind requirement – allegations of “medical
malpractice, negligence, or even gross negligence” do not “equate to deliberate indifference.”
Johnson v. Doughty, 433 F.3d 1001, 1012-13 (7th Cir. 2006). In this vein, a prisoner is “not
entitled to demand specific care” or “the best care possible” under the Eighth Amendment, so
allegations amounting to mere dissatisfaction with a doctor’s initial course of treatment do not

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usually state a claim. Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997). Rather, when a
prisoner alleges that he received treatment from a physician in the first instance, he can state a
claim only if the treatment received was “such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the person responsible actually did not
base the decision on such a judgment.” Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261-62
(7th Cir. 1996). This exists only in “the most extreme situations,” Snipes v. DeTella, 95 F.3d
586, 591-92 (7th Cir. 1996), like when the provider’s decision was “so far out of bounds that it
was blatantly inappropriate,” King v. Kramer, 680 F.3d 1013, 1019 (7th Cir. 2012).
Nothing blatantly inappropriate is alleged concerning the Centralia staff’s conduct. As
for Jane Doe 4 and Santos, Green says that Jane Doe 4 saw him after his strain in the gym and
that Santos prescribed him a hernia belt. That does not allege a substantial departure from
medical judgment, as a hernia belt is a common first-stage treatment for a hernia. See, e.g.,
Karsten v. Camacho, P.A., 595 F. App’x 835, 837 (10th Cir. 2014) (dismissal of claim against
provider who offered prisoner hernia belt was proper, as offering the belt did not evince
“deliberate indifference”); Winslow v. Prison Health Servs., 406 F. App’x 671, 674-75 (3d Cir.
2011) (complaint properly dismissed against provider, as provider gave treatment via a hernia
belt, and prisoner only alleged that he was “dissatisfied” with that treatment); Johnson, 433 F.3d
at 1014 (doctors who saw prisoner once and prescribed a belt for treatment were not deliberately
indifferent). As for the other Centralia staff, Green says nothing about Shaw and only claims
that Finney documented that he was bearing down for a bowel movement in April 2014. Like
the allegations against Jane Doe 4 and Santos, nothing there suggests any indifference. So
Count 1 must be dismissed without prejudice as to Jane Doe 4, Santos, Shaw, and Finney.

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The allegations against the Pinckneyville medical staff present a closer case. Construing
his complaint liberally, Green says that he saw Shah, Rector, Ridgeway, Hill, and Jane Does 1
through 3 after wearing the hernia belt for some time, and reported to them – at varying points –
that the belt was doing him no good and that he needed additional treatment. Some of the
providers purportedly told him to continue with the belt and others turned him away completely.
These allegations could amount to a claim that the Pinckneyville staff knew that the belt was
ineffective but did nothing, and that can constitute deliberate indifference. See, e.g., Myrick v.
Anglin, 496 F App’x 670, 674-75 (7th Cir. 2012) (“prison health care staff” may not “persist
with treatment they know to be ineffective when reasonable alternatives are available”); Arnett v.
Webster, 658 F.3d 742, 752 (7th Cir. 2011) (prisoner stated claim against physician when he
alleged that providers “persisted in a course of treatment . . . known to be ineffective”). So
Count 1 may proceed as to Shah, Rector, Ridgeway, Hill, and Jane Does 1 through 3.
On the individual defendant level, that leaves Green’s allegations against Director
Godinez, Warden Spiller (of Pinckneyville), and the Centralia Warden. The claims against
Godinez and the Centralia Warden are meritless: all that is alleged against these two is that they
operated in “supervisory” positions in the prison system, and that alone is not enough to make
them liable for the purportedly improper conduct of those under their charge. See Vinning-El v.
Evans, 657 F.3d 591, 592 (7th Cir. 2011) (“Section 1983 does not authorize supervisory
liability.”). That said, the claim against Spiller is viable, at least for purposes of screening
review. Construing his complaint liberally, Green claims that he wrote emergency grievances to
Spiller concerning the ongoing failure to treat his hernia condition yet Spiller did nothing in
response, and that is enough to state a claim at this early phase. See, e.g., Santiago v. Wells, 599
F.3d 749, 758-59 (7th Cir. 2010) (reversing dismissal and holding that grievance informing

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warden that officers were placing the prisoner in cells with dangerous inmates “sufficient, at the
pleading stage, to state a claim that [the warden] actually knew or consciously turned a blind
eye”); Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“[A]n inmate’s communications can,
under some circumstances, constitute sufficient knowledge of the conditions to require the
officer to exercise his or her authority and to take the needed action to investigate and, if
necessary, to rectify the offending condition.”). Accordingly, Count 1 may proceed as to
Spiller, but is dismissed as to Godinez and the Centralia Warden.
Reading Green’s complaint liberally, he also appears to bring a § 1983 claim against
Wexford Health Sources (Count 2).

For purposes of § 1983, the courts treat “a private

corporation acting under color of state law as though it were a municipal entity,” Jackson v. Ill.
Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2004), so Wexford will be treated as a municipal
entity for this suit. “[T]o maintain a § 1983 claim against a municipality, [a plaintiff] must
establish the requisite culpability (a ‘policy or custom’ attributable to municipal policymakers)
and the requisite causation (the policy or custom was the ‘moving force’ behind the
constitutional deprivation).” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)
(quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978)). Here, Green has only
claimed that Wexford provides general “rules, regulations, policies, and procedures” for the
medical care of prisoners at Centralia and Pinckneyville. (Doc. 1 at 2-3.) He has not alleged any
concrete policy or custom attributable to Wexford, nor has he claimed that any act by Wexford
led to his alleged deprivation of rights. See Olive v. Wexford Corp., 494 F. App’x 671, 673 (7th
Cir. 2012) (allegation that Wexford had a policy of “denying prison inmates adequate medical
care” insufficient, as it did not “identify any concrete policy, let alone an unconstitutional one”).
As such, Count 2 against Wexford Health Sources must be dismissed without prejudice.

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Over and above his individual claims, Green seeks preliminary injunctive relief in his
complaint, asking that the Court issue a preliminary injunction whereby Defendants will provide
Green access to “an outside facility” where his hernia can be properly diagnosed and treated.
The Court’s preliminary review dictates that Plaintiff’s request for injunctive relief deserves
consideration. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiff’s request
for a preliminary injunction will be referred to Magistrate Judge Philip M. Frazier, who shall
resolve the request and issue a report and recommendation. Warden Spiller is already named in
this suit in his individual capacity, and will be added in his official capacity for the purposes of
responding to any injunctive orders. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011).
One closing note concerning Jane Does 1 through 3: these nurses must be identified with
particularity before service of the complaint can occur on them. Where a prisoner’s complaint
states specific allegations describing the conduct of unknown prison staff sufficient to raise a
constitutional claim against them, the prisoner should have the opportunity to engage in limited
discovery in order to ascertain the identity of those defendants.

Rodriguez v. Plymouth

Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In this case, guidelines for discovery aimed
at identifying Jane Does 1 through 3 will be set by the magistrate judge, so that Plaintiff can
identify those individuals. While Warden Spiller (of Pinckneyville) is already named in this suit
in an individual capacity, he will also remain in his official capacity to assist with identifying
these individuals. Once Jane Doe 1, Jane Doe 2, and Jane Doe 3 are identified, Green shall file a
motion to substitute the named individuals with these Jane Doe designates.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against SPILLER, SHAH, RECTOR, RIDGEWAY, HILL, JANE DOE 1, JANE DOE 2,

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and JANE DOE 3. COUNT 1 is DISMISSED without prejudice as to GODINEZ, the
CENTRALIA WARDEN, SANTOS, SHAW, FINNEY, and JANE DOE 4. Because there are
no further claims against them, GODINEZ, the CENTRALIA WARDEN, SANTOS, SHAW,
FINNEY, and JANE DOE 4 are DISMISSED from this case.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice.
Because there are no further claims against it, WEXFORD HEALTH SOURCES is
DISMISSED from this case.
IT IS FURTHER ORDERED that Warden SPILLER will be named in this case in his
official capacity as well as his individual capacity, in order to respond to Plaintiff’s request for
injunctive relief and to assist in the identification of the Jane Doe defendants.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Service of Process at
Government Expense (Doc. 4) is GRANTED. Service shall be ordered as indicated below.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
SPILLER, SHAH, RECTOR, RIDGEWAY, and HILL: (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,
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.

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Service shall not be made on the Jane Doe defendants until such time as Plaintiff has
identified them by name in a properly filed amended complaint. It is Plaintiff’s responsibility to
provide the Court with the names and service addresses for these individuals.
IT IS FURTHER ORDERED that, 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.
IT IS FURTHER ORDERED that 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 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 Philip M. Frazier for further pre-trial proceedings.
IT IS FURTHER ORDERED that Plaintiff’s pending Motion for Recruitment of
Counsel (Doc. 3) is REFERRED to Magistrate Judge Philip M. Frazier for consideration.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.1(c), Plaintiff’s pending request for preliminary injunctive relief is hereby REFERRED

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to Magistrate Judge Philip M. Frazier, who shall resolve the request for injunctive relief and
issue a report and recommendation. The period for filing any objections to Magistrate Judge
Frazier’s report and recommendation shall not exceed 14 days from the date of the report. Any
motions filed after the date of this Order that relate to the request for injunctive relief or seek
leave to amend the complaint are also REFERRED to Magistrate Judge Frazier.
Further, this entire matter is REFERRED to Magistrate Judge Philip M. Frazier 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.
IT IS FURTHER ORDERED that 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 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
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 6, 2015
s/ STACI M. YANDLE
UNITED STATES DISTRICT JUDGE

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