Jordan v. Welborn et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/19/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN JORDAN,
No. B52122,
Plaintiff,
vs.
SGT. WELBORN,
DR. TROST,
DR. RITZ,
MOLDENHAUER,
M. THOMPSON, and
JANA SOUTH,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-00822-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Steven Jordan is an inmate currently housed in Menard Correctional Center.
Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his constitutional
rights with respect to his medical care.
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

Page 1 of 6

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
In June 2014, according to the complaint, Plaintiff experienced an episode of heat stroke,
lost consciousness, and fell to the floor of his cell. Sgt. Welborn arrived as Plaintiff was
regaining consciousness. Despite exhibiting poor motor skills, affected speech, and
disorientation, Welborn said he thought Plaintiff was “faking” symptoms and refused to get
Plaintiff medical assistance—leaving Plaintiff in pain, lying on the floor.
Six days after he fell ill, Plaintiff was seen by Nurse Jana South. South concluded the
bruises on Plaintiff’s back came from being dragged, not from a fall, as Plaintiff had reported.
Nevertheless, she gave Plaintiff two options: (1) she could refer him to see a doctor, which she
considered unnecessary and, essentially, pointless; or (2) she could give Plaintiff ibuprofen and
antibiotic ointment. Plaintiff opted for a referral to see a doctor, which angered Nurse South
because it required reports to be written. Nurse South called Plaintiff names, refused to give him
anything for his pain, and told him to leave.
Plaintiff was not seen by a doctor until he put in a sick call slip—taking approximately
ten more days. Dr. Trost prescribed pain medication and physical therapy, but approximately five
months passed without Plaintiff receiving therapy. Although Plaintiff was given medication, it
was insufficient to control his pain. He complained to Dr. Trost, as well as Nurse South, Nurse
Practitioner Moldenhauer, and Nurse Thompson, but he was not given more effective medication

Page 2 of 6

because it would have cost more. Dr. Trost eventually referred Plaintiff for an MRI, but Menard
Medical Director Dr. Ritz did not authorize an MRI or outside consultation; instead, insisting
Plaintiff be treated at the prison in order to save money. Dr. Ritz did so without ever examining
Plaintiff. 1
Based on the allegations in the complaint, the Court recognizes the following overarching
claim:
Count 1: Defendants 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. Eighth Amendment

protection extends to conditions of confinement that pose a substantial risk of serious harm,
including health and safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th
Cir. 2012). 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 juncture,
Plaintiff’s initial disorientation, his speech and motor deficits, as well as his persistent pain,
qualify as serious medical needs.

1

Plaintiff’s requests for a low bunk permit, a ladder and safety rail were all denied; as a result, Plaintiff
fell and injured his shoulder. However, no named defendant is linked to those events. Any intended
claims based on those events should be considered dismissed without prejudice.

Page 3 of 6

Sgt. Welborn’s apparently baseless belief that Plaintiff was faking disorientation and
speech and mobility impairment could amount to deliberate indifference. And, relative to the five
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). Furthermore, although the cost of
alternative treatments can be considered, choosing a treatment known to be inadequate or
ineffective will violate the Eighth Amendment. See Johnson v. Doughty, 433 F.3d 1001, 1013
(7th Cir. 2006); Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999). Thus, at this early
stage of the lawsuit, the complaint states a colorable Eighth Amendment claim against each of
the six named defendants. Count 1 shall proceed.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1, a medical
indifference claim, shall PROCEED against Defendants SGT. WELBORN, DR. TROST, DR.
RITZ, NURSE PRACTITIONER MOLDENHAUER, NURSE M. THOMPSON, and
NURSE JANE SOUTH.
The Clerk of Court shall prepare for Defendants SGT. WELBORN, DR. TROST, DR.
RITZ, NURSE PRACTITIONER MOLDENHAUER, NURSE M. THOMPSON and
NURSE JANE SOUTH: (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

Page 4 of 6

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.
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 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

Page 5 of 6

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
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: August 19, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 6 of 6