Montanez v. Trust et al

Filing 38

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 9/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLOS MONTANEZ,
Plaintiff,
vs.
JOHN TROST,
GAIL WALLS,
HOLLY HOPKINS,
RON SKIDMORE,
KIMBERLY BUTLER,
TODD BROOKS,
KRISTA ALSUP,
C. MEYER,
WALTERS, and
WEXFORD HEALTH SOURCES, INC.

Defendants.

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

Case No. 15−cv–1397−MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Carlos Montanez, an inmate in Menard Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff
requests equitable relief and monetary damages. This case is now before the Court for a
preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening– The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
Page 1 of 14

(b) Grounds for Dismissal– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
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 any reasonable person would find meritless. 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 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).
Upon careful review of the Complaint and any supporting exhibits, the Court
finds it appropriate to exercise its authority under § 1915A; portions of this action are
subject to summary dismissal.
The Complaint
Plaintiff began this case by filing a Motion for a Preliminary Injunction, in lieu of
an actual Complaint, on December 22, 2015. (Doc. 1). The Court ordered him to file a
proper Complaint no later than February 5, 2016 and denied the preliminary injunction.
(Doc. 4). On January 21, 2016, Plaintiff filed the present Complaint. (Doc. 5).
Page 2 of 14

Before the Court could review it, Plaintiff filed a Motion for Leave to File an
Amended Complaint on February 4, 2016, one day prior to the Court’s original
deadline. (Doc. 12). The Court permitted the amendment, but because Plaintiff did not
actually submit a proposed amended complaint in accordance with Local Rule 15.1, the
Court gave Plaintiff thirty days to submit an amended complaint containing all claims
and defendants that Plaintiff wished to pursue. (Doc. 13). On March 3, 2016, Plaintiff
filed a Motion to Withdraw his request to file an amended Complaint, which the Court
denied as Moot, because Plaintiff had not met the conditions for filing an amended
complaint in any event.

(Doc. 25).

Since that time, Plaintiff has filed numerous

“declarations,” documents not contemplated by the Federal Rules of Civil Procedure.
On June 27, 2016, Plaintiff filed another motion for leave to file an amended
complaint. (Doc. 33). Like his previous motion, this motion also failed to include a
proposed amended complaint. However, the substance of the motion indicates that
Plaintiff only wishes to change the spelling of Defendant “Trust” to Defendant “Trost.”
That request is GRANTED. (Doc. 33). Despite Plaintiff’s multiple “declarations,” the
Court will abide by its earlier Order and review the Complaint filed on January 21,
2016. The Court does not construe any of the declarations to be a proper amended
complaint and does not consider them as part of its threshold review.
Another inmate assaulted Plaintiff on October 7, 2015. (Doc. 5, p. 27). As a result
of the assault, Plaintiff suffered head injuries, specifically the bones of his skull around
the eyes, forehead, and nose were cracked, and he further suffered from lacerations and
Page 3 of 14

a concussion. (Doc. 5, p. 27). A surgeon at Barnes Jewish Hospital told Plaintiff he
needed surgery to repair the damage. (Doc. 5, p. 27). However, due to the swelling
around Plaintiff’s face, the surgery could not be performed immediately. (Doc. 5, p. 27).
Instead of getting the surgery, Plaintiff was transferred back to Menard on
October 9, 2015. (Doc. 5, p. 27). Plaintiff was told by Harrington, Quadt, and Defendant
Skidmore that he needed to sign for protective custody on October 13, 2015 because he
was being released from health care. (Doc. 5, p. 28). Plaintiff alleges that Dr. Trost
never performed an examination or provided him with any pain medication, and
deliberately ignored the recommendations of the Barnes Jewish doctors. (Doc. 5, p. 28).
Plaintiff asked Ms. Hill to intervene. (Doc. 5, p. 28). She spoke to Skidmore, and
reported to Plaintiff that he was not going to get surgery, but would be permitted to
stay in the health care unit until his injuries healed. (Doc. 5, p. 28). Plaintiff suffered
extreme pain from the lack of pain medication. (Doc. 5, p. 28). He also suffers from
vision problems, breathing problems, severe headaches, hearing problems, and
equilibrium problems. (Doc. 5, p. 28).
Plaintiff alleges that he cannot go to protective custody at Menard because it is
dangerous and he would not get any medical treatment there. (Doc. 5, p. 28). He
believes that he may be a target of the Latin Kings gang. (Doc. 5, p. 28). Plaintiff
believes that because he is cooperating in the prosecution of his assailant, he should be
transferred to Pontiac Correctional Center. (Doc. 5, p. 28-29).

Page 4 of 14

Plaintiff wrote a grievance on October 23, 2015 to Defendant Butler. (Doc. 5, p.
29). He also submitted grievances directly to Brooks, the Warden of Programs because
he did not believe his grievances were collected from the box in health care. (Doc. 5, p.
29). He also submitted other letters to Walls and Butler. (Doc. 5).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide
the pro se action into three counts.

The parties and the Court will use these

designations in all future pleadings and orders, unless otherwise directed by a judicial
officer of this Court. The following claim survives threshold review.
Count 1 – Defendants Trost, Walls, Brooks, and Butler were deliberately
indifferent to Plaintiff’s serious medical need when they refused to approve
treatment recommended by an outside physician to treat Plaintiff’s skull fractures.
Additionally, the following claims must be dismissed without prejudice at this
time:
Count 2: Defendants Brooks and Butler were deliberately indifferent to
Plaintiff’s safety when they refused to transfer him to Pontiac Correctional Center
courts

Count 3: Defendants Walters and Meyer obstructed Plaintiff’s access to the
Count 1 survives threshold review.

In order to state a clam for deliberate

indifference to a serious medical need, an inmate must show that he 1) suffered from an
objectively serious medical condition; and 2) that the defendant was deliberately
indifferent to a risk of serious harm from that condition.

An objectively serious

condition includes an ailment that has been “diagnosed by a physician as mandating
Page 5 of 14

treatment,” one that significantly affects an individual’s daily activities, or which
involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
1997). “Deliberate indifference is proven by demonstrating that a prison official knows
of a substantial risk of harm to an inmate and either acts or fails to act in disregard of
that risk.

Delaying treatment may constitute deliberate indifference if such delay

exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle,
680 F.3d 859, 865 (7th Cir. 2012) (internal citations and quotations omitted); see also
Farmer v. Brennan, 511 U.S. 825, 842 (1994). The Eight 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).
Here Plaintiff has alleged that he was told by an outside physician that he would
need surgery to fully recover from an assault by another inmate. That is sufficient to
show that he suffers from a serious medical need. Once he returned to prison, however,
he was informed that he was not getting surgery. Plaintiff also alleges that Trost did
not even examine Plaintiff or prescribe him pain medication before rejecting a surgical
course of treatment. That is sufficient to state a claim for deliberate indifference.
Plaintiff has not alleged that Walls, Brooks or Butler undertook to treat him. But
the Seventh Circuit has said that letters or grievances may support a cause of action for
deliberate indifference because the correspondence may show that a defendant knew
about a serious medical need and refused to intervene. See Perez v. Fenoglio, 792 F.3d
Page 6 of 14

768 (7th Cir. 2015). Therefore, at this stage, the claims against Walls, Brooks, and Butler
must be allowed to proceed.
Plaintiff has also attempted to sue Ronald Skidmore, a nurse a Menard
Correctional Center due to his involvement in Plaintiff’s medical treatment. However,
the only allegation in the Complaint against Skidmore is that Skidmore asked Plaintiff if
he wanted to sign into protective custody and Skidmore confirmed that Plaintiff would
not be getting surgery to Ms. Hill. Neither of these allegations is sufficient to state a
constitutional violation.

Skidmore cannot be liable to Plaintiff because he

communicated about post-health care placement or Plaintiff’s current medical status.
Plaintiff has not made any allegations that make it plausible that Skidmore knew about
Plaintiff’s condition and consciously disregarded it. It is highly unlikely that a nurse in
Skidmore’s position had the authority to approve surgery unilaterally. Unless Plaintiff
can articulate some aspect of Skidmore’s care that is deficient, he will not be permitted
to proceed against Skidmore at this time. Skidmore is DISMISSED without prejudice.
Turning now to Count 2, Plaintiff has also alleged that Brooks and Butler
violated his Eighth Amendment rights when they refused to transfer him to Pontiac
Correctional Center.

The Eighth Amendment “deliberate indifference standard”

imposes a duty on both Federal and State correctional officers to protect inmates from
violence at the hands of other inmates. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990).
A prison official is liable for failing to protect an inmate from another prisoner only if
the official “knows of and disregards an excessive risk to inmate health or safety[.]”
Page 7 of 14

Farmer, 511 U.S. at 837. A claim that a prison official was deliberately indifferent to such
a risk has both an objective and a subjective component. Id. at 834. First, the harm to
which the prisoner was exposed must be an objectively serious one.

Gevas v.

McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015). Second, the subjective prong of the
deliberate indifference claim requires that the official must have actual, and not merely
constructive, knowledge of the risk in order to be held liable; specifically, he “must both
be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw that inference.” Id. (citing Farmer, 511 U.S. at
837).
Assuming all well-pleaded facts as true, Plaintiff has not alleged sufficient facts
to state an Eighth Amendment claim against Brooks and Butler for their failure to
transfer him to Pontiac. Plaintiff has neither alleged that he has been attacked, which he
need not do here. See Wright v. Miller, 561 F. App’x 551, 555 (7th Cir. 2014) (noting that
fear of an attack was sufficient to state a claim for failure to protect, but that the lack of
injury made only nominal and punitive damages available).

But he has also not

articulated a specific threat to his safety that prison officials ignored. His Complaint
states that placement in protective custody “may” be more dangerous and that he
“may” be wanted by the Latin Kings. Taking Plaintiff’s allegations as true, all the Court
can say is that there might be a threat. That is not sufficient at the pleading stage.
Prison officials must protect prisoners- not transfer them based on speculation and
requests. Moore v. Peters, No. 91 C 5883, 1992 WL 186043, at *3–4 (N.D. Ill. July 24, 1992);
Page 8 of 14

Burr v. Duckworth, 547 F.Supp 192, 197 (7th Cir. 1982) (“The Court’s research has
uncovered no case which has held that a prisoner has a constitutionally protected right,
interest, or expectation to be transferred from one facility to another within a
correctional system merely by requesting one.”). Additionally, Plaintiff’s allegations do
not support an inference that Defendants are deliberately indifferent. On the contrary,
Plaintiff reports he was kept safe by being allowed to stay in the health care unit after
he was medically released. He also alleges that numerous prison officials have asked
him if he wished to sign into protective custody. Plaintiff states that he refused to sign
into protective custody because he did not feel safe in protective custody, but without
articulating a specific threat that would arise in that setting, Plaintiff has not pleaded
sufficient facts which make it plausible that officials were deliberately indifferent.
Therefore Count 2 will be dismissed without prejudice.
Count 3 must also be dismissed.

Plaintiff’s allegations against Walters and

Meyer are so vague that they barely state any claim. As to both of them he states they
are sued for their “role and act in concert [sic] due to some aspects that obstruct
Plaintiff’s procedures.” Plaintiff later states that he has unsuccessfully tried to obtain his
medical records. Construing Plaintiff’s Complaint very broadly, the Court presumes
that Plaintiff is trying to state that his access to courts was blocked because Walters and
Meyers did not produce his medical records. But that is not sufficient to state a claim
for denial of access to the courts

Page 9 of 14

In order to make an access to court claim, a prisoner must state that he had a
non-frivolous legal claim that was frustrated or impeded by defendants’ action or lack
of action. Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Here Plaintiff has not
alleged that he had a non-frivolous legal claim that was frustrated. To the extent that
Plaintiff is referring to the current case, that cannot be basis for this claim because
Plaintiff has successfully filed it. Additionally, the materials he claims the Defendants
withheld from him are not legal materials, they are discovery. As the Federal Rules of
Civil Procedure give the Court the authority to order the production of any documents
relevant to this litigation, including medical records, Plaintiff need not seek them as a
precondition to filing suit. Therefore, as Plaintiff has not adequately pleaded a cause of
action against Walters and Meyer, they will be DISMISSED without prejudice.
Additionally, several other Defendants are entitled to dismissal because Plaintiff
has not adequately pleaded claims against them. Plaintiff lists Holly Hopkins, Krista
Alsup, and Wexford Health Sources in his case caption and request for relief, but the
Complaint itself does not contain a single allegation against them. Although Alsup is
identified as a grievance counselor, none of the grievances attached to the Complaint
have her signature. The Court is unable to ascertain what claims, if any, Plaintiff has
against these Defendants.
The reason that plaintiffs, even those proceeding pro se, for whom the Court is
required to liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21
(1972), are required to associate specific defendants with specific claims is so these
Page 10 of 14

defendants are put on notice of the claims brought against them and so they can
properly answer the complaint. “Federal Rule of Civil Procedure 8(a)(2) requires only
‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Thus, where a plaintiff has not included a defendant in
his statement of the claim, the defendant cannot be said to be adequately put on notice
of which claims in the complaint, if any, are directed against him. Furthermore, merely
invoking the name of a potential defendant is not sufficient to state a claim against that
individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot
state a claim against a defendant by including the defendant’s name in the caption.”).
Because Plaintiff has not listed Defendants Hopkins, Alsup, or Wexford Health
Sources elsewhere in his Complaint, he has not adequately stated claims against these
individuals, or put them on notice of any claims that Plaintiff may have against them.
For this reason, Defendants Hopkins, Alsup, and Wexford will be dismissed from this
action without prejudice.
Pending Motions
To the extent that Plaintiff’s request to file an amended complaint is a request to
change the name of Defendant Trust to Trost, it is GRANTED. The Motion is otherwise
DENIED for failure to submit a proper amended complaint. (Doc. 33).

Plaintiff’s

motion for service at government expense is DENIED as MOOT, as Plaintiff has
Page 11 of 14

already been granted leave to proceed IFP and the Court will order service in that
situation.

(Doc. 31).

All other motions shall be referred to the Magistrate Judge

assigned to this case.
Disposition
IT IS ORDERED that Count 1 against Trost, Walls, Brooks, and Butler survives
threshold review. Defendant Skidmore is DISMISSED without prejudice. The Clerk
of Court is DIRECTED to change “John Trust” on the docket to “John Trost.”
IT IS FURTHER ORDERED that Counts 2 and 3 will be DISMISSED without
prejudice. Defendants Walters, Meyer, Hopkins, Alsup, and Wexford Health Sources
will be DISMISSED without prejudice.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Trost,
Walls, Brooks, and Butler: (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.

Page 12 of 14

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 lastknown 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 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.
Further, this entire matter is REFERRED to United States Magistrate Judge
Williams 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.
Page 13 of 14

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 for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 22, 2016
s/ MICHAEL J. REAGAN
U.S. Chief District Judge

Page 14 of 14