Ford v. Foster et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Stephen C. Williams added. Mary Johnson (Administrator of Healthcare, Wexford Health Care, Vandalia CC) and Marjorie Weathers (Supervisor of Health Care, Wexford Health Care, Vandalia CC) terminated. ORDER REFERRING MOTION: 3 MOTION to Appoint Counsel filed by Charles R Ford. Signed by Chief Judge Michael J. Reagan on 2/11/2016. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES R. FORD #N-33912,
Plaintiff,
vs.
CRAIG FOSTER,
DR. AFUWAPE,
MARJORIE WEATHERS,
and MARY JOHNSON,
Defendants.

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Case No. 16-cv-00058-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Charles Ford, an inmate who is currently incarcerated at Vandalia Correctional
Center (“Vandalia”), brings this action pursuant to 42 U.S.C. § 1983 for the alleged violation of
his Eighth Amendment rights at Vandalia. Plaintiff claims that he has been denied adequate
medical care for a fractured arm, dislocated shoulder, and rotator cuff injury since August 2015.
(Doc. 1 at 5-7).

He now sues four Vandalia officials, including Craig Foster (warden),

Doctor Afuwape (prison doctor), Marjorie Weathers (health care unit supervisor), and
Mary Johnson (health care unit administrator). Plaintiff seeks monetary damages and additional
medical care. (Id. at 8).
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner
complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). 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

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immune from such relief. 28 U.S.C. § 1915A(b). The complaint survives preliminary review
under this standard.
The Complaint
According to the complaint, Plaintiff injured his arm and shoulder in June 2015, while he
was detained at Cook County Jail in Cook County, Illinois. (Doc. 1 at 5, 12). He was sent to a
hospital for x-rays and diagnosed with a fractured arm and a dislocated shoulder.

(Id.).

Plaintiff’s medical providers decided not to treat his shoulder injury until his fractured arm
healed. (Id. at 12).
In August 2015, Plaintiff transferred to Stateville Correctional Center. (Id. at 5-7).
While there, he was sent for more x-rays and told that he would receive treatment for his injuries
at his next facility. He transferred to Vandalia on August 27, 2015.
The day after he arrived, Plaintiff met with Doctor Afuwape. The doctor examined
Plaintiff’s arm, but not his shoulder. Rather than treat his lingering injuries, Doctor Afuwape
instructed Plaintiff to put in a sick call slip if he wanted the doctor to do anything. Plaintiff did
so, but heard nothing from Doctor Afuwape.
He filed a round of grievances to complain about the lack of medical care he had received
at Vandalia for his arm and shoulder. The grievances were denied at each level, including a
denial of a detailed grievance by Warden Foster. However, Plaintiff was put in line to see the
doctor. Doctor Afuwape eventually met with him and referred him to a physical therapist for
rehabilitative treatment.
Plaintiff saw the physical therapist ten days later.

He was prescribed exercises to

perform, under the supervision of prison medical staff, twice daily. Plaintiff was only called to
Vandalia’s health care unit once daily. Further, he showed no signs of improvement. (Id. at 5).

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Plaintiff filed a second round of grievances. In mid-November, he received a response,
indicating that Doctor Afuwape had instructed Plaintiff to perform the exercises in his dorm.
Plaintiff denies any communication with Doctor Afuwape on this subject.

The doctor

subsequently referred him for a second appointment with a physical therapist on
December 7, 2015. He claims that this appointment was never actually scheduled. (Id. at 6).
Plaintiff’s shoulder injury has not healed and is causing him pain. While meeting with a
different doctor about an unrelated matter on January 4, 2016, the doctor told Plaintiff that his
rotator cuff is damaged. (Id. at 7). Plaintiff met with Doctor Afuwape to discuss the injury on
January 5, 2016, but Doctor Afuwape continued to recommend physical therapy and nothing
more.
Plaintiff disagrees with this treatment plan.

He insists that his shoulder injury, in

particular, is not healing. Even so, the doctor has provided him with no alternative treatment
options. He now sues Defendants Foster, Afuwape, Weathers, and Johnson for monetary
damages and medical treatment at an outside facility. (Id. at 8).
Merits Review Under 28 U.S.C. § 1915A
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the
Court deems it appropriate to organize the claim in Plaintiff’s pro se complaint into the
following count:
Count 1:

Eighth Amendment deliberate indifference to medical needs
claim against Defendants for denying Plaintiff adequate
treatment for his arm and shoulder injury at Vandalia.

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The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of this count does not
constitute an opinion as to its merit.
Discussion
Plaintiff’s claim of inadequate medical care arises under the Eighth Amendment, which
“imposes a duty on government officials to provide medical care to prisoners.” Townsend v.
Cooper, 759 F.3d 678, 689 (7th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 104-05
(1976)). Prison officials violate the Eighth Amendment 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 (1970)). A medical condition is considered objectively serious if it has been diagnosed by a
physician as requiring treatment or would be obvious to a layperson. See Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014) (citing Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)).
For screening purposes, Plaintiff’s fractured arm, dislocated shoulder, and rotator cuff injury
satisfy the objective component of this claim.
The question then becomes whether any of the defendants responded to Plaintiff’s serious
medical needs with deliberate indifference. A prison official acts with deliberate indifference
when he “know[s] of and disregard[s] an excessive risk to inmate health.” Greeno, 411 F.3d at
653. Deliberate indifference does not arise from a mere disagreement with the form of treatment
an inmate receives. Inmates are not entitled to demand specific treatment or even “the best care

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possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Under the Eighth Amendment,
an inmate is “entitled to reasonable measures to meet a substantial risk of serious harm” to that
inmate. Id. Neither “medical malpractice nor mere disagreement with a doctor’s medical
judgment” is sufficient to establish deliberate indifference. Berry v. Peterman, 604 F.3d 435,
441 (7th Cir. 2010) (citing Estelle, 429 U.S. at 106; Estate of Cole v. Fromm, 94 F.3d 254, 261
(7th Cir. 1996)).
At the same time, a prisoner is also “not required to show that he was literally ignored.”
Berry, 604 F.3d at 441 (citing Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).
The Seventh Circuit has held that a doctor’s choice of “easier and less efficacious treatment” for
a serious medical condition can amount to deliberate indifference under the Eighth Amendment.
Id. (citations omitted). See also Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006)
(stating that “medical personnel cannot simply resort to an easier course of treatment that they
know is ineffective”); Greeno, 414 F.3d at 655 (noting that persistence in a course of treatment
“known to be ineffective” violates the Eighth Amendment)).
The complaint suggests that Doctor Afuwape may have been deliberately indifferent
toward Plaintiff’s medical needs, when he initially ignored Plaintiff’s requests for treatment and
then recommended a course of physical therapy that was ineffective. The Court cannot dismiss
Count 1 against this defendant.
The Court will also allow this claim to proceed against Warden Foster, who denied
Plaintiff’s grievance(s) complaining about his inadequate medical care. Perez v. Fenoglio,
792 F.3d 768, 777-78 (7th Cir. 2015). It is well settled that a government official is only liable
for his or her own misconduct under § 1983. Id. at 781 (citation omitted). To recover damages
against a supervisory official, a § 1983 plaintiff cannot rely on a theory of respondeat superior;

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instead, he must allege that the defendant, through his or her own conduct, has violated the
Constitution. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). In the context of a
medical needs claim, a prison official who is made aware of a prisoner’s lack of medical care for
a serious medical need, through a coherent and detailed grievance or some other correspondence,
may be deliberately indifferent where he or she fails to intervene on an inmate’s behalf and
rectify the situation. Id. An inmate’s “correspondence to a prison administrator may thus
establish a basis for personal liability under § 1983 where that correspondence provides
sufficient knowledge of a constitutional deprivation.” Id. (citing Vance v. Peters, 97 F.3d 987,
992-93 (7th Cir. 1996)). According to the complaint, Plaintiff filed multiple detailed grievances
with Warden Foster, in order to notify him about Plaintiff’s lack of medical care. On this basis,
the Court will allow Count 1 to proceed against Warden Foster, in his individual capacity.
The claim shall also proceed against Warden Foster in his official capacity.
Plaintiff seeks injunctive relief, in the form of appropriate medical care at an outside facility.
The proper defendant in a claim for injunctive relief is the government official who is
responsible for ensuring that any injunctive relief is carried out.

Gonzalez v. Feinerman,

663 F.3d 311, 315 (7th Cir. 2011). Warden Foster is the proper defendant for carrying out any
injunctive relief that is ordered in this matter. Therefore, Count 1 shall also proceed against this
defendant in his official capacity.
Count 1 shall be dismissed against Marjorie Weathers and Mary Johnson. Both of these
defendants are named in the case caption and list of defendants.

However, they are not

mentioned in Plaintiff’s statement of claim or in any of the attached exhibits. The Seventh
Circuit has made it clear that “[a] plaintiff cannot state a claim against a defendant by including
the defendant’s name in the caption.” Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).

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More is required to put defendants on notice of the claims against them, so they can properly
answer the complaint and defend against the claims.

See also FED. R. CIV. P. 8(a)(2);

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Absent any allegations describing the
conduct of these defendants, the Court cannot allow this claim to proceed against either. Count 1
shall be dismissed without prejudice against Marjorie Weathers and Mary Johnson.
In summary, Count 1 shall receive further review against Doctor Afuwape and
Warden Foster. However, this claim shall be dismissed without prejudice against Marjorie
Weathers and Mary Johnson.
Pending Motion
Plaintiff filed a motion to appoint counsel (Doc. 3), which shall be referred to United
States Magistrate Judge Stephen C. Williams for a decision.
Interim Relief
In the complaint, Plaintiff complains of an ongoing medical issue. He generally seeks
treatment at an outside facility. However, Plaintiff does not request any sort of interim relief, in
the form of a temporary restraining order (“TRO”) or a preliminary injunction. Should Plaintiff
deem it necessary to request a TRO or a preliminary injunction, he should file a separate motion
pursuant to Federal Rule of Civil Procedure 65(a) or (b) indicating the exact form of relief he
seeks, the reasons why he seeks said relief, and the factual allegations supporting his request.
Disposition
IT IS HEREBY ORDERED that Defendants MARJORIE WEATHERS and
MARY JOHNSON are DISMISSED without prejudice from this action because the complaint
fails to state a claim against either defendant upon which relief may be granted.
IT IS ORDERED that with regard to COUNT 1, the Clerk shall prepare for Defendants

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CRAIG FOSTER and DOCTOR AFUWAPE: (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.
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

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Judge Stephen C. Williams for further pre-trial proceedings, including a decision on the motion
to appoint counsel (Doc. 3), pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral. Further, this entire matter shall be REFERRED to United
States Magistrate Judge Williams 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 § 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: February 11, 2016
s/ MICHAEL J. REAGAN
Chief Judge,
United States District Court
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