Howell v. Butler et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 3/21/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY HOWELL, # K-89663,
Plaintiff,
vs.
SALVADOR A. GODINES,
LOUIS SHICKER,
KIMBERLY BUTLER,
JOHN TROST,
DR. FUENTES,
SUSAN KIRK,
SERGEANT TINDELL,
SERGEANT BRADLEY and
WEXFORD HEALTH SOURCE, INC.,
Defendants.

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Case No. 16-cv-00160-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Larry Howell is currently incarcerated at Menard Correctional Center
(“Menard”). He brings this action pursuant to 42 U.S.C. § 1983 for alleged violations of his
constitutional rights at Menard. According to his Complaint, Plaintiff injured his knee while
playing basketball at Menard on May 4, 2014 (Doc. 1). Although surgery and physical therapy
were recommended, Plaintiff was denied both (Doc. 1 at 5-33). He was also denied the use of a
wheelchair, walker or cane (Id.). Plaintiff now sues the following prison officials for violating
his rights under the Eighth Amendment: Salvador Godines (Illinois Department of Corrections’
(“IDOC”) Director), Louis Shicker (IDOC Chief Medical Director) Kimberly Butler
(prison warden), John Trost (prison medical director), Doctor Fuentes (prison physician),
Susan Kirk (prison nurse), Sergeant Tindell and Sergeant Bradley. Plaintiff seeks declaratory
judgment, monetary damages and injunctive relief (Id. at 37).
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This case is before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A.

Under § 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
immune from such relief. 28 U.S.C. § 1915A(b). Plaintiff’s Complaint survives review under
this standard.
The Complaint
Plaintiff fell and injured his knee while playing basketball in Menard’s gymnasium on
May 4, 2014 (Doc. 1 at 7-21). He was examined the following day by Doctor Trost, the prison’s
chief medical director. Doctor Trost ordered an x-ray of Plaintiff’s knee. Although it revealed
no fracture, the x-ray showed a tremendous amount of fluid and inflammation. To further assess
the injury, Doctor Trost recommended an MRI.
Plaintiff waited almost two months for this diagnostic test. While waiting, he suffered
from excruciating pain and loss of mobility. Doctors Trost and Fuentes ordered ibuprofen for
pain, a bandage for support and ice for the swelling. Plaintiff was issued several medical lay-in
permits and a slow walk permit.
At times, he was even provided with a wheelchair. More often, he was denied the use of
any assistive devices (i.e., wheelchair, walker, cane, or other device). He was housed in a fifth
floor cell and prison officials, including Sergeants Tindell and Bradley, forced him to walk from
place to place under the threat of disciplinary action or cancelled medical appointments. Plaintiff
resorted to hopping on one foot across the floor, scooting on his bottom down stairs and relying
on other inmates to assist him. As a result, he suffered additional pain and further injuries.

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Plaintiff underwent an MRI on July 1, 2014. Doctor Trost reviewed the test results with
him two weeks later. He was diagnosed with a torn anterior cruciate ligament (“ACL”) and a
damaged meniscus (Id. at 14). Doctor Trost indicated that knee surgery and physical therapy
were necessary. The doctor submitted a request for surgical repair of the ACL and meniscus to
the “collegial board.” Plaintiff was also referred to an orthopedist for a consultation on August
27, 2014 and the specialist’s report was forwarded to the collegial board approximately three
weeks later (Id. at 15). On September 17, 2014, after reviewing Plaintiff’s case, the board
approved the request for knee surgery.
Plaintiff underwent surgery on October 7, 2014, more than five months after his injury
occurred (Id. at 16). While awaiting surgery, he continued to suffer from pain and loss of
mobility. Following surgery, these symptoms did not fully subside. Plaintiff continued suffering
from knee pain and difficulty walking. He complained about the persistent symptoms at a
follow-up appointment with Doctor Trost on October 23, 2014. It was only then that Doctor
Trost explained that Plaintiff’s meniscus was repaired during surgery, but his torn ACL was not.
The collegial board would not approve the request for ACL surgery because Plaintiff would also
need up to eight months of physical therapy, which Menard could not provide (Id. at 16-17).
Between October 2014 and December 2015, Plaintiff continued to request ACL surgery
and physical therapy. Doctor Trost repeatedly submitted Plaintiff’s case for review before the
collegial board. The board denied all requests for ACL surgery and physical therapy.
Plaintiff ultimately received only one appointment with an outside physical therapist.
Plaintiff now sues the defendants under the Eighth Amendment for responding to his
injury with deliberate indifference. He claims that IDOC Director Godines knew Plaintiff was
denied surgery, physical therapy and assistive devices based on detailed grievances and appeals

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he received in connection with Plaintiff’s case, but the director failed to correct the policies,
customs, or practices that resulted in the constitutional deprivations (Id. at 26); IDOC Medical
Director Shicker failed to intervene on Plaintiff’s behalf and overturn the decisions of the
collegial board despite having knowledge of Plaintiff’s injury, ongoing symptoms and need for
assistive devices (Id. at 24-25); Warden Butler knew of the denial of medical care and assistive
devices, but failed to intervene on Plaintiff’s behalf (Id. at 22); Doctors Trost and Fuentes failed
to secure necessary treatment and assistive devices for Plaintiff (Id. at 23, 27-29); Nurse Kirk
ignored Plaintiff’s numerous sick call requests and refused to call him to the HCU (Id. at 19-20,
23, 30); Sergeants Tindell and Bradley denied Plaintiff access to assistive devices and forced him
to “walk” everywhere, despite causing further injuries and pain (Id. at 22, 30-33); and, in an
effort to reduce costs, Wexford failed to correct the policies, customs, and practices that led to
the denial of adequate medical care and also failed to properly train medical staff to treat such
injuries (Id. at 29). Plaintiff now seeks declaratory judgment, monetary damages and injunctive
relief that includes ACL surgery1 (Doc. 1 at 37).
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 claims in Plaintiff’s pro se Complaint into the
following counts:
Count 1:

Defendants exhibited deliberate indifference toward Plaintiff’s
serious medical needs, in violation of the Eighth Amendment,
when they delayed and/or denied appropriate treatment for his
knee injury.

1

Plaintiff does seek any sort of immediate relief, in the form of a temporary restraining order (“TRO”) or
preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. If he feels that either
a TRO or a preliminary injunction is necessary, Plaintiff may file a motion for said relief at any time
during the pending action.
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Count 2:

Defendants subjected Plaintiff to unconstitutional conditions of
confinement at Menard, in violation of the Eighth Amendment,
when they placed him in a fifth floor cell and denied him the
use of any assistive medical devices when he was unable to
walk.

Count 3:

Defendants violated the Americans with Disabilities Act
(“ADA”) and/or Rehabilitation Act when they denied him the
use of any assistive medical devices while he was unable to
walk, thereby denying him access to meals and medical
services.

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 designation of these counts does not
constitute an opinion as to their merit.
Merits Review Under 28 U.S.C. § 1915A
Count 1 – Medical Needs
The Complaint states a valid Eighth Amendment claim (Count 1) against all of the
defendants.

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 v. Gamble, 429 U.S. 97, 104 (1976)). This amendment “safeguards the
prisoner against a lack of medical care that ‘may result in pain and suffering which no one
suggests would serve any penological purpose.’” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir.
2015) (citing Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)
(quoting Estelle, 429 U.S. at 103).
An Eighth Amendment medical claim includes 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 (1994)). A medical condition is considered

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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)). Plaintiff’s torn ACL and damaged meniscus
satisfy this standard for screening purposes. Both injuries were diagnosed by a physician as
requiring surgery.
The subjective component requires a prisoner to demonstrate that prison officials acted
with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; Greeno, 414 F.3d at 653.
Specifically, the officials “must know of and disregard an excessive risk to inmate health.”
Greeno, 414 F.3d at 653. They must “both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists” and “must also draw the inference.” Id.
(quoting Farmer, 511 U.S. at 837). Here, the Complaint also includes allegations that satisfy the
subjective component of this claim with respect to each defendant.
1.

Prison Doctors
According to the Complaint, the prison’s physicians, Doctors Trost and Fuentes, have

failed to provide Plaintiff with adequate medical care for his knee injury since May 2014.
These doctors treated Plaintiff with ibuprofen for pain, ice for swelling and a bandage/knee
sleeve for support. However, they delayed an MRI for nearly two months and surgery on
Plaintiff’s meniscus for more than five months. To date, Plaintiff has not received ACL surgery,
physical therapy or regular use of any assistive devices.
Deliberate indifference can occur even when some medical care has been provided.
The “receipt of some medical care does not automatically defeat a claim of deliberate
indifference.” Perez, 792 F.3d at 777 (citing Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir.
2007)). See also Arnett, 658 F.3d at 751 (prisoner need not show that his medical needs were

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literally ignored). The standard is satisfied if the physician acts in a manner that is “contrary to
the recommendation of specialists” or “delays a prisoner’s treatment for non-medical reasons,
thereby exacerbating his pain and suffering.” Perez, 792 F.3d at 777 (citing Arnett, 658 F.3d at
753; McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)). This is essentially what Plaintiff
alleges in his Complaint. Accordingly, the Court will allow Plaintiff to pursue his deliberate
indifference to medical needs claim against Doctors Trost and Fuentes.
2.

Nurse
Plaintiff may also proceed with this claim against Nurse Kirk, who ignored his numerous

requests to be seen in the HCU. Although “nurses may generally defer to instructions given by
physicians, they have an independent duty to ensure that inmates receive constitutionally
adequate care.” Perez, 792 F.3d at 779 (7th Cir. 2015) (citing Berry v. Peterman, 604 F.3d 435,
443 (7th Cir. 2010)). When confronted with a questionable practice or clearly inappropriate
treatment, a nurse has a professional obligation to “take appropriate action” by discussing the
nurse’s concerns with the treating physician or contacting a supervisor. Id. Plaintiff alleges that
Nurse Kirk ignored his sick call requests and refused to schedule appointments for him in the
HCU after reviewing his medical records. At the time, she was allegedly aware that treatment of
his knee injury was delayed or denied. Perhaps she discussed her concerns with her supervisor,
but at this stage, the Court cannot tell and therefore cannot dismiss this claim against her.
Therefore, Count 1 shall proceed against Nurse Kirk.
3.

Sergeants
Likewise, this claim survives threshold review against the two sergeants, Tindell and

Bradley, who forced Plaintiff to hop and scoot around the prison when he was unable to walk.
Both sergeants were aware of Plaintiff’s injuries and associated pain at the time. Plaintiff alleges

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that he suffered further injuries and pain as a result. Accordingly, Count 1 shall receive further
review against Sergeants Tindell and Bradley.
4.

Wexford
Likewise, Count 1 shall proceed against Wexford, which is a private corporation that

serves as Menard’s healthcare provider. In the Seventh Circuit, a private corporation generally
cannot be held liable under § 1983, unless it maintained an unconstitutional policy or custom.
Perez, 792 F.3d at 780 (citing Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927
(7th Cir. 2014)).

According to the Complaint, Plaintiff was repeatedly denied testing and

treatment because of Wexford’s cost-saving policies, customs and practices that include a failure
to train medical staff on the appropriate treatment of knee injuries. Drawing all reasonable
inferences in Plaintiff’s favor as this Court is required to do at screening, the Complaint
sufficiently alleges that Wexford maintained an unconstitutional cost-saving policy, custom or
practice that resulted in the denial of Plaintiff’s ACL surgery, physical therapy and medical
assistive devices. Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir.
2014). As such, Count 1 cannot be dismissed against Wexford.
5.

Grievance Defendants
Count 1 shall also receive further review against Warden Butler, IDOC Director Godines

and IDOC Medical Director Shicker (“grievance defendants”), who received and reviewed the
grievances and appeals filed in connection with Plaintiff’s knee injury. All three defendants
failed to intervene and stop the alleged violation of Plaintiff’s constitutional rights, after being
made aware of his lack of medical care. Their inaction allegedly prolonged Plaintiff’s pain and
suffering.
Under § 1983, a government official may only be held liable for his or her own

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misconduct. Locke v. Hoessig, 788 F.3d 663, 669 (7th Cir. 2015). In order to recover damages
against a prison official who is acting in a supervisory role, a § 1983 plaintiff cannot rely on a
theory of respondeat superior, or supervisory liability. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009).

He must allege facts which tend to show that the supervisory official realized a

substantial risk of serious harm to the prisoner existed and disregarded it. Farmer, 511 U.S. at
837.

Where an official “knows about unconstitutional conduct and facilitates, approves,

condones, or ‘turn[s] a blind eye’ to it,” the official may be liable for deliberate indifference
under the Eighth Amendment. Perez, 792 F.3d at 768 (citing Vance v. Peters, 97 F.3d 987, 99293 (7th Cir. 1996) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
In this case, Plaintiff alleges that Warden Butler, Medical Director Shicker and Director
Godines were aware of a Plaintiff’s serious, untreated injury and the decision to deny his request
for surgery. They each disregarded the risk of harm to him. At this stage, the Court will allow
Count 1 to proceed against the grievance defendants.
Count 2 – Conditions of Confinement
In order to state a claim for unconstitutional conditions of confinement, a plaintiff must
allege facts that, if true, would also satisfy the objective and subjective components applicable to
all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); Wilson v.
Seiter, 501 U.S. 294, 302 (1991). In this context, the objective component focuses on the nature
of the acts or practices alleged to constitute cruel and unusual punishment.

Jackson v.

Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The objective analysis turns on whether the
conditions of confinement exceeded contemporary bounds of decency of a mature civilized
society. Id. The condition must result in unquestioned and serious deprivations of basic human

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needs or deprive inmates of the minimal civilized measure of life’s necessities. Rhodes v.
Chapman, 452 U.S. 337, 347 (1981).
Not all prison conditions trigger Eighth Amendment scrutiny—only deprivations of basic
human needs like food, medical care, sanitation and physical safety. Rhodes, 452 U.S. at 346;
see also James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992). “Some conditions of
confinement may establish an Eighth Amendment violation ‘in combination’ when each would
not do so alone, but only when they have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food, warmth, or exercise-for example, a
low cell temperature at night combined with a failure to issue blankets.” Wilson, 501 U.S. at
304. In this case, Plaintiff was placed in a fifth floor cell, despite his inability to walk. He was
denied access to a wheelchair, cane, walker or other device. He had to hop, scoot and beg to get
anywhere in the prison. As a result, he missed scheduled meals and medical appointments,
among other things.
The defendants were aware of these conditions. Plaintiff complained directly to them and
filed grievances to address his concerns. Still, they took no action to address the situation, either
by moving him to a lower level cell or offering him the use of assistive medical devices.
See, e.g., Farmer, 511 U.S. at 837; Wilson, 501 U.S. at 303; Estelle, 429 U.S. at 104; Del Raine
v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994) (deliberate indifference shown where official is
aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and the official draws the inference). The allegations in the Complaint support a claim for
unconstitutional conditions of confinement against the defendants at this early stage.
Accordingly, Count 2 shall receive further review against them.

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Count 3 – ADA/Rehabilitation Act
Based on the Complaint allegations, the Court will allow Plaintiff to proceed with a claim
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the
Rehabilitation Act, 29 U.S.C. §§ 794-94e. 2 The ADA provides that “no qualified individual with
a disability shall, because of that disability . . . be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132 (2006).

The Rehabilitation Act also prohibits discrimination against qualified

individuals based on a physical or mental disability. See 29 U.S.C. §§ 794-94e. Discrimination
under both includes the failure to accommodate a disability.
However, this claim cannot proceed against the individual defendants. Individual
employees of the IDOC cannot be sued under the ADA or Rehabilitation Act. Jaros, 684 F.3d at
670.

The proper defendant is the relevant state department or agency.

See 42 U.S.C.

§ 12131(1)(b); Jaros, 684 F.3d at 670 n. 2 (individual capacity claims are not available; the
proper defendant is the agency or its director (in his official capacity)). Plaintiff has named
Director Godines as a defendant and Count 3 shall proceed against Defendant Godines in his
official capacity.
Pending Motion
Plaintiff filed a motion for recruitment of counsel (Doc. 3) which shall be referred to
United States Magistrate Judge Philip M. Frazier for a decision.

2

Plaintiff does not explicitly raise a claim under the ADA or Rehabilitation Act. However, at this early
stage in litigation, the Court must consider all of the litigant’s claims and not just the particular legal
theories he propounds, particularly when he is litigating pro se. For this reason, the Court now analyzes
the disability-related claim under both the ADA and the Rehabilitation Act. See Norfleet v. Walker, 684
F.3d 688, 690 (7th Cir. 2012); Jaros v. Illinois Dept. of Corrections, 684 F.3d 667 (7th Cir. 2012).
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Disposition
IT IS HEREBY ORDERED that COUNTS 1 and 2 shall receive further review against
Defendants GODINES, SHICKER, BUTLER, TROST, FUENTES, KIRK, TINDELL,
BRADLEY and WEXFORD HEALTH SOURCE, INC., and COUNT 3 shall only proceed
against Defendant GODINES in his official capacity.
IT IS ORDERED that with regard to COUNTS 1, 2 and 3, the Clerk shall prepare for
Defendants GODINES, SHICKER, BUTLER, TROST, FUENTES, KIRK, TINDELL,
BRADLEY and WEXFORD HEALTH SOURCE, INC.: (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.

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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 Philip M. Frazier for further pre-trial proceedings, including a decision on the motion for
recruitment of 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 Frazier 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, regardless of the fact
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

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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: March 21, 2016
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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