Abellan v. Wexford Health Services et al

Filing 10

ORDER: The Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complaint within 35 days of the entry of this order. (Amended Pleadings due by 6/30/2016). Signed by Chief Judge Michael J. Reagan on 5/26/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER ABELLAN, # R-54854,
Plaintiff,
vs.
WEXFORD HEALTH SERVICES,
DR. AFUWAPE, MS. KLEIN,
and MARY JOHNSON,
Defendants.

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Case No. 16-cv-251-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff, currently incarcerated at Vandalia Correctional Center (“Vandalia”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that
Defendants have been deliberately indifferent to a serious medical condition. This case is now
before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out
non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must 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

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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. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
After fully considering the allegations in Plaintiff’s complaint, the Court
concludes that it fails to state a claim upon which relief may be granted, and is subject to
dismissal.
The Complaint
Plaintiff claims that Defendant Dr. Afuwape has given him inadequate medical
care and “ignored all [his] significant medical concerns” (Doc. 1, p. 5). Defendant Afuwape
failed to implement a comprehensive treatment plan. Plaintiff alleges that he is experiencing
substantial pain because of Defendant Afuwape’s “gross neglect.” Id.
Defendants Klein (Health Care Administrator) and Johnson (Supervisor of
Nurses), according to Plaintiff, are deliberately indifferent in administering health care at

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Vandalia. He states that they “execute abusive tactics” and manipulate inadequate medical care.
Id.
The complaint does not describe the nature of Plaintiff’s medical condition, other
than the fact that it is painful.

He does attach a grievance, which states that he needs

rehabilitation of a wound that is causing him constant, severe pain (Doc. 1, pp. 7-8).
As relief, Plaintiff seeks to obtain adequate medical care and monetary damages
(Doc.1, p. 6).
Merits Review Pursuant to 28 U.S.C. § 1915A
In order to state a claim 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. A
medical need is “serious” where it has either “been diagnosed by a physician as mandating
treatment” or where the need is “so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). A
condition that causes “chronic and substantial pain” may satisfy the objective component of a
deliberate indifference claim. Id.
“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.”
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); Perez v. Fenoglio, 792 F.3d 768, 777-78
(7th Cir. 2015).

However, the Eighth 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).

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Further, a defendant’s inadvertent error, negligence or even ordinary malpractice is insufficient
to rise to the level of an Eighth Amendment constitutional violation. See Duckworth v. Ahmad,
532 F.3d 675, 679 (7th Cir. 2008).
In Plaintiff’s case, the allegations in his complaint are devoid of factual content
regarding the nature of Plaintiff’s medical condition, and the Defendants’ responses to his efforts
to seek medical care. His statements are so general and conclusory that the Court is unable to
evaluate whether Plaintiff’s condition is objectively serious, or whether any Defendant’s action
or inaction amounted to unconstitutional deliberate indifference. The complaint falls short of
demonstrating either the objective or the subjective portion of a claim for deliberate indifference
to serious medical needs. Instead, Plaintiff offers only his own conclusions that the Defendants’
actions/inaction violated his constitutional rights. Such conclusory statements are inadequate to
survive § 1915A review. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Accordingly, the complaint (Doc. 1) shall be dismissed for failure to state a claim upon which
relief may be granted.
However, Plaintiff shall be allowed an opportunity to submit an amended
complaint, to correct the deficiencies in his pleading. If the amended complaint still fails to state
a claim, or if Plaintiff does not submit an amended complaint, the entire case shall be dismissed
with prejudice, and the dismissal shall count as a strike pursuant to § 1915(g). The amended
complaint shall be subject to review under § 1915A.
Pending Motion
Plaintiff has filed a motion for recruitment of counsel (Doc. 3). The dismissal of
the complaint without prejudice raises the question of whether Plaintiff is capable of drafting a

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viable amended complaint without the assistance of counsel.
There is no constitutional or statutory right to counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C.
§ 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc., 706
F.3d 864, 866–67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must
first consider whether the indigent plaintiff has made reasonable attempts to secure counsel on
his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d
647, 654 (7th Cir. 2007)). If so, the Court must examine “whether the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a layperson to coherently
present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question . . . is
whether the plaintiff appears competent to litigate his own claims, given their degree of
difficulty, and this includes the tasks that normally attend litigation: evidence gathering,
preparing and responding to motions and other court filings, and trial.” Pruitt, 503 F.3d at 655.
The Court also considers such factors as the plaintiff’s “literacy, communication skills, education
level, and litigation experience.” Id.
Plaintiff states in the motion that he has contacted numerous law firms seeking
representation, but has received no responses (Doc. 3, p. 1). This statement suggests that
Plaintiff has made reasonable efforts to obtain counsel.
As to the second inquiry, Plaintiff states that he attended some high school. He
also indicates that his ability to speak, write, and/or read English is limited, apparently because
English is not his primary language – but Plaintiff does not further explain his limitations (Doc.

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3, p. 2). Nonetheless, the complaint reflects that Plaintiff is articulate in his use of language, and
appears to be capable of stating the relevant facts regarding his legal claims. At this juncture, the
Court is merely concerned with whether this action can get out of the gate, so to speak. All that
is required is for Plaintiff to include more factual content regarding his medical condition and
how it affected him, what he did to inform the Defendants about his condition and seek
treatment, and how they responded. Plaintiff alone has knowledge of these facts, and no legal
training or knowledge is required to set them down on paper.

Therefore, the recruitment of

counsel is not warranted at this time and the motion (Doc. 3) is DENIED without prejudice. The
Court will remain open to appointing counsel as the case progresses.
Disposition
The Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a
claim upon which relief may be granted.
IT IS FURTHER ORDERED that, should he wish to proceed with this case,
Plaintiff shall file his First Amended Complaint within 35 days of the entry of this order (on or
before June 30, 2016). It is strongly recommended that Plaintiff use the form designed for use in
this District for civil rights actions. He should label the pleading “First Amended Complaint”
and include Case Number 16-cv-251-MJR. For each claim, Plaintiff shall specify, by name, 1
each Defendant alleged to be liable, as well as the actions alleged to have been taken by that
Defendant. New individual Defendants may be added if they were personally involved in the
constitutional violations. Plaintiff should attempt to include the facts of his case in chronological
order, inserting Defendants’ names where necessary to identify the actors and the dates of any
material acts or omissions.

1

Plaintiff may designate an unknown Defendant as John or Jane Doe, but should include descriptive
information (such as job title, shift worked, or location) to assist in the person’s eventual identification.
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An amended complaint supersedes and replaces the original complaint, rendering
the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638
n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must contain all the relevant allegations in support of
Plaintiff’s claims and must stand on its own, without reference to any other pleading. Should the
First Amended Complaint not conform to these requirements, it shall be stricken. Failure to file
an amended complaint shall result in the dismissal of this action with prejudice. Such dismissal
shall count as one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C.
§ 1915(g).
No service shall be ordered on any Defendant until after the Court completes its
§ 1915A review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to send Plaintiff a blank civil rights complaint form.
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: May 26, 2016

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court
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