Finney v. David et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 10/14/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BILLY J. FINNEY,
Plaintiff,
vs.
ALFONSO C. DAVID,
WEXFORD HEALTH SOURCES, INC.,
BLAKE WOODS,
GURPREET SINGH BAMBRA,
JEFFREY DENISON,
LORA LECRANE,
CAROLL AQULAR,
DEBBIE PERKINS, and
DORSEY MCGEE

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Case No. 16−cv–0962−MJR

Defendants.
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Billy Finney, an inmate in Shawnee Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff
requests declarative relief and $10,000,000 in damages. (Doc. 1, p. 17). 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.
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(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 feeling ill on March 12, 2016. (Doc. 1, p. 7). He experienced chest
pains, shortness of breath, headaches, and night sweats. (Doc. 1, p. 7). He also had a
lump or knot on his scalp, near the back of his head. (Doc. 1, p. 7). Plaintiff met with
L.P.N. McGee, who checked vital signs and examined Plaintiff’s lungs. (Doc. 1, p. 7).
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McGee asked N.P. Woods for a second opinion. (Doc. 1, p. 7). Woods scheduled x-rays
for March 15, 2016, and gave Plaintiff a pain reliever. (Doc. 1, p. 7). Plaintiff’s x-ray was
ultimately cancelled and rescheduled for March 16, 2016. (Doc. 1, p. 7).
However, Plaintiff began feeling worse on March 15, 2016.

(Doc. 1, p. 7).

Plaintiff’s symptoms included fever, sweat, headache, paleness, and excruciating pain.
(Doc. 1, p. 7). He also alleges that the knot on his head was bigger. (Doc. 1, p. 7).
Plaintiff was admitted to the health care unit. (Doc. 1, p. 7). Plaintiff’s x-ray showed a
large mass in his right lung. (Doc. 1, p. 7). Dr. David spoke to Plaintiff about the mass,
but when Plaintiff inquired about the lump on his head, David told Plaintiff that the
lump was nothing more than fatty tissue and needed no medical attention. (Doc. 1, p.
7).

David repeated this assertion two weeks later when Plaintiff saw him for

tuberculosis testing.

(Doc. 1, p. 8). Plaintiff requested that David at least drain the

lump, but David refused. (Doc. 1, p. 8).
Plaintiff continued to experience headaches and chest pains.

(Doc. 1, p. 8).

David referred him to Dr. Gurpreet Singh Bambra, a lung specialist, at the Carbondale
Hospital. (Doc. 1, p. 8). Bambra ordered PT scans and a biopsy. (Doc. 1, p. 8). Plaintiff
pointed out the lump on the back of his head to Bambra; Bambra stated that a CT scan
needed to be performed on the lump, but that he lacked David’s approval to do so.
(Doc. 1, p. 8). Bambra ultimately ordered a biopsy of Plaintiff’s lungs. (Doc. 1, p. 8).
When Plaintiff returned to the hospital for a biopsy, he once again asked about the

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lump on his head, but Bambra told him he still needed approval from Shawnee before
he could do anything about the lump. (Doc. 1, p. 9).
Plaintiff saw David again at Shawnee and confronted him with Bambra’s
assessment that the lump was filled with fluid and a CT scan needed to be done. (Doc.
1, p. 9). R.N. Aqular was present at this meeting. (Doc. 1, p. 9). Once again David
stated that the lump was nothing more than fatty tissue, and reiterated his intention not
to treat it. (Doc. 1, p. 9).
Plaintiff was eventually diagnosed with Blastomycosis, a disease where fungus
grows in the lungs. (Doc. 1, p. 9). After receiving a diagnosis, Plaintiff once again
brought up the lump on his head with David. (Doc. 1, p. 9). David refused to treat it,
and discounted Plaintiff’s complaints of headaches and chest pains. (Doc. 1, p. 9).
David did, however, give Plaintiff Tylenol 3 for his pain. (Doc. 1, p. 9).
Plaintiff began coughing up blood. (Doc. 1, p. 9). David told him this was a
normal reaction to the treatment. (Doc. 1, p. 9). This symptom persisted approximately
2-3 months. (Doc. 1, p. 9).
Bambra referred Plaintiff to Dr. Linda Bobo, an infectious disease specialist.
(Doc. 1, p. 10). Bobo asked Plaintiff about the lump on June 2, 2016. (Doc. 1, p. 10).
Bobo ordered a CT scan, which showed an infection that extended through the skin into
Plaintiff’s skull. (Doc. 1, p. 10). Plaintiff was scheduled for emergency surgery on June
7, 2016. (Doc. 1, p. 10). Portions of Plaintiff’s skull were removed, and a metal plate
inserted. (Doc. 1, p. 10). Plaintiff alleges that as a result of the infection and surgery, he
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now suffers tremors, numbness, foggy vision, and lightheadedness. (Doc. 1, p. 10).
Two doctors at Carbondale Hospital told Plaintiff he was lucky to be alive. (Doc. 1, p.
11).
Plaintiff also alleges that his lung condition, Blastomycosis is caused by a fungus
that is found in soil and/or the drinking water at Shawnee Correctional center. (Doc. 1,
p. 11). Plaintiff alleges that there are several other cases of the disease at the prison.
(Doc. 1, p. 11).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide
the pro se action into two 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 – David, Woods, Bambra, Denison, LeCrane, Aqular, and McGee were
deliberately indifferent to Plaintiff’s lump on the back of his head, in violation of the
Eighth Amendment
The following claim does not survive threshold review:
Count 2: David, Woods, Bambra, Denison, LeCrane, Aqular, and McGee were
deliberately indifferent to Plaintiff’s Blastomycosis in violation of the Eighth
Amendment
Turning first to Count 1, 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. An objectively serious condition includes an
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ailment that has been “diagnosed by a physician as mandating 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).
Plaintiff has clearly stated a deliberate indifference claim regarding the lump on
his head against David, Denison, and LeCrane. Plaintiff alleges that he complained
about the lump itself several times, and that each time, David specifically told him that
he would neither examine nor treat the lump.

Plaintiff further alleges that when

another doctor finally examined the lump, it proved to be a fairly serious infection that
required surgery to resolve. Plaintiff has pleaded sufficient facts to make it plausible
that he suffered from a serious medical need and that David ignored his condition.
Therefore his case against David will be allowed to proceed.

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As to Defendants Denison, the Warden of Shawnee, and LeCrane, the Director of
nursing, Plaintiff has alleged that they knew about the deliberate indifference and
refused to intervene. Specifically, Plaintiff alleges that he wrote emergency grievances
to Denison that went ignored. He also alleges that his mother called and spoke to
LeCrane.

Although Defendants must be personally involved in the allegedly

constitutional violation for liability to attach, the Seventh Circuit has held that in a
deliberate indifference case, a grievance or other complaint can potentially establish that
a Defendant approved, condoned or turned a blind eye to a constitutional violation.
Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). Plaintiff’s allegations make it
plausible that both Denison and LeCrane had notice of David’s alleged deliberate
indifference and refused to intervene. At this stage, that is sufficient to state a claim.
But all of the other Defendants must be dismissed at this time. Plaintiff has
named Wexford Health Sources in the caption of his Complaint, but failed to include
any allegations against it in the body of the Complaint. Normally, this would entitle
Wexford to a dismissal without prejudice. Plaintiffs are required to associate specific
defendants with specific claims, so that defendants are put on notice of the claims
brought against them and so they can properly answer the complaint. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). 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
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sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334
(7th Cir. 1998).
However, Plaintiff has also filed a Motion “to Add On to Complaint,” explaining
that Wexford has a policy requiring inmates to request sick call and pay a co-pay. (Doc.
8). The Motion further alleges that Wexford is responsible as the employer of the
Defendants. Even if the Court were to permit this amendment, which it will not for
reasons explained further below, Plaintiff’s claim against Wexford would still fail.
Plaintiff has alleged that he presented his condition for treatment multiple times, only
to be ignored. He has not alleged any facts that would tend to suggest that the alleged
policy regarding sick call slips and copays caused the deliberate indifference. Plaintiff’s
claims do not turn on his access to healthcare, rather they allege that Dr. David refused
to treat him during appointments and visits.
responsible for any of Plaintiff’s damages.

Therefore, Wexford would not be

Additionally, there is no respondeat

superior liability under § 1983. Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 795-96
(7th Cir. 2014). At present, the Court dismisses Wexford without prejudice for failure to
include any allegations against them in the body of the Complaint.
The Court also cannot find any allegations against Debbie Perkins in the body of
the Complaint.

For the same reasons listed above, Perkins will also be dismissed

without prejudice because the Complaint, as currently drafted, does not put her on
notice of any claims against her.

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Although Plaintiff does mention Woods, Bambra, Aqular, and McGee in the
body of the Complaint, the allegations against them fail to state a claim upon which
relief can be granted. Plaintiff alleges that Woods was called to give McGee a second
opinion, and that Woods examined Plaintiff and ordered an x-ray. Plaintiff further
alleges that Woods did not chart his lump until April. But Plaintiff never alleges that he
told Woods about the lump in March and was denied treatment; in fact he specifically
alleges that Woods was brought in to give a second opinion on his lungs. He never
alleges that Woods refused to examine the lump or said anything about it at all.
Medical providers are not liable just because a condition is present when they examine
a prisoner.
The same is true for McGee. Although Plaintiff alleges that she examined him
during a time when he had the lump, he never alleges that he specifically requested
treatment for it and was denied.

McGee arranged for Plaintiff to have follow-up

medical care for his lung condition. It is plausible that she thought the lung condition
was the more serious condition, and acted accordingly. Plaintiff alleges that she sought
a second opinion for his symptoms and scheduled a follow up visit. Plaintiff has not
provided any facts that would make a claim of deliberate indifference plausible as to
McGee
As to Aqular, Plaintiff does nothing more than allege that she was present on one
occasion when David refused to provide treatment for the lump. Plaintiff does not
allege that he specifically asked Aqular for treatment and she denied him. He just
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alleges that she was there. Although it is possible to establish liability if a defendant
approves, condones, or turns a blind eye to a constitutional violation, none of the nurse
defendants had the authority to over-rule David, the doctor. David did not need their
approval to act or answer to them when he refused to act. There is no allegation that
the nurses could have performed either of the two courses of treatment that Plaintiff
says he should have gotten: 1) either have the lump drained or; 2) scheduled a CT scan.
The nurses referred Plaintiff to the doctor quickly when he presented with symptoms
back in March and were present for other aspects of his care. Neither of those things is
enough to establish liability and without a specific allegation that Plaintiff requested
some measure of treatment within their authority to provide, Plaintiff has failed to state
a claim upon which relief can be granted.
As to Bambra, Plaintiff’s suit against him fails because Plaintiff has not alleged
that Bambra is a state actor; whether a party is a state actor is a determining factor as to
whether a plaintiff can bring a suit against them under § 1983 Rodriguez v. Plymouth
Ambulance Services, Inc., 577 F.3d 816, 822-30 (7th Cir. 2009); see Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999). Alternatively, Plaintiff has also failed to allege that
Bambra was deliberately indifferent. Plaintiff’s Complaint identifies Bambra as a
pulmonary specialist, meaning that Plaintiff’s lump/infection was not in his area of
expertise. There is no allegation that Plaintiff was referred to Bambra for the purpose of
treating the lump/infection. Bambra’s claim that he did not have authority to treat
Plaintiff, which Plaintiff does not contradict, would also be a bar to recovery. Plaintiff
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is a ward of the state, and Bambra cannot undertake more than the state authorizes him
to do. For all of the above reasons, Bambra must also be dismissed without prejudice.
As to Count 2, Plaintiff’s claim here must be dismissed for failure to state a claim.
Plaintiff’s statement of facts makes any claim that Defendants were deliberately
indifferent to his Blastomycosis implausible. On the contrary, Plaintiff’s allegations
show that the Defendants were concerned about Plaintiff’s lung symptoms from his
initial appointment and that they ordered treatment and testing, admitted him to the
HCU, referred him to outside specialists, and followed their recommendations. There is
no allegation that Defendants delayed treatment or ordered treatment so far outside
standard medical practice so as to be deliberately indifferent. In fact, Plaintiff identifies
no aspect of the Blastomycosis treatment that was allegedly deficient.
At one point, Plaintiff alleges that he got Blastomycosis because it was in the soil
and water around the prison, implying that Defendants should have kept it out of the
soil and water. However, a review of the Centers for Disease Control website reveals
that the fungus that causes Blastomycosis is found in the soil of the Mississippi and
Ohio River valleys, an area that includes the entire state of Illinois and most of the
surrounding states. http://www.cdc.gov/fungal/diseases/blastomycosis/causes.html
(last accessed October 13, 2016). Plaintiff’s allegation that the Defendants should have
done something to keep the fungus out of the water and soil is just frivolous. There is
nothing anyone can do to remove the fungus from the environment. Even if there was,

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Plaintiff has not alleged that Defendants have any involvement with the water supply
at the prison. Thus Count 2 will be dismissed with prejudice.
Pending Motions
Since filing the Complaint, Plaintiff has filed two motions “to add on to the
Complaint.” (Doc. 6) (Doc. 8). Pursuant to local rule 15.1, the Court does not accept
piecemeal amendments to the Complaint; in order to amend a complaint, a party must
send a proposed amended complaint to the presiding judge with all new material
underlined. That means that, should Plaintiff wish to amend his complaint, he must
submit a proposed amended complaint that includes both the claims currently pending
and any new claims. As both of Plaintiff’s motions only contain the things he wishes to
add, they fail as amended complaints.

The Court notes that having reviewed the

motions, there are unlikely to succeed in any event.

Plaintiff’s Complaint already

contains a request for $10,000,000 in damages, the Court has already construed the
original Complaint as containing claims based on Plaintiff’s Blastomycosis and
determined that those claims fail, and Plaintiff’s proposed theories against Wexford are
not viable. The Court DENIES Plaintiff’s Motions to add onto the Complaint, although
the denial is without prejudice to Plaintiff submitting a proper amended complaint.
(Doc. 6) (Doc. 8).
Plaintiff’s Motion for counsel is referred to a magistrate judge for disposition.
(Doc. 2).

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Disposition
IT IS ORDERED that Count 1 survives threshold review. However, Defendants
Wexford, Woods, Bambra, Aqular, Perkins and McGee are DISMISSED from Count 1
without prejudice.
IT IS FURTHER ORDERED that Count 2 shall be DISMISSED with prejudice
against all Defendants.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants David,
Denison and LeCrane: (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.
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

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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.
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).

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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: October 14, 2016
s/ MICHAEL J. REAGAN
U.S. District Judge

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