Malone v. Shah et al

Filing 7

IT IS HEREBY ORDERED that Plaintiff's Complaint (Doc. 2) is DISMISSED without prejudice. IT IS FURTHER ORDERED that, should Plaintiff wish to proceed with this case, Plaintiff shall file his First Amended Complaint within 28 days of the entry of this order (on or before December 15, 2016). (Amended Pleadings due by 12/15/2016). Signed by Judge Staci M. Yandle on 11/17/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM MALONE,
Plaintiff,
vs.
DR. SHAH,
CHRISTINE BROWN,
STACY BROWN,
ANGEL RECTOR,
MARSH HILL, and
NURSE LAURA,
Defendants.

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Case No. 3:16-cv-0972-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff William Malone is currently incarcerated at the Pinckneyville Correctional
Center in Pinckneyville, Illinois. (Doc. 2 at 1.) Proceeding pro se, Malone previously filed a
Complaint under 42 U.S.C. § 1983, alleging that separate groups of prison officials violated his
constitutional rights in several disparate ways during his time at Pinckneyville. (Id. at 13-14.)
Malone’s original Complaint was severed into nine cases. (Doc. 1 at 14-18.) The instant case
concerns whether Defendants Shah, Christine Brown, Stacy Brown, Rector, Hill and Laura were
deliberately indifferent to Malone’s medical conditions in 2014 and 2015. (Id. at 15.) Malone
appears to seek money damages.
This matter is now before the Court for a review of Malone’s Complaint pursuant to 28
U.S.C. § 1915A. Under § 1915A, the Court shall review a “complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a government
entity.” During the § 1915A review, the court “shall identify cognizable claims or dismiss the

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complaint, or any portion of the complaint,” if the complaint “is frivolous, malicious, or fails to
state a claim” or if it “seeks monetary relief from a defendant who is immune.”
Background
Although Malone’s Complaint spans ninety pages with exhibits, the narrative consists of
only two handwritten pages. (Doc. 2 at 13-14.) In those two pages, Malone lists a number of
dates and then next to those dates includes a brief sentence or two describing the violation that
occurred. (Id.) In connection with that list, Malone has named more than fifty defendants, but
there are only ten sentences that relate to the six medical defendants to which the instant case
applies. (Id.) As it relates to those defendants, Malone alleges that Christine Brown and Nurse
Rector refused him his “medication refill” on January 14, 2014; that Dr. Shah, Nurse Rector and
Nurse Hill refused him his “meds” on January 16, 2014; that Dr. Shah refused him a refill of his
“chronic medication” on April 14, 2014; that Nurse Rector refused him a refill of his “chronic
medication” on May 28, 2014; that Christine Brown and Dr. Shah refused him his “chronic
medication” on August 1, 2014; that Nurse Hill refused to refill his “chronic meds” without
paying a co-pay on October 4, 2014; that unspecified administrative staff refused to repair his
broken tooth on December 1, 2014; that Dr. Shah, Christine Brown and Stacy Brown “refused
emergency” on February 1, 2015; that Dr. Shah, Nurse Rector and Nurse Hill refused “chronic
med” on April 11, 2015; and that Dr. Shah and Nurse Laura refused “emergency service” on July
14, 2015. (Id.)
Malone filed seventy-five pages of exhibits with his Complaint. (See Doc. 2.) While
some of those exhibits might relate to Malone’s medical claims, the Court is unable to easily
make that determination at this juncture as Malone has not included any narrative detail about
those exhibits or referenced them in the statement of claim section of his Complaint.

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Discussion
Malone’s severed Complaint relates entirely to the medical care he was given by medical
officials at Pinckneyville. For a prisoner to bring a constitutional claim concerning medical care,
he has two hurdles to clear: he must first show that his medical condition is “objectively”
serious, and he must then allege that the named defendants were deliberately indifferent to that
condition. Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002). For screening
purposes, Malone has not satisfied either requirement.
The vast majority of Malone’s allegations concern staff decisions to refuse his “chronic
medications” or “emergency service,” but he does not offer any allegations concerning what
medical problem or problems he has that justify medical assistance. Without facts to suggest that
his medications or his emergencies concerned a serious medical condition, he cannot state a
claim under the Eighth Amendment.
More fundamentally, Malone has offered no real narrative as to what he told the named
medical defendants about his needs and how they reacted to his requests.

As such, the

Complaint does not include sufficient facts to suggest deliberate indifference on the part of the
named defendants. For example, as it concerns Malone’s request for dental care, Malone does
not specify the “admin” staff that refused him care either by name or by Doe designation, nor
does he include any detail concerning the exchange he had with those staff members concerning
his tooth. At the end of the day, Malone has not pled sufficient facts to state medical claims that
are plausible on their face or to give the named defendants notice of the contours of his
deliberate indifference claims.

Thus, his Complaint as to the medical defendants must be

dismissed. See Whitfield v. O’Connell, 402 F. App’x 563, 566 (2d Cir. 2010); Gee v. Pacheco,

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627 F.3d 1178, 1192 (10th Cir. 2010); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The question remains whether Malone’s Complaint should be dismissed with prejudice
and his case closed or dismissed without prejudice and he should be given an opportunity to file
an amended complaint. In both prisoner and non-prisoner matters, the Court typically allows a
defendant at least one opportunity to submit an amended complaint that might cure the problems
with the original complaint, especially if the original complaint is dismissed on pleading
deficiencies. See Childress v. Walker, 787 F.3d 433, 441-42 (7th Cir. 2015). The Court believes
that allowing an amendment is the right path in this case. Accordingly, Malone will have
twenty-eight days from the date of this Order to submit a First Amended Complaint that fleshes
out his medical deliberate indifference claims against the named parties.
One closing note is in order concerning an omnibus motion that Malone filed shortly after
this case was severed away from his original Complaint. On September 8, 2016, Malone filed a
motion for “relief from multiple violations,” stating that he was being retaliated against for filing
suit by Nurse Hill and other officials, that he is being denied access to the law library and that he
needs an extension of time to meet the Court’s orders. (Doc. 5.) He asked the Court to direct
law library access, to give him an unspecified extension of time and to issue an order putting the
prison administration on notice that the Court is aware of retaliation allegations. At this point,
Malone’s motion will be denied in its entirety.
As it concerns his references to retaliation, Malone does not ask the Court for
preliminary injunctive relief concerning Nurse Hill’s conduct, but instead seeks an order
advising Pinckneyville officials that the Court is “aware” of retaliation allegations. An advisory
“awareness” declaration is not the type of relief this Court can provide. As to Malone’s request

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for an extension of time or for access to the law library, there was no pending deadline at the
time the motion was submitted and there is no need for Malone to conduct legal research to file
his First Amended Complaint. Therefore, those requests are denied as well.
Malone has also asked the Court to appoint counsel to assist him with this case. (Doc. 5.)
The Court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant,
but counsel is only proper when the “difficulty of the case—factually and legally—exceeds the
particular plaintiff’s capacity as a layperson to coherently present it.” Navejar v. Iyiola, 718 F.3d
692, 696 (7th Cir. 2013). This case is not so difficult as to necessitate counsel, especially at this
early juncture. See Westbrook v. Boy Scouts of America, 560 F. App’x 574, 577-78 (7th Cir.
2014); Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010). All that is required at this stage
is for Malone to put forth a factual narrative beyond a summary of grievances as to the
involvement of Dr. Shah, Christine Brown, Stacy Brown, Angel Rector, Marsh Hill and Nurse
Laura in his care. The Court is of the view that Malone is able to accomplish that task with
minimal effort. The motion must be denied for now. Malone is free to submit another motion for
counsel at a later point in the case, should he choose to do so.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff’s Complaint (Doc. 2)
is DISMISSED without prejudice.
IT IS FURTHER ORDERED that, should Plaintiff wish to proceed with this case,
Plaintiff shall file his First Amended Complaint within 28 days of the entry of this order (on or
before December 15, 2016). It is strongly recommended that Plaintiff use the form designed for
use in this Court for civil rights actions. Plaintiff should label the pleading “First Amended
Complaint,” and he should include Case Number 16-cv-0972-SMY.

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The First Amended

Complaint should articulate Malone’s serious medical conditions and lay out, in a
straightforward, chronological narrative, how each of the named defendants in this severed
proceeding were deliberately indifferent to those serious medical conditions.
An amended complaint supersedes and replaces all previous complaints, rendering
previous complaints 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 a complaint. Thus, the
First Amended Complaint 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.
Plaintiff must also re-file any exhibits he wishes the Court to consider along with his First
Amended Complaint. Failure to file a First 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 First Amended Complaint, the CLERK is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
IT IS FURTHER ORDERED that Plaintiff’s motion for relief from violations, which
includes his motion for appointment of counsel (Doc. 5), is DENIED.
Plaintiff is further 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).

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IT IS SO ORDERED.
DATED: November 17, 2016
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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