Cesal v. Kruse et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 11/7/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CRAIG J. CESAL,
Plaintiff,
vs.
DOUGLASS ANTHONY KRUSE,
KIM SCHNEIDER,
ELIZABETH MILLS,
RENNA KELLY,
J. JOLLIFF,
TASHA JOHNSON,
ASHLEY KNEBEL,
BETTY ULMER,
PAUL KELLEY,
LOUISE BOWAN, and
FEDERAL BUREAU OF PRISONS
Defendants.

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Case No. 16−cv–1064−SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Craig Cesal, an inmate in Federal Correctional Institution-Terre Haute (“Terre
Huate FCI”), brings this action for deprivations of his constitutional rights pursuant to Bivens v.
Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff seeks compensatory damages, punitive
damages and injunctive relief. 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, 102627 (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
This case arises out of events at Federal Correctional Institution - Greenville
(“Greenville”), which is located in this judicial district.

The following are the relevant

allegations of the Complaint (Doc. 1). Plaintiff was housed at Greenville from March 21, 2011
until March 16, 2015. On September 19, 2014, the prison’s Clinical Director, Defendant
Douglass Kruse, ordered an end to the provision of diabetic snacks. Plaintiff alleges that this
decision was problematic for him because dinner is served at 4:30 pm and breakfast is served at
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7:00 am, creating a fourteen and a half hour gap between meals. During this gap, Plaintiff had a
tendency to experience low blood sugar levels (hypoglycemia).
Defendant Mills noted that Plaintiff was hypoglycemic on September 22, 2014, but
provided no treatment. Mills directed Plaintiff to report further hypoglycemic events to medical.
Plaintiff did so the next morning on September 23, 2014. Defendant Schneider was
called at 3:00 am, and examined Plaintiff at 10:00 am.

Schneider terminated Plaintiff’s

glyburide prescription at that time. Glyberide causes the pancreas in a Type II diabetic to secrete
adequate insulin. Schneider told Plaintiff that treating low blood sugars with food alone was
inappropriate and that a medication adjustment was a better, long term solution. Schneider also
terminated Plaintiff’s pain medication for his sciatica during the same visit. Schneider was angry
and wrote an incident report dated September 23, 2014 which charged Plaintiff with possessing
ibuprofen, after she cancelled the prescription.
As a result of the medication change, Plaintiff’s blood sugar levels soared. From
September 23, 2014 until March 16, 2015, the prison’s registered nurses checked Plaintiff’s
blood sugars twice daily and recorded numerous measurements of over 400 and 500 units. An
acceptable range is between 70 and 120 units. None of the nurses provided Plaintiff with any
treatment for his high blood sugar levels. Defendant Kelly measured Plaintiff’s blood sugar
between September 23, 2014 and March 16, 2015. Specifically, she noted a level of 438 on
November 11, 2014 and a level of 448 on November 14, 2015, but provided no treatment on
either of those days. Defendant Jolliff measured Plaintiff’s blood sugar at 436 on November 11,
2014, but provided no treatment. Defendant Johnson took a blood sugar reading of 449 on
November 2, 2014, but provided no treatment. Defendant Knebel took a blood sugar reading of
488 on November 23, 2014, but provided no treatment. Defendant Ulmer measured Plaintiff’s
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blood sugar at 482 on November 1, 2014, but provided no treatment. Defendant Kelley took a
blood sugar reading of 448 on November 14, 2014, but provided no treatment On December 14,
2014, Defendant Bowen took a blood pressure reading of 201, but provided no treatment.
Plaintiff received an incident report from Defendant Kruse for refusing to sign a refusal
of treatment form on October 22, 2014. He received another incident report from Defendant
Kelley on February 20, 2015 for refusing to obey a direct order, refusing to program and
insolence. Defendant Kelley charged that Plaintiff lined up for insulin so that he could be one of
the first to eat supper.
Plaintiff asserts that as a result of the mistreatment for his diabetes, he has suffered
damage to his eyes and kidneys, impotence, pain in his feet and discoloration in his legs.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into four 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
claims survive threshold review:
Count 1 – Defendants Kruse, Schneider, Mills, Kelly, Jolliff, Johnson Knebel,
Ulmer, Kelley, and Bowen were deliberately indifferent to Plaintiff’s diabetes in violation
of the Eighth Amendment when they refused to adequately treat his condition;
Count 2 – Defendant Schneider was deliberately indifferent to Plaintiff’s sciatica
when she cancelled his ibuprofen prescription on September 23, 2014;

Count 3 – Defendants Schneider, Kruse, and Kelley retaliated against Plaintiff by
issuing disciplinary reports against him;
Count 4- The Federal Bureau of Prisons lacks a policy, which encourages staff to
retaliate against inmates who file for administrative remedies, and approves of the use of
denial of medication as punishment against inmates who file for administrative remedies.
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Plaintiff has also attempted to bring other Counts, but for the reasons elucidated below, these
claims do not survive threshold review.
A Bivens action is the federal equivalent of a civil rights action brought pursuant to 42
U.S.C. § 1983. Therefore, the Court frequently refers to Section 1983 case law in its analysis.
See Hartman v. Moore, 547 U.S. 250, 254 n.2 (2002) (noting that with limited exceptions, “a
Bivens action is the federal analog to suits brought against state officials under . . . 42 U.S.C. §
1983”); Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005); Clemente v. Allen, 120 F.3d 703,
705 (7th Cir. 1997) (collecting cases).
As to Count 1, Plaintiff has stated a viable deliberate indifference claim against all
named Defendants. In order to state a clam 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 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).
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Here, Plaintiff has alleged that he has been diagnosed with diabetes, a serious medical
condition. He has further alleged that Defendants Kruse and Schneider took steps that caused his
diabetes to worsen and that when the other Defendants performed tests that showed that
Plaintiff’s diabetes was uncontrolled, they did nothing. This is sufficient at the pleading stage
and Plaintiff’s claims for deliberate indifference to his diabetes will proceed.
The same analysis applies to Count 2. Plaintiff has alleged that he suffers from sciatica,
a chronic pain condition.

He has further alleged that Defendant Schneider canceled his

prescription medication meant to treat that pain. The Complaint implies that Schneider did so
because she was angry at Plaintiff and not for any legitimate medical reason. That is sufficient
for Count 2 to proceed against Defendant Schneider.
However, Count 3 must be dismissed without prejudice.

To succeed on a First

Amendment Retaliation claim, a plaintiff must prove 1) that he engaged in conduct protected by
the First Amendment; 2) that he suffered a deprivation that would likely deter First Amendment
activity in the future; and 3) that the protected conduct was a “motivating factor” for taking the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). In the prison context,
where an inmate is alleging retaliation, it is not enough to simply state the cause of action. The
inmate must identify the reasons that retaliation has been taken, as well as “the act or acts
claimed to have constituted retaliation,” so as to put those charged with the retaliation on notice
of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). The inmate need not plead
facts to establish the claim beyond doubt, but need only provide the bare essentials of the claim,
and in a claim for retaliation the reason for the retaliation and the acts taken in an effort to
retaliate suffice. Id.

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Here, Plaintiff has not adequately identified what protected conduct he engaged in that
drew the alleged retaliation. In fact, he has not denied that he engaged in the conduct for which
the incident reports were written. For example, he alleges that he was issued an incident report
for failing to sign a medication refusal, but does not actually allege that he signed the refusal.
Plaintiff must identify the specific conduct that formed the reason for the retaliation. As Plaintiff
has not identified any reason, this claim will be dismissed without prejudice at this time.
Finally, Plaintiff has attempted to state a claim against the Bureau of Prisons. Although
Bivens authorizes the filing of constitutional tort suits against federal officers in much the same
way that 42 U.S.C. § 1983 authorizes such suits against state officers, it does not permit suit
against the federal agency itself. Correctional Services Corp. v. Malesko, 534 U.S. 61, 69–70,
(2001); FDIC v. Meyer, 510 U.S. 471, 484–86 (1994); King v. Fed. Bureau of Prisons, 415 F.3d
634, 636 (7th Cir. 2005). Therefore Count 4 will be dismissed with prejudice.
Disposition
IT IS ORDERED THAT COUNTS 1 and 2 survive threshold review and service shall
be ordered accordingly.
IT IS FURTHER ORDERED that COUNT 3 is dismissed without prejudice for
failure to state a claim upon which relief can be granted.

COUNT 4 is dismissed with

prejudice. Defendant Bureau of Prisons is dismissed with prejudice.
IT IS ORDERED that the Clerk of Court shall prepare for Defendant Kruse, Schneider,
Mills, Kelly, Jolliff, Johnson, Knebel, Ulmer, Kelley, and Bowen : (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
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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 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.
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 Reona J. Daly for further pre-trial proceedings.

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Further, this entire matter is REFERRED to United States Magistrate Judge Daly 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).
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: November 7, 2016

s/ STACI M. YANDLE
U.S. District Judge
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