Osborne v. Dorris et al

Filing 16

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 4/18/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES M. OSBORNE,
Plaintiff,
vs.
GERALD W. DORRIS,
SUE FUNKHOUSER,
LEON KEHRER, and
NURSE ASHELY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 16−cv–1292−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff James Osborne, an inmate in Shawnee Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff
claims the defendants were deliberately indifferent to his serious medical issues by withholding
nerve pain medication and refusing to give him certain tests while he was a pretrial detainee in
Franklin County Jail (“Jail”), in violation of the Fourteenth Amendment. (Doc. 1). 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.
(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
1

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 allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: on July 18, 2016,
Defendants Dorris and Funkhouser arbitrarily punished Plaintiff by taking him off of his nerve
pain medication. (Doc. 1, p. 5). They also told Plaintiff that he needs to suffer everyday with
nerve pain. Id. Plaintiff filed a grievance on the matter, but the grievance was never returned
and he was not given the right to appeal the grievance. Id. Without his medication, Plaintiff was
in a state of constant pain while at the Jail. Id. Plaintiff spoke with Defendants Dr. Kehrer and
Nurse Ashely about the situation. Id. They told Plaintiff he was not entitled to his medication.
Id. Plaintiff also asked Kehrer and Ashely for an AIDS and Hepatitis C test, but they refused.
Id. Plaintiff seeks monetary damages from the defendants to compensate him for his pain and
suffering. (Doc. 1, p. 6).

2

Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 2 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
designation of these counts does not constitute an opinion regarding their merit.
Count 1 –

Defendants showed deliberate indifference to Plaintiff’s serious medical
need for his nerve pain medication in violation of the Fourteenth
Amendment.

Count 2 –

Kehrer and Ashely showed deliberate indifference to Plaintiff’s serious
medical need for AIDS and Hepatitis C tests in violation of the Fourteenth
Amendment.

As discussed in more detail below, Count 1 will be allowed to proceed past threshold,
and Count 2 will be dismissed for failure to state a claim upon which relief may be granted. Any
other intended claim that has not been recognized by the Court is considered dismissed with
prejudice as inadequately pleaded under the Twombly pleading standard.
Count 1
It is well established that, while in the custody of state or local authorities, a pretrial
detainee must be afforded certain protections under the Fourteenth Amendment, including access
to adequate medical care. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244,
(1983); Payne v. Churchich, 161 F.3d 1030, 1040-41 (7th Cir. 1998). These due process rights
are at least as great as the protections afforded a convicted prisoner under the Eighth
Amendment. See Higgins v. Corr. Med. Servs. of Ill., Inc., 178 F.3d 508, 511 (7th Cir. 1999);
Estate of Cole v. Fromm, 94 F.3d 254, 259 n.1 (7th Cir.1996). Consequently, when considering
a pretrial detainee’s claim of inadequate medical care, for example, it is appropriate for a court to
look to the analogous standards of Eighth Amendment jurisprudence. See Qian v. Kautz, 168

3

F.3d 949, 955 (7th Cir. 1999).
A prisoner raising a claim against a prison official for deliberate indifference to the
prisoner’s serious medical needs must satisfy two requirements. The first requirement compels
the prisoner to satisfy an objective standard: “[T]he deprivation alleged must be, objectively,
‘sufficiently serious[.]’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter,
501 U.S. 294, 298 (1991)). The Seventh Circuit considers the following to be indications of a
serious medical need: (1) where failure to treat the condition could “result in further significant
injury or the unnecessary and wanton infliction of pain;” (2) “[e]xistence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment;” (3)
“presence of a medical condition that significantly affects an individual’s daily activities;” or (4)
“the existence of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th
Cir. 1997).
The second requirement involves a subjective standard: “[A] prison official must have a
‘sufficiently culpable state of mind,’” one that amounts to “‘deliberate indifference’ to inmate
health or safety.”

Id. (quoting Wilson, 501 U.S. at 297).

Liability under the deliberate-

indifference standard requires more than negligence, gross negligence or even recklessness;
rather, it is satisfied only by conduct that approaches intentional wrongdoing, i.e., “something
less than acts or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Farmer, 511 U.S. at 835.
Plaintiff has described a condition, chronic nerve pain, that meets the “chronic and
substantial pain” criteria of Gutierrez.

Plaintiff’s allegations therefore suffice to meet the

objective showing that Plaintiff had a serious medical condition. Plaintiff also alleges that each
of the named defendants deliberately deprived him of his medication, and because of this, his

4

suffering continued. Thus, at this early stage, Count 1 against Dorris, Funkhouser, Kehrer, and
Ashely cannot be dismissed.
Count 2
Mere disagreement with a physician’s chosen course of an inmate’s medical treatment
does not amount to deliberate indifference under the Eighth Amendment. See Ciarpaglini v.
Saini, 352 F.3d 328, 331 (7th Cir. 2003); Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001)
(courts will not takes sides in disagreements about medical personnel’s judgments or
techniques); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). 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).
Plaintiff has provided little detail regarding his requests for Hepatitis C and AIDS tests
beyond the bare allegation that he requested them from Kehrer and Ashely and was refused.
Unlike his need for his pain medication due to chronic nerve pain, Plaintiff does not explain why
he felt he needed these tests. He has therefore failed to adequately allege an objectively serious
medical condition that would render failure to give such tests an act of deliberate indifference.
Count 2 will therefore be dismissed without prejudice for failure to state a claim upon which
relief can be granted.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is hereby
REFERRED to a United States Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against DORRIS,

5

FUNKHOUSER, KEHRER, and ASHELY.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice for
failure to state a claim upon which relief can be granted.
With respect to COUNT 1, the Clerk of the Court shall prepare for Defendants DORRIS,
FUNKHOUSER, KEHRER, and ASHELY: (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.
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

6

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 a United States
Magistrate Judge for further pre-trial proceedings.

Further, this entire matter shall be

REFERRED to a United States Magistrate Judge 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 may have been granted. See 28 U.S.C. §
1915(f)(2)(A).
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: April 18, 2017
s/J. Phil Gilbert
U.S. District Judge

7