Wilkins v. Overall et al

Filing 16

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 3/1/2017. (tjk)

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

JOSEPH WILKINS,
Plaintiff,
vs.

–1324-DRH

OVERALL,
ETCHESON,
SETH,
FOSTER, and
JOHNSON,
Defendants.

MEMORANDUM AND ORDER
HERNDON
Plaintiff Joseph Wilkins, a former inmate of Vandalia Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. Plaintiff requests monetary damages, fees, and costs. Prior to
filing this suit, plaintiff was released from prison, meaning that he is no longer a
“prisoner” under 28 U.S.C. § 1915A.

However, he has been granted leave to

proceed in forma pauperis, and so the Court will screen this case pursuant to 28
U.S.C. § 1915(e)(2)(B), which provides:

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Not withstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that . . . the action or appeal -i. is frivolous or malicious;
ii. fails to state a claim on which relief may be
granted; or
iii. 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 § 1915(e)(2)(B); portions
of this action are subject to summary dismissal.
The Complaint
Plaintiff entered the custody of the Illinois Department of Corrections on
September 24, 2015.

(Doc. 1, p. 6).

He underwent a medical and dental

screening examination at the Northern Reception Center at Stateville Correctional

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Center. Id. Plaintiff alleges that the screening showed that he needed to have a
tooth extracted on an emergency basis.

Id.

Plaintiff stayed at Stateville for

approximately 45 days, during which time he received no emergency dental or
medical care, including pain medication. Id.
Plaintiff was transferred to Vandalia Correctional Center on November 4,
2015. (Doc. 1, p. 7). Plaintiff immediately submitted requests to medical and
dental personnel outlining his need for emergency dental treatment. Id. Plaintiff
continued to submit requests to no avail; he eventually filed a grievance on the
matter. Id.
Defendant Overall, the dentist, and Etcheson, the dental assistant, then
retaliated against plaintiff for filing grievances. (Doc. 1, p. 8). Specifically Overall
and Etcheson denied plaintiff pain medication for a period of 45 days.

Id.

Plaintiff also alleges that he needed teeth extracted, and Overall and Etcheson
failed to provide plaintiff with treatment or refer him to an outside specialist,
despite knowing from plaintiff’s complaints and records that he needed
emergency care. Id.

Plaintiff alleges he was denied dental care from September

24, 2015 until March 1, 2016, although his complaint also states that he was
denied care again on March 21, 2016. (Doc. 1, p. 9). Plaintiff elsewhere in his
complaint implies that he was seen around March 1, and given pain medication
and antibiotics, but that the medication ran out in approximately 2 weeks,
although the timeline of treatment is unclear from the complaint. (Doc. 1, p. 12).

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On March 21, 2016, plaintiff reported to the health care unit in order to be
seen by the dentist for his emergency dental needs. (Doc. 1, p. 10). At this time,
he had run out of the 400 mg of Motrin he had been prescribed to address his
complaints of pain. Id. When he arrived at the dentist, Nurse Seth refused to let
him see the dentist and acted in an unprofessional matter.

Id.

Plaintiff then

appealed to Officer Hahn, who was sitting at the desk in the health care unit. Id.
Hahn also refused to allow plaintiff to see the dentist. Id. Hahn allegedly told
plaintiff: “I don’t give a fuck,” and that if it were up to him, plaintiff would receive
medication that deprived him of consciousness. (Doc. 1, p. 11). Plaintiff retorted
that he also “didn’t give a f,” and that he would name Hahn in a lawsuit. Id.
Plaintiff was escorted back to his cell without seeing the dentist. Id. He was then
escorted to segregation due to a disciplinary report, which made his pain worse.
Id.
Plaintiff wrote a grievance and gave it to Warden Foster while in segregation
about Hahn and Seth’s conduct. (Doc. 1, p. 13). Despite receiving this grievance,
Foster did not intervene in plaintiff’s medical care to ensure that plaintiff received
dental treatment. Id.
Plaintiff alleges that healthcare administrator Mary Johnson is responsible
for the actions of medical personnel under her supervision. (Doc. 1, p. 14).

Based on the allegations of the complaint, the Court finds it convenient to
divide the pro se action into 6 counts. The parties and the Court will use these

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designations in all future pleadings and orders, unless otherwise directed by a
judicial officer of this Court. The following claims survive threshold review:
– Overall and Etcheson retaliated against plaintiff for filing
grievances by deliberately delaying dental treatment and medication
for plaintiff’s emergency dental needs, pain, and suffering in violation
of the First Amendment;
– Seth and Hahn were deliberately indifferent to plaintiff’s
serious medical needs when they refused to allow him to see the
dentist to acquire more pain medication after his pain medication
ran out;
– Overall, Etcheson, and Foster were deliberately indifferent
to plaintiff’s serious dental needs when they ignored his request slips
for treatment, delayed treatment, refused to prescribe him pain
medication, and refused to pull his teeth on an emergency basis.
Plaintiff has also attempted to bring other Counts, but for the reasons
elucidated below, these claims do not survive threshold review.
4 – Medical and dental staff at the Northern Reception Center
at Stateville Correctional Center were deliberately indifferent to
plaintiff’s dental emergency when they failed to offer him any care
while he was held there between September 24, 2015 and November
4, 2015 in violation of the Eighth Amendment;
5 – Staff at Vandalia Correctional were deliberately indifferent
to plaintiff’s dental emergency when they ignored the request slips he
submitted upon arrival at Vandalia Correctional Center on November
4, 2015 in violation of the Eighth Amendment;
– Mary Johnson was responsible for the neglect and delay of
medical personnel under her supervision in violation of the Eighth
Amendment.
As an initial matter, the Court notes that plaintiff is a proliferative filer, who
by his own count has filed at least 17 lawsuits. It appears that 3 of these lawsuits
have accrued “strikes” pursuant to the Prison Litigation Reform Act (“PLRA”). If

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plaintiff had been incarcerated at the time he filed suit, the strikes would bar
these claims. However, as plaintiff had been released prior to suit, the PLRA no
longer applies and this case will not be dismissed on that ground.
As to plaintiff’s

, 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.
In this case, although they are vague, plaintiff’s allegations are sufficient to
survive threshold review. Plaintiff alleges that when his request went unanswered,
he filed grievances against Overall and Etcheson, and that his care was further
delayed as a direct result. Plaintiff has thus properly alleged that he engaged in
protected conduct by filing grievances. It is also plausible that the delay of needed
emergency care and access to pain medication would deter First Amendment

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activity in the future.

Plaintiff has also alleged that his grievance activity was

responsible for the delay in extracting his teeth.
retaliation claim, and
Turning now to

This is sufficient to state a

shall proceed.
, 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 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).
Here, plaintiff has alleged that he suffered from chronic and serious pain as
a result of teeth that needed extraction. Emergency dental needs are considered a

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serious medical condition under the Eighth Amendment. McGowan v. Hulick,
612 F.3d 636, 640 (7th Cir. 2010); Berry v. Peterman, 604 F.3d 435, 440 (7th
Cir. 2010). Plaintiff has further alleged that IDOC employees universally knew of
this condition because he informed them upon arrival and sent numerous
requests slips regarding his teeth.

He has alleged that he was given pain

medication and antibiotics on one dentist visit and specifically instructed that he
was to return on an emergency basis if the medication ran out. Plaintiff alleges
that he attempted to do just that, but was thwarted by Hahn and Seth. Plaintiff
alleges that both Hahn and Seth knew that he was in pain and needed to see the
dentist, but refused to do anything.

This is sufficient to state a deliberate

indifference claim at the pleading stage.
However, Hahn will be dismissed without prejudice because plaintiff has
failed to include him in the case caption or the list of defendants pursuant to
Federal Rule Civil Procedure 10. See also Myles v. United States, 416 F.3d 551,
551–52 (7th Cir. 2005) (to be properly considered a party a defendant must be
“specif[ied] in the caption”). Should plaintiff wish to proceed on this claim against
Hahn, he must file an amended complaint that includes Hahn among the
defendants.

As he has not done so here, Hahn will be dismissed without

prejudice from

.
survives threshold review and shall proceed against Overall and

Etcheson. Plaintiff also alleged that Overall and Etcheson knew that plaintiff had
an emergency dental condition, but rather than treating him, they delayed and

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refused to promptly schedule an extraction. Plaintiff was also told that he needed
to buy pain medication on his own from the commissary. On these facts, plaintiff
has stated a plausible claim against the dental staff at Vandalia Correctional
Center. Plaintiff has also articulated a claim against Forster, the Warden. As the
Seventh Circuit has recently made clear, when an official is alerted to an excessive
risk to inmate health or safety through a prisoner’s grievances, refusal to exercise
the authority of his or her office may demonstrate deliberate indifference. Perez
v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). As plaintiff has alleged that he
directed a grievance outlining the alleged deliberate indifference of the staff to
Forster and Forster did nothing, Plaintiff has made a plausible allegation of
deliberate indifference.

Count 3 will proceed against Forster, Overall, and

Etcheson.
However, the remainder of plaintiff’s claims must be dismissed.
will be dismissed because, as discussed above, plaintiff did not name any medical
care providers at Stateville Correctional Center in his caption or in the list of
defendant, either by name or John/Jane Doe designation. But more importantly,
venue is not appropriate in this district for claims that arose at Stateville because
Stateville is located in the Northern District of Illinois. 28 U.S.C. § 1391(b); 28
U.S.C. § 93(c). If plaintiff wishes to bring claims related to events that occurred at
Stateville, he should file a complaint identifying the relevant parties as defendants
in the Northern District of Illinois.

28 U.S.C. § 93(c).

is dismissed

without prejudice to plaintiff refiling those claims in the Northern District.

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will be dismissed without prejudice for vagueness. In plaintiff’s
complaint, he explicitly broke this claim into its own count, but he has not
described or identified the defendants in this claim other than “medical and
dental personnel.” He does not explicitly identify, either by name or description,
who he believes harmed him in this count or give specific times and dates when
the harm allegedly occurred.

Plaintiff must make plausible allegations against

individuals. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (finding that a complaint
must describe “more than a sheer possibility that a defendant has acted
unlawfully”); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual
allegations must be enough to raise a right to relief above the speculative level.”).
When a plaintiff does nothing but state that a group of medical providers harmed
him without providing more, all he has done is establish that there is a “sheer
possibility” that someone in that group harmed him. That is, plaintiff may not
know the name of individual defendants, but he must describe the “who, what,
why, where, and how” that form the basis of the claim against that person. To
allow otherwise would be effectively allowing Plaintiff to amend his complaint
further at will without review of this Court, a result contrary to the local rules. As
plaintiff has named specific medical providers in his other counts, allowing this
claim to proceed would also have the effect of potentially allowing duplicative
claims in the same lawsuit. If plaintiff wishes to proceed with

, he should

file an amended complaint that identifies and distinguishes others who potentially

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ignored his requests for treatment. Without that specificity, this claim is nothing
more than speculation, and accordingly, it is dismissed without prejudice.
Next,

must be dismissed with prejudice because plaintiff has made

it clear that liability for this claim is based on a theory of respondeat superior.
Specifically, he has stated that Johnson neglectfully permitted plaintiff to go
untreated by medical personnel under her supervision.

But § 1983 liability

requires personal involvement. “The doctrine of respondeat superior does not
apply to § 1983 actions; thus to be held individually liable, a defendant must be
‘personally responsible for the deprivation of a constitutional right.’” Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir.
1987); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v.
Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981). Plaintiff has not alleged that
Johnson was personally involved in his care, or that she even knew about the
relevant chain of events. This is insufficient, and

will be dismissed with

prejudice to any claims based on the doctrine of respondeat superior.
As a final matter, the Court notes that plaintiff has named all of the
defendants in their individual and official capacities.

All claims against the

defendants

considered

in

their

official

capacities

should

be

dismissed.

Individuals are not “persons” in their official capacities under § 1983 for the
purposes of this suit. Plaintiff can only bring claims against individuals that were

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personally involved in the deprivation of which he complains. The only time it is
appropriate to name a defendant in his or her official capacity is when a plaintiff
seeks injunctive relief.

Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.

2011). In that case, a plaintiff need not allege any specific involvement and it is
irrelevant whether the party participated in the alleged violations.

Id. (citing

Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995); Ogden v. United States,
758 F.2d 1168, 1177 (7th Cir. 1985)). Here, however, plaintiff has been released
from prison and is not under the custody or control of any defendant.
therefore ineligible for injunctive relief in this case.

He is

There being no reason to

include any claims against any defendant in his or her official capacity, those
claims are dismissed with prejudice.

Since filing this case, plaintiff has filed numerous motions with the court.
Plaintiff’s motion to appoint counsel is referred to the magistrate judge assigned
to this case.

(Doc. 2).

Plaintiff has also filed a motion “to Rule by Mail &

Telephone Conference,” which requests that hearings and conferences be
conducted by telephone. (Doc. 6). Although the request is reasonable, there are
no hearings currently pending, and so the motion will be DENIED without
prejudice. (Doc. 6). Plaintiff may refile the motion should an in-person hearing
be scheduled. (Doc. 6).
On December 9, 2016, plaintiff filed a motion “to Close Discovery and
Volintary [sic] Submission of Discovery.”

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(Doc. 3).

In that motion, plaintiff

alleges that he has submitted all of the discovery in his possession, and he does
not need any discovery from defendants.

(Doc. 3).

He therefore asks for the

Court to close discovery and immediately rule on the merits and/or set this case
for trial.

(Doc. 3).

On January 6, 2017, he filed a motion for summary

judgment, which essentially repeats his request that discovery be closed and the
Court issue a ruling on the merits of this case immediately. (Doc. 5). On that
same day, plaintiff filed a motion “for Clarification Pertaining to Close of
Discovery.” (Doc. 7). In that motion, plaintiff concedes that defendants may need
time to conduct discovery on their own, and amends his request that discovery be
closed immediately to requesting that defendants be granted 30 days to conduct
discovery. (Doc. 7). On January 17, plaintiff filed a motion to amend medical
records, in which he alleges that the medical records previously submitted need
to be amended. (Doc. 11). No medical records were submitted with that motion.
Plaintiff’s motion to withdraw his motion for summary judgment is
GRANTED.

(Doc.

12).

Plaintiff’s

motion

for

summary

judgment

is

WITHDRAWN. (Doc. 5). As to plaintiff’s discovery motions, no defendant has yet
been served in this case, and it is inappropriate for the Court to rule on matters
that affect defendants without giving them a chance to respond. The Court also
enters a scheduling order in these types of cases that sets a cut-off for the
discovery period. The Court typically does not shorten the discovery period, but
if plaintiff has a problem with the scheduling order, the time for him to raise that
issue is after defendants have answered and the scheduling order has been

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entered.

The Court therefore DENIES plaintiff’s discovery-related motions as

premature. (Doc. 7) (Doc. 11).
Disposition
IT IS HEREBY ORDERED that

-3 survive threshold review.

is DISMISSED without prejudice to plaintiff filing a complaint in the
Northern District of Illinois, where venue for that claim lies.
DISMISSED without prejudice.

is

is DISMISSED with prejudice. Mary

Johnson is DISMISSED with prejudice.
Plaintiff’s Motion for summary judgment is WITHDRAWN.

(Doc. 5).

Plaintiff’s motion to rule by mail and telephone is DENIED without prejudice.
(Doc. 6).

Plaintiff’s motion for clarification pertaining to close of discovery and

motion to amend medical records are DENIED. (Doc. 7) (Doc. 11). Plaintiff’s
motion to withdraw the motion for summary judgment is GRANTED. (Doc. 12).
IT IS ORDERED that the Clerk of Court shall prepare for defendants
Overall, Etcheson, Seth, and Foster: (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

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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).

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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 is REFERRED to a United States Magistrate
Judge 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

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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.

Judge Herndon
2017.03.01
15:55:30 -06'00'

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