Rogers v. Crow et al

Filing 18

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 6/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD ROGERS, #B82587,
Plaintiff,
vs.
ROBERT CROW,
RANDY COBB,
OFFICER KALEENA,
HAMILTON COUNTY,
and WHITE COUNTY,
Defendants.

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Case No. 16−cv–01353−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Richard Rogers, an inmate who is currently incarcerated in Western Illinois
Correctional Center, brings this action for deprivations of his constitutional rights pursuant to
42 U.S.C. § 1983. Plaintiff claims that officials at White County Jail and Hamilton County Jail
failed to provide him with timely treatment for Methicillin-resistant Staphylococcus aureus
(“MRSA”). (Doc. 7, pp. 5-6). As a result, he became seriously ill. Id. Plaintiff now seeks
monetary relief against Robert Crow (Hamilton County Sheriff), Randy Cobb (White County
Sergeant), Officer Kaleena (White County official), Hamilton County, and White County.
(Doc. 7, p. 7).
This case is now before the Court for a preliminary review of the First Amended
Complaint (Doc. 7) 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). The First Amended Complaint survives preliminary review under
this standard.
First Amended Complaint
According to the First Amended Complaint, Plaintiff contracted MRSA following his
detention at White County Jail in April 2016. (Doc. 7, p. 5). Sometime in July 2016, he notified
a member of the White County Jail’s medical staff, Officer Kaleena, that he was experiencing
“pain in the back of [his] head.” Id. Officer Kaleena observed a sore on Plaintiff’s head. Id.
However, she said that nothing could be done because Hamilton County was responsible for him,
not White County. Id.

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Plaintiff wrote letters directly to Hamilton County’s Sheriff (Robert Crow) and a White
County Sergeant (Randy Cobb). (Doc. 7, p. 6). He complained of pain and requested medical
treatment for it. Id. Both defendants “disregarded” Plaintiff’s requests. Id.
While making rounds three weeks later, Officer Kaleena again examined the sore on
Plaintiff’s head. (Doc. 7, p. 5). It looked much worse, and Plaintiff was sent to Hamilton
County Hospital for further evaluation. Id. There, he was diagnosed with MRSA. Id. Because
of the delay in treatment, the infection had entered Plaintiff’s bloodstream. Id. He became
seriously ill and was transferred to Mount Vernon Good Samaritan Hospital for further
treatment. Id. Plaintiff remained there for a month. Id. He then transferred to Menard
Correctional Center, where he received forty-five days of additional treatment in the prison’s
health care unit. Id.
Plaintiff alleges that he will carry MRSA for the rest of his life. (Doc. 7, p. 5). He has
also suffered from and been treated for a kidney infection since his diagnosis with MRSA. (Doc.
7, p. 6). Had Officer Kaleena provided him with prompt treatment, Plaintiff claims that the
infection could have been avoided. Id.
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
deems it appropriate to organize the claim in Plaintiff’s pro se First Amended Complaint into the
following count:
Count 1 – Defendants denied Plaintiff adequate and timely medical treatment for
MRSA in 2016, in violation of his constitutional rights.
The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of this count should not be
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construed as an opinion regarding its merit.

Any claims not recognized above but

encompassed by the allegations in the First Amended Complaint are considered dismissed
without prejudice from this action.
Count 1
The legal standard that governs this claim depends on Plaintiff’s status as a pretrial
detainee or a convicted prisoner during the relevant time period. The Fourteenth Amendment
Due Process Clause applies to claims of pretrial detainees, and the Eighth Amendment governs
claims brought by prisoners. See Smith v. Dart, 803 F.3d 304, 312 (7th Cir. 2015) (citing
Kingsley v. Hendrickson, -- U.S. --, 135 S. Ct. 2466, 2475 (2015); Budd v. Motley, 711 F.3d 840,
842 (7th Cir. 2013)). A pretrial detainee is entitled to freedom from conditions that constitute
“punishment” under the Fourteenth Amendment, while a convicted prisoner is entitled to
freedom from “cruel and unusual punishment” under the Eighth Amendment. Bell v. Wolfish,
441 U.S. 520, 535 (1979); Farmer v. Brennan, 511 U.S. 825, 832 (1994).
With that said, there is little practical difference between the two standards in the context
of medical claims. Dart, 803 F.3d at 310 (citing Smego v. Mitchell, 723 F.3d 752, 756 (7th Cir.
2013) (“[T]he protection afforded under [the Due Process Clause] is functionally
indistinguishable from the Eighth Amendment’s protection for convicted prisoners.”). “An act
or practice that violates the [E]ighth [A]mendment also violates the due process rights of pretrial
detainees.” Martin v. Tyson, 845 F.2d 1451, 1457 (7th Cir. 1988). A pretrial detainee is entitled
to at least as much protection as a prisoner. Against this backdrop, the Court will consider
Plaintiff’s claim.
A plaintiff bringing a claim for the denial of medical care must generally allege that he
suffered from a sufficiently serious medical condition (an objective standard) and that officials

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responded to the condition with deliberate indifference (a subjective standard). Farmer, 511
U.S. at 834; Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011); Lee v. Young, 533 F.3d 505,
509 (7th Cir. 2008). A medical condition is considered serious if failure to treat the condition
could result in unnecessary pain, it has been diagnosed by a physician as requiring treatment, or
the need for treatment would be obvious to a lay person. Gomez v. Randle, 680 F.3d 859, 865
(7th Cir. 2012); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011); Gutierrez v. Peters, 111 F.3d
1364, 1373-74 (7th Cir. 1997). Deliberate indifference is shown when a prison official knows of
and disregards a substantial risk to an inmate’s health or safety. Arnett, 658 F.3d at 751.
The allegations suggest that Plaintiff suffered from an objectively serious medical
condition. Plaintiff allegedly contracted MRSA, an infection that caused pain and necessitated
extended in-patient treatment. See Myrick v. Anglin, 496 F. App’x 670 (7th Cir. 2012) (MRSA
infection considered sufficiently serious to support Eighth Amendment claim where plaintiff
complained of “excruciating pain.”). These allegations satisfy the objective component of this
claim for screening purposes.
The question becomes whether any defendant responded to Plaintiff’s serious medical
condition with deliberate indifference. The allegations support a deliberate indifference claim
against Officer Kaleena. After first observing the painful sore on Plaintiff’s head, the officer told
him there was nothing that could be done because he was not the responsibility of White County.
(Doc. 7, p. 5). Officer Kaleena changed positions three weeks later after observing Plaintiff’s
wound a second time and sent Plaintiff to the hospital for treatment. Id. This type of delay in
treatment can support a claim of deliberate indifference, if it exacerbates an inmate’s injury or
unnecessarily prolongs his pain. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); McGowan v.
Hulick, 612 F.3d 636, 640 (7th Cir. 2010). Plaintiff alleges that the delay did both. (Doc. 7, pp.

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5-6). Under the circumstances, Count 1 cannot be dismissed against Officer Kaleena in her
individual capacity. Plaintiff brings no official capacity claim against any of the defendants.
The First Amended Complaint includes insufficient allegations to support a claim against
any other defendants. Plaintiff alludes to letters he wrote to Sheriff Crow and Sergeant Cobb, in
which he complained of pain and requested treatment for it. (Doc. 7, p. 6). The allegations
against these defendants are threadbare and offer no indication that either defendant was
personally involved a constitutional deprivation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(threadbare allegations insufficient to support claim). Plaintiff does not describe the contents of
these letters or grievances. He does not indicate when he sent them to each defendant. He did
not file a copy of any letters or grievances with the Complaint (Doc. 1), the First Amended
Complaint (Doc. 7), or his Supplemental Exhibits (Doc. 14). In fact, the only grievance Plaintiff
submitted as an exhibit was a blank grievance form that he appended to both the Complaint
(Doc. 1, p. 8) and the First Amended Complaint (Doc. 7, p. 8). The individual capacity claims
against Sheriff Crow and Sergeant Cobb are undeveloped, and Plaintiff asserts no official
capacity claims against either defendant. Under the circumstances, Count 1 shall be dismissed
against Sheriff Crow and Sergeant Cobb without prejudice for failure to state a claim upon which
relief may be granted.
The claims against White County and Hamilton County meet the same fate. Although
Plaintiff names both counties as defendants in this action, he does not explain why.

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municipality or local governmental entity cannot be held vicariously liable for the misconduct of
its employees. Daniel v. Cook County, 833 F.3d 728, 733 (7th Cir. 2016); Montano v. City of
Chi., 535 F.3d 558, 570 (7th Cir. 2008). In order to obtain relief against a municipality or local
governmental entity, a plaintiff must allege that the constitutional deprivations were the result of

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an official policy, custom, or practice of the municipality or local governmental entity. Monell v.
Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978); Thomas v. Cook Cnty. Sheriff’s Dept., 604
F.3d 293, 303 (7th Cir. 2009). Plaintiff points to no policy, custom, or practice that served as the
driving force behind his constitutional deprivation. Dixon v. County of Cook, 819 F.3d 343, 348
(7th Cir. 2016) (Plaintiff must demonstrate that the defendants’ official policy, widespread
custom, or action by an official with policy-making authority was the moving force behind his
constitutional injury.). See also City of Canton v. Harris, 489 U.S. 378, 379 (1989). In the
absence of such allegations, the Court cannot allow this claim to proceed against either county at
this time. Accordingly, Count 1 shall be dismissed without prejudice against White County and
Hamilton County.
Pending Motions
1.

Motion for Recruitment of Counsel (Doc. 3)
Plaintiff’s Motion for Recruitment of Counsel shall be REFERRED to a United States

Magistrate Judge for a decision.
2.

Motion for Service of Process at Government Expense (Doc. 4)
Plaintiff’s Motion for Service of Process at Government Expense is DENIED. The

motion is unnecessary because Plaintiff was granted leave to proceed in forma pauperis in this
civil rights action filed pursuant to 42 U.S.C. § 1983.
3.

Motion to File Amended Complaint (Doc. 15)
Plaintiff’s Motion to File Amended Complaint is DENIED without prejudice. In the

Motion, Plaintiff seeks leave to name “Sheriff Robert Crow, et al.” as a defendant. However,
Plaintiff already named Sheriff Crow as a defendant in the original Complaint (Doc. 1) and the
First Amended Complaint (Doc. 7). He refers to no additional unknown defendants in the

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statement of his claim in the First Amended Complaint, and he failed to file a proposed Second
Amended Complaint with the Motion.1
Disposition
IT IS HEREBY ORDERED that COUNT 1 is subject to further review against
Defendant OFFICER KALEENA in her individual capacity only.

However, the official

capacity claim against Defendant OFFICER KALEENA is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. COUNT 1 is also DISMISSED
without prejudice against Defendants ROBERT CROW, RANDY COBB, HAMILTON
COUNTY, and WHITE COUNTY on the same ground.
With regard to COUNT 1, the Clerk of Court shall prepare for Defendant KALEENA:
(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
First Amended Complaint (Doc. 7), and this Memorandum and Order to Defendant’s place of
employment as identified by Plaintiff. If 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 Defendant, and the Court will
require Defendant to pay the full costs of formal service, to the extent authorized by the Federal
Rules of Civil Procedure.
If the Defendant cannot be found at the address provided by Plaintiff, the employer shall

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If Plaintiff seeks to add other known or unknown defendants, he must file a proposed Second Amended
Complaint along with a Motion for Leave to Amend. See FED. R. CIV. P. 15. Further, because an
amended complaint supersedes and replaces all prior complaints, any proposed amended complaint must
stand on its own without reference to any other pleading. Plaintiff may include the names of the existing
defendants and additional known or unknown defendants (using “John or Jane Doe” to designate
unknown defendants). Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004).
He must also include allegations in his statement of claim which demonstrate how each defendant was
personally involved in the deprivation of his constitutional rights.

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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, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further 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 any document was served on Defendant 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.
Defendant is ORDERED to timely file an appropriate responsive pleading to the First
Amended 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, including a decision on the Motion for
Recruitment of Counsel (Doc. 3).
Further, this entire matter is hereby 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.
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, 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 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

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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: June 5, 2017
s/J. Phil Gilbert
U.S. District Judge

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