Williams v. USA et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 3/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAUN WILLIAMS, #09770-029
Plaintiff,
vs.
UNITED STATES OF AMERICA,
JEFFREY S. WALTON,
FERNANDO CASTILLO,
LESLEY DUNCAN-BROOKS,
M. BAGWELL,
RANDALL PASS, and
PAUL HARVEY,
Defendants.

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Case No. 17−cv–153−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Shaun Williams, an inmate formerly housed in the United States Penitentiary in
Marion, Illinois, brings this action for alleged violations of his constitutional rights by persons
acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). In his Complaint, Plaintiff alleges that the defendants ignored his complaints of pain
and delayed the treatment of his serious and painful foot condition, exasperating the problem and
causing permanent damage. (Doc. 1). Plaintiff also seemingly intends to make claims, based on
the same conduct, under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80.
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
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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
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 September 21,
2012, Plaintiff complained to Marion medical staff defendants regarding severe pain in his feet,
though upon inspection, they found there was no malalignment or deformity. (Doc. 1-1, p. 10).
Plaintiff returned to medical on October 12, 2012 complaining of pain and “crowding” of his
toes due to bunions, but Marion medical staff did not treat Plaintiff for this condition. Id. Soon
thereafter, defendant Leslee Dunkin [sic], a physician’s assistant, noted there was some deviation
with respect to Plaintiff’s condition, but that it was insignificant. (Doc. 1-1, p. 11). A few days
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later, an outside podiatry specialist produced a formal report on Plaintiff’s condition finding
hallux valgus and hammertoe, with Plaintiff’s left foot at 20 degrees and his right foot at 33
degrees. (Doc 1-1, p. 12). Plaintiff continued to complain of pain from his bunions to the
Marion medical staff, but his complaints were ignored. Id. In late November 2012, Marion
medical staff members acknowledged lower back degenerative changes in Plaintiff, but claimed
there were no surgical options to fix it, despite Plaintiff’s belief that the changes were caused by
his feet. Id.
In late December, the Marion medical staff ignored Plaintiff’s x-ray results, claiming they
showed nothing.

Id.

In February 2013, a report from Dr. Szoke showed that Plaintiff’s

deformity had increased to 22 degrees on his left foot. Id. Despite this, and Plaintiff’s continued
complaints of pain, the Marion medical staff did nothing. Id. In May 2013, Plaintiff requested a
soft shoe pass from Marion medical staff to alleviate some of his pain and suffering, but the pass
was not approved and Plaintiff’s pain was ignored. (Doc. 1-1, p. 10). In July 2013, Marion
medical staff ignored obvious changes to Plaintiff’s deformity, despite a Southern Illinois
Podiatry Report calling them “severe.” Id. In August 2013, Dr. Paul Harvey, among others,
failed to address Plaintiff’s deformity, which by then was documented to be “exceeding the
threshold required for surgery.” (Doc. 1-1, pp. 10-11). Plaintiff was given an oversized pair of
orthopedic shoes to accommodate his pain and suffering, but they did not fit. (Doc. 1-1, p. 11).
In September 2013, upon review of a podiatry consultation report, defendant Paul Harvey
moved to deny Plaintiff consideration for surgery due to its being considered “elective,” and
defendant Duncan informed Plaintiff his requested surgery would not be approved for that
reason. Id. The defendants on Marion’s medical staff continued to ignore Plaintiff’s pain and
suffering after that, and Plaintiff endured 12 months without care. Id. In October 2014, the

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Marion medical staff defendants told Plaintiff his shoes should fit, despite his complaints that
they did not, and soon thereafter they agreed to allow Plaintiff to return the shoes for
replacement, but his shoes were never replaced. Id.
In February 2015, the Marion medical staff defendants provided Plaintiff the criteria for
surgery. (Doc. 1-1, pp. 13). Plaintiff had qualified for surgery as early as two years prior, and
this information was known by the Marion medical staff. Id. At this time, Marion medical staff
also acknowledged that Plaintiff’s request for surgery would be honored and that Plaintiff’s
deformity qualified as “severe.” Id. Defendant Pass called Plaintiff’s issue a “significant
deformity.” Id. In April 2015, Castillo, another physician’s assistant, told Plaintiff his condition
was not debilitating, despite his having surpassed surgical thresholds long before. Id.
In sum, the Complaint alleges that Plaintiff’s condition worsened from a moderate and
treatable condition, bunions, to a more severe and damaging condition that involved severe pain,
arthritis, bone malunion, angular deformity, an uneven gait, shin and lower back pain, hammer
toe, and the need for formal bone reconstructive surgery. (Doc 1-1, p. 14). This advanced
condition resulted from the neglect and deliberate indifference of the defendants. Id. Walton,
Bagwell, Castillo, Brooks, Pass, and Harvey, during the relevant time period, all reviewed
relevant medical records pertaining to Plaintiff’s condition, and the medical staff defendants
examined Plaintiff on multiple occasions during which the deterioration affecting Plaintiff was
noted yet ignored. Id. Plaintiff now has a permanent disability, requiring him to endure bone
reconstructive surgery involving screws and pins, from which he will suffer from immobility and
an “inability to have a normal lifestyle and income.” Id. Plaintiff demands monetary damages
from the defendants. (Doc. 1-1, p. 16).

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Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 3 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
needs in ignoring and delaying treatment for an advancing deformity in
Plaintiff’s feet in violation of the Eighth Amendment.

Count 2 –

Defendants are liable under the Federal Tort Claims Act for the medical
negligence of USP-Marion officials in ignoring and delaying treatment for
Plaintiff’s serious medical needs.

Count 3 –

Plaintiff’s Fifth Amendment right to due process was violated by the
defendants when they ignored and delayed treatment for Plaintiff’s serious
medical need involving an advancing deformity in his feet.

As discussed in more detail below, Count 1 will be allowed to proceed past threshold.
Further, Count 2 will be dismissed without prejudice, and Count 3 shall be dismissed with
prejudice. 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.
Generally, a federal prisoner who seeks relief for the misconduct of federal agents has
three options for obtaining relief in federal court. He may bring a suit against the United States
under the FTCA for misconduct of federal agents that is considered tortious under state law. Sisk
v. United States, 756 F.2d 497, 500 n.4 (7th Cir. 1985) (citing 28 U.S.C. §§ 1346(6), 2680). He
may bring a suit against the agent for a violation of his constitutional rights under the theory set
forth in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Id. Or, he may
bring both types of claims in the same suit. See, e.g., Ting v. United States, 927 F.2d 1504, 1513
n.10 (9th Cir. 1991). Construed liberally, Plaintiff’s Complaint raises both types of claims.

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Count 1
In order to state a claim for deliberate indifference to a serious medical need under
Bivens, 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. “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 Eighth Amendment requires a defendant to take “reasonable measures to meet a
substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
This Court finds that Plaintiff has satisfied the objective component of the deliberate
indifference standard, as he claims he has suffered painful and debilitating foot deformities that
require surgery and will negatively affect him for the rest of his life. Plaintiff also adequately
alleges, at least at this stage, that Castillo, Pass, Duncan-Brooks, Harvey, Walton, and Bagwell
knew of Plaintiff’s medical problems and failed to acknowledge their severity until they had
been exacerbated to the point of debilitation and caused Plaintiff pain for well over one year.
More specifically, Castillo, Pass, Duncan-Brooks, Harvey, and Bagwell were allegedly
responsible for Plaintiff’s medical care during the relevant period and ignored and/or responded
inadequately to Plaintiff’s requests for care and complaints about his pain.
Walton, as warden, would normally not be implicated for the failures of his medical staff,
as a non-medical prison official “will generally be justified in believing that the prisoner is in
capable hands” if a prisoner is under the care of prison medical professionals. Arnett v. Webster,

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658 F.3d 742, 755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).
However, a warden may be called to answer a claim of deliberate indifference to a serious
medical need if he or she was personally made aware of a lack of medical treatment by the
inmate and turned a blind eye. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015)
(prisoner could proceed with deliberate indifference claim against non-medical prison officials
who failed to intervene despite their knowledge of his serious medical condition and inadequate
medical care, as explained in his “coherent and highly detailed grievances and other
correspondences”). Given Plaintiff’s allegation that Walton reviewed his medical records, and
the letter (Doc. 1-1, p. 23) Plaintiff attached to his Complaint from Walton denying Plaintiff
relief and outlining some of Plaintiff’s medical history, Walton cannot be dismissed at this stage.
Plaintiff has sufficiently shown that Walton was, to some degree, aware of Plaintiff’s issues and
failed to remedy them.
Count 1 will therefore proceed against Walton, Castillo, Duncan-Brooks, Bagwell, Pass,
and Harvey. Count 1 shall be dismissed with prejudice, however, against the United States. See
Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006) (Bivens action cannot be brought against the
United States).
Count 2
Plaintiff also brings claims of “medical negligence” against the defendants under the
FTCA, based on the same conduct detailed above. The FTCA allows “civil actions on claims
against the United States, for money damages . . . for . . . personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Pursuant to the FTCA, “federal
inmates may bring suit for injuries they sustain in custody as a consequence of the negligence of

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prison officials.” Buechel v. United States, 746 F.3d 753, 758 (7th Cir. 2014).
FTCA claims are governed by the law of the state where the tort occurred. Parrott v.
United States, 536 F.3d 629, 637 (7th Cir. 2008). See also Palay v. United States, 349 F.3d 418,
425 (7th Cir. 2003). In this case, Illinois law applies. Under Illinois law, a plaintiff “[i]n any
action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or
death by reason of medical, hospital, or other healing art malpractice,” must file an affidavit
along with the complaint, declaring one of the following: 1) that the affiant has consulted and
reviewed the facts of the case with a qualified health professional who has reviewed the claim
and made a written report that the claim is reasonable and meritorious (and the written report
must be attached to the affidavit); 2) that the affiant was unable to obtain such a consultation
before the expiration of the statute of limitations, and affiant has not previously voluntarily
dismissed an action based on the same claim (and in this case, the required written report shall be
filed within 90 days after the filing of the complaint); or 3) that the plaintiff has made a request
for records but the respondent has not complied within 60 days of receipt of the request (and in
this case the written report shall be filed within 90 days of receipt of the records). See 735 ILL.
COMP. STAT. §5/2-622(a).1 A separate affidavit and report shall be filed as to each defendant.
See 735 ILL. COMP. STAT. §5/2-622(b).
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILL.
COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However,

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The August 25, 2005, amendments to a prior version of this statute were held to be unconstitutional in
2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding P.A. 94-677 to be
unconstitutional in its entirety). After Lebron, the previous version of the statute continued in effect. See
Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and
amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any
question as to the validity of this section. See notes on Validity of 735 ILL. COMP. STAT. §5/2-622 (West
2013).

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whether such dismissal should be with or without prejudice is up to the sound discretion of the
court. Sherrod, 223 F.3d at 614. “Illinois courts have held that when a plaintiff fails to attach a
certificate and report, then ‘a sound exercise of discretion mandates that [the plaintiff] be at least
afforded an opportunity to amend her complaint to comply with section 2-622 before her action
is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, Case No. 06-cv-651-MJR,
2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Plaintiff has failed to file the necessary affidavits and reports.
Plaintiff includes, on page 9 of his Complaint, a section he titles “Certificate of Merit Affidavit.”
In it, he claims that he “reviewed the facts with a knowledgeable and qualified health
professional who practices in the particular field and that the professional has determined in a
written report that there is a reasonable and meritorious cause for filing this lawsuit.” (Doc. 1, p.
9). Plaintiff also attached to the Complaint a document labeled “Certificate of Merit.” (Doc. 11, pp. 33-34). The document is a letter from a Family Medicine specialist that ultimately
concludes that Plaintiff was justified in questioning the denial of a surgical option for his
problems, and states that Plaintiff could use the letter as his “Certificate of Merit to proceed
surgical repair of bunions.” (Doc. 1-1, p. 34). It is unclear whether Plaintiff intends for this
letter to constitute the necessary report under 735 ILL. COMP. STAT. §5/2-622(a). Whether this
was his intent or not, the letter does not state that there is a reasonable and meritorious cause for
filing this action, only that Plaintiff could use the letter to support his efforts to get surgery. This
Court therefore does not consider Plaintiff to have satisfied the affidavit and report requirements
of 735 ILL. COMP. STAT. §5/2-622.
Therefore, the claims in Count 2 shall be dismissed. However, the dismissal shall be
without prejudice at this time, and Plaintiff shall be allowed 90 days from the date he filed this

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lawsuit (until May 14, 2017) to file the required affidavits and reports. Should Plaintiff fail to
timely file the required affidavits and reports, the dismissal of Count 2 shall become a dismissal
with prejudice. See FED. R. CIV. P. 41(b). Should Plaintiff file the required affidavits and
reports within the deadline, Count 2 shall only be allowed to proceed past the threshold stage
against the United States of America, as “[t]he only proper defendant in an FTCA action is the
United States.” Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008); Hughes v. United States,
701 F.2d 56, 58 (7th Cir. 1982). See 28 U.S.C. § 2679(b). Count 2 shall be dismissed with
prejudice as against the other defendants.
Count 3
Regarding Count 3, although the Due Process Clause of the Fifth Amendment is
applicable to medical care claims during the time between arrest and conviction, the Eighth
Amendment is applicable to the medical care claims of convicted inmates like Plaintiff. See
Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir. 2007). Thus, Count 1, the Eighth
Amendment claim pertaining to medical care, properly presents Plaintiff's medical care issues.
The Court analyzes similar claims under the most “explicit source[s] of constitutional
protection.” Graham v. Connor, 490 U.S. 386, 395 (1989); see, e.g., Conyers v. Abitz, 416 F.3d
580, 586 (7th Cir. 2005) (dismissing equal protection and Eighth Amendment claims based on
same circumstances as free exercise claim). Consequently, Count 3 will be dismissed with
prejudice as against all of the defendants.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against WALTON,
CASTILLO, DUNCAN-BROOKS, BAGWELL, PASS, and HARVEY. COUNT 1 shall be
DISMISSED with prejudice against the UNITED STATES OF AMERICA.

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IT IS FURTHER ORDERED that COUNT 2 as against the UNITED STATES OF
AMERICA is DISMISSED without prejudice. If Plaintiff desires to revive this count, Plaintiff
must file the required affidavits pursuant to 735 ILL. COMP. STAT. §5/2-622 within 90 days of the
date this case was filed (on or before May 14, 2017). Plaintiff must also timely file the required
written report(s) of a qualified health professional, in compliance with §5/2-622.

Should

Plaintiff fail to timely file the required affidavits or reports, the dismissal of COUNT 2 shall
become a dismissal with prejudice, and the dismissal of the United States of America from this
action will become a dismissal with prejudice. WALTON, CASTILLO, DUNCAN-BROOKS,
BAGWELL, PASS, and HARVEY are DISMISSED with prejudice as to Count 2.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED with prejudice as to all
defendants for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that the UNITED STATES OF AMERICA is
DISMISSED without prejudice from this action.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and
form USM-285 for service of process on defendants WALTON, CASTILLO, DUNCANBROOKS, BAGWELL, PASS, and HARVEY; the Clerk shall issue the completed summons.
The United States Marshal SHALL serve defendants WALTON, CASTILLO, DUNCANBROOKS, BAGWELL, PASS, and HARVEY pursuant to Rule 4(e) of the Federal Rules of
Civil Procedure.1 All costs of service shall be advanced by the United States, and the Clerk shall

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Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state law
for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment or law to receive service of process.”

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provide all necessary materials and copies to the United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1)
personally deliver to or send by registered or certified mail addressed to the civil-process clerk at
the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the complaint, and this Memorandum and Order; and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
summons, the Complaint, and this Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon each defendant, or if an
appearance has been entered by counsel, upon that attorney, a copy of every pleading or other
document submitted for consideration by this Court. Plaintiff shall include with the original
paper to be filed a certificate stating the date that a true and correct copy of the document was
mailed to each defendant or counsel. Any paper received by a district judge or a magistrate
judge which has not been filed with the Clerk or which 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 a United States
Magistrate Judge for further pre-trial proceedings.
REFERRED

to

a

United

States

Magistrate

Further, this entire matter shall be
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 whether
his application to proceed in forma pauperis was granted. See 28 U.S.C. § 1915(f)(2)(A).

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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: March 28, 2017
s/J. Phil Gilbert
U.S. District Judge

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