Smith v. Singh et al

Filing 10

IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complai nt, stating any facts which may exist to support a medical indifference claim related to his overdose on Lithium, within 28 days of the entry of this order. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consi stent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 4/26/2017). Signed by Judge J. Phil Gilbert on 3/29/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TROY SMITH, #K88159
Plaintiff,
vs.
HARGURMUKH SINGH,
J. J. RODOS,
WEXFORD HEALTH CARE,
and VENERIO SANTOS,
Defendants.

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Case No. 17−cv–170−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Troy Smith, an inmate in Centralia Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 relating to Plaintiff’s
alleged overdose on prescribed Lithium. (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
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

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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; this action is subject to summary dismissal.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: Plaintiff overdosed
on Lithium, which was prescribed to him by defendant J.J. Rodos. (Doc. 1, p. 5). Given the
SSM St. Mary’s Hospital Laboratory Report that Plaintiff provided with the Complaint, he was
found to have a Lithium level of 2.4 on December 3, 2015, which was flagged on the report as
“high critical.” (Doc. 1-1, p. 6). This amount was twice the highest amount (1.2) in the
reference range on the report. Id. Plaintiff claims that this constituted toxic levels of Lithium,
from which he almost died. (Doc. 1, p. 5). Plaintiff claims he suffered pain and suffering and
deterioration of health, particularly with respect to his mental health treatment. Id. Plaintiff
alleges that defendants Singh, Rodos, Santos, and Wexford Health Care violated his
constitutional rights with respect to this incident by failing to monitor his Lithium levels by
ordering blood tests. Id.
Discussion
Based on the allegations of the Complaint (Doc. 1), the Court finds it convenient to

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designate a single count in this pro se action. 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.
Count 1 –

Defendants exhibited deliberate indifference to Plaintiff’s serious medical
needs related to his overdose on Lithium in violation of the Eighth
Amendment.

As to Plaintiff’s Count 1, the Supreme Court has recognized that “deliberate indifference
to serious medical needs of prisoners” may constitute cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S.
825 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This encompasses a
broader range of conduct than intentional denial of necessary medical treatment, but it stops
short of “negligen[ce] in diagnosing or treating a medical condition.” Estelle, 429 U.S. at 106.
See also Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).
To prevail on an Eighth Amendment claim, a plaintiff must show that the
responsible prison officials were deliberately indifferent to his serious medical
needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman
v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference
involves a two-part test. The plaintiff must show that (1) the medical condition
was objectively serious, and (2) the state officials acted with deliberate
indifference to his medical needs, which is a subjective standard.
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000). However, the Supreme Court stressed that
this test is not an insurmountable hurdle for inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted or
failed to act believing that harm actually would befall an inmate; it is enough that
the official acted or failed to act despite his knowledge of a substantial risk of
serious harm . . . . Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence . . . and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit has held that a medical need is “serious” where it has either “been
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diagnosed by a physician as mandating treatment” or where the need is “so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters,
111 F.3d 1364, 1373 (7th Cir. 1997).

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 Seventh Circuit’s decisions following this standard for deliberate indifference in the
denial or delay of medical care require evidence of a defendant’s actual knowledge of, or
reckless disregard for, a substantial risk of harm. See Chavez v. Cady, 207 F.3d 901, 906 (7th
Cir. 2000) (officers were on notice of seriousness of condition of prisoner with ruptured
appendix because he “did his part to let the officers know he was suffering”). The Circuit also
recognizes that a defendant’s inadvertent error, negligence or even ordinary malpractice is
insufficient to rise to the level of an Eighth Amendment constitutional violation. See Duckworth
v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.
2003) (courts will not take sides in disagreements with medical personnel’s judgments or
techniques). However, a plaintiff inmate need not prove that a defendant intended the harm that
ultimately transpired or believed the harm would occur. Walker v. Benjamin, 293 F.3d 1030,
1037 (7th Cir. 2002) (discussing Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996)).
Plaintiff claims that the defendants were deliberately indifferent in failing to order blood
tests to monitor his Lithium levels, which ultimately caused him to overdose. (Doc. 1, p. 5).

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This Court finds that Plaintiff has adequately alleged that his medical needs were serious, since
he claims that he was hospitalized and almost died (Doc. 1, p. 5), and the Laboratory Report
Plaintiff provided indicates his Lithium levels were “High Critical” and two times higher than
the highest amount on the reference range. (Doc. 1-1, p. 6).
The allegations in the Complaint fail to show, however, that the defendants were actually
aware of, or recklessly disregarded, a substantial risk of harm to Plaintiff. The only doctor
Plaintiff has provided facts indicating had responsibility for Plaintiff’s treatment is Dr. Rodos,
who Plaintiff alleges prescribed him the Lithium. (Doc. 1, p. 5). Plaintiff has not provided any
facts directly connecting the remaining individuals to his treatment, or lack thereof, that might
indicate they should have even been aware that Plaintiff was even taking the medication, much
less suffering from it. Plaintiff has also not indicated whether he complained to any of the
medical provider defendants about his medication, whether he experienced any side effects that
any of these providers may have ignored prior to his overdose, or whether he interacted with or
requested appointments from any of the providers, at all, after he was prescribed Lithium up until
his overdose.
Given the foregoing, Plaintiff has failed to plead “enough facts to state a claim to relief
that is plausible on its face” as to Singh, Rodos, and Santos. See Twombly, 550 U.S. at 570.
Plaintiff has therefore not shown that these defendants were deliberately indifferent to his
medical needs, and Count 1 will be dismissed as to them.
With respect to defendant Wexford Health Care, the Seventh Circuit has held that a
corporate entity violates an inmate’s constitutional rights, in this case showing deliberate
indifference to Plaintiff’s serious medical needs, only when it has a policy that creates conditions
that infringe upon an inmate’s constitutional rights. See Woodward v. Corr. Med. Serv. Of Ill.,

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Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760,
766 n.6 (7th Cir. 2002) (private corporation is treated as though it were a municipal entity in a §
1983 action). Plaintiff has failed to sufficiently allege that Wexford has any such policy, or that
his constitutional rights were infringed with respect to the care that he received. Count 1 shall
therefore also be dismissed, without prejudice, as to Wexford Health Care.
Based on the foregoing, Count 1 against Singh, Rodos, Santos, and Wexford Health Care
will be dismissed. Out of an abundance of caution, this dismissal shall be without prejudice.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file his First Amended Complaint, stating any facts which may exist to support a medical
indifference claim related to his overdose on Lithium, within 28 days of the entry of this order
(on or before April 26, 2017). Should Plaintiff fail to file his First Amended Complaint within
the allotted time or consistent with the instructions set forth in this Order, the entire case shall be
dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute
his claims. FED. R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). Such
dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C.
§ 1915(g).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 17-cv-170-

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JPG). The pleading shall present each claim in a separate count, and each count shall specify, by
name, each defendant alleged to be liable under the count, as well as the actions alleged to have
been taken by that defendant. Plaintiff should attempt to include the facts of his case in
chronological order, inserting each defendant’s name where necessary to identify the actors.
Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only related
claims in his new complaint. Claims found to be unrelated to the Eighth Amendment deliberate
indifference claims will be severed into new cases, new case numbers will be assigned, and
additional filing fees will be assessed.
Plaintiff is warned that the Court takes the issue of perjury seriously, and that any facts
found to be untrue in the Amended Complaint may be grounds for sanctions, including dismissal
and possible criminal prosecution for perjury. Rivera v. Drake, 767 F.3d 685, 686 (7th Cir.
2014) (dismissing a lawsuit as a sanction where an inmate submitted a false affidavit and
subsequently lied on the stand).
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.

No service shall be ordered on any Defendant until after the Court

completes its § 1915A review of the First Amended Complaint.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,

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regardless of whether Plaintiff elects to file a First Amended Complaint.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: March 29, 2017
s/J. Phil Gilbert
U.S. District Judge

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