Smith v. Butler et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 4/10/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL SMITH, # K-57543,
Plaintiff,
vs.
KIMBERLY BUTLER,
JOHN DOE (Lt., West House),
C/O MACDONOUGH,
MENARD HCU,
GAIL WALLS,
DR. J. TROST,
DR. RITZ,
CYNTHIA L. MEYER,
C/O LARRY,
and WARDEN LASHBROOK,
Defendants.

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

Case No. 17-cv-189-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that several
Defendants were deliberately indifferent to his medical needs after he injured his hand. Later, he
was subjected to excessive force when officers refused to loosen his handcuffs, further injuring
the same hand. This case is now before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
1

28 U.S.C. § 1915A(b).
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 “no reasonable person could suppose to have any merit.” 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. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
On May 30, 2016, Plaintiff severely injured his right hand while on the yard. He sought
help from Officers Doe and Macdonough, but because it was nearly time for a shift change (2:20

2

p.m.), these officers refused to call medical staff or take Plaintiff to the health care unit. (Doc. 1,
pp. 2, 9). Later on, at around 4:15 p.m., Plaintiff was taken to the health care unit, where an
examination noted the hand was swollen and the pinky finger was at an awkward angle, out of its
normal position. (Doc. 1-1, pp. 16-17). The delay in medical attention caused Plaintiff to suffer
unnecessary pain.
Dr. Trost is a physician at Menard who saw Plaintiff on various occasions. It is not clear
when Plaintiff first consulted Dr. Trost for examination or treatment of his hand injury. Trost
cancelled Plaintiff’s sick call pass for June 8, 2016, further delaying treatment. Plaintiff was
again unable to see the doctor on June 9, 2016. (Doc. 1, p. 11; Doc. 1-1, p. 15). A nurse ordered
x-rays and put a splint on Plaintiff’s hand. The x-rays were to have been sent to an outside
consultant, but it appears this was not done. (Doc. 1-1, p. 15). Plaintiff filed a grievance on June
19, 2016, complaining about the lack of treatment. (Doc. 1-1, pp. 14-17).
According to Plaintiff’s letter complaining about officials’ failure to address his
grievances, Trost examined him on June 22, 2016, and noted there was still extensive swelling of
the right finger, discoloration, and lack of mobility. Trost ordered more x-rays. On July 12,
2016, Trost saw him again and noted the swelling had still not subsided, and the finger was still
at an awkward angle. He again ordered x-rays. (Doc. 1-1, p. 22).
Dr. Trost reviewed the x-ray results, and in a report dated July 21, 2016, concluded that
the radiology results showed the hand was “normal or stable.” (Doc. 1, p. 11; Doc. 1-1, p. 19).
However, Plaintiff says the hand was not “normal” at that time. Dr. Trost’s “misdiagnoses”
delayed treatment for Plaintiff’s injury. (Doc. 1, pp. 11, 20).
On July 13, 2016, Dr. Trost sought an orthopedic consult for Plaintiff, but Dr. Ritz (a
doctor with Wexford Health Sources, Inc.) denied the referral request. (Doc. 1, p. 12; Doc. 1-1,

3

p. 21). Dr. Ritz asked for more information so the referral could be reconsidered on July 29,
2016, but failed to expedite that request. (Doc. 1, pp. 12, 20; Doc. 1-1, p. 21). Plaintiff’s pain
and restricted movement continued and treatment was further delayed.
Plaintiff was eventually sent for a consultation with an orthopedic specialist on
September 8, 2016, and again on September 13, 2016. (Doc. 1, p. 10). The specialist concluded
that the injury was serious enough to require surgical repair, but that even with surgery, his pinky
finger could remain immobile or permanently disfigured.

Id.

Plaintiff states that the

recommendation for surgery and other care was ignored. (Doc. 1, p. 10).
Plaintiff submitted several requests for a medical permit to allow his hands to be cuffed
in the front because of his injury. However, on October 18, 2016, Dr. Trost denied Plaintiff’s
request for a front cuff permit. Plaintiff asserts that this permit denial was in retaliation for
Plaintiff having filed a grievance against Dr. Trost. 1 (Doc. 1, p. 11; Doc. 1-1, p. 27).
On December 23, 2016, C/O Larry was on duty when Plaintiff was placed in handcuffs
behind his back for a 4-hour period. (Doc. 1, p. 15). Plaintiff told Larry about his pre-existing
hand injury and the fact that he had a medical permit for a finger spring/ACU-spring extension
assist device (granted to him after a November 28, 2016, orthopedic consultation). (Doc. 1, pp.
15; Doc. 1-1, p. 40). Plaintiff asked Larry to loosen the restraints, or call the Health Care Unit
because his fingers were becoming numb and his shoulder was burning. However, Larry refused
to notify medical staff or to loosen the cuffs. As a result, Plaintiff suffered pain, swelling, and
welts that persisted for several days, and the incident set back Plaintiff’s physical therapy for the
injured right hand. (Doc. 1, p. 16).
Meyer (Plaintiff’s counselor) allegedly retaliated against Plaintiff by failing to process his
1

Although the Complaint does not reference a specific grievance as having triggered the alleged
retaliation, Plaintiff’s attachments include a June 19, 2016 grievance in which he complained about Dr.
Trost’s failure to treat his injury. (Doc. 1-1, pp. 16-17).

4

grievances over the delays and lack of medical care for Plaintiff’s injured hand. This retaliation
was prompted by Plaintiff’s actions of filing grievances and bringing a lawsuit (Case No. 15-cv770-NJR-DGW) against Meyer’s co-workers. (Doc. 1, p. 13).
Butler, the former Menard Warden, ruled that Plaintiff’s “emergency” grievance filed
June 17, 2016, over the lack of treatment for his hand injury, did not qualify as an emergency
matter. (Doc. 1, p. 16; Doc. 1-1, pp. 16-17). As a result, Plaintiff’s suffering was prolonged
when treatment was further delayed. She also deemed his earlier “emergency” grievance of
January 12, 2016, a non-emergency matter.
Lashbrook was the acting warden at the time Plaintiff filed the instant action and the
grievances of December 2016 and January 2017. (Doc. 1, pp. 17-18). Lashbrook deemed those
grievances to be non-emergencies.
Plaintiff names “Menard HCU” and Gail Walls (the Health Care Unit Administrator) as
Defendants. He complains that they failed to act on his December 31, 2015, request for medical
treatment for a variety of issues unrelated to the later hand injury. (Doc. 1, p. 9; Doc. 1-1, pp.
11-13). They similarly ignored two sick call requests in February 2016. As a result, Plaintiff
was denied his annual physical. Later, after Plaintiff sustained the hand injury, Walls and the
HCU failed to send records to the orthopedic specialist. (Doc. 1, p. 9).
Plaintiff seeks compensatory and punitive damages, as well as other non-monetary
punishment of the Defendants. (Doc. 1, p. 24).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following 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

5

designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Eighth Amendment deliberate indifference claim against Macdonough
and the John Doe Lieutenant, for refusing to summon medical staff after
Plaintiff’s hand was injured on May 30, 2016;
Count 2: Eighth Amendment deliberate indifference claim against Dr. Trost and
Dr. Ritz for denying and delaying medical attention for Plaintiff’s injured hand;
Count 3: Eighth Amendment deliberate indifference claim against unnamed
Defendants for ignoring the orthopedic specialist’s recommendations for surgery
and other treatment for Plaintiff’s hand injury;
Count 4: First Amendment retaliation claim against Dr. Trost for denying
Plaintiff a medical front-cuff permit after Plaintiff filed grievances against him;
Count 5: Eighth Amendment claims against C/O Larry for deliberate
indifference and excessive force, for refusing to loosen Plaintiff’s handcuffs or
consult medical staff on December 23, 2016;
Count 6: First Amendment retaliation claim against Meyer, for refusing to
process Plaintiff’s grievances after he sued her co-workers and filed grievances
against her;
Count 7: Eighth Amendment deliberate indifference claim against Butler for
failing to act on Plaintiff’s grievances complaining about lack of medical care
after the May 30, 2016, hand injury;
Count 8: Eighth Amendment deliberate indifference claim against Lashbrook,
for failing to treat his December 2016 and January 2017 grievances as
emergencies;
Count 9: Eighth Amendment deliberate indifference claim against Menard HCU
and Walls, for failing to act on Plaintiff’s December 2015 and February 2016
requests for medical treatment, and failing to send records of the May 2016 hand
injury to the specialist.
Portions of Counts 1, 2, 4, 5, and 7 will receive further review. However, Counts 3, 6, 8,
and 9 shall be dismissed for failure to state a claim upon which relief may be granted.

6

Count 1 – Deliberate Indifference – Doe and Macdonough
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. “A ‘serious’
medical need is one that has been diagnosed by a physician as mandating treatment or one that 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, 1371 (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); Perez v. Fenoglio, 792 F.3d 768, 777-78
(7th Cir. 2015).
Plaintiff’s hand injury was immediately painful, and his description of the displaced
pinky finger indicates that his condition should have been obvious to a lay person. Rather than
assist Plaintiff in getting prompt medical care, Macdonough and the John Doe Lieutenant chose
to take no action because of the upcoming shift change.

The delay allegedly prolonged

Plaintiff’s suffering. At this stage of the litigation, these facts support a claim for deliberate
indifference that merits further review.

Count 1 against Macdonough and the John Doe

Lieutenant shall therefore proceed.
Count 2 – Drs. Trost and Ritz
As with the lay person Defendants, a deliberate indifference claim against medical
professionals has both an objective and a subjective component. The Seventh Circuit considers

7

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). Plaintiff’s initial hand injury, and the ongoing
symptoms (restricted range of movement, displacement of the finger, and pain) demonstrate that
he suffered from an objectively serious condition.
Turning to the subjective factor, 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). Further, 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).
Plaintiff’s chief complaints against Dr. Trost are that he delayed his initial examination of
Plaintiff’s injured hand and misdiagnosed the condition as “normal or stable.” This misdiagnosis
apparently undermined the attempt to obtain an orthopedic referral for Plaintiff. While the injury
occurred on May 30, 2016, Plaintiff did not see a specialist until September 2016.
Immediately following Plaintiff’s injury, Dr. Trost canceled a sick call pass and caused
Plaintiff to miss a second appointment. Plaintiff did see a nurse, but apparently did not see Dr.
Trost until June 22, 2016. Thereafter, Dr. Trost ordered several rounds of x-rays. It is not clear
whether he provided any treatment for the condition. Notably, a “misdiagnosis” of a medical
condition does not constitute deliberate indifference – so Dr. Trost’s conclusion that Plaintiff’s x-

8

ray results were “normal or stable” is not a violation of Plaintiff’s Eighth Amendment rights.
See Duckworth, 532 F.3d at 679. Dr. Trost’s attempt to get approval for Plaintiff to see an
orthopedic specialist in July 2016 also does not demonstrate deliberate indifference to his
condition; just the opposite. Later on, in October 2016, Dr. Trost denied Plaintiff’s request for a
medical permit to have his hands cuffed in front of his body to avoid further discomfort to the
injured hand. At that point, Plaintiff had seen the specialist and been given a recommendation
for surgery, and apparently was still experiencing pain and other symptoms from the hand injury.
Of all these events described in Plaintiff’s statement of claim, only the initial delay in Dr.
Trost’s examination of the injury (of approximately 3 weeks), and possibly the denial of the
front-cuff permit may support a deliberate indifference claim.

Accordingly, Plaintiff may

proceed with his deliberate indifference claim in Count 2 against Dr. Trost, limited to two
matters: the initial delay in examination/treatment of the injury in May/June 2016, and the
October 2016 denial of the front-cuff permit.
Turning to Dr. Ritz, Plaintiff states that in his capacity as a Wexford Health Sources, Inc.,
physician, Dr. Ritz denied the request for Plaintiff to have a consultation with an orthopedic
specialist in July 2016. As of July 12, the swelling of Plaintiff’s hand had still not gone down
and his finger was still displaced, some 6 weeks after the injury. After further delay, the
consultation was eventually approved (by whom, Plaintiff does not say). Depending on what
information Dr. Ritz had regarding Plaintiff’s condition, it is possible that the July 2016 refusal
to refer him to a specialist could amount to deliberate indifference. Further factual development
will be necessary in order to evaluate this claim. Plaintiff may therefore also proceed with his
deliberate indifference claim against Dr. Ritz in Count 2.

9

Dismissal of Count 3 – Failure to Follow Specialist Recommendations
Early in his statement of claim, Plaintiff states that “Defendants ignored and disregarded
the alternative care recommended by the orthopedic specialist,” including the recommended
surgery. (Doc. 1, p. 10). Elsewhere on that page, Plaintiff indicates that he listed the names of
the individuals who violated his rights in a September 30, 2016, grievance – but that document
was not included with the Complaint. Due to this omission and Plaintiff’s frequent collective
references to “Defendants,” the Court is unable to discern which individual(s) were responsible
for the decision to deny surgery and/or disregard any other recommendations made by the
orthopedic specialist.
The failure to implement a specialist’s recommendations may support a claim of
deliberate indifference. See Perez v. Fenoglio, 792 F.3d 768, 777-79 (7th Cir. 2015) (prison
doctor’s refusal to follow treatment recommendations of outside medical specialist may
constitute deliberate indifference) (7th Cir. 2015); Gil v. Reed, 381 F.3d 649, 662-64 (7th Cir.
2004) (prison doctor prescribed Tylenol despite surgeon’s express warning to avoid that
medication); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999) (prison doctor refused to follow
specialists’ instructions regarding inmate’s treatment).

However, in Plaintiff’s case, the

Complaint fails to state a claim upon which relief can be granted for ignoring the specialist’s
instructions, because it does not disclose who was at fault. Section 1983 creates a cause of
action based on personal liability and predicated upon fault; thus, “to be liable under § 1983, the
individual defendant must have caused or participated in a constitutional deprivation.” Pepper v.
Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (internal quotations and citations
omitted). In order to state a claim against a defendant, a plaintiff must describe what each named
defendant did (or failed to do), that violated the plaintiff’s constitutional rights.

10

Plaintiff may be able to cure this pleading defect in an amended complaint. However, at
this juncture, Count 3 for ignoring the specialist’s recommended treatment must be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
Count 4 – Retaliation by Dr. Trost
As noted in the discussion of the claims in Count 2, in October 2016, Dr. Trost denied
Plaintiff’s request for a front-cuff medical permit.

In addition to demonstrating possible

deliberate indifference to a medical need, Plaintiff alleges that Dr. Trost’s denial of the permit
was motivated by retaliation. Plaintiff filed at least one grievance (in June 2016) over Dr.
Trost’s alleged failure to treat the injured hand.
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859,
866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857
F.2d 1139 (7th Cir. 1988). Furthermore, “[a]ll that need be specified is the bare minimum facts
necessary to put the defendant on notice of the claim so that he can file an answer.” Higgs v.
Carver, 286 F.3d 437, 439 (7th Cir. 2002). Naming the suit and the act of retaliation is all that is
necessary to state a claim of improper retaliation. Id.
At issue here is whether Plaintiff experienced an adverse action that would likely deter
First Amendment activity in the future, and if the First Amendment activity was “at least a
motivating factor” in the Defendant’s decision to take the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 551 (7th Cir. 2009). At this stage, Plaintiff has sufficiently pled a retaliation claim
against Dr. Trost, for denying the medical permit after Plaintiff filed a grievance against this
Defendant. Count 4 may therefore proceed for further consideration against Dr. Trost.

11

Count 5 – Eighth Amendment Claims – C/O Larry
The incident that gave rise to the claims against C/O Larry occurred on December 23,
2016. By that time, Plaintiff had obtained a medical permit for a device (finger spring/ACUspring extension assist) apparently designed to provide some relief for his injured hand when he
was placed in handcuffs. However, it appears that this device was not used when Plaintiff was
cuffed with his hands behind his back for a 4-hour period. Plaintiff told Larry of the numbness
and pain he was having, and asked Larry to loosen the cuffs or contact the Health Care Unit.
Larry refused both these requests. As a result, Plaintiff suffered pain and a worsening of his
symptoms.
These allegations may support a claim for deliberate indifference to Plaintiff’s medical
condition, particularly due to the fact Plaintiff told Larry about his special permit to prevent
additional harm to his injured hand. Larry, however, took no action to mitigate the risk of harm
to Plaintiff from remaining in the tight handcuffs.
Additionally, the Eighth Amendment prohibits the use of excessive force against
prisoners. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th
Cir. 2000). An inmate must show that the use of force “was carried out ‘maliciously and
sadistically’ rather than as part of ‘a good-faith effort to maintain or restore discipline.’” Wilkins,
559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Larry’s refusal to alleviate
Plaintiff’s suffering caused by the prolonged restraint in handcuffs could also support a claim
that he subjected Plaintiff to unconstitutional excessive force.
Plaintiff may thus proceed with his Eighth Amendment claims against Larry in Count 5.
Dismissal of Count 6 – Retaliation by Meyer
For this claim, Plaintiff asserts that Counselor Meyer refused to process his grievances

12

because he had filed grievances against her, and because he had filed a lawsuit in 2015 against
other prison employees (not Meyer). The only specific grievance Plaintiff references as having
triggered the “retaliation” is a grievance he filed against Meyer on January 3, 2017. (Doc. 1, p.
13). He complains that “by failing to respond to and forward/process” his grievances, she
“rendered the grievance process unavailable” to him. Id.
This chronology of events does not plausibly support a claim that Meyer’s failure to
process Plaintiff’s grievances was motivated by retaliation. See Murphy v. Lane, 833 F.2d 106,
108-09 (7th Cir. 1987) (plaintiff's complaint must “set forth a chronology of events from which
retaliatory animus on the part of defendants could arguably be inferred” sufficient to overcome a
motion to dismiss). The January 2017 grievance against Meyer could not have motivated her to
mishandle the grievances he filed against others in 2016. Further, the Complaint makes no
showing that Meyer was aware of his 2015 lawsuit against other parties, or that the 2015 suit
caused Meyer to fail to process his grievances filed in June 2016 and thereafter.
Furthermore, Meyer’s failure to properly process Plaintiff’s grievances does not amount
to the type of action that would be likely to deter Plaintiff from engaging in protected First
Amendment activity in the future – which is a necessary component of a retaliation claim. See
Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009). Plaintiff’s pleading demonstrates that he
is aware of the requirement to exhaust the institutional grievance procedure before he may
maintain a lawsuit over the alleged violation of his constitutional rights.

See 42 U.S.C.

§ 1997e(a). A prisoner must initiate a grievance and pursue it through the appeal process as far
as he is able to do so in order to exhaust his administrative remedies before filing suit. Plaintiff’s
efforts to exhaust remedies may be relevant in the event that a Defendant raises a challenge to
Plaintiff’s ability to maintain a § 1983 suit over the substantive matters raised in the grievances.

13

See 42 U.S.C. § 1997e(a); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008). If the process is
rendered unavailable to a prisoner due to the action or inaction of prison officials, then the
prisoner may be found to have complied with the exhaustion requirement. Meyer’s alleged
failure to process Plaintiff’s grievances does not rise to the level of an “adverse action” that will
support a claim for unconstitutional retaliation.
Notably, a prison official’s mishandling or failure to respond to grievances does not
support an independent constitutional claim. “[A] state’s inmate grievance procedures do not
give rise to a liberty interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1996). The Constitution requires no procedure at all, and the failure of
state prison officials to follow their own procedures does not, of itself, violate the Constitution.
Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01
(7th Cir. 1982). Thus, to the extent Plaintiff alleges that Meyer violated his due process rights by
failing to properly handle his grievances, such a claim must fail.
For these reasons, the claims in Count 6 against Meyer shall be dismissed without
prejudice for failure to state a claim upon which relief may be granted.
Count 7 – Deliberate Indifference – Butler
After Plaintiff suffered the hand injury, he filed an emergency grievance on June 17,
2016, to then-Warden Butler. In the grievance, he described the injury, his symptoms, his efforts
to obtain medical care, and the delays he had experienced in obtaining x-rays and an examination
by the prison doctor. (Doc. 1-1, pp. 16-17). At the time the grievance was submitted, Plaintiff
had not yet seen the doctor about his hand injury. Butler concluded that the grievance was not an
emergency, and took no action to intervene on Plaintiff’s behalf. Plaintiff asserts that Butler’s
failure to act on his grievance amounted to deliberate indifference to his serious medical

14

condition. (Doc. 1, pp. 14, 16-17).
Plaintiff also includes an earlier matter, where Butler ruled that Plaintiff’s January 12,
2016, grievance was not an emergency. (Doc. 1, p. 17). That grievance had nothing to do with
the hand injury, which had not yet occurred. Instead, Plaintiff raised complaints about medical
staff’s lack of response to his sick call requests in December 2015. The only harm Plaintiff
alleges in connection with those dates is that he was denied his annual physical examination.
(Doc. 1, p. 9). Plaintiff makes no allegations to indicate he suffered from an objectively serious
medical condition when he filed the January 2016 grievance.
Ordinarily, when a prisoner is under the care of prison medical professionals, a nonmedical prison official “will generally be justified in believing that the prisoner is in capable
hands.” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d
218, 236 (3d Cir. 2004)). As such, a non-medical official who reviews a routine grievance, but is
not personally involved in providing medical care to prisoners may not be held liable for the
action or inaction of the medical provider who is the subject of the complaint. However, if the
content of a prisoner’s grievances is sufficient to inform an administrative official of a serious
medical need that medical providers are failing to address, an administrator who does not take
appropriate action opens herself to potential liability for deliberate indifference. 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”).
At this early stage in the suit, Plaintiff’s deliberate indifference claim against Butler
regarding the lack of treatment for his hand injury survives review under § 1915A, based on

15

Plaintiff’s description of his efforts to obtain care in the June 2016 emergency grievance.
However, Butler’s denial of emergency review for the general medical complaints raised in
Plaintiff’s January 2016 grievance does not support a deliberate indifference claim. Count 7
shall therefore proceed for further consideration, with respect to the hand injury issue only.
Dismissal of Count 8 – Deliberate Indifference – Lashbrook
Plaintiff alleges that Lashbrook was the acting warden at the time he filed the instant
action, as well as when he filed his December 2016 and January 2017 grievances.

The

December 2016 grievance complained about Plaintiff’s treatment during the 4- hour handcuffing
incident on December 23, 2016. It is not clear what was included in the January 2017 grievance,
as Plaintiff did not include that document with his pleading.
The Complaint does not support a deliberate indifference claim against Lashbrook on the
basis of her failure to treat these grievances as emergency matters. By the time Plaintiff filed his
December 2016 grievance over the excessive restraint in handcuffs, the incident was over, and
there was no indication that Plaintiff’s medical needs arising from the incident would not be
addressed in due course. As to the January 2017 grievance, the Complaint does not include
enough information for the Court to determine whether Lashbrook’s action or inaction amounted
to deliberate indifference.
Further, Lashbrook’s position as warden or acting warden is not enough to impose
liability on her for the alleged unconstitutional actions of other employees under her authority.
The doctrine of respondeat superior (supervisory liability) is not applicable to § 1983 actions.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Nothing in the
Complaint suggests that Lashbrook was “personally responsible for the deprivation of a
constitutional right” in connection with Plaintiff’s December 2016 and January 2017 complaints.

16

See Sanville, 266 F.3d at 740.
For these reasons, Count 8 against Lashbrook shall be dismissed for failure to state a
claim upon which relief may be granted.
Dismissal of Count 9 – Deliberate Indifference – Menard HCU and Walls
Plaintiff’s claims against Health Care Unit Administrator Walls and the Menard HCU are
based on their failure to take action in December 2015 when Plaintiff requested treatment for his
asthma, joint pain, and concerns about his prostate and colon polyp, and their failure to respond
to two sick call requests in February 2016. (Doc. 1, p. 9; Doc. 1-1, pp. 11-12). He claims their
inaction caused him to be denied his annual physical examination. Later, after Plaintiff’s hand
was injured, these Defendants failed to send records to the orthopedic specialist.
First of all, the “Menard HCU” is not amenable to suit in a civil rights action, and shall be
dismissed with prejudice. The Illinois Department of Corrections is a state government agency.
The Supreme Court has held that “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment
bars suits against states in federal court for money damages); Billman v. Ind. Dep’t of Corr., 56
F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune from suit by virtue of
Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991) (same).
Likewise, the Menard Correctional Center and its Health Care Unit are divisions of the Illinois
Department of Corrections, and are not “persons” within the meaning of the Civil Rights Act.
Thus, these entities are not subject to a § 1983 suit for damages. See Will, 491 U.S. at 71.
As to Plaintiff’s complaints against Walls based on the December 2015 and February
2016 requests for care, nothing in Plaintiff’s pleadings indicates that he suffered from an

17

objectively serious medical condition at those times. Instead, he sought treatment for what
appear to be routine medical issues that do not implicate constitutional concerns. Because the
Complaint does not present any facts to suggest that Plaintiff had a medical condition in
December 2015 or February 2016 which placed him at substantial risk to his health, it fails to
meet the first (objective) component of an Eighth Amendment deliberate indifference claim
against Walls.
Turning to the allegation that Walls did not forward medical records to the orthopedic
specialist after Plaintiff’s May 2016 hand injury, the Complaint similarly fails to state a
constitutional claim. Plaintiff does not include any factual allegations to show that Walls’
inaction caused any detriment to the process of referring him to the specialist, or affected his
treatment in any way.
For these reasons, the claims in Count 9 against Walls shall be dismissed without
prejudice for failure to state a claim upon which relief may be granted. The Menard HCU shall
be dismissed with prejudice as a party to this action.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4) is GRANTED IN
PART AND DENIED IN PART. Service shall be ordered below on those Defendants who
remain in the action. No service shall be made on the dismissed Defendants.

18

Disposition
COUNTS 3, 6, 8, and 9 are DISMISSED without prejudice for failure to state a claim
upon which relief may be granted.
Defendants WALLS, MEYER, and LASHBROOK are DISMISSED from this action
without prejudice. Defendant MENARD HCU is DISMISSED from this action with prejudice.
The Clerk of Court shall prepare for Defendants BUTLER, MACDONOUGH, TROST,
RITZ, and LARRY: (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.
Service shall not be made on the Unknown (John Doe Lieutenant) Defendant until such
time as Plaintiff has identified him by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff’s responsibility to provide the Court with the name and service
address for this individual.
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

19

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
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 United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams 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, notwithstanding that
his application to proceed in forma pauperis has 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

20

for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: April 10, 2017

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

21