Street v. Els et al
Filing
9
ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 4/19/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON STREET,
#R-09216,
Plaintiff,
–00334 DRH
vs.
DENNIS ELS,
ALLAN J. BRUMMEL,
ALFONSO DAVID,
MS. LECRONE,
KAREN SMOOT,
K. SEIP,
JEFFERY DENNISON,
SHERRY BENTON, and
WEXFORD HEALTH SOURCES,
INC.,
Defendants.
MEMORANDUM AND ORDER
HERNDON
Plaintiff Jason Street, an inmate who is currently incarcerated at Shawnee
Correctional Center (“Shawnee”), brings the instant civil rights action pursuant to
42 U.S.C. § 1983. (Doc. 1). In the Complaint, Plaintiff claims that he has been
denied adequate medical care for progressive vision loss associated with a right
eye cataract, glaucoma, and keratoconus for more than two years at Shawnee.
(Doc. 1, pp. 6-19). Plaintiff brings claims against the defendants under the Eighth
Amendment. Id. He seeks money damages and a preliminary injunction. (Doc.
1, p. 19).
The Complaint is now subject to preliminary review under 28 U.S.C. §
1915A, which provides:
(a)
– 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)
– 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, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.” Id. at 557. At this juncture, the
factual allegations of the pro se complaint are to be liberally construed.
See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). The
Complaint survives screening under this standard.
According to the allegations in the Complaint, Plaintiff suffers from a right
eye cataract and glaucoma. (Doc. 1, p. 6). Doctor Els, an eye doctor at Shawnee,
diagnosed him with these conditions in January 2015. Id. At the time, the doctor
indicated that Plaintiff was “going blind,” and there was “no possible chance” of
correcting his right eye vision loss. Id.
Plaintiff later learned that Doctor Els’ opinion was incorrect and merely
reflected the policy of his employer, Wexford Health Sources, Inc. (Doc. 1, p. 6).
According to the Complaint, Wexford has a longstanding policy of denying eye
surgery to any prisoner who has “one good eye.” (Doc. 1, pp. 6, 18-19). In other
words, the private medical corporation will not approve surgery until a prisoner is
blind in both eyes. Id. Doctor Els was aware of this policy when he told Plaintiff
that surgery would not benefit him on January 8, 2015.
(Doc. 1, pp. 6-8).
Plaintiff’s vision subsequently deteriorated. (Doc. 1, p. 7).
In February 2016, Plaintiff met with a different prison eye doctor named
Doctor Brummel. (Doc. 1, p. 7). Doctor Brummel told Plaintiff that there was “a
chance” that vision could be restored in his right eye by surgically removing the
cataract and glaucoma. Id. However, the delay in surgical treatment foreclosed
the option. Id. A corneal transplant was the only remaining option for restoring
vision in Plaintiff’s right eye. Id.
On March 17, 2016, Plaintiff met with Doctor Umana at Marion Eye Center
to discuss his progressive vision loss. (Doc. 1, p. 8). Doctor Umana diagnosed
him with keratoconus, a slowly progressive ectasia of the cornea that is usually
bilateral.
Id.
The condition necessitates frequent changes in eyeglass
prescriptions due to changes in the shape of the cornea. Id. Contact lenses “may
provide better visual correction” in patients with this condition and are often tried
when eyeglasses are not satisfactory. Id. A corneal transplant is indicated when
contact lenses also fail to improve vision, when contacts are not tolerated by the
patient, or when corneal scarring occurs. Id.
Plaintiff was fitted with contact lenses five different times, and four of them
did not work. (Doc. 1, p. 8). The fifth also stopped working, after the right eye
lens began causing pain, discomfort, and scarring.
(Doc. 1, p. 9).
Doctor
Brummel referred Plaintiff to Doctor Fix at the Marion Eye Clinic for further
evaluation on seven or eight separate occasions. Id. Each appointment yielded
the same results, i.e., a recommendation for a corneal transplant. Id. Doctor
Umana requested authorization for a contact lens/evaluation before referring
Plaintiff for the transplant. Id.
Despite the recommendations of these two outside providers, Doctor
Brummel “never request[ed] surgery,” telling Plaintiff that Wexford would not pay
for it. Id. Instead, Doctor Brummel continued sending Plaintiff to Doctor Fix for
new contact lenses, knowing that they would not help him. (Doc. 1, pp. 10-11).
Doctor Brummel allegedly acted pursuant to the same unconstitutional policy
espoused by Wexford of denying surgery in prisoners who have “one good eye.”
(Doc. 1, pp. 9-11).
Doctor Alfonso David, the medical director at Shawnee, was also directly
involved in Plaintiff’s treatment. (Doc. 1, p. 12). Doctor David, along with Doctor
Brummel, approved the outside referral and lenses instead of surgery because of
Wexford’s policy. Id. Doctor David’s decision was motivated by costs concerns.
(Doc. 1, p. 13). He allegedly knew that contact lenses would not help. (Doc. 1,
pp. 12-13).
Plaintiff wrote letters to Ms. Lecrone, the prison nursing director, pleading
for surgery. Id. Although she responded to Plaintiff’s grievances dated February
26 and April 8, 2016, Ms. Lecrone ignored his letters.
Id. In doing so, she
allegedly “turn[ed] a blind eye” to Plaintiff’s serious medical needs. (Doc. 1, pp.
13-14).
Plaintiff also wrote several letters to Karen Smoot, the prison’s health care
administrator. (Doc. 1, pp. 14-15). Plaintiff informed her of the recommendation
for surgery a year earlier. (Doc. 1, p. 14). However, he received no response to
his correspondence.
Id.
He filed a grievance with Administrator Smoot on
December 19, 2016, and she denied it without conducting an investigation. (Doc.
1, p. 15).
She simply “agreed with Wexford.”
Id.
Like Ms. Lecrone,
Administrator Smoot also turned a blind eye to Plaintiff’s serious medical needs.
(Doc. 1, pp. 15-16).
Plaintiff notified Jeffery Dennison, the prison warden, about the denial of
proper medical care for his degenerative eye disease. (Doc. 1, p. 16). Plaintiff
spoke directly to the warden and directed grievances to him. Id. However, the
warden claimed to have no authority over health care staff or treatment decisions.
Id.
Likewise, K. Seip and Sherry Benton, a grievance counselor and a member
of the Illinois Department of Corrections Administrative Review Board, took six
months to review and deny Plaintiff’s grievances and appeals. (Doc. 1, pp. 16-17).
Both individuals allegedly failed to properly investigate Plaintiff’s grievances.
(Doc. 1, p. 17). Plaintiff claims that these individuals simply delayed responses
and then denied the grievances, each time taking the side of Wexford. Id. In
doing so, they allegedly approved, condoned, or turned a blind eye to Plaintiff’s
serious medical needs. Id.
Plaintiff blames the defendants for his vision loss and his prolonged pain
and suffering.
(Doc. 1, pp. 7-19).
As a result of their alleged deliberate
indifference, he suffered from “tremendous amounts of pain, light sensitivity,
[and] blindness in his right eye” for more than two years. (Doc. 1, p. 7). He also
suffered emotionally, experiencing “great anxiety, depression, and fear of
permanently losing his sight.” (Doc. 1, pp. 7-8). He became so depressed that
Plaintiff was prescribed three different psychotropic medications, i.e., Effexor,
Haldol, and Cogentin. (Doc. 1, p. 10).
He seeks monetary relief against each defendant for violating his right to
receive adequate medical care under the Eighth Amendment. (Doc. 1, p. 19). In
addition, Plaintiff seeks a preliminary injunction, in the form of an order
requiring the defendants to approve the corneal transplant surgery to repair his
untreated keratoconus consistent with Doctor Umana’s recommendation on
March 17, 2016. Id.
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 claims in Plaintiff’s pro se
Complaint (Doc. 1) into the following counts:
-
Eighth Amendment deliberate indifference to medical needs
claim against Doctor Els for denying Plaintiff adequate medical
treatment for his right eye cataract and glaucoma in January
2015.
-
Eighth Amendment deliberate indifference to medical needs
claim against Doctors Brummel and David for ignoring
Doctors Umana and Fix’s recommendation for a corneal
transplant and for instead referring Plaintiff for contact lenses
beginning in March 2016.
-
Eighth Amendment deliberate indifference to medical needs
claim against the grievance officials (LeCrone, Smoot,
Dennison, Benton, and Seip) for turning a blind eye to
Plaintiff’s letters and grievances seeking treatment of his
cataract, glaucoma, and keratoconus.
-
Eighth Amendment deliberate indifference to medical needs
claim against Wexford for instituting a policy that prohibits any
prisoner with “one good eye” from obtaining necessary eye
surgery, resulting in the denial of adequate medical care to
Plaintiff.
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.
These
designations do not constitute an opinion regarding the merits of each claim.
The Eighth Amendment
to
the
United
States
Constitution
protects
prisoners from cruel and unusual punishment. See Berry v. Peterman, 604 F.3d
435 (7th Cir. 2010). Deliberate indifference to serious medical needs of prisoners
constitutes cruel and unusual punishment under the Eighth Amendment. U.S.
CONST., amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104 (1976); Erickson v.
Pardus, 551 U.S. 89, 94 (2006) (per curiam). A prisoner who wishes to bring a
claim against state officials under the Eighth Amendment must show that the
medical need at issue was sufficiently serious (i.e., an objective standard) and
state officials acted with deliberate indifference to the prisoner’s health or safety
(i.e., a subjective standard).
Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
The Seventh Circuit has held that a medical need is objectively “serious”
where it has either “been 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).
Vision loss associated with cataracts or glaucoma satisfies the
objective standard.
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009).
Moreover, when the failure to treat a condition could “result in further significant
injury or the unnecessary and wanton infliction of pain,” the condition is
sufficiently “serious” to support an Eighth Amendment claim.
Id.
Plaintiff’s
progressive right eye vision loss that resulted from a cataract, glaucoma, and
keratoconus is sufficiently serious to satisfy the objective component of his Eighth
Amendment claims against the defendants at this stage.
To satisfy the subjective component of this claim, the Complaint must
“demonstrate that prison officials acted with a ‘sufficiently culpable state of
mind.’” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Wilson v.
Seiter, 501 U.S. 294, 297 (1991)). This state of mind is deliberate indifference,
which is established when prison officials “know of and disregard an excessive
risk to inmate health” by being “‘aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists’” and “‘draw[ing] the
inference.’” Greeno, 414 F.3d at 653 (quoting Farmer, 511 U.S. at 834). The
Eighth Amendment does not entitle prisoners 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).
Inadvertent error, negligence, gross negligence, and even ordinary malpractice do
not give rise to an Eighth Amendment claim against a defendant. Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008); accord Berry, 604 F.3d at 440
(“Deliberate indifference is intentional or reckless conduct, not mere negligence.”);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (“[N]egligence, even gross
negligence, does not violate the Constitution.”).
The allegations suggest that Doctors Els, Brummel, and David were directly
involved in decisions regarding Plaintiff’s medical treatment. Each doctor was
aware of Plaintiff’s diagnosis with a cataract, glaucoma, and keratoconus in his
right eye but ignored the recommendations of specialists for surgery.
The
Seventh Circuit has held that “a difference of opinion among physicians on how
an inmate should be treated cannot support a finding of deliberate indifference.”
Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir. 2006).
However, a medical
opinion or recommendation that is “so far afield of accepted professional
standards as to raise the inference that it was not actually based on medical
judgment” will support a deliberate indifference claim against a medical
professional. Id. at 397. The allegations suggest that the opinions of Doctors Els,
Brummel, and David fell into the latter category.
Accordingly, Count 1 shall
proceed against Doctor Els, and Count 2 shall proceed against Doctors Brummel
and David.
The allegations also suggest that that the grievance officials, including
LeCrone, Smoot, Dennison, Benton, and Seip, were alerted to Plaintiff’s
progressive vision loss in written correspondence and grievances they received
from him. Plaintiff notified each of them that surgery was recommended as the
only effective form of treatment. However, each grievance official turned a blind
eye to Plaintiff’s serious medical needs. An inmate’s correspondence to grievance
officials may establish a basis for personal liability under § 1983, if the
correspondence “provides sufficient knowledge of a constitutional deprivation.”
Perez v. Fenoglio, 792 F.3d 776, 781 (7th Cir. 2015) (citing Vance v. Peters, 97
F.3d 987, 992-93 (7th Cir. 1996)). Once an official is “alerted to an excessive risk
to inmate safety or health through a prisoner’s correspondence,” the decision to
disregard the risk or deny access to medical care may amount to deliberate
indifference. Id. This includes instances in which a plaintiff’s grievances fall on
“deaf ears.” Id. (citing Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997)). In
light of Perez, the Court cannot dismiss the Eighth Amendment claim in Count 3
against LeCrone, Smoot, Dennison, Benton, and Seip.
Finally, the allegations suggest that proper medical treatment was denied
because of Wexford’s “one good eye” policy, which prohibits surgery in any inmate
who has sight in one eye. A private corporation like Wexford will usually only be
held liable under § 1983 for an unconstitutional policy or custom that results in a
constitutional deprivation.
Perez, 792 F.3d at 780 (citing Woodward v. Corr.
Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2014)). See also Iskander v.
Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982). Plaintiff characterizes
Wexford’s “one good eye” policy as the “cause” and the “driving force” behind the
deprivation of his Eighth Amendment rights in this case. Accordingly, Count 4
shall proceed against Wexford at this time.
1.
i n forma pauperis
Plaintiff’s IFP Motion shall be addressed in a separate court order.
2.
3.
Plaintiff’s Motion for Recruitment of Counsel shall be REFERRED to a
United States Magistrate Judge for a decision.
Plaintiff’s Motion for Preliminary Injunction shall also be REFERRED to a
United States Magistrate Judge for further consideration.
IT IS HEREBY ORDERED that COUNT 1 is subject to further review
against Defendant DENNIS ELS; COUNT 2 is subject to further review against
Defendants ALLAN J. BRUMMEL and ALFONSO DAVID; COUNT 3 is subject to
further review against Defendants MS. LECRONE, KAREN SMOOT, JEFFERY
DENNISON, K. SEIP, and SHERRY BENTON; and COUNT 4 is subject to
further review against Defendant WEXFORD HEALTH SOURCES, INC. These
claims are DISMISSED with prejudice against those defendants who are not
named in connection with said claims.
As to COUNTS 1, 2, 3, and 4, the Clerk of Court shall prepare for
Defendants DENNIS ELS, ALLAN J. BRUMMEL, ALFONSO DAVID, MS.
LECRONE, KAREN SMOOT, K. SEIP, JEFFERY DENNISON, SHERRY
BENTON, and WEXFORD HEALTH SOURCES, INC.: (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 (Doc. 1), 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.
With respect to a Defendant who no longer can be found at the work
address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant’s current work address, or, if not known, the Defendant’s last-known
address. This information shall be used only for sending the forms as directed
above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the
court file or disclosed by the Clerk.
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 a United
for further pre-trial proceedings, including a decision on
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) and consideration of his
Motion for Preliminary Injunction (Doc. 4).
Further, this entire matter shall be REFERRED to a United States
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 is
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of Court and each opposing party informed of any change in his
address; the Court will not independently investigate his whereabouts. This shall
be done in writing and not later than 7
address occurs.
after a transfer or other change in
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.
Signed this 19th day of April, 2017.
Digitally signed by Judge David
R. Herndon
Date: 2017.04.19 11:20:58 -05'00'
UNITED STATES DISTRICT JUDGE
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