McCaskill v. Woods et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that COUNTS 1-7 are dismissed without prejudice for failure to state a claim. As this case is being dismissed for failure to state a claim, the Court will permit Plaintiff to amend once as a matter of course . Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014 (7th Cir. 2013). 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 his claims, within 28 days of the entry of this order (on or before July 24, 2017). Signed by Judge Staci M. Yandle on 6/26/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEPHEN DOUGLAS MCCASKILL,
Plaintiff,
vs.
BLAKE WOODS,
COLE,
DEBBIE PERKINS,
CHRISTOPHER,
PIE, and
R. NANCE,
Defendants.

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Case No. 17−cv–0355−SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Stephen Douglas McCaskill, a former inmate at Shawnee Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff requests monetary relief. 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.

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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).
At this time, the Court finds it is appropriate to exercise its authority under § 1915A.
This action is subject to summary dismissal.
The Complaint
Plaintiff’s Complaint sets forth the following allegations: Plaintiff reported a blister or a
boil on his lower left leg to Officer Cole on October 6, 2015. (Doc. 1, p. 6). The blister had
green and yellow pus continuously discharging. Id. Cole sent Plaintiff to health care. Id.
Plaintiff saw Blake Woods, who examined the sore, took a culture, put a band-aid on the area
and prescribed ibuprofen and Bactrim (sulfatrim DS). Id. Plaintiff alleges that Woods told him
then that the infection was MRSA. Id. He asserts that he should not have been sent back to his
living unit, but instead, should have been admitted and placed into quarantine in the health care
unit. Id.
The next day on October 7, 2015, Plaintiff complained to Cole that the band-aid that
Woods had given Plaintiff was soaked through with pus and that bodily fluids were running

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down his leg. Id. Cole sent Plaintiff to the health care unit again, where a nurse provided him
with a dressing for the area. Id.
Plaintiff returned to the health care unit on October 16, 2015 to see Woods. (Doc. 1, p.
7). On that day, Woods allegedly told him that the wound looked like a spider bite. Id. Plaintiff
reminded Woods that he had diagnosed the issue as MRSA on October 13, 2015. Id. Woods
told Plaintiff the Bactrim wasn’t working and prescribed a 10-day course of minocycline instead.
Id. Woods also ordered showers and dressing changes. Id. Woods once again refused to admit
Plaintiff to the health care unit. Id. Plaintiff took the medication as directed for approximately 1
day, but experienced nausea, faintness and lightheadedness. Id. He alleges that Nurse Dorsey
told him to stop taking the medication when he complained about these symptoms and that he
did not take it after October 16th or 17th . (Doc. 1, p. 8).
Plaintiff reported to health care on October 17, 2015 for his shower and informed Perkins
that he had no soap to shower with because he hadn’t been to commissary in approximately a
month. (Doc. 1, p. 7). Plaintiff then asked Officer Pie for soap. Id. Pie directed him to Officer
Hamilton, who directed him back to Pie. Id. Neither Perkins, Pie nor Hamilton helped Plaintiff
get soap for his mandatory shower on October 17, 2015. Id. Nurse Dorsey and another nurse
changed Plaintiff’s dressing. (Doc. 1, p. 8).
On October 19, 2015, Plaintiff told Cole that he had another medical emergency because
his wound was hurting him and he needed an antibiotic. (Doc. 1, p. 8). Cole said he didn’t think
the doctor was at work that day, but told Plaintiff he’d check. Id. Plaintiff never heard back
from Cole. Id. Plaintiff was called to health care later that evening and told that he was
supposed to see the doctor on the 19th, but no one had issued him a call pass by mistake. Id.
Plaintiff was put on the list for October 20, 2015 to see Woods, but was not seen that day. (Doc.

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1, pp. 8-9). Plaintiff complained to Lt. Christopher, who told Plaintiff that he’d check with the
nurses and that Plaintiff should go back to the housing unit. (Doc. 1, p. 9). He was rescheduled
to see Woods on October 22, 2015 but had to be rescheduled again. Id. Plaintiff told Dorsey
that he needed medication and she gave him Bactrim, which was the first antibiotic that Plaintiff
had tried and that had not worked. Id.
Plaintiff saw Woods again on October 27, 2015. Id. He told Woods that the infection
had not healed. Id. Woods offered Plaintiff a band-aid, but Plaintiff declined. Id. Plaintiff told
Woods that he had 5 more days of the Bactrim. Id. Woods ordered 10 more days of shower and
dressing changes and scheduled a follow-up visit for 1 week. Id. Woods declared that Plaintiff’s
wound had healed on November 24, 2015 and discontinued treatment, although Plaintiff
disagreed with that assessment.
Plaintiff alleges that 3-D-27, his living unit at Shawnee, had black mold and other
growths in the showers, and that inmates were rarely given cleaning supplies. (Doc. 1, p. 6). He
also alleges that the shower in the health care unit, which he was permitted to use, was also
unsanitary because there were bandages lying around, it was heavily used by other inmates and
the ceiling vent was rusty. (Doc. 1, p. 9).
Plaintiff alleges that he informed Counselor Nance of the situation on October 26, 2015.
Id. Although Nance returned Plaintiff’s grievances, Plaintiff alleges that Nance did not conduct
a proper investigation. (Doc. 1, p. 10).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 7 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.

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Count 1 – Woods was deliberately indifferent to Plaintiff’s serious medical need,
in violation of the Eighth Amendment when he refused to quarantine Plaintiff in
the health care unit, gave Plaintiff a band-aid instead of a dressing, delayed in
changing his medication, and did not timely follow up with Plaintiff;
Count 2 – Cole was deliberately indifferent in violation of the Eighth
Amendment when he told Plaintiff he would check to see if the doctor was in on
October 19th and never followed-up with Plaintiff;
Count 3 – Perkins was deliberately indifferent to Plaintiff’s serious medical need
when she refused to help him find soap on October 17, 2015 in order to take his
medically ordered shower;
Count 4 – Pie was deliberately indifferent to Plaintiff’s serious medical need
when he refused to help Plaintiff find soap on October 17, 2015 in order to take
his medically ordered shower;
Count 5 – Christopher was deliberately indifferent to Plaintiff’s serious medical
needs in violation of the Eighth Amendment when he refused to immediately send
Plaintiff over to the health care unit;
Count 6 – R. Nance did not conduct a proper investigation into Plaintiff’s
grievances;
Count 7 – The condition of the showers at Shawnee, both in Plaintiff’s cell block
and the health care unit, violated the Eighth Amendment.
Deliberate Indifference to Serious Medical Needs
Prison officials impose cruel and unusual punishment in violation of the Eighth
Amendment when they are deliberately indifferent to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). 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. Petties v. Carter, 836 F.3d
722, 727 (7th Cir. 2016). An objectively serious condition includes an ailment that has been
“diagnosed by a physician as mandating treatment,” one that significantly affects an individual’s
daily activities, or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d
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1364, 1373 (7th Cir. 1997). The subjective element requires proof that the defendant knew of
facts from which he could infer that a substantial risk of serious harm exists, and he must
actually draw the inference. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
“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 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).

Deliberate

indifference may also be shown where medical providers persist in a course of treatment known
to be ineffective. Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005).
As an initial matter, Plaintiff repeatedly asserts that actions taken by the defendants are
“medically negligent.” However, in a § 1983 case, “medical malpractice, negligence, or even
gross negligence does not equate to deliberate indifference.” Johnson v. Doughty, 433 F.3d
1001, 1012 (7th Cir. 2006). There is no indication that Plaintiff intended to proceed on a medical
malpractice claim under state law and he did not submit the required affidavit to do so pursuant
to Illinois State law, 735 ILCS 5/2-622. The Court therefore does not construe any of Plaintiff’s
claims as arising under state law. To the extent that Plaintiff is asserting that acts of medical
negligence constitute deliberate indifference, his theory is legally frivolous.
As to Count 1, Plaintiff has alleges that Blake Woods committed several acts that he
believes show deliberate indifference. First, he has alleges that Woods failed to admit him to the
health care unit and place him into quarantine. But Woods was actively taking steps to control

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Plaintiff’s infection, including prescribing painkillers and antibiotics. While Plaintiff may have
disagreed with Wood’s medical judgment that he did not need to be quarantined, that does not
state a claim for deliberate indifference. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)
(“[M]ere disagreement with a doctor’s medical judgment [does not] amount to deliberate
indifference.”). Significantly, Plaintiff does not allege that he suffered any additional harm from
not being quarantined or that any other prisoner suffered harm.
Plaintiff also faults Woods for giving him a band-aid instead of a full dressing. He
alleges that the band-aid became saturated and had to be replaced with a dressing. Once again,
Plaintiff has not alleged that he suffered any resulting injury. The saturation and failure of the
band-aid, while certainly unpleasant and potentially a risk to others, did not harm Plaintiff. As
soon as Plaintiff complained to health care, they gave him a full dressing. At most, this is a
minor issue of negligence, not deliberate indifference.
The same is true for Plaintiff’s other allegations against Woods. Plaintiff asserts that
Woods was deliberately indifferent because he prescribed him an antibiotic that did not work and
another antibiotic that caused side effects. However, Plaintiff has provided no facts from which
the Court could conclude it plausible that Woods did either those things to either deliberately
harm Plaintiff or with knowledge of a substantial risk of harm to Plaintiff. Further, although
Plaintiff faults Woods for the gap between the time he went off the second antibiotic and the
time he was re-medicated, he does not allege that he told Woods that he was going off the
antibiotic or asked his advice about it. Thus, Plaintiff’s allegations regarding the antibiotic
prescriptions do not state a plausible claim of deliberate indifference.
Plaintiff also faults Woods for the length of time between various follow-up visits. His
allegations suggest that that anytime he was concerned about his condition, it constituted an

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“emergency.” Again, without more, Plaintiff’s allegations merely indicate a disagreement in
medical judgment.

Medical staff was aware of Plaintiff’s condition and had prescribed

treatment. Additionally, he has also not alleged that he suffered any specific harm as a result of
having his follow-up appointments delayed a few days. Plaintiff’s allegations do not suggest that
an emergency existed and a short delay in scheduling a follow-up is insufficient to assert a viable
claim of deliberate indifference.
Plaintiff’s allegations in Count 2 against Defendant Cole is likewise fail to state a claim.
Plaintiff alleges that he raised his condition with Cole, presumably Plaintiff’s unit officer, on 3
occasions. Cole’s response on the first 2 occasions was to send Plaintiff to the health care unit
immediately. The Court presumes that Plaintiff’s problem is with the third incident, in which
Cole told Plaintiff that he’d check with health care, but never got back to Plaintiff. However,
Plaintiff also states that he went to health care that evening and the next day and he has not
alleged that he suffered any specific harm as a result of this incident. As such, Plaintiff’s
allegations against Cole do not state a colorable deliberate indifference claim.
In Counts 3 and 4, Plaintiff claims that Perkins and Pie were deliberately indifferent to
his serious medical need when they refused to provide him with soap on October 17, 2015.
Plaintiff has not alleged that missing one of his prescribed showers caused him any harm. It is
also clear that neither Perkins nor Pie told Plaintiff that he could not take a shower – they
allegedly did not act to help him find soap on that day. That being the case, Plaintiff’s claim that
Pie and Perkins’ refusals to help him find soap on one occasion is insufficient to state a claim for
deliberate indifference.
Turning to Count 5, Plaintiff alleges that he told Lt. Christopher that he had an
appointment at the health care unit for which he had not received a health care pass and that

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Christopher told him that he’d ask the nurses after lunch instead of immediately sending Plaintiff
over to the health care unit. Plaintiff did not report to health care until 2 days later, at which time
he was rescheduled again. Plaintiff has not alleged that Christopher was in charge of managing
call passes, nor has he alleged that Christopher took action to keep Plaintiff from the health care
unit. Other than the infection, which health care was already undertaking to treat, he has not
alleged that he suffered a new or acute symptom and he has not alleged that he suffered any harm
attributable to the delay.

Thus, Plaintiff’s allegations that Christopher was deliberately

indifferent are legally insufficient.
Counts 6 and 7
In Count 6, Plaintiff alleges that Nance failed to adequately respond to his grievance
because he did not conduct a proper investigation into Plaintiff’s allegations. Plaintiff does not
attribute deliberate indifference to Nance. See Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015).
Rather, he asserts that Nance responded to his grievances too quickly and could not have
conducted a proper investigation.
“[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). The alleged
mishandling of grievances “by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See
also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d
605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Therefore,

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Plaintiff’s claim against Nance for failing to adequately investigate his grievance fails to state a
claim.
Finally, Plaintiff’s claim in Count 7 must also be dismissed. Plaintiff has alleged that the
showers in his housing unit had mold and that the shower that he was permitted to use in the
health care unit was busy and had rust and bandages. In order to succeed on a claim for
inhumane conditions of confinement, an inmate must establish: (1) that he was housed under
conditions that were “ ‘sufficiently serious' so that ‘a [jail] official's act or omission results in the
denial of the minimal civilized measure of life's necessities' ”, and (2) the defendant was
deliberately indifferent to that risk. See Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008);
Grieveson v. Anderson, 538 F.3d 763, 775 (7th Cir. 2008). The plaintiff must show that the
officials actually knew of the condition but refused to take reasonable steps to resolve it.
Townsend, 522 F.3d at 773; Grieveson, 538 F.3d at 775.
Plaintiff’s allegations that the shower in the health care unit was used by too many other
patients, was rusty and was used to store bandages do not suggest that Plaintiff was denied “the
minimal civilized measure of life’s necessities.” Plaintiff cannot expect a private shower in
prison. Further, he has not alleged that the bandages were used or dirty, just that they were
“around” the shower. There is no allegation that the bandages harmed or could have harmed him
in some way. Additionally, while rust is certainly not ideal, rust is not harmful to health merely
by being present in the environment, and Plaintiff has not alleged that he ingested or otherwise
came into contact with the rust. Plaintiff’s allegations that the shower in the health care unit
created a serious condition are insufficient to state a viable claim.
Plaintiff’s allegation that the shower in his living unit had mold presents a more serious
question as mold infestation may present a serious condition. See Board v. Farnham, 394 F.3d

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469, 486 (7th Cir. 2005). That said, Plaintiff has not alleged that he complained to any of the
named defendants about the mold. Plaintiff cannot hold defendants liable for failure to act if
they were never put on notice of the condition in the first place. Personal involvement is a
touchstone in any § 1983 litigation. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987);
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v. Duckworth, 644 F.2d 653,
655-56 (7th Cir. 1981). For this reason, Count 7 also fails to state a claim.
Disposition
IT IS HEREBY ORDERED that COUNTS 1-7 are dismissed without prejudice for
failure to state a claim. As this case is being dismissed for failure to state a claim, the Court will
permit Plaintiff to amend once as a matter of course. Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014 (7th Cir. 2013).
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 his claims,
within 28 days of the entry of this order (on or before July 24, 2017). 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 other pleading. Should the First
Amended Complaint not conform to these requirements, it shall be stricken. Plaintiff must also
re-file any exhibits he wishes the Court to consider along with the First Amended Complaint.
Failure to file an amended complaint shall result in the dismissal of this action with prejudice.

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Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of 28
U.S.C. § 1915(g).
Plaintiff is warned, however, 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).
No service shall be ordered on any Defendant until after the Court completes its § 1915A
review of the First Amended Complaint.
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: June 26, 2017

__s/STACI M. YANDLE______
U.S. District Judge

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