Willis v. Newbold

Filing 7

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. IT IS HEREBY ORDERED that Count 1 survives against Steven Newbold.The Clerk of Court shall prepare for Defendant Newbold: (1) Form 5 (Notice of aLawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 7/25/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WAYNE WILLIS,
Plaintiff,
vs.
STEVEN NEWBOLD
Defendant.

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Case No. 17−cv–0536−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Wayne Willis, an inmate in Menard Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.

Plaintiff requests

compensatory and punitive damages, as well as fees. 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
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-

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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
On or around March 2016, Plaintiff began experiencing a severe toothache with swelling,
drainage, and extreme pain. (Doc. 1, p. 8). Plaintiff estimates that the pain was a “10” on a scale
of 1-10. Id. Additionally, it was difficult for Plaintiff to eat certain foods or sleep. Id.
Plaintiff began sending Newbold kites regarding his condition in March 2016, as well as
submitting sick call slips. (Doc. 1, p. 7). He never received answers to either. Id. On May 13,
2016, Plaintiff went to health care to see the eye doctor. (Doc. 1, p. 8). He was able to speak to
Newbold, the prison dentist, at that time. Id. Plaintiff explained his symptoms to Newbold. Id.
Newbold acknowledged receiving Plaintiffs kites and told Plaintiff he would be seen. (Doc. 1, p.
9). Plaintiff asked Newbold when he would be seen, but Newbold didn’t know. Id. Plaintiff
asked Newbold for something to treat his pain and infection in the interim, but Newbold said he
couldn’t give Plaintiff anything without examining him. Id. Newbold also told Plaintiff that the
dental department is a few hundred people behind. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 1 count. The parties and the Court will use this designation in all future pleadings

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and orders, unless otherwise directed by a judicial officer of this Court. The following claim
survives threshold review:
Count 1 – Newbold was deliberately indifferent to Plaintiff’s toothache in
violation of the Eighth Amendment when he refused to schedule a prompt
appointment or provide Plaintiff with pain medication or other over-the-counter
treatment without an appointment;
As to Plaintiff’s Count 1, 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 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 Eight 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).
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Deliberate

indifference may also be shown where medical providers persist in a course of treatment known
to be ineffective. Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010); Greeno v. Daley,
414 F.3d 645, 655 (7th Cir. 2005).
Here Plaintiff has alleged that he suffered from a severe toothache that caused him pain at
a level “10” on a scale of 1-10. He has further alleged that his pain was so severe as to interfere
with his daily activities of eating and sleeping. On these facts, Plaintiff has adequately alleged
that he suffers from a serious medical need. Furthermore, Plaintiff’s Complaint states that
Newbold conceded that he received Plaintiff’s numerous kites and request slips but chose to do
nothing to treat Plaintiff’s toothache because of the back-log of dental cases. This is a plausible
allegation of deliberate indifference, and this case shall proceed against Newbold.
However, Plaintiff has named Newbold in his official and individual capacities.
Newbold is not a “person” in his official capacity under § 1983 for the purposes of this suit. The
only time it is appropriate to name a defendant in his or her official capacity is when a plaintiff
seeks injunctive relief. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). In that case,
a plaintiff need not allege any specific involvement and it is irrelevant whether the party
participated in the alleged violations. Id. (citing Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir.
1995); Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985)). Here, Plaintiff has not
requested any injunctive relief, therefore this suit will proceed against Newbold only in his
individual capacity.
Disposition
IT IS HEREBY ORDERED that Count 1 survives against Steven Newbold.
The Clerk of Court shall prepare for Defendant Newbold: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of

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Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this
Memorandum and Order to Defendant’s place of employment as identified by Plaintiff. If
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 Defendant, and the Court will require Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
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).
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

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investigate his whereabouts. This shall be done in writing and not later than 7 days after a
transfer or other change in address occurs. Failure to comply with this order will cause a delay
in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 25, 2017
s/J. Phil Gilbert
U.S. District Judge

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