Wallace v. Sheriff et al

Filing 10

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. COUNT 2 is DISMISSED without prejudice for failure to state a claim upon whichrelief may be granted. Defendant SHERIFF (Wayne County, 2014-July 6, 2015) isDISMISSED from t his action without prejudice. As to COUNT 1, the Clerk of Court shall prepare for Defendant FULK/FAULK: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Service shall not be ma de on the Unknown Defendant Nurse (Wife of C/O Mike) until such time as Plaintiff has identified her by name in a properly filed motion for substitution of parties. Plaintiff is ADVISED that it is his responsibility to provide the Court with the name and service address for this individual. Signed by Judge J. Phil Gilbert on 7/7/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES WALLACE, # S-16839,
Plaintiff,
vs.
SHERIFF (Wayne County),
NURSE (Wife of C/O Mike),
and BRET FULK (FAULK),1
Defendants.

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Case No. 17-cv-550-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Taylorville Correctional Center (“Taylorville”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he
was detained at the Wayne County Jail (“the Jail”). Plaintiff claims that Defendants were
deliberately indifferent to a serious medical condition. 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.
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
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Plaintiff spells this Defendant’s surname as “Fulk” in the case caption and list of Defendants (Doc. 1,
pp. 1-2), but as “Faulk” in the body of the Complaint. (Doc. 1, p. 5). This inconsistency will be corrected
once the correct spelling is known.

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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
Plaintiff asserts that between July 16, 2014, and July 7, 2015, he was denied “all of [his]
medication for pain etc.”

(Doc. 1, p. 5).

C/O Brett Faulk (Fulk) took Plaintiff off the

medications “cold turkey,” which caused Plaintiff to be sick for 28 days from withdrawal. Id.
Plaintiff’s medications included Fentanyl patches and blood pressure medicine. He states that he
suffers from scoliosis and spinal stenosis in his back and neck, which caused him ongoing pain

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for the year he spent in county jail. Faulk/Fulk refused to give Plaintiff a Fentanyl patch,
although he had one available. Faulk/Fulk also refused to give Plaintiff Tylenol at least 6 times.
According to the Complaint, Plaintiff told the C/O’s and the Defendant Nurse about his
medical problems, and sent in a grievance, but his concerns were ignored. (Doc. 1, p. 3).
Someone responded to the grievance by noting that Plaintiff could buy Tylenol or Ibuprofen for
pain relief. Id.
During the winter, Plaintiff’s blood pressure was very high, and he asked for a doctor’s
help. This request was refused for “almost a month.” (Doc. 1, p. 5). Jail staff did check
Plaintiff’s blood pressure when he asked them to. At some point Plaintiff’s blood pressure was
198/158. “Kurt” (who is not a named Defendant, nor is he otherwise identified) was aware of
the reading but did not do anything about it. Plaintiff asked Kurt to tell the Sheriff. Plaintiff was
taken to the Wayne County Hospital, where he received blood pressure medications. However,
none of his other ailments were checked. Id.
In addition to the medical issues recited above, Plaintiff states that in July and August,
“The Bailif[f]” (who is not a Defendant) told people about his case involving his minor daughter.
(Doc. 1, p. 5). Faulk/Fulk told other inmates that Plaintiff was guilty of the charges, which
caused Plaintiff to be harassed and threatened. Id. He gives no further detail. When Plaintiff
confronted Faulk/Fulk, he called Plaintiff a “sick person” for what he had done.
As relief, Plaintiff seeks compensation for his pain, suffering, and major depression
caused by his pain. He also wants the Wayne County Sheriff’s Department to improve their
grievance system and health care system. (Doc. 1, p. 6).
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

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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
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: Fourteenth Amendment claim against all Defendants, for refusing to
provide Plaintiff with necessary medications for his pain and high blood pressure,
and delaying medical care for Plaintiff’s high blood pressure;
Count 2: Claim against Faulk/Fulk for disclosing the nature of Plaintiff’s
pending criminal charges to other inmates, which caused Plaintiff to be harassed
and threatened.
Count 1 shall proceed for further consideration against some of the Defendants. Count 2
shall be dismissed without prejudice for failure to state a claim upon which relief may be
granted.
As to the relief sought by Plaintiff, he shall take note that his request for injunctive relief
as to the Jail’s grievance procedure and health care system has become moot since he is no
longer incarcerated at the Jail. “[W]hen a prisoner who seeks injunctive relief for a condition
specific to a particular prison is transferred out of that prison, the need for relief, and hence the
prisoner’s claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). See also
Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995). Only if Plaintiff can show a realistic
possibility that he would again be incarcerated at the Wayne County Jail under the conditions
described in the complaint, would it be proper for the Court to consider injunctive relief. See
Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668
(7th Cir. 2009)).

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Count 1 – Deliberate Indifference to Serious Medical Needs
Based on the factual summary in the Complaint, it is evident that Plaintiff was a pre-trial
detainee while he was held at the Jail. He is currently serving a sentence in the custody of the
Illinois Department of Corrections after being convicted in Wayne County.
A pre-trial detainee’s claims brought pursuant to § 1983 arise under the Fourteenth
Amendment and not the Eighth Amendment. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000). However, the Seventh Circuit has “found it convenient and entirely appropriate to apply
the same standard to claims arising under the Fourteenth Amendment (detainees) and Eighth
Amendment (convicted prisoners) ‘without differentiation.’” Board v. Farnham, 394 F.3d 469,
478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)). To
state a claim for deliberate indifference to medical care, a detainee (or a convicted prisoner) must
show that (1) he suffered from an objectively serious condition which created a substantial risk
of harm, and (2) the defendants were aware of that risk and intentionally disregarded it. Minix v.
Canarecci, 597 F.3d 824, 831 (7th Cir. 2010); Grieveson v. Anderson, 538 F.3d 763, 771-72,
777-79 (7th Cir. 2008); Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764-65 (7th Cir. 2002).
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).

However, evidence that a defendant acted negligently does not raise a claim for

deliberate indifference. Jackson, 300 F.3d at 764-65.
The Seventh Circuit considers the following to be indications of a serious medical need:
(1) where failure to treat the condition could “result in further significant injury or the
unnecessary and wanton infliction of pain”; (2) “[e]xistence of an injury that a reasonable doctor

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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 chronic pain, which may have been caused by his scoliosis and spinal stenosis,
and his high blood pressure both appear to be objectively serious conditions. At this stage, the
Complaint satisfies the first component of a deliberate indifference claim.
Furthermore, Plaintiff states that he told Faulk/Fulk and the Nurse about his symptoms of
pain and high blood pressure, and asked for his medications. It appears that at least some of the
medications had been prescribed for Plaintiff by a doctor.

Despite Plaintiff’s requests,

Faulk/Fulk refused to give Plaintiff his medicines. The Nurse also failed to respond to Plaintiff’s
requests.
The Complaint also indicates that Plaintiff had to wait for “almost a month” before
Defendants responded to his requests for medical care for his high blood pressure. (Doc. 1, p. 5).
Plaintiff was taken to the hospital at some point after his blood pressure was recorded at 198/158,
although the timing of the hospital visit is not clear. The delay in obtaining medical attention
for Plaintiff’s high blood pressure may also support a deliberate indifference claim against the
person(s) who failed to take action earlier. It appears that Plaintiff alerted Faulk/Fulk and the
Nurse to his needs, but they did not respond. The Complaint does not disclose who made the
decision to take Plaintiff to the hospital.
At this stage, Plaintiff’s allegations are sufficient to state a deliberate indifference claim
against Faulk/Fulk and the Nurse. Therefore, Count 1 may proceed for further consideration
against these two Defendants. In order for Plaintiff to proceed with his claim against the Nurse,
however, he must identify her by name.

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Plaintiff also includes the Sheriff of Wayne County (serving from 2014 until July 6,
2015) as a Defendant in the action. However, Plaintiff’s statement of claim does not include any
allegations against the Sheriff, other than Plaintiff’s statement that he asked another person
(Kurt) to tell the Sheriff about his high blood pressure reading. From this minimal information,
the Court cannot conclude that the Sheriff knew about Plaintiff’s dangerously high blood
pressure, yet failed to take steps to see that Plaintiff received medical attention. To the contrary,
Plaintiff’s narrative suggests that the Sheriff might have directed other staff to transport Plaintiff
to the hospital after the high blood pressure reading. If so, that would negate a deliberate
indifference claim, at least for that incident.
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. Plaintiff has not included any factual allegations about what the
Sheriff might have known about his medical conditions, or what the Sheriff did or failed to do
regarding Plaintiff’s need for treatment of his high blood pressure or his pain. As a result, the
Complaint does not support a deliberate indifference claim against the Sheriff, as there is no
indication that he was involved in, aware of, or condoned the failure to provide Plaintiff with his
medications, or the failure to promptly take him to a doctor regarding his blood pressure.
Furthermore, the Sheriff cannot be held liable for any unconstitutional actions of other Jail staff
merely because he was their supervisor. The doctrine of respondeat superior (supervisory
liability) is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th

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Cir. 2001).
For these reasons, the Wayne County Sheriff shall be dismissed from the action without
prejudice. Count 1 shall proceed at this time only against Faulk/Fulk and the Nurse.
Dismissal of Count 2 – Harassment/Threats
Verbal harassment typically will not rise to the level of a constitutional violation. See
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment
does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the laws”). Thus, Faulk’s/Fulk’s remarks to
Plaintiff that he was “sick” for what he had done to his child are not actionable.
Faulk/Fulk also told other inmates about the charges Plaintiff faced, and stated his belief
that Plaintiff was guilty. Without further elaboration, Plaintiff claims that this disclosure “caused
[Plaintiff] to be harassed, threatened.” (Doc. 1, p. 5).
Where a jail official provokes or incites other inmates to harm a plaintiff, and an attack
ensues, the plaintiff will have a viable constitutional claim. See Farmer v. Brennan, 511 U.S.
825, 833 (1994) (“prison officials have a duty . . . to protect prisoners from violence at the hands
of other prisoners”) (internal citations omitted). If the harassment/threat does not result in an
assault, it may still be actionable in some circumstances. See Dobbey v. Ill. Dept. of Corr., 574
F.3d 443, 445 (7th Cir. 2009) (harassment can violate the Eighth Amendment where it involves a
“credible threat to kill, or to inflict any other physical injury”). See also Irving v. Dormire, 519
F.3d 442, 445, 449-50 (8th Cir. 2008) (pattern of conduct by defendant including allowing
another inmate to attack plaintiff, offering to pay other inmates to beat him, providing a weapon
to an inmate to use against plaintiff, and labeling plaintiff a “snitch,” coupled with repeated
verbal death threats, stated a claim).

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In Plaintiff’s case, he does not claim that he was the victim of an attack as a result of
Faulk/Fulk’s statements. While he states that he was “harassed” and “threatened,” he does not
set forth any facts describing the nature of the threats or any effect the threats may have had on
him. There is simply not enough information to support a conclusion that Plaintiff faced a
credible or serious threat of bodily harm, which might implicate constitutional concerns. For this
reason, Count 2 shall be dismissed at this time without prejudice.
Identification of Unknown Defendant
Plaintiff shall be allowed to proceed with Count 1 against the Unknown Defendant Nurse
(Wife of C/O Mike). However, this defendant must be identified with particularity before
service of the Complaint can be made on her. Where a prisoner’s Complaint states specific
allegations describing conduct of individual prison/jail staff members sufficient to raise a
constitutional claim, but the names of those defendants are not known, the prisoner should have
the opportunity to engage in limited discovery to ascertain the identity of those defendants.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In this case, Brett
Fulk/Faulk, a fellow Jail employee, is capable of responding to discovery aimed at identifying
the Unknown Defendant Nurse. Guidelines for discovery will be set by the United States
Magistrate Judge. Once the name of the Unknown Defendant Nurse (Wife of C/O Mike) is
discovered, Plaintiff shall file a motion to substitute the newly identified defendant in place of
the generic designation in the case caption and throughout the Complaint.
Disposition
COUNT 2 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.

Defendant SHERIFF (Wayne County, 2014-July 6, 2015) is

DISMISSED from this action without prejudice.

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As to COUNT 1, the Clerk of Court shall prepare for Defendant FULK/FAULK: (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 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.
Service shall not be made on the Unknown Defendant Nurse (Wife of C/O Mike) until
such time as Plaintiff has identified her by name in a properly filed motion for substitution of
parties. Plaintiff is ADVISED that it is his responsibility to provide the Court with the name and
service address for this individual.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further 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 any document was served on Defendant 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.

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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 shall be REFERRED to the United States Magistrate Judge 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
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 7, 2017

s/J. Phil Gilbert
United States District Judge

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