Durr v. Larson et al
Filing
17
ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 10/20/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD DURR,
#M-38216,
Plaintiff,
vs.
DENNIS LARSON,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. 17−cv–00554−SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
This case is now before the Court for consideration of the Amended Complaint filed by
Plaintiff Reginald Durr on September 8, 2017. (Doc. 15). Plaintiff is currently incarcerated at
Big Muddy River Correctional Center (“Big Muddy”). He brings this civil rights action pro se
pursuant to 42 U.S.C. § 1983. (Doc. 1). In the Amended Complaint, Plaintiff claims that Dennis
Larson, a physician at Big Muddy, failed to properly diagnose and treat his chronic neck pain.
(Doc. 15, p. 5). Plaintiff further claims that as a result, he suffered from years of unnecessary
pain and eventual paralysis of his left arm and hand. Id. He now seeks monetary relief. (Doc.
15, p. 6).
The Amended Complaint is subject to preliminary review under 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
(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 Amended Complaint survives screening under this
standard.
Amended Complaint
According to the Amended Complaint, Plaintiff met with Doctor Larson to discuss
chronic neck pain several times during his incarceration at Big Muddy. (Doc. 15, p. 5). Plaintiff
describes years of pain, particularly when rotating his neck. Id. Doctor Larson told Plaintiff that
his x-rays showed “no issues.” (Doc. 15, pp. 4-5). Plaintiff thought his neck pain was simply
part of the aging process. (Doc. 15, p. 4). He used a hot towel to relieve the pain, but it made no
difference. (Doc. 15, p. 5).
In 2015, Plaintiff asked Doctor Larson to “try something new.” (Doc. 15, p. 5). Instead
of x-rays, Plaintiff requested an MRI. Id. The doctor ordered the test, and it revealed “severe
issues with [Plaintiff’s] cervical spine.” Id. This was not something that x-rays would detect.
Id.
2
Plaintiff was required to undergo surgery. (Doc. 15, p. 5). The surgeon told Plaintiff that
years of pain would have been avoided if Doctor Larson had timely diagnosed and treated the
condition. Id. In addition, Plaintiff would have avoided paralysis of his left arm and hand. Id.
Plaintiff now seeks monetary relief against Doctor Larson. (Doc. 15, p. 6).
Discussion
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 claim in Plaintiff’s pro se Amended Complaint (Doc. 1) into
the following count:
Count 1 -
Eighth Amendment deliberate indifference to medical needs claim against
Doctor Larson for failing to properly diagnose and timely treat Plaintiff’s
severe cervical spine damage.
The parties and the Court will continue to use this designation in all future pleadings and orders,
unless otherwise directed by a judicial officer of this Court.
Plaintiff’s claim is governed by the Eighth Amendment, which proscribes the cruel and
unusual punishment of prisoners. U.S. CONST., amend. VIII. Deliberate indifference to the
serious medical needs of prisoners constitutes cruel and unusual punishment. Berry v. Peterman,
604 F.3d 435 (7th Cir. 2010); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Erickson v. Pardus,
551 U.S. 89, 94 (2006) (per curiam). An Eighth Amendment claim based on the denial of
medical care requires the plaintiff to demonstrate that he suffered from a sufficiently serious
medical condition (i.e., an objective standard) and that the defendant exhibited deliberate
indifference to the plaintiff’s condition (i.e., a subjective standard). Id.
The Amended Complaint satisfies the objective component of this claim. A medical need
is considered objectively serious, if it has either “been diagnosed by a physician as mandating
3
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).
Plaintiff suffered from chronic neck pain as a result of an undiagnosed cervical spine condition
that ultimately necessitated surgery. (Doc. 15, pp. 4-5). The condition also caused him to suffer
from paralysis of his left arm and hand. Id.
The Amended Complaint also suggests that Doctor Larson exhibited deliberate
indifference to Plaintiff’s serious medical needs.
A prison official acts with deliberate
indifference when he “know[s] of and disregard[s] an excessive risk to inmate health.” Greeno
v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A delay in performing necessary surgery may rise
to the level of deliberate indifference, particularly where the delay causes unnecessary pain or
exacerbates an injury. Perez v. Fenoglio, 792 F.3d 768, 778 (7th Cir. 2015) (10-month delay in
performing surgery, despite complaints of pain, swelling, and loss of hand function, supported
deliberate indifference claim). For these reasons Plaintiff’s Eighth Amendment claim in Count 1
against Doctor Larson survives screening and shall receive further review.
Pending Motions
Plaintiff filed two Motions for Attorney Representation (Docs. 10, 14), both of which
shall be REFERRED to a United States Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is subject to further review against
Defendant DENNIS LARSON.
IT IS ORDERED that as to COUNT 1, Plaintiff has neither sought nor been granted
leave to proceed in forma pauperis in this action, and the Court will not automatically appoint
the United States Marshal to effect service of process upon Defendant LARSON. However, if
4
Plaintiff desires to request the appointment of the United States Marshal to serve process on
these defendants, Plaintiff shall file a Motion for Service of Process at Government Expense,
within 35 days of the date of entry of this order (on or before November 27, 2017). The Clerk of
Court is DIRECTED to mail to Plaintiff the Court’s Pro Se Litigant Guide, containing forms
and instructions for filing said motion.
If Plaintiff does not timely file a Motion for Service of Process at Government Expense,
it shall be Plaintiff’s responsibility to have Defendant LARSON served with a summons and
copy of the Amended Complaint pursuant to Federal Rule of Civil Procedure 4. Plaintiff is
advised that only a non-party may serve a summons. See FED. R. CIV. P. 4(c)(2).
If Plaintiff requests the appointment of the United States Marshal, the Clerk of Court
shall prepare a summons and copies of the Amended Complaint (Doc. 15) and this Memorandum
and Order for the defendant and shall forward the same to the United States Marshal for service.
If Plaintiff does not file a Motion for Service of Process at Government Expense within 35 days
as ordered, the Clerk shall then prepare a summons for the defendant and shall forward the
summons and sufficient copies of the Amended Complaint (Doc. 15) and this Memorandum and
Order to Plaintiff so that he may have the defendant served.
IT IS FURTHER ORDERED that, with respect to a defendant who no longer can be
found at the work address provided by Plaintiff, if the United States Marshal is appointed to
serve process pursuant to a motion by Plaintiff, the employer shall furnish the United States
Marshal with the defendant’s current work address, or, if not known, the defendant’s last-known
address. This information shall be used only for effecting service of process. Any documentation
of the address shall be retained only by the Marshal. Address information shall not be maintained
in the court file or disclosed by the Marshal.
5
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Amended 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 Reona J. Daly for further pre-trial proceedings, including a decision on Plaintiff’s
Motions for Attorney Representation (Docs. 10, 14).
Further, this entire matter is REFERRED to United States Magistrate Judge Daly 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.
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: October 20, 2017
s/ STACI M. YANDLE
District Judge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?