Durr v. Larson et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. This includes dismissal of the Illinois medical negligence claim and Eighth Amendment delibera te indifference to medical needs claim against Defendants David Larson and Gary Gerst. IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case on or before August 17, 2017. Should Plaintiff fail to file hi s First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). Furthe r, a strike will be assessed. See 28 U.S.C. § 1915(g). To enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. Claims found to be unrelated will be further severed into new case s, new case numbers will be assigned, and additional filing fees will be assessed. Plaintiff is ADVISED that this dismissal shall not count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). ( Amended Pleadings due by 8/17/2017.). Signed by Judge J. Phil Gilbert on 7/19/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD DURR,
#M-38216,

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Plaintiff,
vs.
DAVID LARSON
and GARY GERST,
Defendants.

Case No. 17−cv–00554−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Reginald Durr, an inmate who is currently incarcerated at Big Muddy River
Correctional Center (“Big Muddy”), brings this civil rights action pro se pursuant to 42 U.S.C.
§ 1983. (Doc. 1). This case was originally filed in the United States District Court for the
Northern District of Illinois. See Durr v. Larson, No. 17-cv-03206 (N.D. Ill. filed April 27,
2017). The Northern District transferred the case to this District on May 26, 2017. (Doc. 6).
In the Complaint, Plaintiff claims that two medical providers at Big Muddy, named
David Larson (doctor) and Gary Gerst (physician’s assistant), failed to properly diagnose and
treat his chronic neck pain. (Doc. 1, p. 4). As time passed, he also began to experience
progressive loss of use of his left arm and hand. Id. An outside specialist recommended surgery
in February 2017 but warned Plaintiff that he may not recover full use of his arm or hand. Id.
Plaintiff now sues both defendants for medical negligence. (Doc. 1, p. 5). He requests monetary
relief and “laser surgery.” (Doc. 1, p. 6).
At the time he filed this action, Plaintiff did not pay a filing fee or seek leave to proceed
in forma pauperis. When the case was transferred to this District on May 26, 2017, the Clerk of
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this Court sent Plaintiff a letter instructing him to pay the $400.00 filing fee or file a Motion for
Leave to Proceed in forma pauperis (“IFP Motion”) within thirty days. He missed this deadline,
and the Court entered a Notice of Impending Dismissal granting him an additional twenty-one
days to pay the filing fee or file an IFP Motion. (Doc. 8). Plaintiff paid his $400.00 filing fee on
June 30, 2017.
The Complaint is now 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) 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 does not survive screening under this

standard and shall be dismissed.

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Complaint
Sometime after Plaintiff arrived at Big Muddy in 2013, he met with a doctor and
physician’s assistant to discuss his neck pain. (Doc. 1, p. 4). Plaintiff was told to rotate his neck
and wrap a hot towel around it to relieve the pain. Id. In 2015, Plaintiff again complained of
neck pain and was told that x-rays showed “no issues” with his neck. Id. He asked whether an
MRI would help identify the source of the pain. Id. It is not clear whether he received a
response to this question. Id. Plaintiff attributed the pain to aging and did not file a grievance to
complain about the denial of medical care at that time. Id.
In September 2016, Plaintiff began having problems raising his left arm and holding
items in his left hand. (Doc. 1, p. 4). He underwent an MRI in December 2016. Id. The MRI
revealed “[m]arked degenerative change[s] in [Plaintiff’s] cervical spine including areas of very
severe central canal spinal stenosis and neural foraminal encroachment,” along with “[c]ervical
myelopathy . . . in [his] mid to lower cervical spine.” (Doc. 1, p. 8). In February 2017, a
specialist recommended surgery to address Plaintiff’s neck pain. (Doc. 1, p. 4). However, the
specialist warned Plaintiff that he might not regain full use of his left arm or hand. Id.
Plaintiff now claims that both defendants were negligent in their care and treatment of
him. (Doc. 1, pp. 4-5). He seeks monetary relief against them. (Doc. 1, p. 6). He also seeks
“laser surgery.”1 Id.
Discussion
Plaintiff asserts a single claim against the defendants for negligence. However, he cannot
proceed with a single claim of medical negligence under 42 U.S.C. § 1983. A defendant can
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No allegations in the Complaint suggest that laser surgery was actually recommended or that it was
deemed to be urgent. Plaintiff also did not file a motion seeking any sort of emergency injunctive relief,
such as a temporary restraining order or a preliminary injunction under Rule 65 of the Federal Rules of
Civil Procedure. If he seeks emergency relief, Plaintiff should file a separate motion pursuant to Rule 65
on or after the date he files his First Amended Complaint.
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never be held liable under § 1983 for negligence or even gross negligence.2 Gomez v. Randle,
680 F.3d 859, 864 (7th Cir. 2012).
Section 1983 instead creates a cause of action against an individual who causes or
participates in a constitutional deprivation while acting under the color of state law. Sheik-Abdi
v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864,
869 (7th Cir. 1983)); see also Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005).
Claims brought by prisoners for the denial of medical care are governed by the Eighth
Amendment, which protects prisoners from cruel and unusual punishment. U.S. CONST., amend.
VIII. Deliberate indifference to 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).
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). The Complaint suggests that Plaintiff’s medical condition was serious enough to
support an Eighth Amendment claim. (Doc. 1, pp. 4-5). Plaintiff suffered from chronic neck
pain and progressive loss of use of his left arm and hand. Id. The condition was eventually
diagnosed as requiring surgery. Id.
However, the Complaint is devoid of allegations suggesting that either defendant
responded to Plaintiff’s serious medical condition with deliberate indifference. A prison official
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With that said, Plaintiff may bring his state claims in the same action as a federal constitutional claim, if
the state claims “are so related to [the federal claims] that they form part of the same case or controversy
under Article III of the United States Constitution.” See 28 U.S.C. § 1367(a). But where a state law
claim “substantially predominates over the claim . . . over which the district court has original
jurisdiction” or where the district court dismisses all claims over which it has original jurisdiction, the
district court may decline to exercise supplement jurisdiction over the state law claim(s). See 28 U.S.C.
§ 1367(c)(2), (3).
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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). “Mere negligence or even
gross negligence does not constitute deliberate indifference.” Snipes v. DeTella, 95 F.3d 586,
590 (7th Cir. 1996). Plaintiff sues both defendants for negligence, which does not support an
Eighth Amendment claim.
Moreover, the allegations do not suggest that the defendants exhibited deliberate
indifference toward Plaintiff. The statement of claim mentions the “doctor and PA” only once.
(Doc. 1, p. 4). Plaintiff states, “During my visits to health care I told the doctor and PA about the
pain in my neck.” Id. This allegation does not suggest that either defendant exhibited deliberate
indifference toward Plaintiff.
In fact, Plaintiff does not mention Doctor Larson or P.A. Gerst by name anywhere in the
statement of his claim. Because most of the allegations are written in the passive voice (i.e.,
Plaintiff “was told”) without reference to the speaker, it is unclear who responded to Plaintiff’s
requests for medical care. Certainly, no allegations suggest that Doctor Larson or P.A. Gerst
showed reckless disregard to an excessive risk to inmate health. Greeno, 414 F.3d at 653.
Plaintiff’s Complaint does not survive preliminary review and shall be dismissed.
However, the dismissal is without prejudice, and Plaintiff shall be granted leave to re-plead the
Eighth Amendment claim and Illinois medical negligence claim against both defendants in an
amended complaint. If he chooses to do so, Plaintiff must comply with the deadline and
instructions for filing his First Amended Complaint set forth in the below disposition.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. This includes dismissal of the Illinois

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medical negligence claim and Eighth Amendment deliberate indifference to medical needs claim
against Defendants David Larson and Gary Gerst.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case on or before August 17, 2017. Should Plaintiff fail to file his
First Amended Complaint within the allotted time, dismissal of this action will become with
prejudice. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). Further, a “strike” will be assessed.
See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should be careful to label the
pleading, “First Amended Complaint,” and he must list this case number (Case No. 17-554-JPG)
on the first page. To enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
In the amended complaint, Plaintiff must, at a minimum, describe the actions taken by
each defendant that resulted in the deprivation of his federal constitutional rights. He should
attempt to include the facts of his case in chronological order, inserting each defendant’s name
where necessary to identify the actors. Plaintiff should refrain from filing unnecessary exhibits
or including any other unrelated claims in his amended complaint.

Claims found to be

unrelated will be further severed into new cases, new case numbers will be assigned, and
additional filing fees will be assessed.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).

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An amended complaint supersedes and replaces the original Complaint, rendering the
original 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 previous pleading, and
Plaintiff must re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. Finally, the First Amended Complaint is subject to review pursuant to 28 U.S.C.
§ 1915A.
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 19, 2017
s/J. Phil Gilbert
District Judge,
United States District Court

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