Terrell v. Madison Couty Sheriff's Department et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 7/10/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NICHOLAS D. TERRELL,
Plaintiff,
vs.
MADISON COUNTY SHERIFF’S DEPT.,
DR. BLANKENSHIP,
NURSE MARTY MAJOR,
and NURSE BRANDI,
Defendants.

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Case No. 17-cv-587-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at the Madison County Jail (“the Jail”), has brought this
pro se civil rights action pursuant to 42 U.S.C. § 1983. 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
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
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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
On August 30, 2016, at the Madison County Jail, Plaintiff was seen by Dr. Blankenship
and Nurse Brandy. (Doc. 1, p. 12). Plaintiff informed them that he had been shot. His medical
records reflect that the shooting happened on August 21 or 22. (Doc. 1, p. 17). Upon examining
Plaintiff, Blankenship and Brandy said that it looked like a “graze” and not a bullet wound.
They gave Plaintiff Motrin and band-aids while they waited for his hospital records.
Plaintiff continued to have pain in his wounded leg. On September 10, 2016, Plaintiff
saw Brandy again and explained his belief that he had a bullet lodged in his thigh. Brandy again
responded that Plaintiff had not been shot, but only grazed. She ordered x-rays and continued
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him on Motrin and band-aids.
On September 12, 2016, x-rays were taken. Plaintiff could see the fragment in the
images. (Doc. 1, pp. 12-13). He requested pain medication, but was denied (he does not say by
whom). Plaintiff was told that he would be called back when the x-ray results were in.
On September 23, 2016, Plaintiff sent a request to the Captain, asking him to look into
the x-ray status as Plaintiff was still in pain. On September 27, a response came back saying that
the x-rays did not reveal a bullet, as reflected in Plaintiff’s original records. (Doc. 1, pp. 4, 13).
Plaintiff disputes this comment, however, because the original records “clearly state left thigh
retained round.” (Doc. 1, pp. 13, 19-20). Plaintiff includes an x-ray report dated August 22,
2016, as well as other medical records, stating that a bullet fragment was identified in his upper
medial left thigh. (Doc. 1, p. 15, 21). Based on this contradiction, he claims Jail officials
knowingly lied to him about the bullet wound.
Plaintiff’s exhibits include a request dated September 29, 2016, from Nurse Major for
Plaintiff’s hospital records, which states, “Please send records that bullet was or was not
removed from inmate’s left femur for [date] 8-22-16.” (Doc. 1, p. 35).
Plaintiff continued to suffer pain as time went on. On October 24, 2016, his public
defender requested Plaintiff’s medical records from the Jail. On November 3, 2016, Nurse
Major saw Plaintiff. She told him he did not have a bullet in his thigh, but put him on 300 mg
Neurontin. This medication did not help Plaintiff.
On November 10, 2016, Plaintiff was called to see Dr. Blankenship and Nurse Major
again. They continued to insist that Plaintiff had not been shot and did not have a bullet in his
leg. Plaintiff told them that he had an entry wound but no exit wound, and asked where the
bullet went. Another set of x-rays was taken on November 15, 2016. A correctional officer who
was present saw the bullet in the x-ray, as did the technician. (Doc. 1, pp. 6-7; 13). The report
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from the x-ray stated: “Bullet medial left upper thigh compatible with given history.” (Doc. 1,
pp. 13, 43).
Based on these events, Plaintiff claims that Blankenship, Major, and Brandy knowingly
lied about his bullet wound and refused to give him proper medical care. (Doc. 1, pp. 10, 13).
He seeks money damages. (Doc. 1, p. 14).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to characterize
the pro se action in a single count. The parties and the Court will use this designation in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of this count does not constitute an opinion as to its merit. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Claim against all Defendants for deliberate indifference to Plaintiff’s
medical needs arising from a gunshot wound to his left leg.
Count 1 shall proceed for further consideration against some of the Defendants.
Count 1 – Deliberate Indifference to Serious Medical Needs
Plaintiff was housed in the Madison County Jail when his claims arose, and he continues
to be confined there. This suggests that he was a detainee awaiting trial on a criminal charge;
however, the Complaint does not reveal Plaintiff’s status. Claims brought pursuant to § 1983,
when involving pre-trial detainees, arise under the Fourteenth Amendment and not the Eighth
Amendment. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000). Nonetheless, 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

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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, 76465 (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. Estelle v. Gamble, 429 U.S. 97, 106 (1976); 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
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).
In Plaintiff’s case, his painful gunshot wound was an objectively serious medical
condition. Dr. Blankenship and Nurses Brandi and Major were aware of Plaintiff’s injury, and
they provided him with some treatment and testing. The critical question here is what these
medical-provider Defendants knew about the full extent of his injury. Some scenarios would
support a claim for unconstitutional deliberate indifference. For example, if they knew that
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Plaintiff had a bullet fragment lodged in his leg, but lied about it (as he believes), and failed to
provide necessary treatment, Plaintiff has a viable civil rights claim. Likewise, if they had
reason to suspect the presence of a bullet fragment but failed to take appropriate or timely steps
to diagnose or treat the condition, Plaintiff may prevail. On the other hand, if the Jail doctor and
nurses were simply negligent in their assessment and treatment of Plaintiff’s condition, or even if
their actions constituted malpractice, there would have been no constitutional violation.
In addition to these issues, Plaintiff states that medical personnel, which may have
included these 3 Defendants, failed or refused to give him appropriate medication to relieve his
serious and ongoing pain from the bullet wound. The failure to treat pain may also support a
claim for deliberate indifference to medical needs.
At this early stage of the action, the Court cannot determine whether or not Blankenship,
Major, or Brandi violated Plaintiff’s constitutional rights. Count 1 shall therefore proceed for
further consideration against these Defendants.
However, the Madison County Sheriff’s Department shall be dismissed from the action
without prejudice. In order to obtain relief against a municipality, a plaintiff must allege that the
constitutional deprivations were the result of an official policy, custom, or practice of the
municipality. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Pourghoraishi
v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). Here, the Complaint does not suggest that
the alleged failure to properly treat Plaintiff’s gunshot wound was caused by a policy or practice
of the Madison County Sheriff’s Department or any other division of the County government.
Count 1 shall proceed only against Defendants Blankenship, Major, and Brandi.
Pending Motions
Plaintiff’s motions for recruitment of counsel (Docs. 3 and 5) shall be referred to the
United States Magistrate Judge for further consideration.
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Disposition
Defendant MADISON COUNTY SHERIFF’S DEPARTMENT is DISMISSED from
this action without prejudice.
The Clerk of Court shall prepare for Defendants BLANKENSHIP, MAJOR, and
BRANDI: (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 each Defendant’s place of
employment as identified by Plaintiff. If a 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 that Defendant, and the Court will
require that Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work 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
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every 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 the document was served on Defendants 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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Defendants are 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, which shall include a determination on the
pending motion for recruitment of counsel (Docs. 3, 5).
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 10, 2017

s/J. Phil Gilbert
United States District Judge

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