Thornton v. Lashbrook et al

Filing 3

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 7/24/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES E. THORNTON,
#Y19115,
Plaintiff,
vs.
JACQUELINE LASHBROOK,
DR. TROST,
and GAIL WALLS,
–

Defendants.
MEMORANDUM AND ORDER
HERNDON

Plaintiff Charles Thornton, an inmate who is currently incarcerated at
Menard Correctional Center (“Menard”), brings the instant civil rights action
pursuant to 42 U.S.C. § 1983. (Doc. 1). In the Complaint, Plaintiff alleges that
Nurse Walls, Doctor Trost, and Warden Lashbrook would not authorize a
prescription refill for Neurontin, which he needs to treat nerve pain associated
with an old gunshot wound. (Doc. 1, pp. 9-12). As a result, Plaintiff suffered
from debilitating pain while he waited for the refill from March 7-29, 2017. Id.
Plaintiff now seeks declaratory judgment and monetary damages against the
defendants. He also seeks “immediate” injunctive relief, in the form of an order
requiring prison officials to send him to an expert for further evaluation and
physical therapy before his prescription expires. (Doc. 1, p. 13).

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The Complaint is subject to preliminary review under 28 U.S.C. § 1915A,
which provides:
(a)
– 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)
– 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 survives screening under this standard.

According to the allegations in the Complaint, Plaintiff was shot in the
mouth prior to his incarceration. (Doc. 1, p. 9). The bullet lodged in his spine

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near his C2 and C3 vertebrae. Id. Because it was lodged next to Plaintiff’s spinal
cord, surgical removal of the bullet could result in paralysis. Id. Doctors at John
H. Stroger Hospital and Cook County Jail recommended against surgery. Id.
Plaintiff consequently suffers from “chronic and agonizing pain” that is
treated with Neurontin. 1 (Doc. 1, p. 9). On March 6, 2017, a nurse at Menard
informed Plaintiff that his prescription was set to expire the following day. Id.
Plaintiff submitted several urgent sick call slips, in which he requested a
prescription refill and warned medical staff that he would suffer from excruciating
pain without it. Id.
In response, Plaintiff was scheduled for an appointment with Doctor Trost
on March 12th, but it was cancelled before Plaintiff ever met with the doctor.
(Doc. 1, p. 9). The same day, Plaintiff filed an emergency grievance with Warden
Jacqueline Lashbrook. (Doc. 1, pp. 9-10). In it, Plaintiff explained that he was
experiencing “severe pain” that was chronic in nature and prevented him from
performing daily tasks. (Doc. 1, p. 10). He allegedly suffered from discomfort
and pricking pain in his right shoulder and arm that made it difficult to get out of
his top bunk. (Doc. 1, p. 11). At times, he could not read, write, or leave his cell.

Id. He complained that the prison’s health care unit and its director, Nurse Gail
Walls, had “done nothing to even reduce the pain.” (Doc. 1, p. 10).
He was scheduled for appointments with Doctor Trost on March 15th and
17th. (Doc. 1, p. 10). However, these appointments were also cancelled. Id.
1

Neurontin is a prescription medication used to relieve nerve pain, among other things.

See https://medlineplus.gov/druginfo/meds/a694007.html. The generic form of this drug
is referred to as Gabapentin. Id.
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Doctor Trost never inquired into the status of Plaintiff’s pain or his prescription.

Id.

He never provided Plaintiff with any treatment in response to these

complaints. Id.
On March 19th, the prescription was finally refilled.

(Doc. 1, p. 11).

However, Plaintiff did not actually receive it until ten days later on March 29th.

Id. In the meantime, he received no other form of pain reliever. Id.
Plaintiff now names Nurse Walls, Doctor Trost, and Warden Lashbrook in
connection with his claim that he was denied adequate medical care for his
condition. (Doc. 1, p. 12). He seeks declaratory judgment and monetary relief
against them. Id. Plaintiff also seeks “immediate” follow-up treatment, including
an evaluation by an expert and physical therapy before his prescription
medication expires. (Doc. 1, p. 13).

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 claims in Plaintiff’s pro se
Complaint (Doc. 1) into the following count:
-

Eighth Amendment deliberate indifference to medical needs
claim against Nurse Walls, Doctor Trost, and Warden
Lashbrook for delaying Plaintiff’s prescription refill for
Neurontin from March 7-29, 2017.

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.
designation does not constitute an opinion regarding the merits of the claim.
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The

Both claims arise under the Eighth Amendment, which prohibits the cruel
and unusual punishment of prisoners. U.S. CONST., amend. VIII. See also Perez

v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (citations omitted); Berry v.
Peterman, 604 F.3d 435 (7th Cir. 2010).

Deliberate indifference to serious

medical needs of prisoners violates the proscription against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Erickson v. Pardus,
551 U.S. 89, 94 (2006) (per curiam). A prisoner who wishes to bring an Eighth
Amendment claim for the denial of medical care must show that he suffered from
a sufficiently serious medical condition (i.e., an objective standard) and state
officials acted with deliberate indifference to his health or safety (i.e., a subjective
standard). Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner,
241 F.3d 842, 845 (7th Cir. 2001).
A medical condition is considered objectively serious if it has been
diagnosed by a physician as requiring treatment or would be obvious to a
layperson. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (citing Knight v.

Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)).

Plaintiff’s bullet wound and

associated nerve pain have been diagnosed by multiple doctors. See Thornton v.

Baker, 2016 WL 4450870 (N.D. Ill. 2016) (Plaintiff’s condition deemed sufficiently
serious to support an Eighth Amendment claim where his preexisting bullet
wound and associated pain were exacerbated when he slipped and fell). See also

Terrell v. Madison Cnty. Sheriff’s Dep’t, 2017 WL 2929461 (S.D. Ill. 2017)
(painful gunshot wound that left bullet lodged in plaintiff’s leg deemed sufficiently

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serious to support Eighth Amendment claim).

These doctors have prescribed

Plaintiff medication for residual nerve pain. Williams v. Liefer, 491 F.3d 710, 716
(7th Cir. 2007) (pain is an objectively serious medical condition). The objective
component of this claim is satisfied for screening purposes.
To satisfy the subjective component of this claim, the Complaint must
“demonstrate

that

prison

officials

acted

with

deliberate

indifference.

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Wilson v. Seiter, 501
U.S. 294, 297 (1991)). This standard is satisfied when prison officials “know of
and disregard an excessive risk to inmate health” by being “‘aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists’”
and “‘draw[ing] the inference.’” Greeno, 414 F.3d at 653 (quoting Farmer, 511
U.S. at 834). Ignoring an inmate’s complaints of pain and thereby prolonging it
satisfies the deliberate indifference standard. Smith v. Knox Cnty. Jail, 666 F.3d
1037, 1040 (7th Cir. 2012).
Plaintiff alleges that all three defendants ignored his repeated, urgent, and
even emergency requests for treatment of excruciating pain to no avail. An official
who is “alerted to an excessive risk to inmate safety or health through a prisoner’s
correspondence” may be liable for an Eighth Amendment violation if the official
possessed the authority to stop the violation but failed to exercise that authority.

Perez, 792 F.3d at 781 (citing Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.
1996)). Under the circumstances, Count 1 shall receive further review against
Nurse Walls, Doctor Trost, and Warden Lashbrook.

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Plaintiff included a request for “immediate” injunctive relief in his
Complaint.

(Doc. 1, p. 13).

He did not specifically request a temporary

restraining order (“TRO”) or a preliminary injunction. Id. He also did not invoke
Rule 65 of the Federal Rules of Civil Procedure, which governs both. Id.
The Court is left to figure out which type of relief he seeks.

Plaintiff

expresses concern about another lapse in medication, but makes it clear that he
is currently taking Neurontin.

(Doc. 1, pp. 9-13).

He also requests further

medical evaluation and treatment, without addressing any prior need or
recommendation for it.

Id.

Plaintiff does not include any factual allegations

suggesting that he faces an emergency or requires relief now. Id.
The Court therefore construes the request for relief as a Motion for
Preliminary Injunction made pursuant to Rule 65(a).

The motion shall be

separately docketed and referred to a United States Magistrate Judge for
handling. If Plaintiff believes that more urgent relief is necessary, he may file a
separate motion for a TRO pursuant to Rule 65(b) at any time while the action is
pending. In it, he must set forth the exact relief he seeks, the reasons for seeking
the relief, and the factual allegations supporting his request.

Plaintiff filed the instant action without paying a $400.00 filing fee or filing a
Motion for Leave to Proceed in forma pauperis (“IFP Motion”).

He remains

obligated to do so. Failure to pay the entire $400.00 filing fee or file a properly

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completed IFP Motion within thirty days (on or before August 23, 2017) shall
result in dismissal of this action for failure to comply with an Order of this Court.

See FED. R. CIV. P. 41(b).

The Clerk is DIRECTED to ADD a Motion for Preliminary Injunction to the
docket sheet in CM/ECF.
IT IS HEREBY ORDERED that COUNT 1 is subject to further review
against Defendants NURSE GAIL WALLS, DOCTOR TROST, and WARDEN
JACQUELINE LASHBROOK. As to COUNT 1, the Clerk of Court shall prepare
for the Defendants: (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 (Doc. 1), 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

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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.
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
for further pre-trial proceedings, including the Motion
for Preliminary Injunction.
Further, this entire matter shall be REFERRED to a United States
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, regardless of whether an application to proceed in forma pauperis is
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule

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3.1(c)(1).
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.

Digitally signed by Judge
David R. Herndon
Date: 2017.07.24
12:38:25 -05'00'
United States

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