Owens v. Bednarz

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 10/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER OWENS,
#M38210,
Plaintiff,

Case No. 17 cv–817 DRH

vs.
MICHAEL BEDNARZ,
Defendant.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Christopher Owens, an inmate in Centralia Correctional Center,
brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his
constitutional rights. In his Complaint, Plaintiff claims Defendant Bednarz has
been deliberately indifferent to his serious mental health issues in violation of the
Fourteenth and Eighth Amendments, as well as Illinois state law. (Doc. 1). This
case is now before the Court for a preliminary review of the Complaint pursuant
to 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
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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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations:

on

March 26, 2016, Plaintiff spoke with Defendant Bednarz about his depression
and overall mental health. (Doc. 1, p. 4). That day, while speaking with Bednarz,
Plaintiff agreed to take Paxil for his depression and mental health issues.

Id.

Plaintiff began going to the medication line and taking the medication he received
shortly thereafter. Id. Over the next several weeks, Plaintiff’s “depression started
worsening due to the medication.”

Id. Plaintiff’s “mood and level of agitation

started to become extremely unpredictable because of the new medication.” Id.

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Plaintiff began to have “uncontrollable thoughts of violently lashing out and severe
thoughts of suicide, worsening depression, and hopelessness.” Id.
The week of May 13, 2016, Plaintiff sent a request slip to mental health to
speak with someone about his declining mental health and the issues he was
having as a result of his new medication. Id. At this point, Plaintiff was also
experiencing muscle stiffness and “complications in [his] thought process
including confusion.” (Doc. 1, p. 5). Plaintiff’s abdomen and chest also “felt as if
they were stuffed full of fuzz which caused this Plaintiff difficulty breathing.” Id.
Plaintiff believes these symptoms were a result of the new medication he was
taking. Id.
Plaintiff spoke with a Mental Health Professional (“MHP”) and informed him
of the issues he was experiencing as a result of the medication. Id. Plaintiff also
“informed a nurse at medline that something was wrong with [his] medication.”

Id.

On May 20, 2016, Plaintiff filed an emergency grievance with the help of

another inmate. Id. On May 21, 2016, Plaintiff spoke with Defendant Bednarz.

Id. He informed Bednarz “of the complications [he] was having with [his] thought
process.” Id. Before Plaintiff was able to fully explain his difficulties, Bednarz
told Plaintiff that “he noticed in [his] medical file that [he] was not being given the
medication that [he] had consented to take and that [he] was being given a
medication that [he] had not consented to take.” (Doc. 1, pp. 5-6). Bednarz told
Plaintiff that he was being given Prozac by mistake. (Doc. 1, p. 6).
Bednarz had written Plaintiff a prescription for Prozac on March 26, 2016

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without giving Plaintiff the information necessary for him to give informed consent
to taking it and without him having consented to take it at all. Id. Plaintiff then
explained to Bednarz that he was experiencing adverse side effects, including
worsening depression, suicidal thoughts, confusion, and difficulty breathing. Id.
Bednarz then informed Plaintiff that he was going to increase Plaintiff’s Prozac
dosage, despite Plaintiff telling him that it was causing him harm which included
suicidal thoughts. (Doc. 1, p. 7). Bednarz then increased Plaintiff’s dosage of
Prozac, even after he acknowledged that Plaintiff never consented to take it in the
first place. Id. Plaintiff discontinued taking the medication after speaking with
Bednarz. Id.
Within a day or two of quitting the medication, Plaintiff began having new
complications, including abnormal dreams, violent nightmares, and thrashing in
his sleep.

(Doc. 1, p. 8).

Plaintiff began experiencing increased anxiety and

insomnia and did not get much sleep for at least two weeks. Id. Plaintiff also
“began experiencing uncontrollable body movements, mostly [his] arms jerking
and [having spasms] but also in [his] legs.” Id. During the week of May 23, 2016,
Plaintiff requested a crisis team because of the withdrawal symptoms he was
experiencing. Id. Plaintiff was referred to Bednarz. (Doc. 1, p. 9).
Plaintiff informed Bednarz of the side effects he was experiencing.

Id.

When he was a teenager, Plaintiff took Prozac and it caused him to experience
many of the same side effects he experienced after taking it again in 2016. Id.
Plaintiff was also committed to a psych ward because of the adverse side effects of

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the Prozac he took when he was a teenager, including severe agitation, aggression,
suicidal thoughts, and more.

Id. Because of this experience, Plaintiff “would

never have consented or agreed to take Prozac.” Id. In fact, “[i]n IDOC on a
previous occasion, [Plaintiff] had informed another psychiatrist that [he] would
not consent to Prozac because of the side effects [he] had experienced in [his]
past.” (Doc. 1, pp. 9-10). It is also in Plaintiff’s mental health record that he
reported taking Prozac in the past. (Doc. 1, p. 10).
Plaintiff requests declaratory and monetary relief. (Doc. 1, pp. 12-13).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 3 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 regarding their merit.
Count 1 –

Defendant violated the Fourteenth Amendment when he failed
to provide Plaintiff with information about Prozac before
prescribing it to him in place of a different medication Plaintiff
had consented to.

Count 2 –

Defendant showed deliberate indifference to Plaintiff’s serious
medical needs involving his mental health issues and the
medication he took therefor by attempting to increase his dose
of a medication that caused him negative side effects, in
violation of the Eighth Amendment.

Count 3 –

Defendant committed medical malpractice by failing to
adequately treat Plaintiff’s mental health issues.

As discussed in more detail below, Count 1 will be allowed to proceed past

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threshold.

Counts 2 and 3 will be dismissed without prejudice.

Any other

intended claim that has not been recognized by the Court is considered dismissed
without prejudice as inadequately pleaded under the Twombly pleading standard.
Count 1 – Due Process
To support a due process claim, a plaintiff must first identify a
constitutionally cognizable liberty or property interest.

See Washington v.

Glucksberg, 521 U.S. 702, 720–22 (1997). The United States Supreme Court has
recognized that there is a general liberty interest in refusing medical treatment. 1

See Cruzan by Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278–79
(1990). See also Washington v. Harper, 494 U.S. 210, 221–22 (1990) (prisoners
possess significant liberty interest in avoiding the unwanted administration of
antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment).
Several Circuits have held that the right to refuse medical treatment necessarily
includes a right to informed consent. See Pabon v. Wright, 459 F.3d 241, 249–50
(2d Cir. 2006); White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990); Rainwater v.

Alarcon, 268 F. App’x 531, 534 (9th Cir. 2008). After all, the right to refuse
medical treatment is meaningless without sufficient knowledge about the risks
associated with the proposed course of treatment.

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The Court notes that Plaintiff has not alleged he was forced to take Prozac. In fact, according to
the Complaint, Plaintiff ultimately ceased taking Prozac on his own. Plaintiff’s claim instead seems
to rest on whether Bednarz informed Plaintiff that he was being prescribed Prozac and provided
Plaintiff with sufficient information regarding its risks prior to prescribing it and whether Plaintiff
is able to allege the other elements of an informed consent claim (as defined by other circuits).

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In Pabon v. Wright, 459 F.3d 241 (2d Cir. 2006), the Second Circuit
provided the following formulation for alleging a cause of action premised on this
right:
[T]he Fourteenth Amendment’s recognized liberty interest in an
individual’s right to refuse medical treatment carries with it a
concomitant right to such information as a reasonable patient would
deem necessary to make an informed decision regarding medical
treatment. To establish a violation of this right, a prisoner must show
that (1) government officials failed to provide him with such
information; (2) this failure caused him to undergo medical
treatment that he would have refused had he been so informed; and
(3) the officials’ failure was undertaken with deliberate indifference to
the prisoner’s right to refuse medical treatment.

Pabon, 459 F.3d at 246.
The Seventh Circuit has commented on this theory of liability on two
occasions. See Phillips v. Wexford Health Sources, Inc., 522 F. App’x 364, 367
(7th Cir. 2013) (“Phillips”); Cox v. Brubaker, 558 F. App’x 677, 678–79 (7th Cir.
2014) (“Cox”). In Phillips, the Seventh Circuit stated, in the context of an Eighth
Amendment deliberate indifference claim, that it has “adopted a general rule that
is consistent with these circuits.” Phillips, 522 F. App’x at 367. Subsequently, in

Cox, the Seventh Circuit applied the elements of a Fourteenth Amendment due
process claim for lack of informed consent–as set forth by other circuits–to affirm
a district court’s grant of summary judgment in favor of medical staff. Cox, 558 F.
App’x at 679. The Seventh Circuit declined, however, to endorse or decide the
scope of such a claim. Id. (“the case does not require us to recognize, or decide
the scope of, this due-process right”).

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Here, Plaintiff alleges Bednarz violated his right to refuse medical treatment
and/or his right to informed consent by failing to provide him with adequate
information regarding Prozac and by prescribing the medication to Plaintiff
without his knowledge, when Plaintiff thought he would be receiving another
medication. Plaintiff further alleges that he would have refused this medication
had he known it was being prescribed to him.

Considering the authority

described above, the Court finds that Count 1 survives preliminary screening.
Count 2 – Deliberate Indifference to Medical Needs
A prisoner raising a claim against a prison official for deliberate
indifference

to

the

prisoner’s

serious

medical

needs

must

satisfy

two

requirements. The first requirement compels the prisoner to satisfy an objective
standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently serious[.]’”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991)). The second requirement involves a subjective standard: “[A]
prison official must have a ‘sufficiently culpable state of mind,’” one that amounts
to “‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501
U.S. at 297). Liability under the deliberate-indifference standard requires more
than negligence, gross negligence or even recklessness; rather, it is satisfied only
by conduct that approaches intentional wrongdoing, i.e., “something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Farmer, 511 U.S. at 835.
Assuming Plaintiff has alleged an objectively serious medical need given his

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severe emotional and physical reaction to the medication he was prescribed,
including his developing suicidal thoughts, Plaintiff has failed to implicate
Bednarz for deliberate indifference to this need.

Plaintiff argues that Bednarz

should have prescribed him a different medication after he exhibited negative side
effects to the Prozac, but instead increased his dosage of the same medicine.
However, the Eighth Amendment does not give prisoners entitlement to “demand
specific care” or “the best care possible,” but only requires “reasonable measures
to meet a substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267
(7th Cir. 1997); see also Gallo v. Sood, 651 F. App’x 529, 533 (7th Cir. June 1,
2016) (claim focusing on failure to give prisoner’s favored medication over
medication prescribed by doctor “amounts to a disagreement over treatment,
which is insufficient to show deliberate indifference.”).

Bednarz initially

prescribed Prozac to Plaintiff to address his initial mental health issues. 2

He

later sought to give Plaintiff a higher dose of Prozac when the lower dose was
ineffective.

Despite Plaintiff’s belief that this would not work because of his

reaction to the medication at a lower dose, Bednarz’s actions did not constitute
deliberate indifference as mere disagreement over course of treatment is
insufficient to state such a claim. Id.
For these reasons, Count 2 against Bednarz will be dismissed without
prejudice.
Count 3 – Medical Negligence

2

The fact that Prozac was allegedly not the medication Plaintiff consented to is addressed
in Count 1.

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Count 3 asserts a state law claim for medical negligence, based on the same
conduct detailed above. Where a district court has original jurisdiction over a civil
action such as a § 1983 claim, it also has supplemental jurisdiction over related
state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims
“derive from a common nucleus of operative fact” with the original federal claims.

Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose
factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480,
495 (7th Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294,
1299 (7th Cir. 1995)). While this Court has supplemental jurisdiction over this
state-law claim pursuant to 28 U.S.C. § 1367, that is not the end of the matter.
Under Illinois law, a Plaintiff “[i]n any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or death by reason of
medical, hospital, or other healing art malpractice,” must file an affidavit along
with the complaint, declaring one of the following: 1) that the affiant has consulted
and reviewed the facts of the case with a qualified health professional who has
reviewed the claim and made a written report that the claim is reasonable and
meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the
statute of limitations, and affiant has not previously voluntarily dismissed an
action based on the same claim (and in this case, the required written report shall
be filed within 90 days after the filing of the complaint); or 3) that the plaintiff has
made a request for records but the respondent has not complied within 60 days

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of receipt of the request (and in this case the written report shall be filed within
90 days of receipt of the records). See 735 Ill. Comp. Stat. §5/2-622(a) (West
2017). 1
Failure to file the required certificate is grounds for dismissal of the claim.

See 735 Ill. Comp. Stat. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th
Cir. 2000). Whether such dismissal should be with or without prejudice, however,
is up to the sound discretion of the court. Sherrod, 223 F.3d at 614. “Illinois
courts have held that when a plaintiff fails to attach a certificate and report, then
‘a sound exercise of discretion mandates that [the plaintiff] be at least afforded an
opportunity to amend her complaint to comply with section 2-622 before her
action is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, Case No.
06-cv-651-MJR, 2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In this case, Plaintiff has failed to file the necessary affidavits or reports.
Therefore, the claim in Count 3 shall be dismissed.

The dismissal shall be

without prejudice at this time, however, and Plaintiff shall be allowed 35 days to
file the required affidavit(s), if he desires to seek reinstatement of this claim. The
certificate(s) of merit must also be filed, in accordance with the applicable section
of

§5/2-622(a).

Should

Plaintiff

fail

to

timely

file

the

required

The August 25, 2005 amendments to a prior version of this statute were held to be
unconstitutional in 2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding
P.A. 94-677 to be unconstitutional in its entirety). After Lebron, the previous version of the statute
continued in effect. See Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois
legislature re-enacted and amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A.
97-1145), to remove any question as to the validity of this section. See notes on Validity of 735 ILL.
COMP. STAT. §5/2-622 (West 2013).
1

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affidavits/certificates, the dismissal of Count 3 may become a dismissal with
prejudice. See FED. R. CIV. P. 41(b).
Pending Motions
Plaintiff has filed a Motion to Appoint Counsel (Doc. 4) which is
REFERRED to a United States Magistrate for a decision.
Plaintiff's Motion for Service of Process at Government Expense (Doc. 3) is
DENIED as moot. Waivers of service of summons will be issued and served on
the defendant as ordered below. Plaintiff is advised that it is not necessary for a
litigant proceeding in forma pauperis to file a motion requesting service of process
by the United States Marshal Service or other process server.

The Clerk will

issue summons and the Court will direct service for any complaint that passes
preliminary review.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against
BEDNARZ.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without
prejudice for failure to state a claim on which relief may be granted.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED without
prejudice. If Plaintiff wishes to move the Court to reinstate the medical negligence
claim in COUNT 3 against Defendant BEDNARZ, Plaintiff shall file the required
affidavit pursuant to 735 Ill. Comp. Stat. §5/2-622, within 35 days of the date of
this order. Further, Plaintiff shall timely file the required written report/certificate
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of merit from a qualified health professional, in compliance with §5/2-622.
Should Plaintiff fail to timely file the required affidavits or reports, the dismissal
of COUNT 3 may become a dismissal with prejudice.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall
prepare for BEDNARZ: (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 the defendant’s place of employment as identified by
Plaintiff. If the 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 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.
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).

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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 a 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 Section 1915, Plaintiff will be required to pay the full
amount of the costs, despite the fact 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.

Digitally signed by
Judge David R. Herndon
Date: 2017.10.24
12:28:40 -05'00'
United States District Judge

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