Franklin v. Shah et al

Filing 9

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 4) which is REFERRED to United States Magistrate Judge Stephen C. Williams for a decision. Plaintiff& #039;s Motion for Service of Process at Government Expense (Doc. 3) is DENIED as moot. IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against SHAH and shall be DISMISSED without prejudice as against RAINS and with prejudice as against IDOC. IT IS FURTHER ORDERED that RAINS is DISMISSED without prejudice from this action, and IDOC is DISMISSED with prejudice from this action. IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for SHAH: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Chief Judge Michael J. Reagan on 10/27/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

PATRICK FRANKLIN,
#M-06682,

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Plaintiff,
vs.
DR. SHAH,
DAVID RAINS, and
IDOC,
Defendants.

Case No. 17−cv–960−MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Patrick Franklin, an inmate in Robinson Correctional Center (“Robinson”),
brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights. In
his Complaint, Plaintiff claims the defendants have been deliberately indifferent to his serious
medical issues in violation of the Eighth Amendment. (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 immune
from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”

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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, 102627 (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: when Plaintiff
arrived at Robinson in August 2016, he requested a bottom bunk because of weight problems.
(Doc. 1, p. 5). Plaintiff’s counselor, Ms. Carrell, gave him a bottom bunk immediately. Id. In
April 2017, Plaintiff was moved to a top bunk because the bottom bunk was needed for an
inmate in a wheelchair. Id. Plaintiff has since requested to be moved to another bottom bunk by
writing request slips to health care. Id. The request slips stated that Plaintiff is “overweight, 350
plus pounds, and [has] issues with climbing and hurting [himself].” Id. Dr. Shah responded to
the request slips stating that Plaintiff should exercise and lose weight. Id.
On April 12, 2017, Plaintiff hurt himself by falling down the ladder in the middle of the
night while he was trying to get down to go to the bathroom. Id. He went to healthcare for his
injury and saw Shah. Id. Plaintiff told Shah that he was in pain and that his elbow and arm were
making a loud popping sound. Id. Shah responded by telling Plaintiff to buy pain medication at

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the inmate commissary. Id. As of September 1, 2017, Plaintiff was “still seeking medical
attention Dr/Physc Dr.” Id. Plaintiff “feel[s] Dr. Shah should have responded to [his] needs in a
respectful manner and signed off on a bottom bunk to prevent [Plaintiff] from getting hurt.” Id.
Plaintiff also “feel[s] that Warden Rains and IDOC should have a policy in place that prevents
these problems of overweight people that have problems of climbing on the top bunk.” Id.
Plaintiff has been receiving help from other inmates to get into the top bunk at night. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to designate a
single count in this pro se action. 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 regarding its merit.
Count 1 –

Defendants showed deliberate indifference to Plaintiff’s serious medical
need for a low bunk permit and pain associated with an injury he sustained
climbing down from his top bunk, in violation of the Eighth Amendment.

As discussed in more detail below, Count 1 will be allowed to proceed past threshold.
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
The Eighth Amendment to the United States Constitution protects prisoners from cruel
and unusual punishment. See Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010). The Supreme
Court has recognized that “deliberate indifference to serious medical needs of prisoners” may
constitute cruel and unusual punishment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976);

see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, a prisoner must
show that: (1) he suffered from an objectively serious medical need; and (2) state officials acted

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with deliberate indifference to the prisoner’s medical need, which is a subjective standard.
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
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). The
pain Plaintiff alleges he is experiencing as a result of his injury, and his continued risk of falling
from the top bunk and injuring himself further, are sufficient to satisfy the objective component
of Count 1 at this early stage. However, the analysis of these claims does not end there.
The Complaint must also satisfy the subjective component. To do so, the Complaint
must suggest that the defendants exhibited deliberate indifference to Plaintiff’s serious medical
need. Deliberate indifference is established 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 v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer, 511 U.S. at 834). This
standard is satisfied with respect to Count 1 against Defendant Shah. According to the
Complaint, Shah failed to respond to Plaintiff’s request for pain medication after he was injured
and, initially, failed to arrange for Plaintiff to be assigned to a lower bunk, despite being
informed of the danger Plaintiff faced being assigned to the top bunk.
Plaintiff’s allegations against Rains and IDOC are insufficient to satisfy the subjective
component of Plaintiff’s deliberate indifference claim, however. Plaintiff generally states that

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these defendants should have a policy in place to protect overweight defendants from being
assigned to the top bunk. This allegation fails to establish that these defendants were actually
aware of a substantial risk of serious harm to Plaintiff, much less that they disregarded such a
risk. Further, with respect to IDOC, no matter what relief Plaintiff seeks against it, his claims are
barred because IDOC, as a state agency, is not a “person” that may be sued under § 1983.
Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (citing Will v. Mich. Dep't of State Police,
491 U.S. 58, 70–71 (1989)); see also 42 U.S .C. § 1983 (“Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .”).
For these reasons, Count 1 will proceed against Shah and will be dismissed without
prejudice as against Rains and with prejudice as against IDOC.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 4) which is REFERRED
to United States Magistrate Judge Stephen C. Williams 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 remaining 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.

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Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against SHAH and shall
be DISMISSED without prejudice as against RAINS and with prejudice as against IDOC.
IT IS FURTHER ORDERED that RAINS is DISMISSED without prejudice from this
action, and IDOC is DISMISSED with prejudice from this action.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
SHAH: (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 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.
Shah 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).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate

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Judge Stephen C. Williams for further pre-trial proceedings.

Further, this matter shall be

REFERRED to United States Magistrate Judge Williams 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, regardless of
whether 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: October 27, 2017
s/ Michael J. Reagan
U.S. Chief District Judge

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