Kane v. Santos et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 10/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ADAM R. KANE, #R-09804,
Plaintiff,
vs.
DOCTOR SANTOS,
MEDICAL DIRECTOR,
NURSE PICKETT, and
NURSE SCHUMUKOR,
Defendants.

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Case No. 17 cv–01054 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Adam Kane, an inmate who is currently incarcerated at East Moline Correctional
Center, brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights at Centralia Correctional Center (“Centralia”). (Doc. 1). Plaintiff claims that he was denied
adequate medical care for a growth on his right arm in 2015. (Doc. 1, pp. 3-7). He now brings
this action against Centralia’s Medical Director, Doctor Santos, Nurse Pickett, and Nurse
Schumukor for violating his rights under the Eighth and Fourteenth Amendments. (Doc. 1, pp. 12). Plaintiff seeks monetary damages and injunctive relief. (Doc. 1, p. 8).
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

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(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 review under this standard.
The Complaint
During his incarceration at Centralia, Plaintiff developed a large, painful growth on his
right arm. (Doc. 1, p. 3). Lieutenant Rose1 sent him to the prison’s health care unit (“HCU”) for
treatment on October 4, 2015. Id. After examining the growth, a nurse told Plaintiff that he
would be “alright” and sent him back to his cell with a Band-Aid. Id.
Plaintiff returned to the HCU three days later. (Doc. 1, p. 3). By this time, the growth on
his arm was swollen and painful. Id. It was also oozing “noxious-smelling odorous fluids.” Id.
Plaintiff was sent back to his housing unit without any treatment. Id.
The same day, he returned to the HCU demanding to be seen. (Doc. 1, p. 3). Plaintiff
complained of pain and swelling, and he requested a diagnosis and treatment. Id. When the HCU

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The statement of claim refers to Lieutenant Rose and several nurses. These individuals are not named as
defendants in the case caption. Any claims against them are considered dismissed without prejudice from
this action. See FED. R. CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”);
Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (holding that to be properly considered a
party, a defendant must be “specif[ied] in the caption”).

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nurse first saw him, she exclaimed, “[H]oly cow, how long have you had that?” Id. The nurse
told Plaintiff that he was “not going anywhere” and admitted him to the HCU. Id.
The following day, Nurse Pickett met with Plaintiff to “purportedly swab the area for a
biopsy.” (Doc. 1, p. 4). At the time, the growth was still leaking fluids. Id. Doctor Santos entered
the room and instructed Plaintiff to follow him into “surgery.” Id. He appeared to have a scalpel
and scissors in his possession. Id. Without prepping the area for surgery or applying a numbing
agent, the doctor began cutting and snipping at the growth. Id. As the doctor cut “through live
tissue,” Plaintiff complained of excruciating pain. Id. In response to Plaintiff’s complaints, the
doctor asked, “What are you a boy scout?” Id. The doctor did not apply a numbing agent to
Plaintiff’s arm until “after-the-fact.” Id.
Nurses Pickett and Schumukor were present during the entire procedure. (Doc. 1, p. 5).
Neither objected to the doctor’s actions nor took steps to stop him from performing surgery on
Plaintiff. Id. They also took no steps to summon help from the nearby Medical Director, who
was aware of the procedure and allegedly approved of or condoned the doctor’s actions. Id.
Instead, the nurses watched “in horror while . . . grimacing [and] . . . wincing with each snip.” Id.
Another nurse later described the doctor’s actions as “barbaric.” Id.
After getting over the initial shock associated with the doctor’s actions and the lack of
concern he showed for Plaintiff’s pain, Plaintiff asked to be taken to a hospital. (Doc. 1, p. 4). In
response, the doctor said, “Well, for this to be done correctly you’d need to go to an outside
hospital but the State is broke, so this will have to do.” (Doc. 1, p. 5). Doctor Santos then told
Plaintiff that the growth was only an abscess, but a biopsy would still be ordered. Id.

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Doctor Santos left a dime-sized hole in Plaintiff’s arm. (Doc. 1, p. 5). Plaintiff was given
a topical antibiotic, i.e., Silvadine, and instructed to take daily showers in the HCU. Id. Plaintiff
complied with the doctor’s orders. Id.
Even so, his arm became infected. (Doc. 1, p. 5). Plaintiff complained of pain and
discomfort on a daily basis. Id. He did so “for weeks.” Id. When he finally met with Doctor
Santos on October 20, 2015, he again requested treatment with an outside specialist. Id. The
doctor disregarded his request for further treatment and instead noted that “everything was fine”
in his medical records. Id. In contrast, the nurses noted that the wound had “serious drainage.”
(Doc. 1, p. 6).
Plaintiff alleges that his arm is now “substantially deformed.” (Doc. 1, p. 6). A bubblelike mass, approximately 3” x 3” in size, protrudes an inch from his arm. Id. Frequently, Plaintiff
can feel it spasm and tingle. Id. The deformity is unsightly and painful. Id. Plaintiff has also lost
the full range of motion in his arm. Id.
Merits Review Under 28 U.S.C. § 1915A
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 claim in Plaintiff’s pro se Complaint into the following
enumerated 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:
Count 1:

Eighth Amendment deliberate indifference to medical needs claim
against Doctor Santos for denying Plaintiff adequate medical care
for the growth on his right arm in October 2015.

Count 2:

Eighth Amendment deliberate indifference to medical needs claim
against Unknown Medical Director, Nurse Pickett, and Nurse
Schumukor for failing to object to or intervene and stop the

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surgery performed by Doctor Santos on Plaintiff’s right arm in
October 2015.
Count 3:

Fourteenth Amendment due process claim against Doctor Santos
for depriving Plaintiff of a liberty interest when he performed
surgery on his right arm without first obtaining his consent in
October 2015.

As discussed in more detail below, all three claims survive screening and shall receive further
review against the defendants named in connection with each claim above. Any claims that are
not listed above are considered dismissed without prejudice from this action.
Counts 1 and 2
The Eighth Amendment prohibits the cruel and unusual punishment of inmates.
U.S. CONST., amend. VIII. It “imposes a duty on government officials to provide medical care to
prisoners.” Townsend v. Cooper, 759 F.3d 678, 689 (7th Cir. 2014) (citing Estelle v. Gamble,
429 U.S. 97, 104-05 (1976)). See also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010).
Prison officials violate the Eighth Amendment when they exhibit deliberate indifference to a
prisoner’s serious medical needs. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing
Estelle, 429 U.S. at 104). To state a claim based on the denial of adequate medical care, a
prisoner must demonstrate that he suffered from a sufficiently serious medical condition (i.e., an
objective standard). Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). He also must
demonstrate that each defendant responded to his serious medical need with deliberate
indifference (i.e., a subjective standard). Id.
The objective component of this claim is satisfied for screening purposes. 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.

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2014) (citing Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)). Plaintiff’s growth was
diagnosed as requiring treatment by medical professionals.
The subjective component of this claim is satisfied when a prison official “know[s] of
and disregard[s] an excessive risk to inmate health.” Greeno, 411 F.3d at 653. Neither “medical
malpractice nor mere disagreement with a doctor’s medical judgment” is sufficient to establish
deliberate indifference. Berry, 604 F.3d at 441 (citing Estelle, 429 U.S. at 106; Estate of Cole v.
Fromm, 94 F.3d 254, 261 (7th Cir. 1996)). At the same time, a prisoner is also “not required to
show that he was literally ignored.” Berry, 604 F.3d at 441 (citing Sherrod v. Lingle, 223 F.3d
605, 611 (7th Cir. 2000)). The choice of “easier and less efficacious treatment” for a serious
medical need may amount to deliberate indifference. Id. (citations omitted). See also Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (stating that “medical personnel cannot simply
resort to an easier course of treatment that they know is ineffective”).
The allegations support a deliberate indifference claim in Count 1 against Doctor Santos
under this standard. The doctor allegedly resorted to an easier in-house surgical procedure simply
because he believed that the State would not pay for proper medical care. At the time, he
acknowledged that the procedure should be performed at a hospital by a specialist. Count 1 is
subject to further review against Doctor Santos.
The allegations also support a deliberate indifference claim in Count 2 against Nurses
Pickett and Schumukor, neither of whom objected to Doctor Santos’s actions or took steps to
stop him from performing the in-house procedure. While the medical system generally requires
nurses to defer to the judgment of a treating physician, this deference cannot be “blind or
unthinking, particularly if it is apparent that the physician’s orders will likely harm the patient.”
Berry, 604 F.3d at 442 (citations omitted). The allegations suggest that both nurses failed to

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question or object to the procedure performed by Doctor Santos, resorting instead to blind
deference. Count 2 shall receive further review against both nurses.
This claim also shall proceed against the Unknown Medical Director. It is well settled
that a government official is only liable for his or her own misconduct under § 1983. Perez v.
Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015) (citation omitted). A § 1983 plaintiff cannot rely on
a theory of respondeat superior and must instead allege that the defendant, through his or her
own conduct, violated the Constitution. Id. at 777-78 (citing Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009)). Plaintiff alleges that this defendant was involved in the constitutional deprivation
because he or she was aware of Plaintiff’s medical condition and condoned or turned a blind eye
to Doctor Santos’s misconduct. Although the Court takes no position regarding the ultimate
merits of this claim, it will allow Count 2 to proceed against the Unknown Medical Director.
Count 3
The Fourteenth Amendment guards against the deprivation of liberty or property without
due process of law. Washington v. Glucksberg, 521 U.S. 702, 720-22 (1997). The Supreme Court
of the United States has recognized a “general liberty interest in refusing medical treatment.”
Cruzan v. Dir. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990); Vitekv. Jones, 445 U.S. 480, 494
(1980); Parham v. J.R., 442 U.S. 584, 600 (1979). At least one Circuit has held that this liberty
interest includes the right to refuse surgery. See, e.g., Runnels v. Rosendale, 499 F.2d 733, 735
(9th Cir. 1974). Several Circuits have also recognized a prisoner’s limited right to informed
consent for treatment. See, e.g., Poban 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). The Second Circuit described the cause of action as follows:
[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
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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. According to the Second Circuit, the right to refuse treatment—and by
extension the right to informed consent—is not unlimited and can be overridden by legitimate
penological concerns. Id. at 252 (“If prison officials, including doctors, identify situations in
which they reasonably believe that treatment is required, notwithstanding the prisoner’s asserted
right to refuse it, the right must give way.”). Although the Seventh Circuit has recognized this
theory of liability, it has not explicitly endorsed it. See Cox v. Brubaker, 558 F. App’x 677, 67879 (7th Cir. 2014) (acknowledging that some circuits have found that prisoners have a
substantive due process right to “such information as is reasonably necessary to make an
informed decision to accept or reject proposed treatment”).
This District and others have allowed similar substantive due process claims to proceed
past threshold screening. See, e.g., Maple v. PA Mills, No. 15-cv-00341-SMY, 2015 WL
1840563, at *4 (S.D. Ill. Apr. 21, 2015) (assuming, for screening purposes, that a prisoner could
assert informed consent substantive due process claim); Knight v. Grossman, No. 16-CV-1644JPS, 2017 WL 168906, at *5 (E.D. Wis. Jan. 17, 2017). At this early stage, the Court will
likewise allow Count 3 to proceed against Doctor Santos, based on his failure to obtain informed
consent from Plaintiff before performing an in-house surgical procedure on him at Centralia in
October 2015.
Identification of Unknown Medical Director
Plaintiff shall be allowed to proceed with Count 2 against the individual who served as
Centralia’s Medical Director in October 2015. This defendant must be identified with
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particularity, however, before service of the Complaint can be made on him or her. Where a
prisoner’s Complaint states specific allegations describing conduct of individual prison staff
members sufficient to raise a constitutional claim, but the names of those defendants are not
known, the prisoner should have the opportunity to engage in limited discovery to ascertain the
identity of those defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th
Cir. 2009). In this case, the Warden of Centralia will be added as a defendant, in his or her
official capacity only, and shall be responsible for responding to discovery aimed at identifying
this unknown defendant. Guidelines for discovery will be set by the United States Magistrate
Judge. Once the name of Defendant Unknown Medical Director is discovered, Plaintiff shall file
a motion to substitute the newly identified defendant in place of the generic designation for this
individual in the case caption and throughout the Complaint.
Request for Injunctive Relief
In his Complaint, Plaintiff asks this Court to Order prison officials to refer him for
corrective surgery. This request for injunctive relief appears to be moot as it relates to this case.
Plaintiff transferred from Centralia to East Moline Correctional Center prior to bringing this
action, and he does not complain that he is currently being denied medical care. “[W]hen a
prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred
out of that prison, the need for relief, and hence the prisoner’s claim, become moot.” Lehn v.
Holmes, 364 F.3d 862, 871 (7th Cir. 2004). Only if Plaintiff can show a realistic possibility that
he would again be incarcerated at Centralia under the conditions described in the Complaint,
would it be proper for the Court to consider injunctive relief in this case. See Maddox v. Love,
655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).

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Plaintiff is not without recourse. If officials at his present facility also have denied him
necessary medical care, including corrective surgery, he may file a separate action against them
and request injunctive relief in that case. His Complaint in this case includes no such claim
against East Moline officials. Further, a suit against those officials likely belongs in the United
States District Court for the Central District of Illinois – Rock Island Division.
Disposition
The Clerk is directed to ADD the WARDEN OF CENTRALIA CORRECTIONAL
CENTER (official capacity only) as a defendant for the sole purpose of responding to discovery
aimed at identifying the Defendant UNKNOWN MEDICAL DIRECTOR with particularity.
IT IS HEREBY ORDERED that COUNTS 1, 2, and 3 survive screening. COUNTS 1
and 3 will receive further review against Defendant DOCTOR SANTOS, and COUNT 2 will
proceed against Defendants UNKNOWN MEDICAL DIRECTOR, NURSE PICKETT, and
NURSE SCHUMUKOR.
IT IS ORDERED that as to COUNTS 1, 2, and 3, the Clerk of Court shall prepare for
Defendants UNKNOWN MEDICAL DIRECTOR (once identified), DOCTOR SANTOS,
NURSE PICKETT, NURSE SCHUMUKOR, and the WARDEN OF CENTRALIA:
(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

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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.
Service shall not be made on Defendants UNKNOWN MEDICAL DIRECTOR until
such time as Plaintiff has identified the individual by name in a properly filed motion for
substitution of parties. Plaintiff is ADVISED that it is his responsibility to provide the Court
with the names and service addresses for these individuals.
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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including a plan for discovery
aimed at identifying Centralia’s Unknown Medical Director (October 2015) with particularity.
Further, this entire matter shall be REFERRED to United States Magistrate Judge Wilkerson
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, despite the fact that
his application to proceed in forma pauperis was 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

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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 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.
DATED: October 24, 2017

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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