Morris v. Trost
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 11/30/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT E. MORRIS, #R71372,
Case No. 17-cv-01166-JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Robert Morris, an inmate who is incarcerated at Menard Correctional Center,
filed a civil rights action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights. See Morris v. Lee, et al., No. 17-cv-00857-NJR-DGW (S.D. Ill.) (“original action”). He
brought several unrelated claims against different groups of defendants in the original action.
(Doc. 1, original action). On October 24, 2017, this Court severed the claims into two additional
cases. (Doc. 7, original action; Doc. 1, instant case) (“Severance Order”). The instant case
addresses a single Eighth Amendment claim against Doctor Trost, a doctor at Menard who
allegedly cancelled a medical permit for two mattresses that was issued to Plaintiff at Stateville
Correctional Center. (“Count 1,” original action). (Doc. 1, p. 7). Plaintiff claims that Doctor
Trost “deliberately” disregarded his permit and, in doing so, committed medical malpractice.
(Doc. 2, pp. 10, 15-21). He seeks monetary damages against the doctor. Id.
This case is now before the Court for a preliminary review of the Eighth Amendment
claim in Count 1 and a related Illinois medical negligence claim in Count 2 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
(2) seeks monetary relief from a defendant who is immune from such
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 indicates that Plaintiff suffers from chronic back pain. (Doc. 2, pp. 10,
17-19). During his incarceration at Stateville Correctional Center, he received a medical permit
for two mattresses. (Doc. 2, pp. 10, 15-21). Doctor Obasi, the prison medical director, issued a
one-year permit on March 15, 2016. (Doc. 2, pp. 10, 17).
After transferring to Menard on November 26, 2016, Plaintiff met with Doctor Trost on
December 7, 2016. (Doc. 2, p. 10). The doctor took notice of the permit and also noted that it
expired on March 15, 2017.
Without examining Plaintiff’s back or considering his
complaints of chronic pain, Doctor Trost decided to cancel the permit. Id. As a result, Plaintiff
suffered from “excruciating pain and agony.” Id. He filed a grievance seeking reinstatement of
the permit. (Doc. 2, pp. 18-19). In the grievance, he rated his back pain as an “11” on a scale
from “1” to “10,” where “10” represents the highest level of pain. Id. He also requested
physical therapy. Id. Plaintiff’s grievance was denied. (Doc. 2, pp. 20-21). Plaintiff now
claims that Doctor Trost committed medical malpractice when cancelling his permit and
subjecting him to ongoing pain. (Doc. 2, p. 10).
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 re-characterize the severed claim in Plaintiff’s pro se Complaint (Doc. 2)
into the following two counts:
Count 1 –
Eighth Amendment deliberate indifference claim against Trost for failing
to honor the two mattress medical permit issued when Plaintiff was
incarcerated at Stateville Correctional Center.
Count 2 -
Illinois medical negligence claim against Trost for failing to honor the two
mattress medical permit issued when Plaintiff was incarcerated at
Stateville Correctional Center.
(Doc. 1, p. 7, original action; Doc. 2, pp. 10, 15-21, instant case). The parties and the Court will
continue to use these designations in all future pleadings and orders, unless otherwise directed by
a judicial officer of this Court.
To state a claim under the Eighth Amendment for the denial of adequate medical care, a
prisoner must make two showings. First, he must demonstrate that he suffers from a sufficiently
serious medical condition, which is an objective standard. Pyles v. Fahim, 771 F.3d 403, 409
(7th Cir. 2014); Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). A medical condition
satisfies the objective standard if it has been diagnosed as requiring treatment or the need for
treatment would be obvious to a layperson. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.
2009). Plaintiff’s chronic back pain satisfies the objective component of this claim at screening.
See, e.g., Diaz v. Godinez, 693 F. App’x 440, 443 (7th Cir. 2017) (chronic back pain was
objectively serious even though it was treatable with over-the-counter pain medication).
Second, Plaintiff must also demonstrate that the prison doctor exhibited deliberate
indifference toward the condition, which is a subjective standard. Estelle v. Gamble, 429 U.S.
97, 104 (1976).
Deliberate indifference is shown when a prison official knows about the
condition and the risks it poses, but disregards that risk. Gil v. Reed, 381 F.3d 649, 664 (7th Cir.
2004) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Negligence or malpractice does
not satisfy this standard. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
Although Plaintiff alleges that Doctor Trost engaged in conduct that constitutes medical
malpractice, his allegations otherwise support a claim of deliberate indifference against the
doctor. See Norfleet v. Walker, 684 F.3d 688 (7th Cir. 2012) (courts must analyze a pro se
litigant’s potential claims and not just the legal theories he propounds). According to the
Complaint, the doctor was aware that Plaintiff’s back condition necessitated the use of two
mattresses. (Doc. 2, p. 10). Doctor Trost allegedly took notice of the medical permit on
December 7, 2016. Id. Without examining Plaintiff, the doctor cancelled the permit. Id.
Consequently, Plaintiff suffered from agonizing back pain. Id. Although disagreement with a
medical professional about the proper course of treatment is generally insufficient to support a
claim under the Eighth Amendment, a doctor’s deliberate decision to deny a prisoner access to
treatment deemed medically necessary – without further examination of the plaintiff – may be
sufficient to support a claim. Pyles, 771 F.3d at 409. Doctor Obasi deemed the two mattress
permit to be medically necessary, and, according to the allegations, Doctor Trost cancelled the
permit for no reason. (Doc. 2, p. 10). Plaintiff does not need to show that the doctor actually
intended or desired to cause him harm. Cesal v. Moats, 851 F.3d 714, 722 (7th Cir. 2017) (citing
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002)). Medical treatment that is “so
blatantly inappropriate as to evidence intentional mistreatment” or that is “likely to seriously
aggravate the prisoner’s condition” can support an inference of intentional mistreatment. Gil,
381 F.3d at 664 (citing Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996), cert. denied, 519
U.S. 1126 (1997)). See also Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016) (en banc).
Given that Doctor Trost’s cancellation of the permit resulted in agonizing and untreated back
pain, Count 1 cannot be dismissed against this defendant.
The Complaint does not support an independent state law claim for medical malpractice
against Doctor Trost.
A defendant can never be held liable under § 1983 for negligence.
Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.
1995). As the Seventh Circuit has explained, “medical malpractice in the form of an incorrect
diagnosis or improper treatment does not state an Eighth Amendment claim.” Gutierrez v.
Peters, 111 F.3d 1364, 1374 (7th Cir. 1997); Snipes, 95 F.3d at 590 (“Mere negligence or even
gross negligence does not constitute deliberate indifference.”).
However, 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)).
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 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
A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT. §
Plaintiff filed no certificate or affidavit with the Complaint. 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
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
prejudice 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.
The medical negligence claim shall be considered dismissed without prejudice at this
time. However, 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
affidavits/certificates, the dismissal of the medical negligence claim may become a dismissal
with prejudice. See FED. R. CIV. P. 41(b).
IT IS HEREBY ORDERED that COUNT 1 survives screening and is subject to further
review against Defendant DOCTOR TROST.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice
against Defendant TROST. If Plaintiff wishes to move the Court to reinstate the medical
malpractice/negligence claims in COUNT 2 against Defendant TROST, Plaintiff shall file the
required affidavit(s) pursuant to 735 ILL. COMP. STAT. § 5/2-622, within 35 days of the date of
this order (on or before January 5, 2018). Further, Plaintiff shall timely file the required written
report(s)/certificate(s) of merit from a qualified health professional, in compliance with § 5/2622. Should Plaintiff fail to timely file the required affidavits or reports, the dismissal of
COUNT 2 may become a dismissal with prejudice.
With regard to COUNT 1, the Clerk of Court shall prepare for Defendant TROST: (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
Memorandum and Severance Order (Doc. 1), the Complaint (Doc. 2), 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 the
Defendant, and the Court will require the 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.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
Complaint (Doc. 2) 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.
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 § 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
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: November 30, 2017
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
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