Brady v. Coe et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 12/4/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HARLEY M. BRADY,
# R-13122,
Plaintiff,
vs.
DR. COE, and
DR. AHMED,
Defendants.

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Case No. 17-cv-1202-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
In Brady v. IDOC, Case No. 17-cv-883-NJR (S.D. Ill. Nov. 1, 2017), Plaintiff Harley
Brady, an inmate in Lawrence Correctional Center, brought suit for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to George v. Smith, 507 F.3d 605
(7th Cir. 2007), four claims against Coe and Ahmed were severed from that initial action to form
the basis for this action, Case No. 17-cv-1202-JPG.
This case is now before the Court for a preliminary review of those claims 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).
After fully considering the relevant allegations in Plaintiff’s Complaint, the Court
concludes that two claims in this action survive threshold review.
The Complaint
The allegations in Plaintiff’s Complaint (Doc. 2) relevant to this severed action are as
follows: Plaintiff suffers from chronic back and knee pain. (Doc. 2, p. 8). Plaintiff associates
these issues with his weight (265 lbs.) and a lack of arch support. Id. Plaintiff has been issued a
back brace and an athletic compression knee sleeve. (Doc. 2, p. 8). Plaintiff claims the braces
provide insufficient support and/or do not alleviate his pain. Id. Plaintiff states that “Wexford
staff and/or doctors” have told him he cannot return to “3rd shift dietary” because of his chronic
back and knee pain. Id. Nonetheless, they refuse to provide him with a bottom bunk permit or
appropriate work restrictions. Id.
Because Plaintiff does not have a bottom bunk permit, he has to climb into the top bunk.
Plaintiff’s knee and back issues make it very difficult for him to do this. Id. Climbing into the
top bunk is also difficult because the bunkbeds do not include a ladder. Id. Accordingly,
Plaintiff must use the toilet and sink in his cell to reach the top bunk. Id. Plaintiff has fallen

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several times while attempting to climb into the top bunk. Id. At various times, Plaintiff has
requested a bottom bunk permit from Coe, Shah (not a defendant), and Ahmed. Id. All of these
individuals denied Plaintiff’s requests, despite knowing he has fallen several times attempting to
climb into the top bunk. Id.
On April 26, 2017, Plaintiff had a medical visit with Ahmed. (Doc. 2, p. 9). During this
visit, Plaintiff asked Ahmed for joint supplements, an “actual” knee brace, and a bottom bunk
permit. (Doc. 2, p. 10). With the exception of the knee brace, Plaintiff’s requests were denied.
Id. On May 6, 2017, Plaintiff was called to medical to receive his new knee brace. Id. Wexford
medical staff attempted to give Plaintiff the knee brace; he refused it, because the new brace was
another athletic compression sleeve as opposed to an “actual” knee brace. Id. Plaintiff asked to
see Ahmed, but his request was refused. Id. A nurse indicated she had spoken with Ahmed and
that was the brace he ordered. Id. Plaintiff refused the knee brace and filed a grievance. Id.
Plaintiff includes several additional allegations pertaining to his medical visit with
Ahmed on April 26, 2017. Specifically, he alleges that he told Ahmed the pharmacist had not
been refilling his medication in a timely manner. (Doc. 2, p. 9). In response, Ahmed “cut
Plaintiff’s medications down.” Id. Ahmed also discontinued Plaintiff’s ibuprofen prescription.
Id. Plaintiff contends that he needs the ibuprofen for back pain, knee pain, and headaches. Id.
Over Plaintiff’s objections, Ahmed ordered Plaintiff icy-hot muscle rub for his muscle aches. Id.
Plaintiff contends Ahmed reduced his medications and discontinued his ibuprofen as retaliation
for Plaintiff’s complaint about the pharmacy. Id. Plaintiff also states, however, that Ahmed told
Plaintiff the ibuprofen had to be discontinued because of Plaintiff’s liver enzyme numbers.
(Doc. 2, p. 10). Plaintiff contends this cannot be a viable reason for discontinuing his ibuprofen
prescription because Plaintiff sees another physician for Hepatitis-C and that doctor is not

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concerned about Plaintiff’s liver enzyme levels. Id.
Plaintiff also claims Ahmed forced him to choose between taking Tums or Pepcid for
heartburn. (Doc. 2, p. 10). Plaintiff contends he needs both medications but Ahmed would only
prescribe one. Id. Plaintiff chose tums, as a “Hobson’s choice,” and regrets that decision.
Discussion
In its Severance Order (Doc. 1), the Court designated the following counts to be severed
into this pro se action. 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.
Count 9 –

Coe and Ahmed exhibited deliberate indifference to Plaintiff’s knee and
back issues by refusing to issue a bottom-bunk permit, despite knowing
that Plaintiff has experienced several falls attempting to climb into the top
bunk, in violation of the Eighth Amendment.

Count 10 –

Ahmed exhibited deliberate indifference to Plaintiff’s knee pain by
providing Plaintiff with an athletic compression sleeve instead of the
“actual” knee brace Plaintiff requested, in violation of the Eighth
Amendment.

Count 11 –

Ahmed retaliated against Plaintiff for complaining about the pharmacy by
changing Plaintiff’s medication, in violation of the First Amendment.

Count 12 –

Ahmed exhibited deliberate indifference to Plaintiff’s medical needs by
forcing Plaintiff to choose between taking Tums or Pepcid.

As discussed in more detail below, Counts 9 and 11 will proceed past the threshold stage,
and Counts 10 and 12 will be dismissed for failure to state a claim upon which relief may be
granted.
Count 9 – Bottom-Bunk Permit
A prison official's deliberate indifference to an inmate's health or safety may violate the
Eighth Amendment's ban on cruel and unusual punishment. See Farmer v. Brennan, 511 U.S.
825, 834 (1994). The inmate must allege both an objective and a subjective component of the

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claim.

To satisfy the objective component, the alleged deprivation must be “sufficiently

serious”; that is, it must expose the inmate to a “substantial risk of serious harm.” Id. (internal
quotation marks omitted). To satisfy the subjective element, the prison official must have acted
with deliberate indifference to the inmate's health or safety; the official “must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Id. at 837.
This standard is satisfied with respect to Count 9. According to the Complaint, Coe and
Ahmed failed to provide Plaintiff with a bottom bunk permit, despite being informed of
Plaintiff’s need for one and his multiple falls while climbing to the top bunk. These allegations
support a claim of deliberate indifference under Count 9 against both defendants at this stage.
Counts 10 and 12 – Knee Brace and Stomach Medication
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.”). Plaintiff complains that Ahmed ordered
Plaintiff a compression sleeve for his knee despite Plaintiff’s apparently unsupported belief that
it would not “provide some of the needed support.” Because there is no probable indication that
the compression sleeve was not a reasonable measure to treat Plaintiff’s knee injury, Ahmed’s
actions did not constitute deliberate indifference. Count 10 will be dismissed without prejudice.
For similar reasons, Count 12 will also be dismissed. Plaintiff was allowed to choose
which of two antacids to take, despite Plaintiff’s claimed need for both without further

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explanation. Without more, this appears to amount to a disagreement over treatment, much like
in Gallo. Count 12 will therefore also be dismissed without prejudice.
Count 11 – Retaliation
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859,
866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000). To state a claim of retaliation “[a]ll that need be specified is the bare
minimum facts necessary to put the defendant on notice of the claim so that he can file an
answer.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
Plaintiff asserts that Ahmed retaliated against him for complaining about the pharmacy
by cutting his medications, including canceling his ibuprofen. Even if these allegations would
not be actionable in and of themselves, if the acts were taken in retaliation for the exercise of a
constitutionally protected right—in this case, Plaintiff's protected right under the First
Amendment to complain about his medical care—then they are actionable under § 1983. See
Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (discussing Howland v. Kilquist, 833 F.2d
639, 644 (7th Cir. 1987) (“[A]n act in retaliation for the exercise of a constitutionally protected
right is actionable under Section 1983 even if the act, when taken for different reasons, would
have been proper.”)); see also Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996) (per curiam)
(retaliatory transfer of a prisoner); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996)
(retaliatory delay in transferring prisoner); Cornell v. Woods, 69 F.3d 1383, 1389 (8th Cir. 1995)
(retaliatory discipline).
At issue here is whether Plaintiff experienced an adverse action that would likely deter
First Amendment activity in the future, and if the First Amendment activity was “at least a

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motivating factor” in Ahmed’s decision to take the retaliatory action. Bridges v. Gilbert, 557
F.3d 541, 551 (7th Cir. 2009). This is a question that cannot be resolved at the pleadings stage of
this case. Thus, Plaintiff may proceed on his retaliation claim against Ahmed at this time.
Disposition
IT IS HEREBY ORDERED that COUNT 9 shall PROCEED against COE and
AHMED.
IT IS FURTHER ORDERED that COUNT 11 shall PROCEED against AHMED.
IT IS FURTHER ORDERED that COUNTS 10 and 12 are DISMISSED without
prejudice for failure to state a claim on which relief may be granted.
IT IS FURTHER ORDERED that as to COUNTS 9 and 11, the Clerk of Court shall
prepare for COE and AHMED: (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 defendants’
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 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

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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 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.
DATED: December 4, 2017
s/J. Phil Gilbert
United States District Judge

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