Roebuck, Sr. v. Overall et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly, 4 MOTION for Service of Process at Government Expense filed by Dwayne Roebuck, Sr... Signed by Judge J. Phil Gilbert on 1/3/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAYNE ROEBUCK, SR.,
Plaintiff,
vs.
LILLIAN OVERALL, and
ATCHENSON
Defendants.

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Case No. 17−cv–1219−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Dwayne Roebuck, Sr., an inmate in Lincoln Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 that occurred at
Vandalia Correctional Center. Plaintiff requests compensation. 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.”
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-

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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
Plaintiff put in to see Lillian Overall, a dentist, in August 2015 to address his complaints
of tooth pain. (Doc. 1, p. 5). Plaintiff believed that the tooth needed to be removed. Id. When
Overall examined Plaintiff, she saw that the tooth was infected and issued him a 2-week supply
of antibiotics and ibuprofen. Id. Plaintiff ran out of medication, but when he asked for more,
Overall told him that it would “interfere” with the process and that Plaintiff should wait until she
was able to see him. Id. Plaintiff had to wait 5 months for treatment; and when he finally got a
follow-up appointment for an extraction, it was rescheduled by Atchenson, causing an additional
3-4 day delay. Id. During this time period, Plaintiff experienced pain, bleeding, and at times
could not eat. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into a single count. 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 following
claim survives threshold review:
Count 1 – Overall and Atchenson were deliberately indifferent to Plaintiff’s tooth
infection and pain in violation of the Eighth Amendment when they delayed
treating him and failed to refill his medication.

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Prison officials impose cruel and unusual punishment in violation of the Eighth
Amendment when they are deliberately indifferent to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). In order to state
a claim for deliberate indifference to a serious medical need, an inmate must show that he 1)
suffered from an objectively serious medical condition; and 2) that the defendant was
deliberately indifferent to a risk of serious harm from that condition. Petties v. Carter, 836 F.3d
722, 727 (7th Cir. 2016). An objectively serious condition includes an ailment that has been
“diagnosed by a physician as mandating treatment,” one that significantly affects an individual’s
daily activities, or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997). The subjective element requires proof that the defendant knew of
facts from which he could infer that a substantial risk of serious harm exists, and he must
actually draw the inference. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
“Delaying treatment may constitute deliberate indifference if such delay exacerbated the
injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th
Cir. 2012) (internal citations and quotations omitted); see also Farmer v. Brennan, 511 U.S. 825,
842 (1994). The Eight 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).

Deliberate

indifference may also be shown where medical providers persist in a course of treatment known
to be ineffective. Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010); Greeno v. Daley,
414 F.3d 645, 655 (7th Cir. 2005).

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Here Plaintiff has alleged that he suffered from a tooth infection. The Seventh Circuit
has previously found that tooth decay, pain, and infection can be considered a serious medical
need. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Plaintiff has adequately pleaded
the first element of a deliberate indifference claim. Plaintiff has also alleged that both Overall
and Atchenson acted to delay his follow-up treatment by refusing to timely schedule an
appointment for follow-up. He has alleged that Overall stopped treatment for his symptoms in
the interterm. Both the delays and the failure to treat symptoms could be evidence of deliberate
indifference. Therefore, Count 1 shall be permitted to proceed against both defendants.
Pending Motions
Plaintiff has requested service of process at government expense. (Doc. 4). However,
the federal courts are obligated to order service if a plaintiff is proceeding in forma pauperis.
Fed R. Civ. P. 4(c). As Plaintiff was granted IFP status on November 15, 2017, (Doc. 6) his
request for service at government expense is MOOT, because the Court is already required to
serve the Defendants. (Doc. 4).
Plaintiff’s Motion for Appointment of Counsel will be referred to a United States
Magistrate Judge for disposition. (Doc. 3).
Disposition
IT IS HEREBY ORDERED that Count 1 survives against Overall and Atchenson.
Plaintiff’s Motion for Service of Process at Government Expense is MOOT. (Doc. 4).
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Overall and
Atchenson: (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 each Defendant’s place of

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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 Civil Procedure.
IT IS FURTHER ORDERED that, 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.
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 is REFERRED to a United States Magistrate Judge for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
IT IS FURTHER ORDERED that 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, notwithstanding that his application to proceed in forma pauperis has
been granted. See 28 U.S.C. § 1915(f)(2)(A).

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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: January 3, 2018

s/J. Phil Gilbert
U.S. District Judge

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