Reese v. Trost et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 1/13/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIEARRE REESE, # M-23769,
Plaintiff,
vs.
DR. JOHN TROST,
and JOHN DOE #1,
Defendants.

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Case No. 17-cv-1332-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Kiearre Reese, currently incarcerated at Menard Correctional Center
(“Menard”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims
that Defendants, both medical providers at Menard, were deliberately indifferent to a serious
medical condition. The Complaint is now before the Court for a preliminary review pursuant to
28 U.S.C. § 1915A.

Along with the Complaint, Plaintiff has filed a motion seeking a

preliminary injunction requiring prison officials to provide him with treatment. (Doc. 3).
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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 “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
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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. Conversely, a complaint is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Although the Court is obligated to accept factual allegations as true, see Smith v. Peters,
631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible
that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of
the elements of a cause of action or conclusory legal statements.” Id. At the same time,
however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
Plaintiff asserts 3 Counts in his Complaint. In Count 1, he alleges that in April 2017, Dr.
Trost (the former medical director at Menard) referred him to an outside medical provider who
diagnosed him with severe hemorrhoids and successfully treated the condition. (Doc. 1, p. 5).
Trost made that referral, however, only after Plaintiff complained and filed grievances over a

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period of time during 2016-2017, in which Plaintiff explained that he was suffering from severe
pain and inflammation around his rectum and blood in his stool.
Sometime after April 2017, Plaintiff’s hemorrhoids returned and became much worse
than before. (Doc. 1, p. 5). The tissue around his rectum is so severely inflamed and painful that
Plaintiff has great difficulty defecating and cannot properly clean himself. As a result, Plaintiff’s
body smells of stool and infection, and his rectal area is draining pus. He is in so much pain that
he cannot sit or comfortably lie down.
Plaintiff reported his symptoms to Trost and requested treatment. Trost examined him,
determined that the hemorrhoids had come back, and decided that Plaintiff would need to be
treated again at an outside facility. (Doc. 1, p. 6). However, Trost refused to make the referral at
that time because he thought it “would make Menard officials look incompetent,” and instead
decided to “wait for a little while” before sending Plaintiff for the necessary treatment. Id.
Plaintiff’s protests about the delay were unavailing, and soon after this encounter, Trost was
terminated from his position at Menard. Id. Plaintiff asserts that Trost exhibited deliberate
indifference to his medical condition by delaying necessary treatment.
Count 2 asserts a claim for deliberate indifference against the John Doe Defendant,
described in the Complaint as an “Unknown Medical Staff” person. (Doc. 1, p. 6). Plaintiff
consulted with this John Doe Defendant (who shall be designated herein as John Doe #1)
following Trost’s termination. Plaintiff explained his symptoms and history of earlier treatment
for hemorrhoids as well as Dr. Trost’s conclusion that Plaintiff’s condition again required
treatment from an outside provider. John Doe #1 told Plaintiff that “there isn’t much that can be
done” for hemorrhoids, and gave Plaintiff cream and ibuprofen, neither of which had been
effective in treating Plaintiff’s symptoms when he was given them earlier. (Doc. 1, pp. 6-7).

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The cream had even made Plaintiff’s condition worse. John Doe #1 refused to examine Plaintiff
in order to see the severity of his inflammation and drainage of pus, blood, and stool. John Doe
#1 also refused to send Plaintiff to another provider who could examine and treat him.
In Count 3, Plaintiff identifies Trost and “Unknown Medical Staffs” as the responsible
parties. (Doc. 1, p. 7). This deliberate indifference claim is based on chest pain, “tightness,” and
severe burning sensations in his chest, which Plaintiff has been experiencing for 3 years. The
pain is so severe that Plaintiff has to stop walking and bend over in order to relieve the tightness
in his chest, or alternatively to sit up if he is in a lying-down position. (Doc. 1, p. 7). Plaintiff
has also suffered from asthma for many years, but believes the chest pain is unrelated to the
asthma because it began more recently than the onset of Plaintiff’s asthma.
“Staff” has given Plaintiff an asthma pump and acid reflux pills, which have not relieved
the chest pain/tightness/burning. (Doc. 1, p. 7). Plaintiff made repeated complaints and sick call
requests, which finally prompted “medical staff” to order x-rays. (Doc. 1, p. 8). The x-rays,
however, revealed nothing. Subsequently, Plaintiff has pleaded with unnamed medical staff to
approve him for an MRI, EKG, and an outside specialist consultation, all of which have been
refused. Plaintiff is concerned that he may have a hereditary condition causing his symptoms,
because his uncle died in Menard in 2011 after suffering from chest pain and “associated
complications.” Id.
As relief, Plaintiff seeks damages and an injunction requiring Menard officials to send
him to a specialist to treat his “known and unknown conditions.” (Doc. 1, p. 9).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts, which correspond with Plaintiff’s designation of his claims.

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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. The designation of these counts does not
constitute an opinion as to their merit. Any other claim that is mentioned in the Complaint but
not addressed in this Order should be considered dismissed without prejudice.
Count 1: Eighth Amendment deliberate indifference claim against Dr. Trost, for
refusing to refer Plaintiff to an outside specialist for treatment of his hemorrhoids,
even though Trost determined that the referral was medically necessary;
Count 2: Eighth Amendment deliberate indifference claim against medical
provider John Doe #1, for refusing to examine Plaintiff, refusing to refer him to
another medical provider who could examine and treat his hemorrhoids, and
giving Plaintiff medication that made his condition worse and failed to relieve his
pain;
Count 3: Eighth Amendment deliberate indifference claim against Trost and
unknown medical provider(s) (who shall be designated as John/Jane Doe #2), for
refusing to conduct further testing or make a specialist referral to determine the
cause of and treatment for Plaintiff’s severe ongoing chest pains.
Counts 1 and 2 shall receive further consideration. However, Count 3 will be dismissed
for failure to state a claim upon which relief may be granted.
Count 1 – Deliberate Indifference – Dr. Trost
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.

An

objectively serious condition includes an ailment 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). “Deliberate indifference is proven by demonstrating that a prison official
knows of a substantial risk of harm to an inmate and either acts or fails to act in disregard of that
risk. 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
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Cir. 2012) (internal citations and quotations omitted). See also Farmer v. Brennan, 511 U.S.
825, 842 (1994); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015).
However, 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).

Further, a

defendant’s inadvertent error, negligence or even ordinary malpractice is insufficient to rise to
the level of an Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008).
Here, Plaintiff’s hemorrhoids, inflammation, and possible infection caused him serious
and persistent pain and impaired his ability to engage in normal activities. The Complaint thus
satisfies the objective component of an Eighth Amendment claim. The remaining question is
whether Plaintiff’s medical providers acted or failed to act with deliberate indifference to a
known risk of serious harm.
Not long before Dr. Trost departed from his prison job, he acknowledged that Plaintiff’s
condition required medical attention from an outside provider.

However, he intentionally

delayed making a referral for Plaintiff to obtain that treatment, and according to Plaintiff, made
that decision because he didn’t want prison officials to look bad. Trost’s alleged refusal to make
a prompt referral for Plaintiff to have necessary treatment supports a deliberate indifference
claim. Likewise, Trost’s delay in 2016 and 2017 before ultimately referring Plaintiff to an
outside provider In April 2017 merits additional review of Count 1. Count 1 shall therefore
proceed for further consideration.
Count 2 – Deliberate Indifference – John Doe #1
As discussed under Count 1, Plaintiff has sufficiently pleaded that his hemorrhoids,

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inflammation, and pain constitute an objectively serious medical condition. As to the subjective
component of his claim against the John Doe #1 medical provider (Plaintiff does not specify
whether this individual is a physician, nurse, or other professional), Plaintiff alleges that this
defendant refused to examine him, refused to consider referring him to a different provider (in or
outside the prison) who could give him a physical examination, and limited his treatment to
providing a cream that had previously worsened Plaintiff’s symptoms and ibuprofen, which had
failed to relieve his pain. (Doc. 1, pp. 6-7). These allegations support a deliberate indifference
claim against John Doe #1.
While Count 2 against John Doe #1 survives review under § 1915A, before this claim
may proceed, Plaintiff must identify John Doe #1 by name so that he may be served with the
Complaint. 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).
Accordingly, the Clerk will be directed to add the Menard Warden as a Defendant, so that
the Warden may respond to discovery aimed at identifying this unknown Defendant. Guidelines
for discovery will be set by the United States Magistrate Judge. Once the name of John Doe #1
is discovered, Plaintiff shall file a motion to substitute the newly identified defendant in place of
the generic designation in the case caption and throughout the Complaint.
Dismissal of Count 3 – Deliberate Indifference to Chest Pain
Plaintiff’s description of ongoing chest pain, tightness in his chest, and burning
sensations, which have persisted for 3 years, suggests that he has another objectively serious

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medical condition. However, the allegations regarding his interactions with the unidentified
medical provider(s) (John/Jane Doe #2) 1 are insufficient to demonstrate that the provider(s) were
deliberately indifferent to Plaintiff’s medical needs.
Plaintiff was provided with an asthma pump and acid reflux medication, indicating that
some unknown medical staff person(s) provided him with treatment.

But the fact that a

prescribed treatment proves to be ineffective does not state a claim for deliberate indifference.
See Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008). Medical providers (John/Jane Doe
#2) also ordered x-ray(s) in an attempt to assess Plaintiff’s chest pain. That response does not
indicate deliberate indifference.
After the x-ray(s) revealed nothing, Plaintiff claims that he requested John/Jane Doe #2 to
approve him for an MRI and an EKG, and to send him to an outside facility/specialist for further
assessment, but John/Jane Doe #2 denied these requests. The denials of Plaintiff’s requests for
further testing and/or a referral might support a deliberate indifference claim. However, a
prisoner is not entitled to demand specific treatment or diagnostic testing, see Forbes v. Edgar,
112 F.3d 262, 267 (7th Cir. 1997), and the Complaint allegations do not indicate that the denial
of these particular tests or a referral rose to the level of deliberate indifference.
Furthermore, in order to state a claim against a prison official, Plaintiff must include the
individual as a defendant and identify them either by name, or as a John/Jane Doe, with
sufficient description to enable the eventual identification of the individual (such as gender, job
position, shift worked, and/or date of encounter with the Defendant). Plaintiff must also describe
what each individual defendant did or failed to do that violated his constitutional rights. See

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The Court has designated the unknown medical provider(s) referenced in Count 3 as “John/Jane Doe #2”
for clarity, and to distinguish this person or persons from Defendant John Doe #1, who is the subject of
Count 2. It is not clear from the Complaint whether John/Jane Doe #2 may be the same person as John
Doe #1.

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Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (“to be liable under § 1983, the
individual defendant must have caused or participated in a constitutional deprivation”).
In Count 3, Plaintiff does not indicate whether the “medical staff” (John/Jane Doe #2)
who allegedly denied his requests was one individual or more than one. Moreover, he does not
indicate whether John/Jane Doe #2 was a nurse, doctor, or other professional, and he does not
disclose the date(s) or nature of his interactions with John/Jane Doe #2 in his alleged attempts to
seek treatment or testing for his chest pain. Allegations addressing these questions will be
necessary in order for the Court to evaluate the claim in Count 3 if Plaintiff chooses to re-plead
this claim.
Further, Plaintiff fails to state a claim in Count 3 against Dr. Trost, who is the only
identifiable individual that Plaintiff associates with this claim.

(Doc. 1, p. 8).

Plaintiff

references Trost in the heading for Count 3, but he fails to mention him by name elsewhere in the
body of his Statement of the Claim in Count 3, and does not connect any factual allegations to
Trost.

Plaintiffs are required to associate specific defendants with specific claims, so that

defendants are put on notice of the claims brought against them and so they can properly answer
the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P.
8(a)(2). When a plaintiff has not included a defendant in his Statement of the Claim, the
defendant cannot be said to be adequately put on notice of which claims in the Complaint, if any,
are directed against him. Merely invoking the name of a potential defendant is not sufficient to
state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
For these reasons, Count 3 will be dismissed without prejudice, for failure to state a
claim upon which relief may be granted.

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Pending Motion
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiff’s motion for
preliminary injunction (Doc. 3) is REFERRED to the United States Magistrate Judge, who shall
resolve the request for preliminary injunction as soon as practicable. Any motions filed after the
date of this Order that relate to the request for injunctive relief or seek leave to amend the
Complaint are also REFERRED to the U.S. Magistrate Judge.
Further, the Clerk is DIRECTED to add the Warden of Menard Correctional Center as a
Defendant in this action, in his/her official capacity only, to implement any injunctive relief that
may be ordered.

See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper

defendant in a claim for injunctive relief is the government official responsible for ensuring any
injunctive relief is carried out).
Disposition
The Clerk is DIRECTED to modify the party originally designated as “JOHN DOE” to
JOHN DOE #1 (Unknown Medical Provider). The Clerk is further DIRECTED to add as a
Defendant the WARDEN of MENARD CORRECTIONAL CENTER (Official Capacity).
COUNT 3 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.
The Clerk of Court shall prepare for Defendants TROST and WARDEN of MENARD
CORRECTIONAL CENTER (Official Capacity): (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, a copy of the motion for
preliminary injunction (Doc. 3), 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

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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.
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 Defendant JOHN DOE #1 (Unknown Medical Provider)
until such time as Plaintiff has identified this individual by name in a properly filed motion for
substitution of party. Plaintiff is ADVISED that it is his responsibility to provide the Court with
the name and service address for this individual.
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 Reona J. Daly for further pre-trial proceedings, which shall include a report
and recommendation, as soon as practicable, on disposition of the motion for preliminary
injunction. (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
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.

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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, notwithstanding 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: January 13, 2018

s/ STACI M. YANDLE
United States District Judge

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