Robinson v. Lamb et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 3/5/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TREONDOUS ROBINSON, # B-41303, )
)
Plaintiff,
)
)
vs.
)
)
LAMB,
)
DR. AHMED,
)
CUNNINGHAM,
)
and SHERRY BENTON,
)
)
Defendants.
)

Case No. 18-cv-086-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff,

currently

incarcerated

at

Lawrence

Correctional

Center

(“Lawrence”), has brought this pro se civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff claims that defendants have been deliberately indifferent to his
serious medical condition. This case is now before the Court for a preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious 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
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objective standard that refers to a claim that “no reasonable person could
suppose to have any merit.” 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.

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.
Litigation History
As an initial matter, the Court notes that plaintiff has failed to disclose his

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previous lawsuits as he was directed to do on the Court-provided Complaint form.
(Doc. 1, p. 4). He lists only one lawsuit, from 2006, regarding an insurance claim.
However, he omits any mention of two more recent cases filed during his
imprisonment, which he should have disclosed in response to the instruction to
list each lawsuit he has filed relating to his imprisonment. (Doc. 1, p. 4). The
Complaint form clearly warns that a litigant who fails to comply with the directive
to list his complete litigation history risks the summary denial of his Complaint.
(Doc. 1, p. 4).
In 2008, plaintiff filed Robinson v. Godinez, et al., Case No. 08-cv-5393, in
the Northern District of Illinois; it was dismissed in 2011. In 2013, he filed an
action in this Court, Robinson v. Opolka, et al., Case No. 13-cv-489-MJR-SCW,
which was dismissed in 2014. Plaintiff provides no explanation for his failure to
include this litigation history in his Complaint.
Based on these omissions, this action is subject to dismissal. However, the
Court does not find that dismissal of this case is warranted at this time. Plaintiff
has not incurred any “strikes” to date within the meaning of 28 U.S.C. § 1915(g).
Nonetheless, plaintiff is WARNED, in accordance with the “Disposition” section of
this Order, that if he files any future lawsuit and fails to include his complete
litigation history in his Complaint, he will be subject to sanctions which may
include the summary dismissal of the case.
The Complaint
Plaintiff has been housed at Lawrence since May 11, 2016. (Doc. 1, p. 10).

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He has suffered since that time with recurring nasal polyps and sinus infections
which severely impair his breathing and cause ongoing pain. (Doc. 1, pp. 7-9;
Doc. 1-1, pp. 3, 7-8, 13-14, 18-19, 28-29, 31-32). The swelling and fluid buildup
in his sinuses and ears has led to earaches, loss of hearing, and headaches. He
cannot sleep normally due to his breathing impairment, and often wakes up
gasping for air. Plaintiff also suffers from asthma, which is aggravated by his
sinus problems, causing him to overuse his emergency inhaler in an effort to find
some relief.
Plaintiff has seen Dr. Ahmed numerous times for treatment. (Doc. 1, pp. 6,
8). Ahmed has prescribed several courses of prednisone and given plaintiff nasal
decongestants.

These medications provide only temporary relief, and then

plaintiff’s symptoms recur, sometimes worse than before. Plaintiff is concerned
that the repeated use of prednisone directed by Ahmed may be harmful, on top of
its ineffectiveness.

Ahmed does not conduct follow-up examinations to assess

plaintiff’s condition after giving him medication.

Despite plaintiff’s repeated

requests for some alternative to this ineffective treatment, and for a referral to an
Ear, Nose, & Throat specialist, Ahmed has continued to treat plaintiff with the
same medications for approximately a year and a half.
Ahmed has initiated a referral for plaintiff to see an ENT specialist on two
occasions. The first time in August 2017, the referral was denied after collegial
review.

The second time (September 2017), the referral was either denied by

collegial review or was withdrawn by Ahmed (plaintiff’s exhibits are not clear on

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this point). (Doc. 1, p. 8; Doc. 1-1, pp. 9, 19, 31-33). Plaintiff further alleges that
twice, he was recommended to undergo surgery for his nasal polyps and sinus
condition, once while he was previously at Menard, and once during his
incarceration at Lawrence. (Doc. 1-1, p. 19). However, the surgical referral was
denied (he does not say by whom).
Plaintiff also sues Cunningham (Health Care Administrator) and Warden
Lamb, seeking to hold them liable because they were the recipients of plaintiff’s
numerous grievances (which included emergency grievances to Lamb), as well as
verbal requests for help. Plaintiff informed them of his ongoing symptoms and
pain, the ineffective treatment provided by Dr. Ahmed, and his need for further
evaluation or a referral, numerous times since mid-2016. However, Cunningham
and Lamb failed to take any steps to assist plaintiff in obtaining treatment. (Doc.
1, pp. 6-8, 9).
Benton (Chair of the Administrative Review Board) is named because
plaintiff blames her for frustrating his attempts to exhaust his administrative
remedies through the grievance process. (Doc. 1, p. 6). He also claims that by
ignoring his repeated requests for help to obtain proper medical treatment,
Benton allowed the deliberate indifference to his medical condition to continue.
Id. Plaintiff includes copies of a number of grievances he filed to complain about
Ahmed’s ineffective treatment, and points out that many of them were never
answered by the grievance officer. Some of these he sent directly to Benton, and
others made their way to her through the regular grievance appeal channels. Also

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included are several responses from Benton, rejecting plaintiff’s grievances
because they were filed outside the required time frame, or because he did not
include a copy of a response from Lawrence officials (whom he says failed to
respond). (Doc. 1, pp. 9-11; Doc. 1-1, pp. 6, 11, 17, 20-25, 30).
Plaintiff seeks compensatory and punitive damages, as well as injunctive
relief to ensure that he sees a specialist and obtains necessary treatment for his
condition. (Doc. 1, p. 12). To date, he has not filed a separate motion seeking
injunctive relief.
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. 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
Ahmed, for continuing to treat plaintiff’s nasal polyps and sinus
infections with medication that is not effective to relieve his painful
symptoms, and for failing to refer plaintiff to an outside specialist;
Count 2: Eighth Amendment deliberate indifference claims against
Cunningham, Lamb, and Benton, for failing to intervene to obtain
effective treatment for plaintiff’s conditions, after plaintiff informed
them numerous times between July 2016 and late 2017 that
Ahmed’s treatment was not working;
Count 3:
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Claim against Benton for preventing plaintiff from

exhausting his administrative remedies through the IDOC grievance
and appeal process.
Counts 1 and 2 shall proceed for further review in this action. However,
Count 3 fails to state a claim upon which relief may be granted, and shall be
dismissed.
Count 1 – Deliberate Indifference to Serious Medical Needs – Dr. Ahmed
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 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).

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).

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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).

The mere fact that a prescribed treatment has proven to be

ineffective does not state a claim. See Duckworth v. Ahmad, 532 F.3d 675, 680
(7th Cir. 2008).

However, the Seventh Circuit has found that an Eighth

Amendment claim may be stated where a prison doctor persists over time in a
course of treatment known to be ineffective, fails to order further testing, or
refuses to refer the inmate to a specialist. Greeno v. Daley, 414 F.3d 645, 655
(7th Cir. 2005) (doctor continued ineffective treatment, and refused to order
endoscopy or specialist referral over a two-year period during which plaintiff
suffered from ulcer); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990)
(inmate may prevail if he can prove that defendant “deliberately gave him a certain
kind of treatment knowing that it was ineffective”). See also Ortiz v. Webster,
655 F.3d 731, 735 (7th Cir. 2011); Berry v. Peterman, 604 F.3d 435, 441 (7th
Cir. 2010).
In plaintiff’s case, he has suffered from recurring polyps and sinus
infections, accompanied by significant pain and impairment of his ability to
breathe, hear, and sleep. The sinus condition has aggravated his asthma. It has
allegedly

progressed

recommended.

or

persisted

to

the

point

that

surgery

has

been

These allegations sufficiently demonstrate that plaintiff suffers

from an objectively serious medical condition, which satisfies the first component

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of an Eighth Amendment claim. As to the subjective element, the duration of Dr.
Ahmed’s ineffective treatment of plaintiff’s condition, and the failure to refer
plaintiff for specialist evaluation and/or care in the face of his serious symptoms,
suggests possible deliberate indifference on Ahmed’s part.

Further factual

development may reveal that other individuals were responsible for impeding
plaintiff’s referral to a specialist. In any case, plaintiff may proceed at this time
with his deliberate indifference claim against Ahmed in Count 1.
Count 2 – Deliberate Indifference – Cunningham, Lamb, and Benton
The Complaint indicates that Cunningham, the Health Care Administrator,
was responsible for reviewing and responding to inmate grievances regarding
medical treatment, but was not a direct provider of medical treatment to plaintiff.
Lamb and Benton are non-medical officials.
In order to sustain a deliberate indifference claim against any of these
administrative officials who were not directly involved in his medical care, plaintiff
must show that the defendant was informed of his serious medical condition and
of his contention that Dr. Ahmed’s course of treatment had been ineffective,
amounting to a denial of necessary care. If a defendant had such knowledge, but
failed to take any action to remedy the alleged failure to address plaintiff’s medical
issues, the defendant may have been deliberately indifferent to plaintiff’s medical
needs. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (prisoner could
proceed with deliberate indifference claim against non-medical prison officials
who failed to intervene despite their knowledge of his serious medical condition

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and inadequate medical care, as explained in his “coherent and highly detailed
grievances and other correspondences”); Vance v. Peters, 97 F.3d 987, 993 (7th
Cir. 1996) (“a prison official’s knowledge of prison conditions learned from an
inmate’s communications can, under some circumstances, constitute sufficient
knowledge of the conditions to require the officer to exercise his or her authority
and to take the needed action to investigate and, if necessary, to rectify the
offending condition.”).
Plaintiff’s

repeated

written

grievances

and

verbal

complaints

to

Cunningham and Lamb placed them on notice of his ongoing serious symptoms,
and the fact that Ahmed’s treatment had proven to be ineffective over
approximately a year and a half. Nonetheless, Cunningham and Lamb continued
to merely refer plaintiff back to the sick call process.

The alleged failure of

Cunningham and Lamb to take any further action to mitigate the risk of harm to
plaintiff’s health of this long-term ineffective treatment, may arguably amount to
deliberate indifference.

Accordingly, plaintiff may proceed with his claim in

Count 2 against Cunningham and Lamb at this early stage.
The grievances which plaintiff submitted directly to the Administrative
Review Board, and which Benton reviewed, spelled out his history of symptoms
and inability to obtain effective treatment.

(Doc. 1-1, pp. 20-27).

These

grievances also explained plaintiff’s failure to provide the responses to his earlier
grievances as required by prison procedures, because he had never received a
response. In addition, Benton received a number of other grievances in which

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plaintiff detailed his ongoing serious medical problems and the failure of prison
officials to effectively address them. Benton rejected each of these grievances, for
reasons including the lack of required documents showing prison officials’
responses, to untimely submission. This pattern continued for several months.
Because plaintiff’s communications to Benton arguably placed her on notice of his
serious medical condition and the lack of effective treatment, and Benton took no
steps to intervene on his behalf, the deliberate indifference claim against her is
not subject to dismissal at this time. See Perez, 792 F.3d at 782.
Count 2 shall proceed for further consideration against Cunningham,
Lamb, and Benton.
Dismissal of Count 3 – Inability to Exhaust Administrative Remedies
Plaintiff cannot maintain a constitutional claim against Benton based on her
alleged role in preventing him from exhausting his administrative remedies
through the grievance appeal process.
Plaintiff’s efforts to exhaust his administrative remedies by using the prison
grievance process may be relevant in the event that a defendant raises a challenge
to plaintiff’s ability to maintain a § 1983 suit over the substantive matters raised
in the grievances. See 42 U.S.C. § 1997e(a); Pavey v. Conley, 544 F.3d 739, 740
(7th Cir. 2008). A prisoner must exhaust all available administrative remedies
prior to bringing a federal lawsuit, but where the issue of non-exhaustion is
raised, courts will examine whether a grievance remedy was actually available to
the prisoner. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Lewis v.

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Washington, 300 F.3d 829, 833 (7th Cir. 2002).

Nonetheless, a defendant’s

action or inaction in handling plaintiff’s grievances does not support an
independent constitutional claim. “[A] state’s inmate grievance procedures do not
give rise to a liberty interest protected by the Due Process Clause.” Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

The Constitution requires no

procedure at all, and the failure of state prison officials to follow their own
procedures does not, of itself, violate the Constitution. Maust v. Headley, 959
F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th
Cir. 1982).
For this reason, Count 3 against Benton based on her alleged interference
with plaintiff’s efforts to exhaust his grievances shall be dismissed with prejudice.
Disposition
COUNT 3 is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted.
Further, plaintiff is ORDERED to disclose his complete litigation history in
any future complaint he may file in this Court, including any new lawsuit or
amended complaint in an ongoing action.

If plaintiff fails to comply with this

order, he will be subject to sanctions as deemed appropriate by the Court, which
may include the summary dismissal of any case in which he fails to disclose his
prior lawsuits filed during any period of incarceration. See FED. R. CIV. P. 41(b).
The Clerk of Court shall prepare for defendants LAMB, AHMED,
CUNNINGHAM, and BENTON: (1) Form 5 (Notice of a Lawsuit and Request to

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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 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.
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 shall be REFERRED to the United States
Magistrate Judge for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C.

13

§ 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, 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.

Judge Herndon
2018.03.05
17:15:01 -06'00'
United States District Judge

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