Sweet v. Trost et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 3/7/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEREK I. SWEET, # K-98426,
Plaintiff,
vs.
JOHN TROST,
and M. MOLDENHAUER,
Defendants.

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Case No. 18-cv-097-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for a preliminary merits review pursuant to 28 U.S.C.
§ 1915A. On January 16, 2018, this Court ordered the claim in this this pro se § 1983 civil rights
action (identified as Count 9 in the original case) to be severed from Plaintiff’s original case,
Sweet v. Ghosh, et al., Case No. 17-cv-1363-DRH. (Doc. 1). Plaintiff is currently incarcerated
at Stateville Correctional Center (“Stateville”).

The claim in this case arose at Menard

Correctional Center (“Menard”) in 2017, and was outlined by the Court in Case No. 17-cv-1363
as follows. For clarity, the Court shall continue to refer to this claim as Count 9 in this action:
Count 9 – In 2017, Trost and Moldenhauer exhibited deliberate indifference to
Plaintiff’s serious medical condition (injury to left arm/elbow and associated
chronic pain) in violation of the Eighth Amendment.
The Complaint (Doc. 2)
According to the Complaint, Plaintiff’s left arm and elbow were seriously injured in an
incident of excessive force that he experienced at Menard in 2006. (Doc. 2, pp. 8-9). He claims
that a correctional officer stood on his left arm and stomped on it while he was lying on the floor
with his hands cuffed behind his back. Id. In February 2007, Plaintiff’s arm was reinjured in a
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second excessive force incident. (Doc. 2, pp. 10-12). (Those incidents were the subject of
claims designated in the original case as Counts 1 and 4, which remained in that case and have
been dismissed as barred by the statute of limitations.) Subsequent to those injuries, Plaintiff
was transferred to Stateville. In March 2010, he was again sent to Menard, where he remained
until November 21, 2017, when he was returned to Stateville. (Doc. 2, pp. 19-25).
Plaintiff has continued to suffer from chronic pain and swelling, throbbing, numbness,
and “bone-on-bone grinding” in his left arm and elbow. (Doc. 2, p. 20). At times, the pain is so
extreme that it has caused him to lose consciousness, scream, and urinate in his pants. Id. There
is a “crook” in his arm and his range of motion is impaired. Id. Plaintiff is left-handed, so the
injury further complicates his daily activities. (Doc. 2, p. 14).
On February 9, 2017, Plaintiff filed grievances and sent a “kite” to medical staff, seeking
treatment for his chronic pain. (Doc. 2, pp. 20, 38, 62-63). His grievance included “full detail”
of his symptoms, including the ongoing pain in his left arm/elbow and his left ear.1 Id.
On February 12, 2017, Plaintiff was issued a pass for sick call. He saw a medical
technician, who gave him Tylenol and referred him to the doctor. (Doc. 2, p. 21).
Plaintiff saw Dr. Trost on February 20, 2017. Trost “didn’t want to hear what Plaintiff
had to say” about his condition, but he ordered an x-ray and 800 mg of Ibuprofen. (Doc. 2, p.
21).

The x-ray was scheduled for February 22, 2017, but was then cancelled without

explanation. On February 28, 2017, Plaintiff’s arm was x-rayed. He was given an appointment
for March 10, 2017, to review the x-ray results with Dr. Trost, but that appointment was also

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Plaintiff states that in 2007 he lost hearing in his left ear; he requested treatment while he was at
Stateville, but nothing was done. (Doc. 2, p. 18).

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cancelled.2 Id. Plaintiff attaches a grievance dated March 23, 2017, stating that he saw another
doctor on that day regarding his x-ray results, and was told he had arthritis. (Doc. 2, p. 57). In
the grievance, Plaintiff disputed this conclusion, based on his symptoms of popping and cracking
noises, numbness, and sharp pain in his elbow. He then described how on the night of March 23,
2017, his elbow popped and cracked when he reached for his coffee cup, causing shooting pain
and then rapid swelling from his elbow to the upper arm. (Doc. 2, p. 58).
On March 24, 25, and 26, 2017, Plaintiff’s left arm/elbow was popping and cracking.
(Doc. 2, p. 21). It was also severely swollen and tender to the touch, especially when Plaintiff
moved his arm to reach for anything. (Doc. 2, p. 22). His ring finger and pinky finger on his left
hand were numb for 3-4 days. This condition made it very hard for Plaintiff to perform routine
activities such as washing up, brushing his teeth, and dressing himself. Id.
Plaintiff made several attempts between March 24 and 26, 2017, to obtain medical
attention. He notified a gallery officer, who took down Plaintiff’s name, number, and cell
location, and informed the Sergeant and Lieutenant. However, Plaintiff was not taken to Health
Care or given an ice pack. (Doc. 2, pp. 22, 59). Plaintiff showed his swollen arm to a medical
technician making rounds on the gallery, and asked for an ice pack, but he was ignored. (Doc. 2,
p. 22). These individuals are not included as Defendants in the Complaint.
On March 26, 2017, Plaintiff woke up to severe throbbing pain in the arm, and needed to
do “hot/cold treatments” for 30-45 minutes before his arm would loosen up enough to function.
(Doc. 2, p. 23). He submitted 2 grievances; one over not receiving his x-ray results, and the

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An exhibit attached to the Complaint discloses the following with regard to the x-ray: “There is
osteoarthritis of the elbow joint with a small elbow joint effusion. No definite evidence of an acute bony
fracture is seen on this examination.” (Doc. 2, p. 35).

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other over the denial of medical assistance by correctional officers.3
On March 28, 2017, Plaintiff was given a “verbal sick call announcement” and was seen
by a medical technician, whom he told about his left arm/elbow symptoms. He does not indicate
what, if any, treatment he received on that date. That evening, Plaintiff submitted FOIA requests
for his medical records and grievances. (Doc. 2, p. 23).
On April 3, 2017, Plaintiff received a medical pass to see Physician Assistant
Moldenhauer, however, the pass was cancelled without explanation. Id. Plaintiff continued to
suffer with numbness, swelling, popping and cracking, and shooting pain from his left elbow
down to his fingers. (Doc. 2, pp. 23-24).
On April 7, 2017, Plaintiff saw Moldenhauer. Plaintiff attempted to tell Moldenhauer
about his medical issues, but Moldenhauer cut him off and would not listen. (Doc. 2, p. 24).
Moldenhauer also disregarded Plaintiff’s request to see an outside specialist and refused to give
Plaintiff an ice pack or elbow soaks. Id. Moldenhauer did not examine Plaintiff’s arm or ask
him to do muscle tests. (Doc. 2, pp. 24, 60-61).
Plaintiff seeks compensatory and punitive damages, and a referral to an outside specialist
for treatment. (Doc. 2, p. 28).
Merits Review Pursuant to 28 U.S.C. § 1915A
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.

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Plaintiff includes a copy of a written request for treatment, dated March 26, 2017 and directed to the
HCU, which states that he was experiencing severe pain, swelling, and popping in his left arm/elbow.
(Doc. 2, p. 37). He also states that the doctor diagnosed it as arthritis, but insists the “issue is beyond
arthritis.” Id.

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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
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 Plaintiff’s claims in Count 9 survive
threshold review under § 1915A.
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.

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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). 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 initial arm injury, and his ongoing chronic pain, swelling, and
impairment satisfy the objective component of an Eighth Amendment claim.

As to the

subjective element, Plaintiff’s written requests for treatment in February 2017, as well as his visit
to Dr. Trost, informed Trost of Plaintiff’s persistent symptoms.

Trost initially took the

reasonable measure of scheduling Plaintiff for an x-ray, and ordered Ibuprofen for him.
However, Trost apparently did nothing further to follow up, and it was nearly a month before
Plaintiff saw a different doctor to learn about his x-ray results, on March 23, 2017. Arguably,
the delay in treatment and lack of any follow-up to Plaintiff’s x-ray or further evaluation to treat
his severe symptoms could support a deliberate indifference claim against Dr. Trost.

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When Plaintiff experienced an acute episode of shooting pain, swelling, and numbness on
March 24, 2017, he was unable to obtain medical attention until April 7, 2017, when he saw
Moldenhauer. Despite Plaintiff’s attempts to explain his symptoms, Moldenhauer refused to
even examine Plaintiff, give him any treatment, or refer him to a specialist or another practitioner
within the prison. Moldenhauer’s failure to take any steps to address Plaintiff’s condition may
also support a deliberate indifference claim.
Accordingly, the claims in Count 9 shall proceed for further consideration against both
Defendants.
The Court notes, however, that Plaintiff’s request for injunctive relief appears to be moot
in this severed action. “[W]hen a prisoner who seeks injunctive relief for a condition specific to
a particular prison is transferred out of that prison, the need for relief, and hence the prisoner’s
claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). See also Higgason v.
Farley, 83 F.3d 807, 811 (7th Cir. 1995). Only if Plaintiff can show a realistic possibility that he
would again be incarcerated at Menard under the conditions described in the Complaint, would it
be proper for the Court to consider injunctive relief. See Maddox v. Love, 655 F.3d 709, 716 (7th
Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 4) shall be referred to the United
States Magistrate Judge for further consideration.
Disposition
The Clerk of Court shall prepare for Defendants TROST and MOLDENHAUER: (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

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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, which shall include a determination on the
pending motion for recruitment of counsel (Doc. 4).
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. § 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).

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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: March 7, 2018

s/J. Phil Gilbert
United States District Judge

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