Parker v. Federal Bureau of Prisons Health Services Division et al

Filing 17

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 2/12/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY ALTON PARKER,
#15381-045,
Plaintiff,
vs.
FEDERAL BUREAU OF PRISONS
HEALTH SERVICES DIVISION,
MARION PRISON CAMP
MEDICAL STAFF,
RANDELL PASS,
CASEY FRANKS,
LESLEE BROOKS,
PATRICK TROVILLIN,
A. DEATON, and
S. HOLEM,
Defendants.

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Case No. 18-CV-106-JPG

MEMORANDUM AND ORDER

GILBERT, District Judge:
This action was originally filed in the United States District Court for the Southern
District of Indiana, and was transferred here on January 19, 2018. (Doc. 12). Plaintiff, Terry
Alton Parker, is currently housed at the United States Penitentiary in Terre Haute, Indiana (“USP
Terre Haute”). Plaintiff’s Complaint pertains to his incarceration at the Federal Prison Camp in
Marion, Illinois (“Marion”). According to the Complaint, when Plaintiff was incarcerated at
Marion, officials failed to provide appropriate treatment for his serious medical condition (heart
condition and related pain). Plaintiff contends Defendants are liable pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, and Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971).1 In connection with these claims, Plaintiff sues the Federal Bureau
of Prisons Health Services Division, Marion Prison Camp Medical Staff, Randell Pass (Medical
Provider, Marion), Casey Franks (Medical Provider, Marion), Leslee Brooks (Medical Provider,
Marion),

Patrick

Trovillin

(Medical

Provider,

Marion),

A.

Deaton

(Correctional

Officer/Counselor, Marion), and S. Holem (Chaplain, Marion).2 Plaintiff seeks monetary and
injunctive relief.
The case is now before the Court for a preliminary review of the Complaint (Doc. 2)
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).
Request for Injunctive Relief
Plaintiff was housed at Marion from approximately November 2014 through September
2016.3 On September 10, 2016, prison officials informed Plaintiff he was being transferred to
USP Terre Haute, where Plaintiff is presently incarcerated. On October 11, 2017, Plaintiff filed

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Plaintiff also references the Administrative Procedures Act (“APA”). However, the transferor court dismissed any
claim brought pursuant to the APA, finding that the Complaint contained no allegations which would support an
APA claim. (Doc. 12, p. 1 n.1).
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The Complaint does not include a comprehensive list that identifies each Defendant and provides a description of
his or her position. However, after reviewing the Complaint and attached exhibits (332 pages) the Court was able to
discern that each of the individually named Defendants is a medical provider, counselor/correctional officer, or
chaplain working at Marion. (Casey Franks – Doc. 2, p. 1 and Doc. 2-1, pp. 9, 20, 28, 56, 77; A. Deaton – Doc. 2, p.
1, 4 and Doc. 2-1, p. 70; S. Holem – Doc. 2, p. 1 and Doc. 2-1, p. 48; Randell Pass – Doc. 2, p. 1; Doc. 2-1, pp. 5163, 75-76, 95-110; Patrick Trovillin – Doc. 2, p. 1, Doc. 2-1, pp. 70, 72, 115, and Doc. 2-2, pp. 5-7; and Leslee
Brooks – Doc. 2, pp. 1, 6, Doc. 2-2, pp. 1-3, Doc. 2-1, pp. 65-66).
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Plaintiff does not provide an exact date for his arrival at Marion. However, he does state that (1) he spent 22
months at Marion and (2) on September 10, 2016, prison officials informed him he was being transferred to USP
Terre Haute. (Doc. 2, p. 8). These facts suggest that Plaintiff was housed at Marion from approximately November
2014 through September 2016.

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the instant action.
The Complaint alleges that Marion officials were deliberately indifferent to Plaintiff’s
heart condition and associated pain. Plaintiff does not direct any specific allegations against
officials at USP Terre Haute and none of the Defendants are associated with USP Terre Haute.
However, at the close of the Complaint, Plaintiff claims that he is still being denied medical
treatment and that he is in need of injunctive relief. Unfortunately, the Court cannot address
Plaintiff’s request for injunctive relief in this action. As noted above, the events giving rise to
this action occurred at Marion and all of Plaintiff’s allegations are directed at Marion officials.
Indeed, that is the very reason the United States District Court for the Southern District of
Indiana transferred the action here. (See Doc. 12, p. 2 “Here, the individual defendants, the
alleged misconduct, and most of the evidence is located or took place in the Southern District of
Illinois.”). Thus, Plaintiff’s request for injunctive relief is unrelated to the claims at issue in this
case and must be denied.
If Plaintiff is presently being denied medical treatment for a serious medical need at USP
Terre Haute, he must file a new lawsuit naming as defendants the individuals at USP Terre Haute
who are responsible for providing him with care. Plaintiff may then file a Rule 65 motion for a
temporary restraining order and/or preliminary injunction in that new action.
The Complaint
When Plaintiff arrived at Marion, he suffered from a heart condition and had an
implanted heart pacemaker. (Doc. 2, p. 2). According to Plaintiff, because of his heart condition
and pacemaker, he should have been classified as a “medical level 3,” resulting in placement at a
facility equipped to handle such medical issues. Id. Instead, Plaintiff was classified as a
“medical level 2” and was placed at Marion, a facility that Plaintiff alleges was not equipped to
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handle his serious medical issues. Id.
As soon as Plaintiff arrived at Marion, he encountered problems with the medical staff.
Unspecified individuals claimed they never received Plaintiff’s medical records and/or had
thrown them away. (Doc. 2, pp. 2-3). This resulted in a delay in treatment because Marion
officials refused to rely on the medical records provided by Plaintiff. (Doc. 2, p. 2). After
submitting numerous complaints about issues associated with his heart, “Marion” finally ordered
tests. (Doc. 2, p. 3). The tests revealed that Plaintiff’s pacemaker was misfiring and that
Plaintiff had “blockage gaps.” Id.
Marion officials referred Plaintiff for treatment with Doctor Mwansa (not a defendant in
this action) at the River Clinic in Marion, Illinois. Id. Dr. Mwansa performed several tests and
all of the results were “bad and serious.” Id. On February 2, 2015, Dr. Mwansa admitted
Plaintiff to the hospital for a heart catheterization. Id. The test revealed a triple blockage, known
as the LAD widow maker. Id. Dr. Mwansa contacted Marion and had Plaintiff transferred by
ambulance to St. Francis hospital for an emergency surgery with Dr. Bender. 4
Plaintiff told Dr. Bender (not a defendant in this action) that a previous physician told
him his heart was too weak for surgery, particularly because Plaintiff had, at some point,
received radiation treatment.

Id.

According to the Complaint, Dr. Bender then falsified

documents to justify the emergency surgery. Id. Additionally, with regard to Dr. Bender,
Plaintiff complains about the following: (1) he elected to perform a double bypass instead of a
triple bypass; (2) he rushed Plaintiff’s surgery; (3) he performed the surgery improperly; and (4)
he failed to close Plaintiff’s chest properly. Id.
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Plaintiff also claims that Dr. Mwansa falsified records in connection with his heart catheterization. (Doc. 2, p. 3).
However, Dr. Mwansa is not a defendant in this action. Accordingly, the Court will not delve any further into the
claims regarding Dr. Mwansa’s alleged misconduct.

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Two months after Plaintiff’s double bypass, he had a second heart surgery. (Doc. 2, p. 8).
The procedure was performed by Dr. Mwansa and involved a stent repair. (Doc. 2, p. 5).
Plaintiff claims that the incision from this surgery never healed properly and causes constant
pain. (Doc. 2, pp. 5, 8).
According to the Complaint, while at Marion (before, during, and after his surgeries),
medical officials repeatedly exhibited deliberate indifference to Plaintiff’s heart condition and
associated pain. (Doc. 2, pp. 4-8). For instance, after his first surgery, Plaintiff claims he was
forced to walk long distances in ice and snow and to walk up and down stairs – all against
doctors’ orders. (Doc. 2, p. 4). He also claims that Marion officials (1) refused to give him pain
medication, as prescribed by Dr. Bender (Doc. 2, p. 4); (2) repeatedly ignored his complaints
about ongoing pain, loose wires in his chest, and other troubling symptoms (Doc. 2, pp. 2-8); (3)
knew he had received a double bypass when, in fact, he needed a triple bypass (Doc. 2, p. 5); (4)
ignored problems relating to a severely swollen ankle (Doc. 2, p. 7); and (5) failed to send
Plaintiff to follow-up appointments in a timely manner (Doc. 2, p. 7). However, with few
exceptions, Plaintiff’s deliberate indifference allegations are not directed at any specific
individual. Instead, these claims are directed at “FPC Marion,” “staff,” and/or “they.”
Plaintiff does direct specific allegations against two Defendants: (1) Leslee Brooks
(Physician’s Assistant) and (2) A. Deaton (Correctional Officer/Counselor). Plaintiff alleges
that, on one occasion, Deaton told Plaintiff he should not have notified his family about his
surgery because “heart surgery was no big deal.” (Doc. 2, p. 4). Plaintiff alleges that Brooks
repeatedly exhibited deliberate indifference to his serious medical condition in the following
ways: (1) ignoring Plaintiff’s requests for pain medication; (2) ignoring Plaintiff’s complaints

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about being dizzy and short of breath; (3) ignoring Plaintiff’s complaints about ongoing pain at
the incision site; (4) ignoring Plaintiff’s concerns about his pacemaker; and (5) delaying
treatment and/or providing inadequate treatment. (Doc. 2, pp. 6-8).
Dismissal of Certain Defendants

Marion Prison Camp Medical Staff
Plaintiff has named Marion Prison Camp Medical Staff as a defendant. This is not
sufficient. Plaintiff must identify a particular individual (not a group of individuals) who
deprived Plaintiff of his constitutional rights. That is because 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 Twombly, 550 U.S. at
555; FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a specific 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. See Collins v. Kibort, 143 F.3d 331,
334 (7th Cir. 1998).5
Accordingly, Marion Prison Camp Medical Staff shall be dismissed from this action with
prejudice.
Federal Bureau of Prisons Health Services Division
Plaintiff has named the Federal Bureau of Prisons Health Services Division as a
defendant. This Defendant, a division of a federal agency, is not a proper defendant in an FTCA
action or a Bivens action. See FDIC v. Meyer, 510 U.S. 471, 483-486 (1994) (federal agencies

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Group defendants also create problems with service of process. See Jenkins v. Wisconsin Res. Ctr., No. 09-CV323-BBC, 2009 WL 1797849, at *1 (W.D. Wis. June 24, 2009) (a group of people cannot be sued; each defendant
must be an individual or legal entity that may accept service of a complaint) (citing FED. R. CIV. P. 4(e)-(j)).

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are not subject to suit for damages under Bivens); Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir.
2008) (United States is the only proper defendant in an FTCA action).
Accordingly, the Federal Bureau of Prisons Health Services Division shall be dismissed
from this action with prejudice.
Defendants Not Referenced in the Complaint
Pass, Franks, Trovillin, and Holem are identified as defendants in the case caption and
are referenced in some of the exhibits. However, none of these individuals are referenced in the
body of the Complaint. This is insufficient. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.
1998) (merely naming a defendant in the caption is insufficient to state a claim); Potter v. Clark,
497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on
the part of the defendant and the complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed, even under the liberal construction
to be given pro se complaints.”).
Accordingly, Pass, Franks, Trovillin, and Holem shall be dismissed from this action
without prejudice.
Division of Counts

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.

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Count 1: Federal Tort Claim seeking compensation for the injuries Plaintiff
sustained, in connection with his heart condition, as a result of the negligence of
prison officials at Marion.
Count 2: Eighth Amendment claim against Brooks for deliberate indifference to
Plaintiff’s serious medical condition (heart condition and related pain).
Count 3: Eighth Amendment claim against unnamed Marion medical providers
for deliberate indifference to Plaintiff’s serious medical condition (heart condition
and related pain).
Count 4: Claim against Deaton for telling Plaintiff heart surgery is not a “big
deal” and for suggesting Plaintiff should not have contacted his family about the
same.
Count 1
The FTCA explicitly authorizes “civil actions on claims against the United States, for
money damages ... for ... personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, “federal inmates may bring suit for
injuries they sustain in custody as a consequence of the negligence of prison officials.” Buechel
v. United States, 746 F.3d 753, 758 (7th Cir. 2014). However, the United States is the only
proper defendant in an FTCA action. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008);
Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982). See 28 U.S.C. § 2679(b).
Plaintiff did not name the United States as a party in the Complaint, and the Court will
not add this party. See Myles v. United States, 416 F.3d 551 (7th Cir. 2005). In order to make
someone a party, Plaintiff, not the Court, must name them in the case caption. See Myles, 416
F.3d at 551-52 (citing FED. R. CIV. P. 10(a) (“In the complaint, the title of the action shall include
the names of all the parties”)). Plaintiff chose not to name the United States as a defendant in
this action, and the Court will not undertake the task of deciding who Plaintiff sues. The Court
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leaves this decision to Plaintiff.

Accordingly, Plaintiff’s FTCA claim is dismissed without

prejudice.
Count 2
Prison officials violate the Eighth Amendment's prohibition against cruel and unusual
punishment when they act with deliberate indifference to the serious medical needs of prisoners.
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To state a claim for deliberate indifference for
deficient medical care, the plaintiff “must allege an objectively serious medical condition and an
official's deliberate indifference to that condition.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th
Cir. 2015). Deliberate indifference includes disregarding an inmate’s complaints of chronic
pain. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).
Obviously, Plaintiff’s heart condition and associated pain constitute an objectively
serious condition. Plaintiff has also sufficiently alleged that Brooks responded with deliberate
indifference to that condition. Plaintiff claims that Brooks failed to treat and/or ignored his
complaints about constant pain in his heart, left arm, and incision site. (Doc. 2, p. 6). He also
alleges that Brooks ignored his complaints about feeling dizzy and being short of breath. Id.
These allegations are sufficient, at this early stage, to allow Count 2 to proceed as to Brooks.
Count 3
The Complaint suggests that other medical providers at Marion may have responded with
deliberate indifference to Plaintiff’s serious medical needs. However, these claims are not
associated with any particular individual. Throughout the Complaint, Plaintiff fails to identify
the specific provider or providers who denied or delayed his medical care and/or who provided
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inadequate medical care.

Accordingly, as pled, the Complaint fails to state a deliberate

indifference claim as to any other official at Marion, and Count 3 shall be dismissed without
prejudice.
Count 4
The Complaint suggests that, on a single occasion, Deaton’s conduct may have been
insensitive or unprofessional. But, this is not enough to state a constitutional claim. See De Walt
v. Carter, 224 F.3d 607, 612 (7th Cir.2000) (rude language or verbal harassment by a state actor
“while unprofessional and deplorable, does not violate the Constitution.”). Accordingly, Count 4
shall be dismissed without prejudice for failure to state a claim upon which relief may be
granted.
Disposition
IT IS HEREBY ORDERED that MARION PRISON CAMP MEDICAL STAFF and
FEDERAL BUREAU OF PRISONS HEALTH SERVICES DIVISION are DISMISSED
from this action with prejudice. The Clerk of the Court is DIRECTED to terminate these
Defendants as parties in CM/ECF.
IT IS FURTHER ORDERED that PASS, FRANKS, TROVILLIN, and HOLEM are
DISMISSED from this action without prejudice. The Clerk of the Court is DIRECTED to
terminate these individuals as parties in CM/ECF.
IT IS FURTHER ORDERED that COUNTS 1, 3, and 4 are DISMISSED without
prejudice for failure to state a claim upon which relief may be granted. In connection with the
dismissal of COUNT 4, the Clerk of the Court is DIRECTED to terminate DEATON as a party
in CM/ECF.
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IT IS FURTHER ORDERED that COUNT 2 shall receive further review as to
BROOKS.
IT IS FURTHER ORDERED that, as to COUNT 2, the Clerk of Court shall prepare for
BROOKS: (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 Defendant’s place of employment as
identified by Plaintiff. If 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 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.
If Defendant can 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.
Defendant is 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, 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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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: February 12, 2018

s/ J. Phil Gilbert
United States District Court

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