Cordrey v. Lamb et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 3/22/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK CORDREY, # R-17059,
Plaintiff,
vs.
NICK LAMB,
C/O GOUNS,
JOHN DOE (C/O),
LIEUTENANT DACO,
MAIN HARRIS,
C. JENNY,
JANE DOE 1 (Nurse),
JANE DOE 2 (Nurse),
and M. GOBLE,
Defendants.

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Case No. 18-cv-107-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Mark Cordrey, currently incarcerated at Lawrence Correctional Center
(“Lawrence”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging
Defendants were deliberately indifferent to his need for medical treatment after he was attacked
by his cellmate. The Complaint is now before the Court for a preliminary 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.
28 U.S.C. § 1915A(b).

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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 some of Plaintiff’s claims survive
threshold review under § 1915A.

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The Complaint
On September 1, 2016, Plaintiff’s cellmate attacked and stabbed him with a pen, injuring
his left arm, right hand, and left leg. (Doc. 1 p. 7). Plaintiff pressed the panic button in his cell
repeatedly during the attack, but nobody responded. At around 8:30 p.m., Plaintiff was called
out of his cell to receive medication and the wing officer noticed that Plaintiff had blood on him
from the wounds. However, the officer (whom Plaintiff identifies later in the Complaint as
Goble), 1 delayed calling for help until the nurse departed. (Doc. 1, pp. 7-8).
Plaintiff told the nurse (Jane Doe 1) who issued his medications about his injuries, but
she ignored him. (Doc. 1, pp. 7-8). After this nurse left, Plaintiff was taken to the Health Care
Unit where he was treated and photographs were taken, but he was never given any pain
medication. 2 (Doc. 1, p. 13). When Plaintiff returned from Health Care, he was placed in
segregation under investigation status. (Doc. 1, pp. 7, 13, 30).
Plaintiff remained in segregation for about a week. During that time, he was denied all
access to sick call, even when he submitted request slips directly to a nurse/medical technician
(Jane Doe 2). (Doc. 1, pp. 7-8, 13). Despite his daily requests for medical care, Plaintiff was
given no treatment for his pain or for the wounds while in segregation. His bandages were never
changed, and the wounds were not cleaned. (Doc. 1, p. 7). The tip of the pen had broken off and
was still embedded in Plaintiff’s arm. He had to dig it out himself because he was never seen by
a medical provider for follow-up treatment. (Doc. 1, p. 13).
Plaintiff also complains that he was denied protection from his cellmate and that officers
failed to react in a reasonable time when he called for help during the assault. (Doc. 1, p. 7).

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On the page following Plaintiff’s factual narrative of the attack and ensuing events, Plaintiff states that
he believes Goble was the officer “who delayed Plaintiff[‘s] medical treatment once he notice[d] blood on
him while in the housing unit.” (Doc. 1, p. 8).
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Plaintiff does not identify the individual(s) who treated him when he first went to the Health Care Unit.

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Plaintiff believes that Lt. Daco was the “reporting officer,” Harris was the shift supervisor, and
Jenny (whom he refers to as “Jennings” in the body of the Complaint) was the reviewing officer.
(Doc. 1, p. 8). It appears that Plaintiff is naming these defendants as the officers on duty on the
night he was attacked. Lamb and Gouns were wardens at Lawrence. Plaintiff alleges that they
were deliberately indifferent to the actions of other staff who violated his rights. (Doc. 1, p. 8).
Finally, Plaintiff asserts that he was denied his right to seek redress through the prison’s
grievance system, and claims that Lamb “retaliated” against him “unlawfully.” (Doc. 1, p. 8).
Plaintiff seeks compensatory and punitive damages. (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. 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 claim against all Defendants, for deliberate
indifference to Plaintiff’s need for medical treatment of his stab wounds and pain
after the September 1, 2016, attack by his cellmate;
Count 2: Eighth Amendment claim against Defendants for failure to protect
Plaintiff from his cellmate’s attack;
Count 3: Claim for denial of access to the prison’s grievance procedure;
Count 4: First Amendment retaliation claim against Lamb.
As discussed below, Count 1 shall proceed for further consideration against some of the
defendants. However, Counts 2, 3, and 4 will be dismissed for failure to state a claim upon
which relief may be granted.
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Count 1 – Deliberate Indifference to Serious Medical Needs
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. The Seventh
Circuit considers the following to be indications of an objectively serious medical need:
(1) where failure to treat the condition could “result in further significant injury or the
unnecessary and wanton infliction of pain”; (2) “[e]xistence of an injury that a reasonable doctor
or patient would find important and worthy of comment or treatment”; (3) “presence of a
medical condition that significantly affects an individual’s daily activities”; or (4) “the existence
of 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 inmates the right 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).

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Plaintiff’s stab wounds and pain appear to have been serious and in need of prompt
medical attention.

The Complaint thus satisfies the objective component of an Eighth

Amendment claim. The remaining question is whether the defendants acted or failed to act with
deliberate indifference to a known risk of serious harm.
Goble was allegedly the first person to notice that Plaintiff was injured, but he delayed
taking Plaintiff to the Health Care Unit until after he received his regular medications from the
nurse (Jane Doe 1). This alleged delay may support a deliberate indifference claim against
Goble. Thus Count 1 will proceed against him.
Plaintiff alleges that he informed Jane Doe 1 about his injuries when she brought
medication to his housing area shortly after the attack, but she refused to give him any treatment.
After she left the area, Plaintiff was taken to the Health Care Unit where he received medical
care. If Jane Doe 1 caused a delay in Plaintiff’s treatment, she could be found to have been
deliberately indifferent to his condition. Count 1 may therefore proceed against her. However,
Plaintiff must identify Jane Doe 1 by name before she can be served with notice of the action or
be directed to respond.
After Plaintiff was placed in segregation, he allegedly had several encounters with Jane
Doe 2 during which he requested treatment for his injuries and pain and gave her written requests
for medical attention. However, she gave him no treatment during that week and Plaintiff was
not seen by any other health care provider. These allegations are sufficient to state a viable
deliberate indifference claim. Count 1 will therefore proceed against Jane Doe 2 as well, once
Plaintiff identifies her by name.
Plaintiff makes a general claim that Warden Lamb and Warden Gouns were deliberately
indifferent to “staff misconduct and their actions of placing Plaintiff in segregation and making

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living conditions and access to sick call hazardous to Plaintiff’s health.” (Doc. 1, p. 8). It
appears that Plaintiff is attempting to hold Lamb and Gouns liable for the actions of other
defendants who allegedly violated Plaintiff’s rights.

However, the doctrine of respondeat

superior (supervisory liability) is not applicable to § 1983 actions. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citations omitted). A supervisor such as a warden may only be
held liable if he was “personally responsible for the deprivation of a constitutional right.” Id.
Here, Plaintiff’s factual allegations do not demonstrate that Lamb or Gouns were
personally aware of his need for medical treatment on September 1, 2016 or during the following
week. As such, there is no factual support for a deliberate indifference claim against either of
them. Count 1 will therefore be dismissed as against Lamb and Gouns.
Similarly, Plaintiff does not claim that Daco, Harris, or Jenny (Jennings) were aware of
his injuries and failed to take action to assist him in obtaining medical care. He merely implies
that one or more of these individuals were on duty when he was attacked, and should have
responded when he pushed the panic button. That type of inaction, however, does not suggest
deliberate indifference. Failing to respond to a panic button despite having the duty to do so
would amount to negligence at worse, but negligence does not violate the Constitution. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
Accordingly, Daco, Harris, and Jenny will also be dismissed from Count 1.
Plaintiff lists a single “John Doe” (Correctional Officer) among the defendants (Doc. 1, p.
2), but he does not mention this person in the statement of claim. (Doc. 1, pp. 7-8). Because
Plaintiff does not associate any allegations of wrongdoing with this John Doe defendant, the
Court is unable to discern whether Plaintiff may have a viable claim against him. John Doe will
be dismissed from the action without prejudice.

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Dismissal of Count 2 – Failure to Protect
Plaintiff alleges generally that prison officials failed to protect him from the assault by his
cellmate. However, his factual allegations do not support a viable Eighth Amendment claim.
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). But
not every harm caused by another inmate translates into constitutional liability for the corrections
officers responsible for the inmate’s safety. Farmer, 511 U.S. at 834. In order for a plaintiff to
succeed on a failure to protect claim, he must show that he is incarcerated under conditions
posing a substantial risk of serious harm, and that the defendants acted with “deliberate
indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must prove that
prison officials were aware of a specific, impending, and substantial threat to his safety, often by
showing that he complained to prison officials about a specific threat to his safety. Pope v.
Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know that there was a
substantial risk that those who attacked Plaintiff would do so, yet failed to take any action. See
Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001).

Conduct that amounts to

negligence or inadvertence is not enough to state a claim. Pinkston, 440 F.3d at 889 (discussing
Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).
As noted under Count 1, the failure to respond to the call button does not amount to
deliberate indifference. Moreover, Plaintiff does not allege that he had any advance warning that
his cellmate posed a threat to him or was likely to attack him, much less that he reported any
threat or danger to any of the defendants. Accordingly, Count 2 will be dismissed without

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prejudice for failure to state a claim upon which relief may be granted.
Dismissal of Count 3 – Grievances
Plaintiff also claims, without elaboration, that he “was denied his rights to seek redress
from the prison through use of the prison grievance system.” (Doc. 1, p. 8). Even if true, this
allegation would not support a constitutional violation.

It is well established that the

mishandling of grievances or failure to respond to them does not implicate any constitutional
right. “[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). Count 3 will
therefore be dismissed with prejudice.
Dismissal of Count 4 – Retaliation
Prison officials may not retaliate against inmates for filing grievances, lawsuits, or
otherwise complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680
F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v.
Carter, 224 F.3d 607 (7th Cir. 2000). The issue in a retaliation claim is whether the plaintiff
experienced an adverse action that would likely deter First Amendment activity in the future, and
if the First Amendment activity was “at least a motivating factor” in the defendants’ decision to
take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009).
Plaintiff claims that Lamb retaliated against him, but he does not provide any details.
(Doc. 1, p. 8). The Complaint does not disclose what Lamb did that might be considered a
retaliatory adverse action. Plaintiff mentions that he filed grievances (which is a protected First

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Amendment activity), but he fails to explain how any of those grievances allegedly triggered a
retaliatory act. Without any factual support, Plaintiff’s bald assertion that Lamb “retaliated” is
insufficient to state a claim upon which relief may be granted. See Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009); Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). Therefore,
Count 4 will be dismissed without prejudice.
Identification of Unknown Defendants
Plaintiff will be permitted to proceed with his claims in Count 1 against Jane Doe 1 and
Jane Doe 2, but must identify them before they can be served with the Complaint. Where an
inmate’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 inmate 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).
In this case, while no viable claim has been stated against Warden Lamb in his individual
capacity, the Clerk shall be directed to add the Warden of Lawrence Correctional Center as a
Defendant, in the Warden’s official capacity only.

The Warden shall be responsible for

responding to discovery aimed at identifying these unknown Defendants.

Guidelines for

discovery will be set by the United States Magistrate Judge. Once the names of Jane Doe 1 and
2 are discovered, Plaintiff shall file a motion to substitute each newly identified defendant in
place of the generic designations in the case caption and throughout the Complaint.
Pending Motion
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.

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Disposition
The Clerk is DIRECTED to add the WARDEN OF LAWRENCE CORRECTIONAL
CENTER (Official Capacity) as a Defendant in this action.
COUNTS 2 and 4 are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted. COUNT 3 is DISMISSED with prejudice for failure to state a
claim upon which relief may be granted.
Defendants LAMB, GOUNS, JOHN DOE, DACO, HARRIS, and JENNY are
DISMISSED from this action without prejudice.
The Clerk of Court shall prepare for Defendants GOBLE and WARDEN OF
LAWRENCE 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, 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.

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Service shall not be made on Defendants JANE DOE 1 or JANE DOE 2 until such time
as Plaintiff has identified them by name in a properly filed motion for substitution of parties.
Plaintiff is ADVISED that it is his responsibility to provide the Court with the names and service
addresses for these individuals.
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
determination on the pending motion for recruitment of counsel (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.
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).

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IT IS SO ORDERED.
DATED: March 22, 2018

s/ STACI M. YANDLE
United States District Judge

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