Miles v. Mueller et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/7/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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VINCENT MILES,
#N41303,
Plaintiff,
vs.
ROBERT C. MUELLER,
DR. SANTOS,
RN BREWER,
LISA KREBS,
COUNSELOR WALKER,
DEBORAH S. ZELASKO,
SHERRY BENTON, and
JOHN R. BALDWIN,
Defendants.

Case No. 18 cv–254 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Vincent Miles, an inmate in Centralia Correctional Center (“Centralia”), brings
this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. In
his Complaint, Plaintiff claims the defendants have been deliberately indifferent to his serious
medical issues in violation of the Eighth Amendment.
This case is now before the Court for a preliminary review of the Complaint (Doc. 1).
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
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(2) seeks monetary relief from a defendant who is immune from
such relief.
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 any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint, Plaintiff makes the following allegations: on April 20, 2016, Plaintiff
was transferred to Centralia. (Doc. 1, p. 6). During his incarceration prior to being transferred to
Centralia, it was discovered that Plaintiff suffers from degenerative arthritis, which caused him
to have a total hip replacement in 2006. Id. This left him with “a number of arthritic pains
bilaterally growing throughout [his] body which warrant constant treatment for pain.” Id. Due to
this condition, Plaintiff was prescribed Maloxecom (presumably Meloxicam), Indocin 50mg,
Ibuprofen 200-600mg, Utrum 50mg (presumably Ultram), Neproxen 200-500mg (presumably
Naproxen), and Motrin 200-800mg while incarcerated at other institutions. Id. Plaintiff was also
on General Medicine Clinic, where he “would regularly be seen by a doctor and regularly
prescribed medications for pain without co-pay due to [his] medical condition being chronic.” Id.
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After arriving at Centralia, Plaintiff saw Dr. Santos for renewal of his medical permits
relating to his medical condition, including low bunk, low gallery, and cane permits. Id. During
this meeting, Plaintiff asked Dr. Santos about prescribing him pain medication. Id. Dr. Santos
told Plaintiff he would have to “pay for that.” Id. Dr. Santos then issued the medical permits
mentioned above, but he did not issue Plaintiff a prescription for pain medication. Id.
On April 23, 2016, Plaintiff wrote a letter to the Health Care Administrator, Lisa Krebs,
informing her of his General Medicine Clinic status and requesting to once again be granted that
status. (Doc. 1, p. 7). He included with the letter a medical memorandum dated January 11, 2015
from the Health Care Administrator at Pinckneyville, which acknowledges that Plaintiff was
placed on “general med clinic for arthritis in January 2015.” Id.; (Doc. 1-1, p. 8). After receiving
no response to his initial letter, Plaintiff wrote a second letter requesting to be placed on General
Medicine Clinic. (Doc. 1, p. 7). He did not receive an immediate response. Id.
After submitting a sick call request, Plaintiff was called to the Health Care Unit (“HCU”)
on May 13, 2016, where he saw Certified Medical Technician Brewer. Id. Brewer told Plaintiff
that she had to prescribe him basic pain medication pursuant to protocol, despite his previous
prescriptions for pain medication. Id. Plaintiff was charged a $5 co-pay and given 200mg
Ibuprofen. Id. He tried to explain to Brewer that the prescribed medication would be ineffective
in treating his level of pain, and he attempted to show her documents including radiology reports
and clinical progress notes to prove it to her. Id. She refused to review any of Plaintiff’s medical
documents. Id.
On May 17, 2016, Plaintiff returned to the HCU with the same complaint of pain. Id. He
was required to pay a second $5 co-pay. Id. He informed the medical staff that 200mg Ibuprofen
was inadequate to treat his pain and that he was prescribed stronger medications previously. Id.

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He was then scheduled to see Dr. Santos. Id. Two days later, Plaintiff saw Dr. Santos and
attempted to show him medical documents verifying his previous diagnosis and prescriptions for
pain. Id. Dr. Santos did not review the documents, but he changed Plaintiff’s prescription to
375mg Naproxen, which is “another medication that is wholly inadequate to treat [Plaintiff’s]
pain.” (Doc. 1, pp. 7-8). When Plaintiff asked Dr. Santos to be on General Medicine Clinic so
that he would not have to pay the $5 co-pay, Dr. Santos responded that there was no General
Medicine Clinic. (Doc. 1, p. 8).
On May 23, 2016, Plaintiff wrote another letter to Lisa Krebs asking to be placed on
General Medicine Clinic due to his medical condition and to be exempted from the $5 co-pay. Id.
Krebs responded in a memorandum dated May 24, 2016, stating that the decision whether to
place Plaintiff on General Medicine Clinic was that of Dr. Santos. Id. On May 27, 2016, Plaintiff
filed an institutional grievance regarding this matter, from which he received no relief. Id. On
June 8, 2016, Plaintiff sent Dr. Santos a letter because he had previously refused to acknowledge
that there was a General Medicine Clinic for Plaintiff’s arthritic condition, and he did not accept
Plaintiff’s suggestions for what pain medication would be ineffective for treating his pain. Id.
Plaintiff did not receive a response from Dr. Santos. Id.
On June 18, 2016, Plaintiff visited the HCU with the same complaint of pain. Id. He was
required to pay the $5 co-pay and was scheduled to see Dr. Santos. Id. On June 21, 2016,
Plaintiff saw Dr. Santos and told him that the 375mg Naproxen was inadequate and, that based
on previous prescriptions, 500mg Naproxen also would be ineffective. Id. Despite this
information, Dr. Santos prescribed 500mg Naproxen. Id.
On July 19, 2016, Plaintiff paid another $5 co-pay for the same complaint of arthritic
pain and inadequate pain medication. Id. He saw Dr. Santos on July 21, 2016, and complained to

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him of pain in his hips, wrists, shoulders, and elbows. Id. Plaintiff also requested an x-ray. Id. Dr.
Santos suggested 600mg Ibuprofen, but Plaintiff told him that it would be ineffective based on
his previous prescriptions. (Doc. 1, pp. 8-9). Despite this information, Dr. Santos prescribed
600mg Ibuprofen. (Doc. 1, p. 9).
On July 31, Plaintiff visited the HCU again for the same issues. Id. He was charged a $5
co-pay. Id. On August 2, 2016, Plaintiff met with Dr. Santos and told him that 7.5 mg
Meloxicam would also be ineffective for treating his level of pain based on previous
prescriptions. Id. Despite this, Dr. Santos prescribed Plaintiff 7.5mg Meloxicam. Id.
On August 23, Plaintiff returned to the HCU complaining of the same issues. Id. He was
charged another $5 co-pay and scheduled to see Dr. Santos again. Id. He met with Dr. Santos
August 26, 2016, and he explained the Meloxicam did not work for his level of pain. Id. He also
tried to show Dr. Santos medical documents where he had previously been prescribed
Meloxicam by another doctor. Id. Plaintiff requested to be placed on the General Medicine Clinic
so he would not have to continue to pay the $5 co-pay. Id. Dr. Santos refused to place Plaintiff
on the General Medicine Clinic and increased his dosage from 7.5mg to 15mg, the same dosage
that the previous doctor tried. Id.
Plaintiff again complained to Lisa Krebs about his treatment, but he received a
memorandum on September 8, 2016, which explained that Dr. Santos makes medical decisions,
including regarding the treatments and medications Plaintiff receives. Id. The next day, Plaintiff
wrote to Dr. Santos explaining his need for stronger pain medication and placement on the
General Medicine Clinic. Id. He received no response. Id.
On September 24, 2016, Plaintiff paid another $5 co-pay at the HCU where he
complained of the same issues. (Doc. 1, p. 10). On September 27, 2016, Plaintiff saw Dr. Santos

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again and requested adequate pain medication and to be placed on General Medicine Clinic. Id.
Plaintiff stressed to Dr. Santos that the 15mg Meloxicam was ineffective. Id. Dr. Santos then
prescribed 15mg Meloxicam for the next two months. Id.
On October 25, 2016, Plaintiff paid another $5 co-pay to be seen at the HCU and
complained of the same issues. Id. He saw Dr. Garcia on October 29, 2016, and he spoke to him
about his history with arthritis and pain. Id. He also told Dr. Garcia about how pain affected his
depression and blood pressure, and how he was frustrated with the inadequate pain medications
that had been prescribed by Dr. Santos. Id. Dr. Garcia then suggested Plaintiff try a combination
of 600mg Ibuprofen, 750mg Roboxin (presumably Robaxin), and a tube of analgesic balm for
topical application to painful areas. Id. Though this was not completely effective, it worked
better in treating Plaintiff’s arthritic pain, “reducing [his] pain level from about a 7 to a 5 on
good days.” Id.
“After a bad day where [Plaintiff’s] pain level spiked to a 9 or 10,” Plaintiff returned to
the HCU, paid another $5 co-pay, and met with Dr. Garcia, who renewed his prescription. Id. On
December 24, 2016, Plaintiff paid another $5 co-pay for the same issues and was scheduled to
see Dr. Santos on December 27, 2016. Id. At the appointment, Plaintiff told Dr. Santos that Dr.
Garcia’s suggested prescriptions had been more effective for treating his pain. Id. Plaintiff asked
Dr. Santos to renew the prescriptions for this reason, but Dr. Santos refused to prescribe the
analgesic balm along with the Ibuprofen and Robaxin. (Doc. 1, p. 11).
On January 22, 2017, Plaintiff paid another $5 co-pay at the HCU for the same issues and
was scheduled to see Dr. Santos on January 24, 2017. Id. He informed Dr. Santos that the
Robaxin and Ibuprofen were not as effective in treating his pain without the analgesic balm. Id.
In response, Dr. Santos refused to prescribe the analgesic balm and cut Plaintiff’s Robaxin

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prescription from 30 to 10 days. Id. “Dr. Santos continues to prescribe [Plaintiff] pain medication
as such to date.” Id. Plaintiff has informed Dr. Santos the most effective pain medication he has
received was 50mg Ultram, but Dr. Santos refuses to prescribe it to Plaintiff, and he refuses to
place Plaintiff on General Medicine Clinic. Id.
Plaintiff also claims that Counselor Walker and Deborah Zelasko “refused to recommend
that Plaintiff be provided proper pain medication and placed on General Medicine Clinic,” and
that “Warden Robert C. Mueller concurred with this decision.” (Doc. 1, p. 12). Plaintiff further
alleges that Sherry Benton denied him relief from his complaint of inadequate pain medication
and need to be placed on General Medicine Clinic, and John R. Baldwin concurred. Id.
Plaintiff requests monetary and injunctive relief. 1 (Doc. 1, p. 13).
Discussion
Based on the allegations and claim articulated in the Complaint, the Court finds it
convenient to designate a single count in this pro se action. The parties and the Court will use
this designation in all future pleadings and orders, unless otherwise directed by a judicial officer
of this Court. The designation of this count does not constitute an opinion regarding its merit.
Count 1 –

Defendants showed deliberate indifference to Plaintiff’s serious
medical needs involving degenerative arthritis and pain associated
therewith in violation of the Eighth Amendment.

As discussed in more detail below, this claim will be allowed to proceed past threshold.
Any other intended claim that has not been recognized by the Court is considered dismissed
without prejudice as inadequately pleaded under the Twombly pleading standard.

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Notably, Plaintiff did not file a separate motion seeking a preliminary injunction pursuant to Rule 65 of
the Federal Rules of Civil Procedure, and he does not specifically mention a desire for a preliminary, rather than
permanent, injunction. Should an urgent need arise, Plaintiff may request a preliminary injunction by filing a
separate motion pursuant to Rule 65. Until he does so, his request will be construed as a request for permanent, not
preliminary, injunctive relief.

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As to Count 1, the Eighth Amendment to the United States Constitution protects
prisoners from cruel and unusual punishment. See Berry v. Peterman, 604 F.3d 435 (7th Cir.
2010). The Supreme Court has recognized that “deliberate indifference to serious medical needs
of prisoners” may constitute cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976); see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, a prisoner
must show that: (1) he suffered from an objectively serious medical need; and (2) state officials
acted with deliberate indifference to the prisoner’s medical need, which is a subjective standard.
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The Seventh Circuit has held that a medical need is “serious” where it has either “been
diagnosed by a physician as mandating treatment” or where the need is “so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters,
111 F.3d 1364, 1373 (7th Cir. 1997). The unrelenting pain stemming from Plaintiff’s diagnosed
degenerative arthritis described in the Complaint satisfies the objective component of Count 1
for screening purposes. But the analysis does not end there.
The Complaint also must satisfy the subjective component of these claims. To do so, the
Complaint must suggest that the defendants exhibited deliberate indifference to Plaintiff’s
serious medical needs. Deliberate indifference is established when prison officials “know of and
disregard an excessive risk to inmate health” by being “‘aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists’” and “‘draw[ing] the inference.’”
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer, 511 U.S. at 834).
This standard is satisfied with respect to Dr. Santos, Krebs, and Brewer. According to the
Complaint, Dr. Santos persisted in a course of treatment that was not effective for treating
Plaintiff’s pain, despite being informed by Plaintiff what would and would not work based on his

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past treatment. Also, despite being informed that the course of treatment chosen by Dr. Santos
was ineffective, Krebs appears to have simply deferred to Dr. Santos’s decisions without further
inquiry. See Perez v. Fenoglio, 792 F.3d 768, 779 (7th Cir. 2015) (“While nurses may generally
defer to instructions given by physicians, they have an independent duty to ensure that inmates
receive constitutionally adequate care.”). Similarly, Brewer allegedly prescribed Plaintiff basic
pain medication despite Plaintiff having informed her that it would be insufficient to treat his
pain, instead of seeing to it that Plaintiff received the care he needed from someone capable of
prescribing the appropriate medication.
The subjective standard is not satisfied with the remaining defendants. Each appears to
have received grievances or letters from Plaintiff regarding his medical issues. None of these
individuals appears, however, to have been personally involved in Plaintiff’s medical treatment,
and “[p]rison officials who simply processed or reviewed inmate grievances lack personal
involvement in the conduct forming the basis of the grievance.” Owens v. Evans, 878 F.3d 559,
563 (7th Cir. 2017) (citing Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)).
Furthermore, in the case of those defendants in supervisory positions, the doctrine of respondeat
superior is not applicable to Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001) (citations omitted). These defendants’ responses to Plaintiff’s letters and
grievances, or concurrences to them, demonstrate that they inquired into Plaintiff’s treatment and
confirmed that Plaintiff was being seen and treated for his pain at the direction of the medical
providers at Centralia. See (Doc. 1-1, pp. 13, 15-16). It is clear they did not blindly turn from
Plaintiff’s alleged plight without inquiring into it and satisfying themselves that he was under the
care of a medical professional.
Plaintiff has therefore failed to show that Zelasko, Benton, Baldwin, Walker, and Mueller

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knew of and disregarded a substantial risk to his health, so they will be dismissed from this
action without prejudice. For the reasons stated above, Count 1 will proceed against Dr. Santos,
Krebs, and Brewer. 2
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which will be
REFERRED to United States Magistrate Judge Donald G. Wilkerson for a decision.
Plaintiff’s Motion for Service of Process at Government Expense (Doc. 4) is DENIED as
moot. Waivers of service of summons will be issued and served on the remaining defendants as
ordered below. Plaintiff is advised that, because he is proceeding in forma pauperis, it is not
necessary to file a motion requesting service of process by the United States Marshals Service or
other process server. The Clerk will issue summons, and the Court will direct service once the
complaint passes preliminary review.
Disposition
IT IS HEREBY ORDERED that COUNT 1 will PROCEED against SANTOS,
KREBS, and BREWER.
IT IS FURTHER ORDERED that COUNT 1 is DISMISSED without prejudice as
against MUELLER, WALKER, ZELASKO, BENTON, and BALDWIN, and these
individuals are DISMISSED without prejudice from this action for failure to state a claim upon
which relief may be granted.
IT IS ORDERED that as to COUNT 1, the Clerk of Court shall prepare for SANTOS,

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The Court notes that, while Plaintiff takes issue with the co-pays he was charged during the relevant time,
an inmate’s constitutional rights are not violated by the collection of a fee for prison medical services. Whether or
not a statutory exemption should apply to the co-payment rule is a question of state law, not cognizable in a Section
1983 action. Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir. 2012) (“the imposition of a modest fee for medical
services, standing alone, does not violate the Constitution”).

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KREBS, and BREWER: (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.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Amended 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 Donald G. Wilkerson for further pre-trial proceedings. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Wilkerson 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, regardless of whether
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

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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