Hart v. David et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 5/8/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERIC HART,
#Y-21325,
Plaintiff,
vs.
ALFONSO DAVID, and
WEXFORD HEALTH SOURCES, INC.,
Defendants.

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Case No. 18-CV-567-JPG

MEMORANDUM AND ORDER

GILBERT, District Judge:
Plaintiff Eric Hart, an inmate currently housed at Taylorville Correctional Center, filed
this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff claims that, when he housed at
Shawnee Correctional Center (“Shawnee”), Alfonso David, a physician, exhibited deliberate
indifference to his serious medical needs.
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
pursuant to 28 U.S.C. § 1915A,1 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
(2) seeks monetary relief from a defendant who is immune

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Plaintiff’s Complaint was filed on March 13, 2018. (Doc. 1). Plaintiff’s Motion for Leave to Proceed In Forma
Pauperis was denied on March 20, 2015. (Doc. 5). Preliminary review of the Complaint was delayed pending
payment of Plaintiff’s filing fee. Plaintiff paid his full filing fee on May 4, 2018.

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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).
The Complaint
Sometime prior to May 28, 2017, Plaintiff, a 52-year-old man weighing 300 pounds, fell
from the top bunk of his assigned cell. (Doc. 1, pp. 6, 10). Upon initial examination, a nurse
prescribed ibuprofen for pain and observed that Plaintiff had a decreased range of motion, but no
swelling. (Doc. 1, p. 6). Subsequently, Plaintiff continued to experience pain in his back, neck,
and hip. Id. On June 5, 2017, after informing healthcare staff that the pain medication was not
working, Plaintiff was examined by Dr. David. (Doc. 1, p. 7). 2 Plaintiff described his pain and
told Dr. David he feared he would suffer another serious fall if he did not receive a bottom bunk

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A grievance attached to the Complaint provides as follows with regard to Plaintiff’s injury and subsequent
examination with Dr. David:
The only findings were crepitus noted to both knees, reported pain with squatting or bending that
radiates to spine/neck since the reported fall on 5/24/17, and was referred to the doctor along with
Tylenol 325 mg for 3 days. On 6/5/17 Hart was seen by the doctor who advised no medical need
fo[r] low bunk permit, advised to be careful, and was given an order for Naproxen twice a day as
needed for 2 weeks, encouraged range of motion exercises, follow up as needed.
(Doc. 1, p. 13).

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permit. Id. Dr. David provided Plaintiff with Naproxen for his pain. Id. However, his request
for a bottom bunk permit was denied. (Doc. 1, p. 8).3
On June 11, 2017, Plaintiff, once again, fell from the top bunk. Id. Plaintiff was unable
to move and security staff transported Plaintiff to the infirmary under a “code 3” status. Id.
Plaintiff remained in the infirmary for approximately ten days. Id.
Plaintiff claims that, while he was in the infirmary, Dr. David persisted in a course of
treatment that he knew was inadequate and ineffective. Id. Plaintiff also claims that, despite his
repeated complaints regarding severe pain, Dr. David delayed appropriate treatment for nonmedical reasons. Id. Exhibits attached to the Complaint provide the following additional
information with regard to Plaintiff’s medical treatment while in the infirmary.
Hart was seen again 6/11/17 for a reported fall and complaining of double vision,
head pounding, decreased left hand grasp. Hart was placed in the infirmary and
kept there until 6/21/17. While in the infirmary Hart was given Napro[x]yn for
his pain and x-rays were taken. The x-rays results showed moderate osteoarthritis
but no broken bones. Since discharge from infirmary on 6/21/17 Hart had been
given low bunk, low gallery permit and to continue Motrin 600 mg until 6/27/17.
7/1/17 Hart was seen in NSC and given Motrin and already had a follow up
appointment with the doctor.
(Doc. 1, p. 13) (response to Plaintiff’s October 2, 2017 grievance regarding constant pain).
I have been in the infirmary ever since. I am not getting adequate healthcare
because Dr. David has been insistent on not adhering to proper constitutional
treatment. My Eighth Amendment constitutional right of cruel and unusual
punishment has been violated by Dr. David. I have explained to Dr. David that
the medication I am given is not working. And, Dr. David is still not giving me a
bottom bunk permit. My neck, back, left leg, and my body in general is currently
causing me ongoing pain. Since I have been here at the infirmary in Shawnee
HealthCare Unit has been pointless…I am constantly in excruciating pain, and I
ask humbly that you Mr. John Baldwin do something about this cruelty I am
currently experiencing…
(Doc. 1, p. 16) (grievance dated June 19, 2017).

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An exhibit attached to the Complaint indicates that Plaintiff requested a bottom bunk permit from Dr. David on
several occasions after several falls. (Doc. 1, p. 15).

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Dismissal of Wexford
The Complaint states no deliberate indifference against Wexford, the private medical
corporation that provides medical services for inmates at the prison.

Plaintiff alleges that

Wexford is subject to liability because it is “responsible for the supervision and training of
Wexford’s employees, including…Alfonso David.” (Doc. 1, p. 5). However, Plaintiff cannot
rely on a theory of respondeat superior, or supervisory liability, when bringing a claim against
the medical corporation under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A private
corporation will generally only be held liable under § 1983 for an unconstitutional policy or
custom that results in a constitutional deprivation. Perez v. Fenoglio, 792 F.3d 768, 780 (7th Cir.
2015) (citing Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2014)).
The Complaint describes no such policy or custom attributable to Wexford.

Accordingly,

Wexford shall be dismissed without prejudice for failure to state a claim upon which relief may
be granted.
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 regarding their merit.
Count 1 –

Eighth Amendment claim against Dr. David for exhibiting deliberate
indifference to Plaintiff’s serious medical need (injuries and pain
stemming from falling out of the top bunk on June 11, 2017).

Count 2 –

Eighth Amendment claim against Dr. David for denying Plaintiff’s request
for a bottom bunk permit on June 5, 2017.

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Count 1
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that (1) he suffered from an objectively serious medical condition and (2) the
defendant was deliberately indifferent to a risk of serious harm from that condition.

An

objectively serious condition includes an ailment that has been “diagnosed by a physician as
mandating treatment,” one 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). In addition, the “deliberate refusal to treat treatable pain can rise to the level of an
Eighth Amendment violation.” Brown v. Darnold, 505 F. App’x. 584 (7th Cir. 2013) (citing Gil
v. Reed, 381 F.3d 649, 661-62 (7th Cir. 2004)). Finally, prison doctors demonstrate deliberate
indifference when they respond to “a known condition through inaction” or “by persisting with
inappropriate treatment.” Gaston, 498 F.App’x. at 631-32; Gayton v. McCoy, 593 F.3d 610,
623-24 (7th Cir. 2010); Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011); Greeno v.
Daley, 414 F.3d 645, 653-54 (7th Cir. 2005).
Here, Plaintiff’s injury and pain following his fall on June 11, 2017, suggest an
objectively seriously condition. Additionally, Dr. David’s alleged persistence in an ineffective
course of treatment, delayed treatment, and/or failure to treat Plaintiff’s pain are sufficient, at this

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early stage, to suggest the requisite state of mind. Accordingly, Count 1 shall receive further
review as to Dr. David.
Count 2
A prison official's deliberate indifference to an inmate's health or safety may violate the
Eighth Amendment's ban on cruel and unusual punishment. See Farmer v. Brennan, 511 U.S.
825, 834 (1994). The inmate must allege both an objective and a subjective component of the
claim.

To satisfy the objective component, the alleged deprivation must be “sufficiently

serious”; that is, it must expose the inmate to a “substantial risk of serious harm.” Id. (internal
quotation marks omitted). To satisfy the subjective element, the prison official must have acted
with deliberate indifference to the inmate's health or safety; the official “must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Id. at 837.
This standard is satisfied with respect to Count 2. According to the Complaint, Dr. David
failed to provide Plaintiff with a bottom bunk permit, despite being informed of Plaintiff's need
for one and despite having knowledge that Plaintiff had fallen from the top on at least one prior
occasion. These allegations support a claim of deliberate indifference under Count 2 at this early
stage. Accordingly, Count 2 shall receive further review.
Pending Motions
Plaintiff’s Motion for Service of Process at Government Expense (Doc. 3) is GRANTED
as to Dr. David, the only defendant remaining in this action pursuant to this screening order.
Disposition

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IT IS ORDERED that WEXFORD is DISMISSED without prejudice for failure to
state a claim upon which relief may be granted. The Clerk of the Court is DIRECTED to
terminate WEXFORD as a party in CM/ECF.
IT IS ORDERED that the Complaint, which includes COUNTS 1 and 2 shall receive
further review as to DAVID.
IT IS ORDERED that the Clerk of the Court shall prepare for DAVID: (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 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.
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.

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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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
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.
DATED: May 8, 2018
s/J. Phil Gilbert
United States District Judge

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