Getty v. Kim et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 6/7/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
QUENTIN GETTY, #M42745,
Plaintiff,
vs.

Case No. 18 cv–1134 DRH

CHRIS KIM,
DAVID WHITE,
VENERIO SANTOS, and
JOHN/JANE DOE,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Quentin Getty, an inmate in Centralia Correctional Center, brings
this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights that allegedly occurred at Centralia and Big Muddy Correctional Centers.
In his Complaint, Plaintiff claims the defendants have been deliberately indifferent
to his serious medical issues in violation of the Eighth Amendment. (Doc. 1).
This case is now before the Court for a preliminary review of the Complaint
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, 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. 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 (Doc. 1), Plaintiff makes the following allegations:

on

June 20, 2017, Plaintiff was sent to St. Louis University Hospital to have his
shoulder examined by Defendant Kim, an orthopedic.

(Doc. 1, p. 2).

Kim

performed range of motion exercises on Plaintiff’s left shoulder to check for
stability. Id. During these exercises, Plaintiff told Kim that he was stretching his
shoulder too far, causing him a lot of pain.

Id.

Kim disregarded Plaintiff’s

complaints and continued to extend his shoulder until it popped. (Doc. 1, p. 3).
Plaintiff screamed, and Kim apologized for the accident.
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Id.

Kim X-rayed

Plaintiff’s shoulder and found it was dislocated.

Id.

Kim refused to relocate

Plaintiff’s shoulder, telling him that his institution could get it done faster. Id.
Kim told Plaintiff that he could perform surgery in the future, and when Plaintiff
told him that he was in severe pain and needed treatment at that time, Kim told
him that he did not meet the criteria for immediate surgery. Id. Plaintiff told Kim
that he did not want surgery in the future and asked to speak with a supervisor.

Id. Kim denied the request. Id.
Plaintiff had to travel in severe pain for two hours until he returned to the
facility. Id. He then had to wait an additional two hours to meet with Dr. Larson.

Id.

Dr. Larson examined Plaintiff’s shoulder and immediately sent him to

Crossroads Community Hospital. Id. Plaintiff met with Dr. Zaki Chowdhury who
diagnosed his condition as a recurrent dislocation.

Id.

Chowdhury then

relocated Plaintiff’s shoulder. Id. The relocation was short-lived, however, and
Plaintiff’s shoulder dislocated again.

Id. After an examination by Dr. Larson,

Plaintiff was sent back to Crossroads Community Hospital. (Doc. 1, pp. 3-4). On
July 1, 2017, Plaintiff met with Dr. Grant who failed to relocate Plaintiff’s
shoulder. (Doc. 1, p. 4). Plaintiff was sent back to Big Muddy, and Dr. Larson
sent Plaintiff to St. Louis University Hospital where he met with another
orthopedic who eventually relocated his shoulder. Id.
On July 4, 2017, Plaintiff met with Dr. Larson who ordered him to remain
in the prison’s infirmary for a week. Id. On July 17, 2017, Plaintiff met with Dr.
Larson and informed him that his pain medication was not working, so he was

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prescribed a different medication.

Id.

During this time, Plaintiff filed two

grievances against Dr. Kim, but Defendant John/Jane Doe never processed them
or responded to them. Id. On November 7, 2017, Plaintiff’s shoulder dislocated
again and was relocated. Id.
On November 21, 2017, Plaintiff was transferred to Centralia Correctional
Center.

Id.

Plaintiff met with Defendant Santos and told him his history of

shoulder issues and that his pain medication was not working.

Id.

Santos

reviewed Plaintiff’s medical records and told him that there was no need for
further treatment. Id. Plaintiff pleaded with Santos, explaining that he deals with
complications and pain daily. (Doc. 1, pp. 4-5). Santos told Plaintiff to leave.
(Doc. 1, p. 5). Plaintiff notified Defendant White that John/Jane Doe refused to
process his grievances and informed him of his medical issues, but White denied
Plaintiff’s grievance.
dislocate.

Id. Plaintiff’s shoulder never recovered and continued to

Id. This information was sent to Santos who stated that Plaintiff’s

condition was normal. Id. Plaintiff continues to have restricted movement in his
shoulder, which causes him aching and shooting pain that travels from his
shoulder to his hands. Id. Three of his fingers are numb. Id. Plaintiff requests
declaratory and monetary relief, as well as “adequate treatment from Defendant
Santos.” (Doc. 1, p. 6).
Discussion
Before analyzing Plaintiff’s allegations, the Court finds it appropriate to
address the fact that Plaintiff has named Chris Kim as a defendant in this lawsuit.

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A plaintiff cannot proceed with a federal claim under § 1983 against a non-state
actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v.

Principal Fin. Servs., Inc., 311 F.3d 851, 852-53 (7th Cir. 2003).

Kim is an

employee of St. Louis University Hospital and therefore does not appear to be a
state actor. Because of this, he will be dismissed without prejudice from this
lawsuit. Plaintiff would have to file a professional negligence case against Kim to
pursue some legal action against him, however that is wrought with complex
procedures and from the facts alleged here a successful lawsuit is certainly not
assured. A judgment will not be entered specifically regarding the Kim action
dismissed hereby but will be included by the Clerk in the final judgment of the
Court.
Moving to the allegations of 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 need involving a recurrent shoulder dislocation and
pain associated therewith, in violation of the Eighth
Amendment.

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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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 Court finds that Plaintiff has satisfied the objective standard at this
stage with respect to his recurrent shoulder dislocation.

As to the subjective

standard, Plaintiff’s assertion that Santos has refused to treat him for his painful
condition is sufficient to state a claim. Plaintiff’s claims that John/Jane Doe and
David White neglected and/or denied his grievances against Kim do not satisfy the
subjective standard, however. “Prison 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)). Plaintiff has not
alleged that these two defendants were involved in his medical treatment, or lack
thereof, apart from their receiving his grievances against Kim. He has therefore
failed to state a deliberate indifference claim against them.

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To the extent Plaintiff seeks to bring a claim based on their treatment of his
grievances generally, the Seventh Circuit has “specifically denounc[ed] a
Fourteenth Amendment substantive due process right to an inmate grievance
procedure.” Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008). As
explained in Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996), “any
right to a grievance procedure is a procedural right, not a substantive one.
Accordingly, a state’s inmate grievance procedures do not give rise to a liberty
interest protected by the Due Process Clause.” Id. at 1430-31(internal citations
omitted).

Because Plaintiff had no expectation of a particular outcome of his

grievances, there is no viable claim which can be vindicated through § 1983.

Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992) (without a predicate
constitutional violation one cannot make out a prima facie case under § 1983).
Accordingly, Count 1 will proceed against Santos and will be dismissed
without prejudice against White and John/Jane Doe.
Disposition
IT IS HEREBY ORDERED that COUNT 1 will PROCEED against SANTOS
and is DISMISSED without prejudice against WHITE and JOHN/JANE DOE.
IT IS FURTHER ORDERED that KIM is DISMISSED from this action
without prejudice for the reasons stated herein.
IT IS FURTHER ORDERED that WHITE and JOHN/JANE DOE are
DISMISSED from this action without prejudice for failure to state a claim upon
which relief may be granted.

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IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall
prepare for SANTOS: (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 the defendant’s place of employment as identified by
Plaintiff.

If the 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 the
defendant, and the Court will require the defendant 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 Santos 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 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 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.

Judge Herndon
2018.06.07 10:29:57
-05'00'
United States District Judge

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