Cruz v. State of Illinois et al

Filing 26

IT IS HEREBY ORDERED that the Amended Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. COUNT 1 is DISMISSED with prejudice against Defendant STATE OF ILLINOIS and DISMISSED without prejudice ag ainst all other defendants. Plaintiff is GRANTED leave to file a Second Amended Complaint on or before November 21, 2018. Should Plaintiff fail to file his Second Amended Complaint within the allotted time or consistent with the instructions set for th in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 11/21/2018). Signed by Judge Nancy J. Rosenstengel on 10/25/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICKY EDWARD CRUZ, #M-30089,
Plaintiff,
vs.
STATE OF ILLINOIS,
LAURA CUNNINGHAM,
MARK McFARLAND,
WARDEN LAMB,
LT. CARIE,
R/O GOODRUM,
R/O MERATH,
R/O JOHNSON,
LT. HANSON,
and DR. AHMED,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 18 cv–01321 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Ricky Cruz, an inmate of the Illinois Department of Corrections who is currently
incarcerated in Lawrence Correctional Center (“Lawrence”), brings this civil rights action pursuant
to 42 U.S.C. § 1983. In the Amended Complaint, 1 Plaintiff alleges that he sustained a serious leg
injury at Lawrence. (Doc. 25). He was denied medical care by the defendants and developed a
Methicillin-resistant Staphylococcus aureus (MRSA) infection. Id. Plaintiff seeks declaratory,
monetary, and injunctive relief for the resulting violations of his Eighth Amendment rights. Id.
This case is now before the Court for preliminary review of the Amended Complaint
pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner
complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of the
Amended Complaint that is legally frivolous, malicious, fails to state a claim upon which relief

1

Plaintiff filed an Amended Complaint before his original Complaint was screened. The Amended
Complaint supersedes the original Complaint and renders it void. See Flannery v. Recording Indus. Ass’n
of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). This screening order focuses on the Amended Complaint.

may be granted, or asks for money damages from a defendant who by law is immune from such
relief must be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations must be
liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Amended Complaint
According to the Amended Complaint, Plaintiff fell and injured his eye, back, and shin
while descending from his top bunk on June 16, 2017. (Doc. 25, pp. 5-10). A laceration to his right
shin proved to be his most serious injury, resulting in significant blood loss and infection. Id. at 5.
Plaintiff used the emergency call button to request help, while wrapping the wound with toilet
paper and a bandage. Id. An unknown officer responded to his emergency calls but failed to
summon help from medical staff. Id. at 5-6. The next day, R/O Leonard and Lieutenant Carie found
Plaintiff in significant pain and escorted him to the prison’s health care unit (HCU). Id. at 6-7.
Doctor Ahmed, Nursing Director McFarland, and Nursing Director Cunningham determined that
stitches were not an option due to the delay in treatment. Id. at 7. They ordered the nursing staff to
clean and dress Plaintiff’s wound daily until it healed and demonstrated how to do so. Id. The
nursing staff disregarded the orders, and Plaintiff soon developed MRSA. Id. at 8-9. Officers
McGrath, Goodrum, and Johnson were aware of Plaintiff’s infection, flu-like symptoms, and
difficulty walking. Id. They arranged an appointment with Doctor Ahmed who prescribed
Clindamycin and Meloxicam, 2 but neither medication worked. Id. at 10. Warden Lamb denied
Plaintiff’s related grievances. Id.
Discussion
Based on the allegations in the Amended Complaint, the Court finds it convenient to divide
the pro se action into a single count:
Count 1:

2

Defendants delayed or denied Plaintiff adequate medical care for his
right shin injury and related infection in June and July 2017, in
violation of his Eighth Amendment rights.

Clindamycin is an antibiotic used to treat certain bacterial infections of the lungs, skin, blood, and internal
organs. Meloxicam is prescribed for pain, swelling, and stiffness associated with arthritis. See
https://medlineplus.gov/druginfo/meds/ (last visited Oct. 23, 2018).

The designation of this count should not be construed as an opinion regarding its merit. Any other
claims encompassed by the allegations but not identified above should be considered
dismissed without prejudice as inadequately pled under the Twombly pleading standard.
To survive screening, the allegations against each defendant must satisfy the objective and
subjective components required of every Eighth Amendment claim. Greeno v. Daley, 414 F.3d
645, 653 (7th Cir. 2005). The objective component is satisfied by a sufficiently serious medical
condition, such as Plaintiff’s right shin injury and resulting infection. See Gutierrez v. Peters, 111
F.3d 1364, 1372-73 (7th Cir. 1997) (a serious medical condition is one that has been diagnosed by
a physician as requiring treatment or the need for treatment would be obvious to a lay person). The
subjective component requires the plaintiff to demonstrate that each defendant responded to his
serious medical condition with deliberate indifference, which is defined as intentional or reckless
disregard to a substantial risk of serious harm to the plaintiff. Farmer v. Brennan, 511 U.S. 834,
842 (1994). The allegations do not satisfy the subjective component of this claim.
The Amended Complaint focuses on the alleged deliberate indifference of non-parties,
including the unknown officer, who failed to summon help when Plaintiff pressed the emergency
call button; R/O Leonard, who forced Plaintiff to cuff up and walk on his injured leg to the HCU;
and the nursing staff members, who refused to clean his wound as ordered. Because these
individuals are not named as defendants, the Court will not treat them as such. See FED. R. CIV. P.
10(a); Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (to be properly considered a
party, a defendant must be “specif[ied] in the caption”).
The allegations support no deliberate indifference claim against the named defendants.
This includes Defendant Carie, who interviewed Plaintiff for five minutes before allowing him to
go to the HCU; Defendants Ahmed, Cunningham, and McFarland, who determined that the best
course of treatment included cleaning Plaintiff’s wound daily instead of suturing it; Officers
Goodrum, Merath, and Johnson, who set up appointments with medical staff after learning of
Plaintiff’s infection; and Warden Lamb, who denied Plaintiff’s grievances. Many of these

defendants were named in this action simply because they supervised those individuals who may
have violated Plaintiff’s constitutional rights. However, the doctrine of respondeat superior is not
applicable to Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Liability requires an individual defendant to cause or participate in a constitutional deprivation.
Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). The allegations make no such
connection, often portraying these defendants in a positive light. At most, their conduct amounts
to negligence, which is not actionable under Section 1983. The allegations also fail to mention the
State of Illinois and Lieutenant Hanson. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998)
(plaintiff cannot state a claim against a defendant by including the defendant’s name in the
caption). Accordingly, Count 1 is dismissed with prejudice against the State of Illinois, see Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989), and without prejudice against all other
defendants.
Pending Motions
Plaintiff’s Motions for Recruitment of Counsel (Docs. 3, 18) are DENIED without
prejudice. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). Plaintiff discloses no efforts to
locate counsel on his own. He also cites no impediments to self-representation, other than a limited
education. Plaintiff appears capable of litigating this matter pro se, given his coherent pleadings
and straightforward claim. He may renew his request for counsel at any time during the pending
action, after first attempting to locate counsel on his own.
Request for Preliminary Injunction
Plaintiff’s request for a preliminary injunction to stop retaliation that has not yet occurred
is DENIED. (Doc. 25, p. 11). Baird v. Hodge, 605 F. App’x 568, 570 (7th Cir. 2015) (denying
preliminary injunction because threat of harm to inmate was speculative). If interim relief becomes
necessary during the pending action, Plaintiff should file a separate motion for a preliminary
injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure. He should describe the
exact relief he seeks and the factual allegations that support his request.

Disposition
IT IS HEREBY ORDERED that the Amended Complaint is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted. COUNT 1 is DISMISSED
with prejudice against Defendant STATE OF ILLINOIS and DISMISSED without prejudice
against all other defendants.
Plaintiff is GRANTED leave to file a “Second Amended Complaint” on or before
November 21, 2018. Should Plaintiff fail to file his Second Amended Complaint within the
allotted time or consistent with the instructions set forth in this Order, the entire case shall be
dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his
claims. FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). The dismissal shall also count as
one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
It is strongly recommended that Plaintiff use the form designed for use in this District for
such actions. He should label the form, “Second Amended Complaint,” and use the case number
for this action (i.e., Case No. 18-cv-01321-NJR). The Court will not accept piecemeal amendments
to the original Complaint. Thus, the Second Amended Complaint must stand on its own without
reference to any previous pleading, and it is subject to review under 28 U.S.C. § 1915A. The
CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form.
Plaintiff is further ADVISED that his obligation to pay the filing fee was incurred at the
time the action was filed, thus the filing fee remains due and payable, regardless of whether he
files an amended complaint. 28 U.S.C. § 1915(b)(1).
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: October 25, 2018
___________________________
NANCY J. ROSENSTENGEL
United States District Judge