Murphy v Childress et al

Filing 31

Order for Service of Process: As explained, Claim 1 as originally designated against Dr. Babich may proceed, but the new allegations against Dr. Babich about supervisory liability are dismissed without prejudice. Additionally, Claim 4 may now procee d against Defendant Nurse Childress and the Clerk of Court is DIRECTED to serve Childress consistent with this Order. By contrast, the additional claims pled are insufficient and the Clerk of Court is DIRECTED to TERMINATE Defendants Goodchild and L amb. Defendant Babich's Motion to Stay (Doc. 24) is GRANTED, Dr. Babich must now file an answer within 30 days. Plaintiff's Motion for Recruitment of Counsel (Doc. 19) is DENIED without prejudice. Finally, when the Court initiated servic e of process (Doc. 6) it added the Warden of Lawrence in official capacity for injunctive relief, but Plaintiff has now indicated he has been scheduled for surgery so there is no lasting basis for injunctive relief. Thus, the Clerk of Court is DIRECTED to TERMINATE the Warden of Lawrence. Signed by Judge David W. Dugan on 10/23/2024. (kgk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMELL ALLEN MURPHY, R71059,
Plaintiff,
vs.
DOCTOR BABICH,
NURSE CHILDRESS,
SARGENT LAMB,
SARGENT GOODCHILD,
WARDEN OF LAWRENCE,
Defendants.

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Case No. 24-cv-1893-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
Plaintiff Jamell Allen Murphy, an inmate of the Illinois Department of Corrections
(IDOC), brings this civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations
of his constitutional rights at Lawrence Correctional Center (Lawrence). (Doc. 1). Upon
initial review, on August 22, 2024, the Court allowed Plaintiff to proceed on a single claim
against Dr. Babich for his alleged failure to adequately diagnose and treat Plaintiff’s torn
meniscus in early 2024. (Doc. 6). On September 16, 2024, Plaintiff submitted an Amended
Complaint. Defendant Dr. Babich has moved to stay his answer deadline pending review
of the amended pleading. (Doc. 24). Plaintiff has also moved for recruitment of counsel.
(Doc. 19).
Under Section 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b). Any portion of a 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 must
be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se
complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
The Amended Complaint
Plaintiff complied with the Local Rules by clearly underlining material that is new
to his amended pleading. (Doc. 18). The Court will briefly recap Plaintiff’s initial
allegations and will then explain the new additions.
In January of 2024, Plaintiff became lightheaded due to unrelated medical issues,
and he lost consciousness in his cell. During the fall, Plaintiff injured his knee. Although
it was x-rayed at the hospital after his fall, no specific care was prescribed at the time.
Upon return to the prison, Plaintiff began to seek care for his knee. He alleges that in this
quest for care, he encountered Defendant Dr. Babich on one occasion in person and he
asked Babich to examine his knee. Dr. Babich performed a basic physical examination,
and said he thought Plaintiff needed additional pain medication and physical therapy,
but never followed up on those recommendations.
Plaintiff alleges in his amended pleading that on at least three occasions after his
return from the hospital in January of 2024, he saw Defendant Nurse Childress. (Doc. 18
at 3). During these encounters, he repeatedly informed Childress that his knee was
extremely painful, that it was making it hard to walk, and that he desired additional care.
He also showed Childress that his entire knee and right leg were swollen. Despite

Plaintiff’s requests and his physically observable symptoms, Childress refused to do
anything and did not refer Plaintiff to the nurse practitioner or doctor. (Id.).
Plaintiff alleges that in early February of 2024 he was moved to housing in the
prison’s infirmary for monitoring of a different medical condition. (Doc. 18 at 4).
Eventually he was released back to Seven house. He alleges that Defendants Lamb and
Goodchild were sergeants who worked the 7 to 3 and 3 to 11 shifts in his housing unit.
He alleges that for a full month “day in & day out” he informed Lamb and Goodchild
that he was in constant severe pain, but they refused to secure any additional medical
assistance for him and instead ignored his serious medical need. (Doc. 18 at 5).
Plaintiff then designates his own additional claims for this case, indicating he
wishes to include claims against Childress, Goodchild, and Lamb. (Doc. 18 at 6). And
also, that he wishes to add a supervisory liability claim against Dr. Babich. (Doc. 18 at 7).
Based on the allegations in the Amended Complaint, the Court designates the
following additional counts:
Claim 4:

Eighth Amendment deliberate indifference claim against
Defendant Childress for refusing to treat Plaintiff’s knee or to
refer him to another medical provider;

Claim 5:

Eighth Amendment deliberate indifference claim against
Defendants Lamb and Goodchild for their role in denying
Plaintiff’s access to care.

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. Any claim that is
mentioned in the Complaint but not addressed in this Order is considered dismissed
without prejudice as inadequately pled under Twombly. See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007) (an action fails to state a claim upon which relief can be granted if it
does not plead “enough facts to state a claim that is plausible on its face”).
Preliminary Dismissal
Plaintiff indicates in his amended complaint that he wishes to pursue a
supervisory liability claim against Defendant Dr. Babich. (Doc. 18 at 7). However, there
is no respondeat superior (supervisory) liability under § 1983, so this additional theory
cannot proceed. See e.g., Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010) (there is no
respondeat superior liability under § 1983, and individual’s may only be held liable for
their own actions). Thus, the supervisory liability claim against Dr. Babich will be
dismissed.
Analysis
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.
Rasho v. Elyea, 856 F.3d 469, 475-76 (7th Cir. 2017). “Every claim by a prisoner that he has
not received adequate medical treatment is not a violation of the Eighth Amendment.”
Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). To determine if a medical professional
acted with deliberate indifference, courts look to the provider’s subjective state of mind.
Id. at 728. An inmate need not show that a doctor explicitly intended harm or believed it
would occur, but he must show more than negligence, medical malpractice, or even
objective recklessness. Id.

Plaintiff’s new allegations against Defendant Childress are sufficient to proceed at
this juncture. He alleges that he saw Childress on at least three occasions, complained of
severe pain and showed Childress his severely swollen leg. At this early juncture, this is
enough to proceed on a theory of deliberate indifference on Claim 4.
The Court previously dismissed Plaintiff’s allegations against Defendants Lamb
and Goodchild, because Plaintiff’s allegations against these two were vague. Lamb and
Goodchild are sergeants who worked in Plaintiff’s housing unit while he was suffering
from his knee injury. In the original complaint he said that he told them about his injuries,
but he did not indicate what he specifically told them, when he told them, how often he
told them, or what they might have observed about his condition. In the amended
complaint, Plaintiff now adds that he told them about his injury and serious pain “day in
and day out” for a month. However, he still does not say anything about what Goodchild
or Lamb might have observed about his condition or what they knew about how serious
his pain was.
Generally, non-medical prison officials may defer to medical staff unless they have
reason to believe or actual knowledge that the prison medical staff are mistreating a
prisoner. See e.g., Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011). The Plaintiff must
demonstrate that his communication to a nonmedical prison official in its content and
manner of transmission gave the official sufficient notice to alert them to an excessive risk
to inmate health and safety. Id. As the Court previously explained, “[a] condition can be
‘obvious’ to a layperson even where he or she is unable to diagnose or properly identify
the cause of an observed ailment.” Orlowski v. Milwaukee Cnty., 872 F.3d 417, 423 (7th Cir.

2017). Here, the Court finds that Plaintiff’s allegations against Goodchild and Lamb still
have not materially changed and still fall short of what is required to establish a plausible
deliberate indifference claim. Although Plaintiff says he frequently complained to these
two about his injury, he does not say what he told them about his condition or what they
might have been able to observe as a layperson. He also does not comment on what if
anything they knew about his intermittent visits to the medical unit. On the information
presented, the Court still finds Plaintiff’s allegations against Goodchild and Lamb
insufficient to establish deliberate indifference. Thus, Claim 5 will be dismissed without
prejudice for failure to state a claim.
Motion for Recruitment of Counsel (Doc. 19)
Plaintiff’s Motion for Recruitment of Counsel (Doc. 19) is DENIED at this time
without prejudice. There is no constitutional or statutory right to counsel in federal civil
cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). In determining whether to
recruit counsel, the Court considers two factors—Plaintiff’s efforts to get counsel, and his
ability to manage the litigation on his own. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007). Plaintiff’s motion demonstrates that he has corresponded with attorneys about his
case, but this showing is not dispositive. (Doc. 19 at 3). It appears that Plaintiff is
competent to litigate the case himself at this stage. See Navejar v. Iyiola, 718 F.3d 692, 696
(7th Cir. 2013); Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010). Plaintiff’s complaint
was easy to understand, he filed a proper amended complaint that successfully
incorporated an additional claim, and he has filed appropriate motions about injunctive
relief. Further, at this early stage of the litigation, it is difficult to accurately evaluate the

need for the assistance of counsel. See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir.
2013) (“[U]ntil the defendants respond to the complaint, the plaintiff’s need for assistance
of counsel...cannot be gauged.”). Service is still underway in this case, and the next steps
will be simple and will be guided by a detailed scheduling order. Although the motion
is denied at this juncture, Plaintiff may renew his request for counsel if necessary, as the
case progresses.
Disposition
IT IS HEREBY ORDERED THAT Claim 4 of the Complaint (Doc. 1) survives
initial screening as described above against Defendant Nurse Childress. Claim 1 as
previously designated against Dr. Babich may continue unchanged. By contrast, the new
allegations about respondeat superior liability against Dr. Babich are dismissed.
Additionally, Claim 5 is dismissed as insufficiently pled.

The Clerk of Court is

DIRECTED to TERMINATE Defendants Goodchild and Lamb. Claims 2 and 3 were
previously dismissed and have not been renewed by the Amended Complaint.
The Clerk of Court is DIRECTED to prepare for Defendant Nurse Childress: (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 Amended Complaint (Doc. 18), and this Memorandum and Order to Defendants’
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.
If a Defendant cannot 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 Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merits Review Order. However, the Warden need not file an answer
because he or she has been added solely because Plaintiff seeks eventual injunctive relief.
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,
regardless of whether his application to proceed in forma pauperis was granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk
of Court and each opposing party of any address changes; 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 of 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 failure to prosecute. Fed. R. Civ. P. 41(b).
Defendant Babich’s Motion to Stay (Doc. 24) is GRANTED. Dr. Babich sought to
stay his obligation to file an answer until the Amended Complaint was reviewed under
28 U.S.C. § 1915A. Now that the Court has reviewed the Amended Complaint and has
concluded that it does not expand the claims against him, Dr. Babich must file an answer
within 30 days.
Plaintiff’s Motion for Recruitment of Counsel (Doc. 19) is DENIED without
prejudice.
On August 22, 2024, when the Court issued the initial Order for Service of Process
(Doc. 6) it directed that the Warden of Lawrence be added to this case in official capacity
only for the sole purpose of implementing future injunctive relief. Now that Plaintiff
indicated his surgery has been scheduled, it is not apparent any injunctive relief will be
warranted. Thus, the Clerk of Court is DIRECTED to TERMINATE the Warden of
Lawrence without prejudice.
IT IS SO ORDERED.
Dated: October 23, 2024

______________________________
DAVID W. DUGAN
United States District Judge