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January 28, 2003


The opinion of the court was delivered by: David H. Coar, United States District Judge


Plaintiff Tavares Allen, a prisoner in the custody of the Illinois Department of Corrections (IDOC) at Vienna Correctional Center, filed this pro-se civil rights action on September 12, 2002. After Allen's motion for leave to proceed without prepayment was denied, Allen paid the filing fee on January 3, 2003.

A provision of the Prison Litigation Reform Act (PLRA) requires the court to review complaints filed by prisoners against governmental entities or their officers or employees and to dismiss any portion of the complaint it finds frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915A. In determining whether the complaint states a claim upon which relief may be granted, the court applies the standard employed in deciding a motion to dismiss under Rule 12(b)(6); the court must accept the allegations of the complaint as true and view them in the light most favorable to the plaintiff. Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). The court must also consider relevant allegations contained in other papers filed with the court. See Gutierrez v. Peters, 111 F.3d 1364, 1367 & n. 2 (7th Cir. 1997); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). Here, the court considers Allen's grievance and medical records attached as exhibits to the complaint, as well as allegations in the complaint itself.


Allen alleges that on April 27, 2002, while on a furlough from the Westside Adult Transition Center (WATC) in Chicago, he received a serious knife wound to the abdomen and was hospitalized in Cook County Hospital for seven days. After his discharge he was initially returned to WATC, but defendant Ms. Bell, a counselor at WATC, told Allen that because of his medical condition he would be transferred to the infirmary at Stateville Correctional Center.

On May 6, 2002, Allen was transferred to Stateville. Defendant M.L. Serena, a nurse, conducted the intake examination at Stateville and told Allen he would be staying in the infirmary. However, when defendant Dr. Tobia reviewed the intake, he ordered Allen to be housed with the general population without examining him. Allen told Dr. Tobia that he was in great pain, but Dr. Tobia refused to prescribe pain medication and said he would see Allen the next day.

That night Allen became seriously ill, and his vomiting and retching reopened his wound. A correctional officer who came by his cell making the head count refused to help, saying that the doctor and nurses weren't in anyway. At 8:10 the following morning, May 7, 2003, a correctional sergeant came to Allen's cell in response to his screams and ordered Allen taken to the infirmary. At 9:05 am. Dr. Tobia ordered Allen transported by ambulance to St. Joseph's Hospital in Joliet where he remained until May 13, 2002.

Allen states that although he had not fully recovered, "Stateville" insisted that he be returned there. When Allen returned to Stateville, the medical supervisor, defendant Dr. Smith, and Dr. Tobia ordered a nasogastric tube and intravenous liquids. Although the tube remained for six days, Allen states he continued to suffer from retching and his condition did not improve. According to Allen the post-discharge treatment recommendations from St. Joseph's Hospital's were ignored. According to Exhibit C to the complaint, the recommendations were a full liquid diet, "advance as tolerated," no tub baths, no heavy lifting, and Vicodin every four hours for pain. Allen remained in the Stateville infirmary until May 31, 2002. On June 12, 2002, he was transferred to Vienna Correctional Center.

At Vienna, Allen filed a grievance dated August 6, 2002, complaining about his treatment at both Stateville and Vienna and asking to be transferred again to WATC.*fn1 Because his grievance arose at Stateville rather than Vienna, Allen filed his grievance with IDOC's Administrative Review Board as required by IDOC regulations, 20 Ill. Admin. Code § 504.870(a)(4). Allen states he has received no response from the Administrative Review Board.


A. Liability for inadequate medical care

In the absence of a claim arising under federal law, a federal court does not have jurisdiction of state-law claims such as negligence or medical malpractice unless the plaintiff is not a citizen of the same state as any of the defendants. 28 U.S.C. § 1331, 1332. Here all parties appear to be citizens of Illinois, so the question is whether Allen has stated a claim under federal law in addition to any state-law claims he may have.

Neither the Constitution nor any federal statute guarantees adequate medical care for state prisoners. The only relevant constitutional or federal right is the Eighth Amendment's prohibition of cruel and unusual punishment, which the Fourteenth Amendment applies to state governments. Denial of medical care, or inadequate or inappropriate medical care, amounts to cruel and unusual punishment, that is, "the unnecessary and wanton infliction of pain," only if a prison official is deliberately indifferent to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Walker v. Benjamin, 293 F.3d 1030, 1036-37 (7th Cir. 2002). A negligent or inadvertent failure to provide adequate medical care does not amount to a constitutional claim because it is not an "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06; Walker, 293 F.3d at 1037. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106.

Allen has not alleged that defendant Serena was even negligent. In any event, she caused him no injury since the medical decisions were made by Drs. Tobia and Smith. Allen faults defendant Bell, the WATC correctional counselor, for having him transferred to Stateville after his discharge from Cook County Hospital rather than keeping him at WATC where he could have received outpatient care. There are serious flaws with Allen's reasoning. Allen's custodial placement was at IDOC's discretion; he had no right to remain at WATC. Bell's decision (assuming it was her decision) to return Allen to Stateville, where he would either be kept in the infirmary or would have access to it, hardly showed deliberate indifference to his medical needs. If Allen now complains that Bell should have let him remain at WATC where he could only receive outpatient care, it is difficult to understand Allen's objection to Dr. Tobia's decision to remove him from the Stateville infirmary and ...

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