The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM OPINION AND ORDER
The Plaintiff, currently an inmate at Robinson Correctional Center,
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
He claims that the defendants, Dr. Robert Erickson and the University of
Chicago Hospitals, violated his constitutional rights by failing to
provide him with adequate medical care when he was a detainee at the Cook
County Jail. This matter is before the court for consideration of the
defendants' motion to dismiss the complaint for failure to state a claim.
On the court's own motion, Plaintiff was given an extension of time to
respond; further, he was warned that failure to do so would result in the
court ruling without benefit of his views. He has nevertheless failed to
submit a response by the deadline given. For the reasons stated in this
order, the motion is granted.
In considering a motion to dismiss, the court must accept as true all
well-pled facts and must draw all reasonable inferences from those
allegations in plaintiffs favor; a complaint shall only be dismissed if
it is beyond doubt that the plaintiff can prove no facts which would
him to relief. MCM Partners, Inc. v. Andrews-Bartlett &
Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995). Furthermore, when
confronted with a pro se complaint, the court must employ a more
liberal standard of review than would be used where an attorney prepared
the complaint. Haines v. Kerner, 404 U.S. 519 (1972);
Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995). Despite
this liberal review of pleadings, federal rules still require that the
complaint allege facts which would provide an adequate basis for each
claim. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988).
On a motion to dismiss, a plaintiffs well-pled allegations of fact are
taken as true and all reasonable inferences are drawn in the plaintiffs
favor. Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Units, 507 U.S. 163 (1993); Swofford v.
Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). Additionally, as long
as they are consistent with the allegations of the complaint, a party may
assert additional facts in his or her response to a motion to dismiss.
Travel All Over the World, Inc. v. Kingdom of Saudi Arabia,
73 F.3d 1423, 1428 (7th Cir. 1996); Highsmith v. Chrysler Credit
Corp., 18 F.3d 434, 439-40 (7th Cir. 1994). Furthermore, the court
can take judicial notice of matters of public record without converting a
motion to dismiss into one for summary judgment. Henson v. CSC Credit
Services, 29 F.3d 280, 284 (7th Cir. 1984).
Plaintiff submitted his complaint March 12, 2003, alleging that on
August 19-21, 2002, while he was a detainee in the custody of the Cook
County Jail, he was treated at the University of Chicago hospitals for
scheduled spinal surgery, presumably scheduled and paid for by the Cook
County Jail, although Plaintiff does not mention this. He alleges no
complaints related to his surgery. Rather, he claims that between August
20th, at 1:00 p.m. and his discharge the very
next day back to the jail, defendant Dr. Erickson took him off of
pain medication and also ordered that his catheter be removed. He states
that these two orders caused him to suffer pain and also to urinate on
himself. He further alleges that he sought assistance and reported these
problems to unnamed nurses and doctors at the hospital, who told him that
Dr. Erickson would have to review his request. He never told Dr.
Erickson, nor did he allege that Dr. Erickson ever knew that he made
these requests. Plaintiff sues the University of Chicago and the
hospital, only because they employed Dr. Erickson.
42 U.S.C. § 1983 provides that "[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State or
Territory . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress."
Defendants correctly point out that Plaintiff did not specifically
allege that the University of Chicago hospital or Dr. Erickson were
acting under color of state law. However, we read pro se pleadings
liberally in this court. When reviewing a pro se complaint, a court must
employ standards which are less stringent than if the complaint had been
drafted by counsel. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Plaintiff does state that he was in the custody of the Cook
County Department of Corrections when he was taken to the University
hospital. Reading this statement in the light most favorable to
Plaintiff, as we must do in a motion to dismiss, it is
assumed that the University of Chicago Hospital had some
relationship with the jail in order to treat detainees; otherwise,
Plaintiff would not have been able to be treated there while he was in
jail custody. The court cannot hold a pro se Plaintiff to understand and
plead specifically, the intricacies of the legal relationships between
the institution in whose custody he is held, and agencies or outside
parties who provide care to him while a detainee. Contracting out prison
medical care, if that is what occurred here, does not relieve the county
of its constitutional duty to provide adequate medical treatment to those
in its custody, and it does not deprive the detainees of the means to
vindicate their Fourteenth Amendment rights. West v. Atkins,
487 U.S. 42, 56 (1988). Dr. Erickson can be held liable as a state actor
under § 1983 if he performs "functions that are traditionally the
exclusive prerogative of the State." Wade v. Byles, 83 F.3d 902,
905 (7th Cir. 1996). Provision of medical care to inmates is such a
Inadequate medical care claim
As Plaintiff was a pretrial detainee at the time of these allegations,
the Fourteenth Amendment rather than the Eighth Amendment is applicable.
The standards for assessing claims of unconstitutional conditions of
confinement under the Eighth and Fourteenth Amendments are actually quite
similar. See, e.g., Shelby County Jail Inmates v. Westlake,
798 F.2d 1085, 1093-94 (7th Cir. 1986). As the Seventh Circuit observed,
"[p]unishment is punishment, and there is no reason why the term should
mean two different things in the Eighth and Fourteenth Amendment
contexts." Salazar v. City of Chicago, 940 F.2d 233, 240 (7th
Cir. 1991); Hines v. Sheahan, 845 F. Supp. 1265 (N.D.Ill. 1994).
Additionally, the due process rights of a pretrial detainee are at least
as great as the Eighth Amendment protection available to a convicted
prisoner. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259
(7th Cir. 1996). Under the Fourteenth
Amendment, a claim for denial of medical services is analyzed under
the Eighth Amendment. Id.; Higgins v. Correctional Medical Services
of Ill., 178 F.3d 508, 511 (7th Cir. 1999). Plaintiff must show that
a responsible official was deliberately indifferent to his serious
medical condition. See, e. g., Farmer v. Brennan, 511 U.S. 825,
834 (1994); Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.
1997). A condition is serious if "the failure to treat a prisoner's
condition could result in further significant injury or the unnecessary
and wanton infliction of pain." Gutierrez, 111 F.3d at 1373
(citation and internal quotations omitted). Plaintiff states he was in
pain but he was not injured. The question then becomes whether Dr.
Erickson ordered cessation of the pain medication with deliberate
indifference to Plaintiffs medical care.
Plaintiff must show that Dr. Erickson acted with the requisite culpable
state of mind, deliberate indifference, a subjective standard. Officials
are deliberately indifferent if they "know of and disregard an excessive
risk to inmate health or safety; the official[s] must both be aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists, and [they] must also draw the inference."
Farmer, 511 U.S. at 837. See Dunigan v. Winnebago
County, 165 F.3d 587, 590-91 (7th Cir. 1999). However, neither an
inadvertent failure to provide medical care nor negligence in treating a
medical condition amounts to a constitutional violation. Farmer,
511 U.S. 825, 837 (1978); Estelle v. Gamble, 429 U.S. 97, 106-07
(1976). Medical malpractice is not actionable under § 1983.
Estelle, 429 U.S. at 104 ("Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.");
Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir.
Plaintiff alleges that after the surgery and the afternoon before his
release from the hospital, Dr. Erickson took him off of the pain
medication and ordered that his catheter be
removed, and that this caused Plaintiff to suffer pain and to
become incontinent. Additionally, his room was hot and without air
conditioning. He reported these conditions to other nurses and medical
staff, all of whom responded that only Dr. Erickson could change these
orders. He does not allege that he told Dr. Erickson himself any of these
complaints. In fact, there is no claim that Dr. Erickson ever even
received these complaints. Thus, there is no allegation sufficient to
meet the subjective prong of the deliberate indifference test. In other
words, Plaintiff fails to allege that the doctor even knew of the
problems. There is also no allegation that the orders Dr. Erickson gave
were because he was indifferent to Plaintiff's medical care. Indeed, it
is equally possible that such post-operative protocols are standard
procedure for a ...