United States District Court, N.D. Illinois
March 2, 2004.
GRADY HOLCOMB, Plaintiff
KENNETH BRILEY, et al., Defendants
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff has defendants under 42 U.S.C. § ("section") 1983 for
their alleged violations of his Eighth Amendment rights. Defendants
Kenneth Briley, Mark Hosey, Ronald Smock, Carol Delpriore, Michelle
Johnson and Jonathon Russell have filed a motion to dismiss the amended
complaint pursuant to Federal Rules of Civil Procedure ("Rule") 4(m) and
12(b)(6), For the reasons set forth below, the motion is granted in part
and denied in part.
Plaintiff, who has AIDS, was incarcerated at Stateville Correctional
Center from July 31, 2002 until October 7, 2002. (Am. Compl. ¶¶
15, 18.) Defendant Briley is the warden of Stateville. (Id.
¶ 4.) Defendant Hosey is the superintendent of Stateville's minimum
security unit, known as the farm. (Id. ¶ 7.) Defendant
Smock is the work supervisor at the farm. (Id. ¶ 8.)
Defendant Johnson is a correctional officer who worked at the farm during
the time that plaintiff was incarcerated there. (Id. ¶ 9.)
Defendant Russell is a Stateville medical technician. (Id.
When plaintiff arrived at Stateville, he was housed at the farm, which
is home to 213 inmates. (Id. ¶¶ 16, 17.) The conditions
plaintiff encountered during his twenty-four day stay at the farm were
deplorable: there were only two functional toilet stools, one functional
urinal and two sinks, one of which provided only cold water, for 100 men.
(Id. ¶¶ 51-52.) In addition, the showers were filthy and the
cells were infested with rats, roaches and other insects. (Id.
Plaintiff was not given his AIDS medications at anytime while he was
living on the farm. (Id. ¶¶ 22, 25, 31.) After only a few
days there, plaintiff developed a rash on his face. (Id. ¶
23.) For the next week, plaintiff repeatedly requested medical treatment,
but his requests were denied. (Id. ¶¶ 24, 26.) By the time
he was allowed to see a doctor, the left side of plaintiff's face was
swollen and covered in sores and his left eye was swollen shut.
(Id. ¶¶ 24, 27.) Ultimately, plaintiff's rash was diagnosed
as Shingles and he was admitted to the hospital for eleven days, during
which time he received his AIDS medications. (Id. ¶¶ 23, 28,
32.) As a result of the Shingles, the left side of plaintiff's face is
numb and the vision in his left eye is impaired. (Id. ¶¶
After plaintiff's hospital stay, he was returned to the farm.
(Id. ¶ 35.) Shortly thereafter, however, he was placed in
segregation pending investigation of an incident between plaintiff and
another inmate. (Id. ¶ 36.) Plaintiff spent thirty days in
segregation, without ever receiving his AIDS medications. (Id.
¶ 39.) In fact, the only time plaintiff ever received his AIDS
medications during his sixty-eight day incarceration at Stateville is
when he was hospitalized. (Id. ¶ 40.)
Plaintiff says that defendants were all aware of his AIDS status, but
did nothing to improve the living conditions at the farm, ensure that he
received his medications or ensure that he received timely medical care
for his rash, (id. ¶¶ 24, 26, 38, 42-45, 56-63), actions
that he claims violated his Eighth Amendment rights.
Rule 4(m) requires plaintiff's to serve defendants within 120 days of
the filing of the complaint. If service is not effected in that time, the
Court "shall dismiss the action without prejudice . . . or direct that
service be effected within a specified time," Defendants contend that
they were named in plaintiff's original pro se
complaint, filed on December 16, 2002, but were not served within 120
days thereafter. Thus, they say, the claims against them should be
Contrary to defendants' belief, not all of the movants were named as
defendants in plaintiff's original pro se filing. In
fact, the only movant who was properly named is defendant Briley. The
remaining movants were added as defendants in amended complaints filed
May 23, 2003 and July 29, 2003, respectively, and all but defendant
Johnson were served within 120 days after being added to the suit, In
reality, then, the only movants who were not served within the 120-day
period are Briley and Johnson.
Even if none of the movants had been timely served, however, the Court
would not dismiss the case under Rule 4. Dismissal under that Rule is
discretionary, even if no cause is shown for the delay in service.
Panaras v. Liquid Carbonic Indus, Corp., 94 F.3d 338, 340-41
(7th Cir. 1996). Moreover, any dismissal would be without prejudice. FED.
R. Civ. P. 4(m). Thus, if we dismissed the suit, plaintiff would simply
refile and re-serve the movants, a wasteful and pointless exercise.
Because the delay in service was not great, all defendants have now been
served and dismissal of this case would serve only to delay the
proceedings, the Court denies defendants' motion to dismiss for untimely
Failure to State a Claim
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all
well-pleaded factual allegations of the complaint, drawing all reasonable
inferences in plaintiff's favor. Forseth v. Village of Sussex,
199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless "it
is clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations." Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984).
In Count 1 of his complaint, plaintiff alleges that defendants Briley,
Delpriore, Smock, Hosey and Russell violated his Eighth Amendment rights
by tailing to provide him with timely medical care and his AIDS
medications. To state viable Eighth Amendment claims against these
defendants, plaintiff must allege that he had a serious medical need and
that the defendants were deliberately indifferent to it. Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). A serious medical need
"is one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention." Id. (internal quotation
marks and citation omitted). "Deliberate indifference [is] . . . more
than mere negligence," Farmer v. Brennan, 511 U.S. 825, 835
(1994), Defendants were deliberately indifferent only if they were
"subjectively aware of [plaintiff's] serious medical needs and
disregarded an excessive risk that a lack of treatment posed to [his]
health or safety," Wynn, 251 F.3d at 593.
The delay in treatment claim plaintiff asserts against defendant Briley
is easily dispatched. Briley can be held personally liable*fn1 under
section 1983 only if he "caused or participated in a constitutional
deprivation," Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996)
(internal quotation marks and citation omitted). Plaintiff docs not
allege that Briley personally refused plaintiff
permission to see a doctor about the rash, that he directed any
other defendant to do so or that he sanctioned any other defendant's
decision in that regard. In fact, plaintiff does not allege that Briley
was even aware that plaintiff had a rash. Because there are no
allegations from which we can infer that Briley caused or participated in
the decision to delay treatment for plaintiff's rash, Briley's motion to
dismiss this Eighth Amendment claim is granted.
Plaintiff's delay in treatment claims against defendants Delpriore,
Smock, Hosey and Russell suffer the same fate. Though plaintiff alleges
that each of these defendants personally denied him access to medical
care, he has not alleged that any of them knew, during the time he was
denied treatment, that the rash posed any risk to his health. Moreover,
plaintiff affirmatively alleges that when his condition deteriorated and
the need for treatment was obvious, he was allowed to see a doctor, (Am.
Compl, ¶ 24 (alleging that he was sent to the doctor when the rash
caused facial sores and swelling).) Because plaintiff has not alleged
that Delpriore, Smock, Hosey and Russell were subjectively aware that
plaintiff had a serious medical need for treatment of the rash when he
first requested medical attention for it, he has not stated viable delay
in treatment claims against them.
Plaintiff also alleges that these defendants violated his rights by
failing to ensure that he received his AIDS medications throughout his
stay at Stateville. This time, plaintiff's claims pass muster. Plaintiff
alleges that he has AIDS and is required to take a variety of medications
to combat the condition, allegations that satisfy the serious medical
need element of his claims. (Id., ¶ 18.) Plaintiff also
alleges that each of these defendants knew he had AIDS and that he was
not receiving his medication, but made no attempt to remedy the
situation, despite his repeated requests, even after he was hospitalized
for Shingles. (Id. ¶¶ 26, 40, 42-44.) Because of the lapse
in his medication regimen, plaintiff's T-cell count plunged,
(Id. ¶ 47.) Those allegations are sufficient to support the
inference that defendants disregarded a substantial risk to
plaintiff's health by failing to ensure that he received his prescribed
medications. See Wynn, 251 F.3d at 594 (allegations that
plaintiff "repeatedly told prison officials that he needed his heart
medication `immediately,' that the officials did not respond to his
requests . . . that his heart had been `fluttering' due to the lapse
in medication, and that he risked `heavy chest pains' if he did not
resume his medication" slated Eighth Amendment claim).
In Count II of the amended complaint, plaintiff alleges that defendants
Briley, Hosey, Smock, Johnson and Delpriore violated his Eighth Amendment
rights by housing him in unsanitary conditions at the farm for
twenty-four days. To state a viable conditions-of-confinement claim,
plaintiff must allege both that he suffered a serious deprivation and
that defendants acted with deliberate indifference. Farmer, 511
U.S. at 834. A deprivation is serious within the meaning of
Farmer only if it denies the inmate "the minimal civilized
measure of life's necessities." Id. (internal quotation marks
and citation omitted).
During plaintiff's stay at the farm, there were only two functional
toilet stools, one functional urinal and two sinks, one of which provided
only cold water, for 100 men. (Am, Compl. ¶¶ 51-52.) In addition, the
showers were filthy and the cells were infested with rats, roaches and
other insects. (Id. ¶¶ 53-55.) According to plaintiff, these
unsanitary conditions, coupled with his medical condition, caused him to
contract Shingles and suffer permanent damage to his facial nerves and
left eye. (Id. ¶¶ 23, 34, 62.) Taken together, those
allegations are sufficient to satisfy the serious deprivation element of
Plaintiff also satisfies the deliberate indifference element. Plaintiff
alleges that Briley, Hosey, Smock, Delpriore and Johnson knew about the
unsanitary living conditions and that plaintiff had
AIDS, and that all but Johnson knew he was not receiving his
prescribed medications. (Am. Compl. ¶¶ 42-44, 56-63.) Moreover,
plaintiff alleges that Hosey, Smock and Delpriore knew that he had
contracted an illness that required hospitalization while he was living
on the farm. (Id. ¶¶ 24, 27-28,) In addition, plaintiff says
that Hosey knew another inmate had contracted Shingles from the filthy
conditions on the farm. (Id. ¶ 62.) Despite their knowledge
of those facts, plaintiff says that none of the defendants made any
effort to improve the situation during the twenty-four day period in
which he was incarcerated there. (Id. ¶¶ 56-63.) Taken
together, those allegations support the inference that each of these
defendants knew that plaintiff, an inmate with a comprised immune system,
was living in an unsanitary environment that posed a substantial risk to
his health, but did nothing to remedy the situation the
definition of deliberate indifference.
Finally, defendants argue that the doctrine of qualified immunity
mandates dismissal of the conditions-of-confinement claims. The Court
disagrees. Qualified immunity protects "government officials performing
discretionary functions . . . from liability for civil damages insofar
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known."
Harlow v. Fitezerald, 457 U.S. 800, 818 (1982). To determine
whether the right allegedly violated was clearly established, we cannot
view the law in the abstract but must examine it "in relation to the
specific facts confronting [defendants] when [they] acted." Colaizzi
v. Walker, 812 F.2d 304, 308 (7th Cir. 1987), It was well
established in 2002 that defendants' alleged conduct knowingly
disregarding a substantial risk of harm that unsanitary living conditions
posed to an immune-comprised inmate who was not receiving prescribed
medications and had already contracted a viral condition that left him
permanently impaired violated the Eighth
Amendment, See. e.g., Farmer, Thus, defendants'
motion to dismiss on the grounds of qualified immunity is denied,
For the reasons stated above, the motion to dismiss of defendants
Briley, Hosey, Smock Delpriore, Johnson and Russell is granted in part
and denied in part. The delay in medical treatment claims that plaintiff
asserts against those defendants are dismissed without prejudice.
Plaintiff has fourteen days from the date of this Memorandum Opinion and
Order to amend those claims, if he can do so and remain in compliance
with Rule 11. In all other respects, defendants' motion is denied.