United States District Court, S.D. Illinois
June 6, 2005.
JOHNNY QUIÑONES, Plaintiff,
CHARLES R. GILKEY, DR. LABORE, HARRELL WATTS, G.L. HERSHBERGER, DR. DAWDY and UNKNOWN PARTIES M-Z, Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM AND ORDER
Plaintiff, currently an inmate in the U.S.P. in Atwater,
California, brings this action for alleged violations of his
constitutional rights by persons acting under the color of
federal authority. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). Plaintiff previously was granted leave to
proceed in forma pauperis, and he has tendered his initial
partial filing fee as ordered.
This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319
, 325 (1989). Upon careful review of the
complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action
is legally frivolous and thus subject to summary dismissal.
In September 1997, Plaintiff fell and injured his left knee
while performing his work duties when he was incarcerated in the
Federal Correctional Institution in Waseca, Minnesota. After a
medical examination, he was prescribed pain medication. X-rays
were taken at a follow-up visit to the medical unit in October;
the x-rays revealed "no abnormality," and Plaintiff was
prescribed more pain medication. Over the next several months,
and then years, Plaintiff continued to complain of knee pain. He
was provided with a knee brace and pain medication, but further
examinations did not indicate the need for further treatment.
In December 1998, Plaintiff arrived at F.C.I. Greenville. He
was examined by Defendant Dawdy the next month; Plaintiff states
that he complained to Dawdy at that time about knee pain. More
x-rays were taken in February 1999, again revealing no
abnormality in his left knee. The regimen of pain medication
continued and, in September 1999, new x-rays revealed "minimal
degenerative change" and "mild suprapetellar joint effusion"
(Doc. 1, ¶ 42). Plaintiff's pain persisted and, in March 2000, an
MRI was done of Plaintiff's knee. That test revealed an old
ligament tear, but "[n]o significant joint effusion" (Doc. 1, ¶
60). Despite this diagnosis, Plaintiff's knee pain persisted.
In May 2000, a specialist recommended surgery, but surgery was
not scheduled. Throughout the remainder of 2000, Plaintiff
continued to experience pain in his knee. Pain medication was
continually prescribed but in November 2000, in response to a
grievance he filed, he received word that surgery would not be scheduled for his knee. He appealed
that decision to Gilkey; Gilkey's response was that Plaintiff's
surgery would not be scheduled due to other necessary surgery
that took higher priority (Doc. 1, ¶ 89).*fn1 Plaintiff
appealed that decision to Hershberger, but his appeal was denied.
Likewise, his appeal of Hershberger's decision was denied by
Watts. In January 2001, Plaintiff spoke with Defendant Labore
about the pain in his knee and the need for surgery. Labore
reiterated the prior decisions that surgery was not going to be
In May 2001, Plaintiff was released from federal custody.
However, upon a violation of supervised release, he was taken
into custody again within 60 days; he was then held for
approximately 90 days in the MCC in San Diego. After that 90
days, he was once again released. In February 2002, upon filing
of new federal charges, Plaintiff was once again in federal
custody, where he was held in the MCC in San Diego. Doctors at
the MCC agreed with him that surgery should be scheduled for his
knee. Pain medication was prescribed and, on May 29, 2002,
surgery was performed on his left knee.*fn2
Although the facts provided in the complaint are detailed, the
legal basis for this action is quite simple: Plaintiff alleges
that by failing to provide adequate medical treatment for his
knee, Defendants at Greenville violated his constitutional
The Supreme Court has recognized that "deliberate indifference
to serious medical needs of prisoners" may constitute cruel and
unusual punishment under the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan,
511 U.S. 825 (1994). This encompasses a broader range of conduct than intentional denial of necessary
medical treatment, but it stops short of "negligen[ce] in
diagnosing or treating a medical condition." Estelle,
429 U.S. at 106. See also Jones v. Simek, 193 F.3d 485, 489 (7th
Cir. 1999); Steele v. Choi, 82 F.3d 175, 178 (7th Cir.
1996), cert. denied, 519 U.S. 897 (1996).
A prisoner raising an Eighth Amendment claim against
a prison official therefore must satisfy two
requirements. The first one is an objective standard:
"[T]he deprivation alleged must be, objectively,
`sufficiently serious.'" Farmer, 511 U.S. at ___,
114 S.Ct. at 1977. As the Court explained in
Farmer, "a prison official's act or omission must
result in the denial of the minimal civilized measure
of life's necessities." Id. The second requirement
is a subjective one: "[A] prison official must have a
`sufficiently culpable state of mind,'" one that the
Court has defined as "deliberate indifference." Id;
see Hudson v. McMillian, 503 U.S. 1, 5,
112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992) ("[T]he appropriate
inquiry when an inmate alleges that prison officials
failed to attend to serious medical needs is whether
the officials exhibited `deliberate indifference.'");
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285,
291, 50 L.Ed.2d 251 (1976) ("[D]eliberate
indifference to serious medical needs of prisoners
constitutes the `unnecessary and wanton infliction of
Vance v. Peters, 97 F.3d 987, 991-992 (7th Cir. 1996),
cert. denied, 520 U.S. 1230 (1997). However, the Supreme Court
stressed that this test is not an insurmountable hurdle for
inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a
prison official acted or failed to act believing that
harm actually would befall an inmate; it is enough
that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm. . . .
Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including
inference from circumstantial evidence, . . . and a
fact-finder may conclude that a prison official knew
of a substantial risk from the very fact that the
risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit's decisions following this standard for
deliberate indifference in the denial or delay of medical care require evidence of a defendant's
actual knowledge of, or reckless disregard for, a substantial
risk of harm. The Circuit also recognizes that a defendant's
inadvertent error, negligence or even ordinary malpractice is
insufficient to rise to the level of an Eighth Amendment
Neglect of a prisoner's health becomes a violation of
the Eighth Amendment only if the prison official
named as defendant is deliberately indifferent to the
prisoner's health that is, only if he `knows of and
disregards an excessive risk to inmate health or
Williams v. O'Leary, 55 F.3d 320, 324 (7th Cir.), cert.
denied, 516 U.S. 993 (1995); see also Steele, 82 F.3d at 179
(concluding there was insufficient evidence of doctor's knowledge
of serious medical risk or of his deliberate indifference to that
risk; emphasizing that even malpractice is not enough proof under
Farmer); Miller v. Neathery, 52 F.3d 634, 638-39 (7th
Cir. 1995) (applying Farmer mandate in jury instruction).
However, a plaintiff inmate need not prove that a defendant
intended the harm that ultimately transpired or believed the harm
would occur. Haley v. Gross, 86 F.3d 630, 641 (7th Cir.
1996). Further, with respect to the subjective element, Seventh
Circuit has frequently noted that "medical malpractice in the
form of an incorrect diagnosis or improper treatment does not
state an Eighth Amendment claim." Gutierrez v. Peters,
111 F.3d 1364, 1374 (7th Cir. 1997). See also Snipes v. DeTella,
95 F.3d 586, 590 (7th Cir. 1996) ("Mere negligence or even gross
negligence does not constitute deliberate indifference.").
From the facts alleged, as summarized above, it is clear that
Defendants were not deliberately indifferent to Plaintiff's
medical needs. Although 20-20 hindsight might support Plaintiff's
belief that surgery should have been performed prior to May 2002,
none of Plaintiff's allegations suggest that any defendant acted
with deliberate indifference. Although the Court empathizes with
Plaintiff for the problems he experienced with his knee, he simply has not
presented a viable constitutional claim against any named
In summary, Plaintiff's complaint does not survive review under
§ 1915A. Accordingly, this action is DISMISSED with prejudice.
Plaintiff is ADVISED that the dismissal of this action
should be counted as one of his three allotted "strikes" under
the provisions of 28 U.S.C. § 1915(g), but at this time the Court
will not assess the strike. Instead, the Court CERTIFIES that
any appeal from this decision would not be taken in good faith;
thus, the Court will not grant Plaintiff leave to proceed in
forma pauperis on appeal. See 28 U.S.C. § 1915(a)(3). Should
Plaintiff choose to appeal despite this ruling, Plaintiff shall
be required to pay the full $255 appellate fee in advance, and
the Court will then have no choice but to assess the strike for
IT IS SO ORDERED.