United States District Court, S.D. Illinois
July 5, 2005.
MICHAEL HARVEY, Plaintiff,
ILLINOIS DEPARTMENT OF CORRECTIONS, ROSALA GONZALEZ, WARDEN GARNETT, NURSE BROOKS, UNKNOWN PARTY NURSE ROBIN #7735, M. BRIAN, and HEALTHCARE PROFESSIONALS LTD., Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Plaintiff, formerly an inmate in the Lawrence Correctional
Center, brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. 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 his complaint (Doc. 1), Plaintiff states that at an
unspecified point in time, while he was in the Graham
Correctional Center, he was incorrectly diagnosed with
tuberculosis. Due to that incorrect diagnosis, he was not
provided with proper medical treatment for his true ailments,
which he alleges consist of high blood pressure, chronic
obstructive pulmonary disorder, an unspecified heart condition, a
swollen prostrate, and possible diabetes. Plaintiff alleges, in a
very general manner, that the nurses did not perform thorough
exams when making their rounds through the housing units. He also
alleges that Gonzalez and Brian failed to review his medical
charts, and that Garnett failed to investigate the situation.
In his addendum (Doc. 4), Plaintiff elaborates more fully on
these claims. He states that upon his arrival at Lawrence in
April 2004, Gonzalez should have done a complete physical exam as
well as a thorough reading of his medical chart. Apparently his
intake medical exam was performed by nurses, whom he advised of
his various conditions; he claims Gonzalez did not review his
chart until August 2004. He then sets forth several separate
situations in which he was dissatisfied with his medical care.
First, he states that he is not an insulin-dependent diabetic.
Therefore, his blood sugar must be monitored on a regular basis.
He claims that his insulin requirements were low enough that
Nurse Baker removed his name from the afternoon insulin line, but
he was given no guidelines on how to regulate his diet.
Second, in July (2004?), Plaintiff experienced difficulty
breathing due to the heat and humidity. He asked to see the
doctor, but instead was seen by Nurse Robin during her rounds. It
seems that Robin checked his vital signs, but apparently no other
medical treatment was provided. Plaintiff filed a grievance,
which was denied by Defendant Brian.
Third, Plaintiff claims that Defendant Brian "failed in her
duty" to check his chart to verify that he was receiving all
necessary medical treatment. He further claims that she did not
check his chart until he began to file grievances about his
medical treatment. In addition, he claims that unspecified
medical tests were canceled at the last minute.
Fourth, Plaintiff states that he filed an emergency grievance
about his trouble breathing. However, Defendant Garnett deemed it
not an emergency, requiring Plaintiff to proceed through the
standard grievance procedures.
Fifth, Plaintiff alleges that Roger Walker (not named as a
defendant) is responsible for the substandard medical care he has
received, as Walker has failed to enforce institutional policies.
Sixth, Plaintiff alleges that on July 27, 2004, he was assigned
to a laundry porter position, and then to a janitorial position.
Plaintiff explained his medical condition to the assignment
officer, but the officer's records indicated that Plaintiff was
cleared to perform any job. Therefore, Plaintiff was forced to
work for one day as a laundry porter.
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
factfinder 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 constitutional violation.
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).
Although the Court empathizes with Plaintiff for his many
maladies, the allegations contained in his complaint and
supplement do not present claims against any named defendant that
rise to the level of an Eighth Amendment violation. At best,
Plaintiff has made allegations that might present a claim of
medical negligence. However, the 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.");
Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) (A
series of acts of negligence "is merely evidentiary; it is not an
alternative theory of liability."). Therefore, Plaintiff has not presented
any viable constitutional claims against any of the named defendants.
One final pleading requires comment Plaintiff's motion to
amend his complaint (Doc. 7). In the text of that motion, he
clarifies that all his references to "malpractice" should be
interpreted as claims of deliberate indifference. He also wishes
to add Nurse Harvey as a defendant for not providing proper medical testing. Finally, he wishes to add
claims against Ms. Taverbaugh, Jason Garnett, Kenneth Brown and
Director Walker for conspiracy to obstruct prompt, proper medical
care, and for impeding the grievance process. This motion is not
accompanied by a copy of the proposed amended complaint that
includes all his claims against all defendants; instead, he has
simply submitted additional copies of his original complaint.
Further, none of these additional allegations present a viable
constitutional claim. Therefore, the motion to amend is DENIED.
In summary, Plaintiff's complaint does not survive review under
§ 1915A. Accordingly, this action is DISMISSED with prejudice,
and all other pending motions are denied as moot. Plaintiff is
advised that the dismissal of this action will count as one of
his three allotted "strikes" under the provisions of
28 U.S.C. § 1915(g).
IT IS SO ORDERED.
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