United States District Court, S.D. Illinois
August 25, 2005.
TED KNOX, Plaintiff,
MARVIN F. POWERS, TERRY CALIPER, REBECCA FORNEAR, JACKIE HAMILTON, LANA WATKINS, TWYLA WALTON, CARROLL GEORGE, and JANE SIMMONS, Defendants.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
Plaintiff, an inmate in the Tamms 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.
Plaintiff states that in January 2003, routine blood work
indicated that Plaintiff had a high blood glucose level of 120.
Defendant Dr. Marvin Powers diagnosed diabetes, but refused to
monitor Plaintiff's blood sugar. In January and February 2003,
Plaintiff made requests directly to Defendants Powers and Terry
Caliper during their routine rounds to have his blood sugar
monitored regularly and to receive treatment for his diabetes,
but the requests were denied. Plaintiff also informed Powers and
Caliper during these rounds that he was suffering from excessive
thirst, frequent urination, abdominal discomfort, and nausea.
Powers and Caliper told him that these were common symptoms of
diabetes. In early March 2003, Plaintiff notified Defendant
Jackie Hamilton in person that his symptoms had worsened.
Hamilton refused to take any action and told Plaintiff that she didn't care how much he pled for help, she was not going
to give him medical care unless he "totally passed out."
Plaintiff states that during that night he suffered from severe
abdominal pain and began vomiting blood. Plaintiff asked
Defendant Rebecca Fornear to be taken to the hospital because he
felt like he was dying. Fornear refused to contact a physician at
night, stating that Nurse Hamilton had already placed his name in
the emergency sick call line for the next morning. At 9:50 the
next morning, several other inmates called an unnamed zone
lieutenant to get medical attention for Plaintiff because he was
lying in his cell unresponsive. Plaintiff was taken to the nurses
station where he collapsed. His blood sugar registered at 578. He
was immediately transferred to the hospital; when he arrived his
blood sugar was 898. He remained in the hospital for three days.
A chest x-ray taken at the hospital indicated that Plaintiff
had low lung volumes. Dr. Alfonso David told Plaintiff that he
feared his lungs would collapse if Plaintiff did not receive
treatment after he left the hospital. Dr. David told Plaintiff
that he would inform Powers and Caliper of the need for continued
monitoring. Upon his return to Tamms, Plaintiff told Powers that
he was having difficulty breathing and experiencing chest pain
and he requested treatment. Powers told him he would review his
chart. Between March 18 and 24, 2003, Plaintiff told Defendants
Carroll George, Twyla Walton, and Jane Simmons that he was
suffering from severe chest pains, shortness of breath, and right
side numbness and that he was coughing up blood. He requested of
all three that he be allowed to see a lung specialist. Each noted
On March 27, Powers examined Plaintiff and although Plaintiff
told him of his difficulty breathing and pain, Powers told
Plaintiff he would not order treatment by a specialist and that
he should not worry because many people have lived with only one
lung. Dr. Powers ordered Robaxin for Plaintiff's pain. Between
March 31 and May 5, Plaintiff continued to complain to Dr. Powers and Terry Caliper of his chest pain, difficulty breathing, and
coughing up blood. Powers and Caliper still refused treatment by
a specialist. On May 5, 2003, Plaintiff complained to Defendant
Lana Watkins of more severe chest pain. Watkins checked
plaintiff's lungs with a stethoscope and informed Plaintiff she
could only hear "crackles." Plaintiff requested immediate
treatment, which Watkins refused, stating that Walton told her
that Powers and Caliper were not going to send Plaintiff to an
outside hospital or specialist. Plaintiff requested that Watkins
contact Powers and Caliper to tell them that she heard only
"crackles" in his lungs. She agreed to do so. Shortly thereafter,
however, Watkins went to Plaintiff's cell and told him she had
decided not to bother Dr. Powers because he was already aware of
Plaintiff's requests for treatment by a specialist. Watkins
refused to discuss the situation further and told Plaintiff that
he never should have come to Tamms if he wanted special treatment
because Tamms was "built to punish not hand out special
treatment." On May 13 Plaintiff was examined by Dr. Powers who
stated that there did appear to be an air-flow problem, but that
he would not allow treatment by an outside specialist. On May 16,
Plaintiff was given a chest x-ray and shortly thereafter
transferred to a hospital because his right lung had collapsed.
Plaintiff states that Defendants' failure to treat his conditions
constituted deliberate indifference to his serious medical needs
in violation of the Eighth and Fourteenth Amendments.
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 safety.'
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). Based on these standards, Plaintiff's claims cannot be
dismissed at this point in the litigation. See
28 U.S.C. § 1915A.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver
of Service of Summons) for Defendants POWERS, CALIPER, FORNEAR,
HAMILTON, WATKINS, WALTON, GEORGE, and SIMMONS. The Clerk shall
forward those forms, USM-285 forms submitted by Plaintiff, and
sufficient copies of the complaint to the United States Marshal
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants POWERS, CALIPER, FORNEAR, HAMILTON, WATKINS,
WALTON, GEORGE, and SIMMONS in the manner specified by Rule
4(d)(2) of the Federal Rules of Civil Procedure. Process in this
case shall consist of the complaint, applicable forms 1A and 1B,
and this Memorandum and Order. For purposes of computing the
passage of time under Rule 4(d)(2), the Court and all parties
will compute time as of the date it is mailed by the Marshal, as
noted on the USM-285 form. With respect to former employees of Illinois Department of
Corrections who no longer can be found at the work address
provided by Plaintiff, the Department of Corrections shall
furnish the Marshal with the Defendant's last-known address upon
issuance of a court order which states that the information shall
be used only for purposes of effectuating service (or for proof
of service, should a dispute arise) and any documentation of the
address shall be retained only by the Marshal. Address
information obtained from I.D.O.C. pursuant to this order shall
not be maintained in the court file, nor disclosed by the
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are
returned as undelivered as soon as they are received. If a waiver
of service is not returned by a defendant within THIRTY (30)
DAYS from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process and a copy of this Order
upon the defendant pursuant to Rule 4 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for the defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally served defendant in accordance with the
provisions of Federal Rule of Civil Procedure 4(d)(2)
unless the defendant shows good cause for such
Plaintiff is ORDERED to serve upon defendant or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for
consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate stating the date that a true and correct
copy of any document was mailed to defendant or his counsel. Any
paper received by a district judge or magistrate judge which has
not been filed with the Clerk or which fails to include a
certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate
responsive pleading to the complaint, and shall not waive filing
a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pre-trial
Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days after a transfer or other change in address
IT IS SO ORDERED.
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