United States District Court, S.D. Illinois
October 19, 2005.
GWENN HALE, Plaintiff,
MICHELLE R. PULLEY, GUY D. PIERCE, ROSALINA GONZALES, MAGGIE BRIAN, EDWARD GREEN, SHARON McCORKLE, CECIL VAUGHN, PHILLIP MARTIN, R. HALL, DR. CHO, DR. FINERMAN and C/O EUBANKS, Defendants.
The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
MEMORANDUM AND ORDER
Plaintiff, currently an inmate in the Hill 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.
To facilitate the orderly management of future proceedings in
this case, and in accordance with the objectives of Federal Rules
of Civil Procedure 8(f) and 10(b), the Court finds it appropriate
to break the claims in Plaintiff's pro se amended complaint
(Doc. 5) into numbered counts, as shown below. The parties and
the Court will use these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this
Court. The designation of these counts does not constitute an
opinion as to their merit. COUNT 1: Against Defendants Gonzales, Pulley and
Brian for deliberate indifference to his medical
needs, in violation of his rights under the Eighth
COUNT 2: Against Defendant Pulley for interfering
with his access to the courts, in violation of his
rights under the Fourteenth Amendment.
COUNT 3: Against Defendants Finerman, Eubanks,
Vaughn and Martin for their threats and taunting
COUNT 4: Against Defendant Hall for deliberate
indifference to his medical needs, in violation of
his rights under the Eighth Amendment
COUNT 5: Against Defendants Pierce and Green for
failing to respond appropriately to his grievances.
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; portions of
this action are legally frivolous and thus subject to summary
The primary focus of this action concerns the medical treatment
Plaintiff received, or did not receive, while in the Lawrence
Correctional Center. Due to the rambling language used throughout the amended complaint, it is difficult to determine exactly what
claims are presented. However, reading the amended complaint in
conjunction with the voluminous exhibits attached, the Court
discerns two distinct medical claims, as discussed below.
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).
Further, mere disagreement with a physician's chosen course of an
inmate's medical treatment does not amount to deliberate
indifference under the Eighth Amendment. See Snipes v. DeTella,
95 F.3d 586, 591 (7th Cir. 1996).
Medication Plaintiff's first medical claim is that at an unspecified time
while at Lawrence, Plaintiff was medicated with Elavil® for pain,
although he contends that this medication is really a
psychotropic drug that made him sick. He does not include any
allegations regarding who prescribed this medication for him, nor
does he state what physical condition necessitated pain
The Supreme Court held that a prisoner has "a significant
liberty interest in avoiding the unwanted administration of
antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment." Washington v. Harper, 494 U.S. 210,
221-22 (1990). However, in this case Plaintiff was prescribed
Elavil®, an anti-depressant typically prescribed for major
depressive disorders. However, the Court notes that "Elavil® is
sometimes used for pain relief of chronic pain conditions that
include fibromyalgia and chronic back pain."*fn1
Therefore, it appears that Plaintiff's claim is simply based
upon a disagreement over an unspecified doctor's choice of
medication for his pain, and such a disagreement does not give
rise to an Eighth Amendment claim. See Snipes, 95 F.3d at 591.
Accordingly, his claim regarding the Elavil® prescription is
dismissed from this action with prejudice.
Plaintiff next alleges that Defendant Gonzales confiscated his
crutches when he arrived at the Lawrence Correctional Center in
March 2003. He claims this action was not taken for legitimate
security concerns, but rather in retaliation for grievances he
filed against her at Pinckneyville when she forced him to take a
medication that made him sick. Due to his prior experience with
Gonzales, Plaintiff indicated that he did not want to receive
medical treatment from her. Following Plaintiff's refusal to be treated by Gonzales,
Defendant Pulley ordered him released from the infirmary into
general population. Due to his medical condition, Plaintiff had
difficulty walking and standing, requiring assistance from other
inmates. In late April 2003, Plaintiff fell and injured himself.
Plaintiff was taken to the infirmary, where he claims Gonzales
failed to provide him with medical treatment and then falsified
medical records regarding treatment that was provided to him.
Although Plaintiff's statements are vague regarding his
particular medical condition, the Court is unable to dismiss this
claim against Gonzales and Pulley at this point in the
litigation. See 28 U.S.C. § 1915A. However, Plaintiff's only
allegation against Defendant Brian is that she contradicted
Gonzales regarding either his medical treatment or his diagnosis.
A disagreement between doctors hardly constitutes deliberate
indifference to his medical needs, and Brian is therefore
dismissed from this action with prejudice.
Plaintiff's next claim is that staff at Lawrence, including
Pulley, have interfered with his access to the courts in many
ways. He specifically alleges delays in sending his outgoing
legal mail, interferences with his access to his legal property,
and denial of proper forms for grievances and lawsuits.
The Seventh Circuit uses a two-part test to decide if prison
administrators have violated the right of access to the courts.
Smith v. Shawnee Library Sys., 60 F.3d 317 (7th Cir. 1995);
Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992). First,
the prisoner must show that prison officials failed "to assist in
the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." Jenkins,
977 F.2d at 268 (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Second, he
must be able to show "some quantum of detriment caused by the
challenged conduct of state officials resulting in the
interruption and/or delay of plaintiff's pending or contemplated
litigation." Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th
Cir. 1994); Jenkins, 977 F.2d at 268; Shango v. Jurich,
965 F.2d 289, 291 (7th Cir. 1992); Howland v. Kilquist,
833 F.2d 639, 642-43 (7th Cir. 1987); Hossman v. Sprandlin,
812 F.2d 1019, 1021 n. 2 (7th Cir. 1987). That means that a
detriment must exist, a detriment resulting from illegal conduct
that affects litigation. It does not mean that any delay is a
detriment. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir.
1992), cert. denied, 113 S.Ct. 1002 (1993). Regardless of the
length of an alleged delay, a prisoner must show actual
substantial prejudice to specific litigation. Kincaid,
969 F.2d at 603.
In this case, Plaintiff makes no allegations of any prejudice
to any specific litigation, either pending or contemplated.
Therefore, he has not presented a viable constitutional claim
regarding interference with his access to the courts, and Count 2
is dismissed from this action with prejudice.
Plaintiff alleges that on a few isolated occasions, he was
verbally harassed by various staff members at Lawrence.
Specifically, he alleges that Defendant Finerman shoved him on
unspecified date, telling him to "walk or else." On another
unspecified date, Defendant Eubanks was heard making unspecified
threats against Plaintiff. On May 13, 2003, Defendant Vaughn made
"open and irresponsible statements, including personal slights of
the Plaintiff's mother." Finally, on another unspecified date,
Defendant Martin made "taunts and ridicules" at him. Plaintiff
also alleges, generally, that staff members and inmates have
engaged in "psychological warfare" by banging on doors, using
chemical agents, and tampering with his food. Isolated, infrequent incidents of verbal abuse or harassment do
not give rise to an Eighth Amendment claim. See, e.g.,
Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997);
Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992).
The use of racially derogatory language, while
unprofessional and deplorable, does not violate the
Constitution. See Patton v. Przybylski,
822 F.2d 697, 700 (7th Cir. 1987); accord Williams v.
Bramer, 180 F.3d 699, 706 (5th Cir.), clarified
on rehearing, 186 F.3d 633 (5th Cir. 1999).
Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a
prisoner equal protection of the laws. See Ivey v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per
curiam) (Eighth Amendment); Patton, 822 F.2d at 700
(due process); Williams, 180 F.3d at 705-06 (equal
DeWalt v. Carter, 224 F.3d 607
, 612 (7th Cir. 2000).
Therefore, Plaintiff's claims against Finerman, Eubanks, Vaughn
and Martin regarding verbal harassment are dismissed from this
action with prejudice.
It is also possible to construe Plaintiff's allegations against
Finerman as a claim of excessive force, which may constitute
cruel and unusual punishment in violation of the Eighth
Amendment. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);
DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An
inmate seeking damages for the use of excessive force need not
establish serious bodily injury to make a claim, but not "every
malevolent touch by a prison guard gives rise to a federal cause
of action. . . . [the] prohibition of `cruel and unusual'
punishment necessarily excludes from constitutional recognition
de minimis uses of physical force, provided that the use of force
is not of a sort `repugnant to the conscience of mankind.'"
Hudson, 503 U.S. at 9-10; see also Outlaw v. Newkirk,
259 F.3d 833, 837-38 (7th Cir. 2001).
In this case, Plaintiff's statement that Finerman "pushed,
shoved, and hit the Plaintiff with his hand" while telling him to
"walk or else" suggests just such a de minimis use of force
that does not give rise to a constitutional claim. Therefore, to the extent
that Plaintiff may be attempting to assert a claim of use of
excessive force against Finerman, that claim is also dismissed
from this action with prejudice.
Plaintiff states on May 29, 2003, an "unknown caustic
substance" came from ventilation system into his cell, causing a
burning sensation and shortness of breath. He immediately
notified C/O Goins (not named as a defendant in this action), who
in turn notified Defendant Hall. Although Goins acknowledged that
he could "smell something" and that the smell was stronger in
Plaintiff's cell than in nearby cells, Plaintiff alleges that
Hall failed to do anything. He further alleges that this problem
This claim against Hall for his failure to take action
constitutes, at best, a claim of negligence, but a defendant can
never be held liable under § 1983 for negligence. Daniels v.
Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes,
64 F.3d 285, 290 (7th Cir. 1995). Therefore, Count 4 is dismissed
from this action with prejudice.
Plaintiff's only allegations against Defendants Pierce and
Green appear at the very beginning of the amended complaint. He
Warden Pierce said to have authorized/condoned a/this
policy of abuse appearing probable by his failure
to respond to complaints made to him; including in
person. As did Defendant Green to written complaints.
The Court construes these statements as allegations that Pierce
and Green are liable for all other incidents alleged in this
action due simply to their failure to respond to his complains or
grievances. However, "a state's inmate grievance procedures do
not give rise to a liberty interest protected by the due process clause." Antonelli v. Sheahan, 81 F.3d 1422,
1430 (7th Cir. 1995). The Constitution requires no procedure
at all, and the failure of state prison officials to follow their
own procedures does not, of itself, violate the Constitution.
Maust v. Headley, 959 F.2d 644
, 648 (7th Cir. 1992);
Shango v. Jurich, 681 F.2d 1091
(7th Cir. 1982). See also
Crowder v. Lash, 687 F.2d 996
, 1006 (7th Cir. 1982)
(director of state correctional agency not personally responsible
for constitutional violations within prison system solely because
grievance procedure made him aware of it and he failed to
Accordingly, Plaintiff has not presented a viable
constitutional claim against Pierce or Green; consequently, they
are dismissed from this action with prejudice.
Plaintiff also lists Sharon McCorkle and Dr. Cho as defendants
in the caption of his amended complaint. However, the statement
of claim does not include any allegations against these
defendants. "A plaintiff cannot state a claim against a defendant
by including the defendant's name in the caption." Collins v.
Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Therefore, these
individuals are dismissed from this action with prejudice.
IT IS HEREBY ORDERED that COUNT 2, COUNT 3, COUNT 4 and
COUNT 5 are DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that the claim in Count 1 regarding the
prescription medication is DISMISSED from this action with
IT IS FURTHER ORDERED that Defendants BRIAN, CHO, EUBANKS,
FINERMAN, GREEN, HALL, MARTIN, McCORKLE, PIERCE and VAUGHN are
DISMISSED from this action with prejudice.
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 GONZALES and PULLEY.
The Clerk shall forward those forms, USM-285 forms submitted by
Plaintiff, and sufficient copies of the complaint to the United
States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants GONZALES and PULLEY 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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