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Campbell v. Dart

August 5, 2010

DON CAMPBELL (#252362), PLAINTIFF,
v.
TOM DART, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James B. Zagel United States District Court Judge

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff, Don Campbell, an inmate presently in the custody of the Wisconsin Department of Corrections, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, Plaintiff alleges that the Defendants, Cook County Sheriff Tom Dart; Director of the Cook County Jail Salvador Godinez; Supervisor of Program Services at Cook County Jail, John Mueller; Dr. Sergio Rodriguez; Dr. Carlos Altez; Dr. Eileen Couture, Medical Director of Cermak Health Services; and Dr. Robert Simon (hereinafter, "Defendants"), violated his constitutional rights by denying him adequate medical care when he was incarcerated at the Cook County Jail.

Plaintiff alleges that on May 5, 2007, during his arrest, he was tasered by police, resulting in two wounds to his back. By August or September of 2007, Plaintiff became concerned that the wounds he suffered had become infected with staphylococcus aureus. Although Plaintiff continually expressed his concern about his staph infected wounds, he contends that Defendants provided him with constitutionally inadequate care for his ongoing infection. On initial review pursuant to 28 U.S.C. § 1915A, the Court determined that Plaintiff stated a claim for deliberate indifference to a serious medical need against all Defendants. The Court granted Defendant Rodriguez's motion to dismiss on January 12, 2010. It appears that Plaintiff has failed to effectuate service on Defendant Simon, although alias summons was issued on December 23, 2009.

Presently before the Court are the remaining Defendants' motions to dismiss Plaintiff's complaint for failure to state a claim. Defendants Dart, Godinez, Mueller, and Couture argue that Plaintiff's complaint fails to state an official capacity claim against them. Defendants Altez and Couture also argue that Plaintiff has failed to state a claim for deliberate indifference against them. For the reasons stated in this order, Defendants Dart, Godinez and Mueller's motion to dismiss is denied and Defendants Altez and Couture's motion is granted in part and denied in part.

It is well established that pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). Fact pleading is not necessary to state a claim for relief. Thompson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, (1957)).

The allegations "must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quotation omitted). In making this determination, the complaint is construed in the light most favorable to the plaintiff, accepting as true the well-pleaded allegations, and drawing all reasonable inferences in the plaintiff's favor. Tamayo, 526 F.3d at 1081. However, a plaintiff can plead himself or herself out of court by pleading facts that undermine the allegations set forth in the complaint. See, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006).

BACKGROUND

Plaintiff alleges the following facts in his amended complaint, which are accepted as true for purposes of the motion to dismiss. Plaintiff was arrested on May 5, 2007. During his arrest, he was tasered in the back by police. When he was taken into custody and processed into the custody of the Cook County Jail, he had open wounds on his back from the tasering. Plaintiff was prescribed ibuprofen and diphenhydramine, and, at first, the wounds appeared to be healing over normally. However, by August or early September of 2007, Plaintiff believed that he had contracted staphylococcus aureus in the wounds.

Plaintiff believed he had a staph infection because Division 11, where he was housed within the Cook County Jail, was an area known to house other inmates who were infected. Plaintiff noticed that the area where he had been tasered had abscessed and filled with puss. He submitted requests to see medical personnel every day for a week. When his requests were ignored, he wrote letters to Defendants Dart, Godinez and Rodriguez telling them he believed he was suffering from a staph infection. He saw Defendant Godinez in Division 11, and Godinez took no action.

Plaintiff alleges that he saw Defendant Altez in September of 2007. Defendant Altez wrote him a prescription for Bactrim. Plaintiff had been treated by Defendant Altez in 2006 for an earlier staph infection in his hand. Plaintiff expressed his concern that Bactrim had not worked in the past, and that it was insufficient to treat his present infection. Defendant Altez refused to perform any tests on Plaintiff and told him to leave. Plaintiff again wrote to Defendants Dart, and Godinez, asking them to intervene and he received no response. Plaintiff again saw Defendant Godinez and he did nothing to assist him. By this time, the lesion on Plaintiff's back had grown to the size of a quarter, caused him extreme pain, and was full of puss.

Plaintiff was sent to the Health Care Unit where he once again saw Defendant Altez. Plaintiff alleges that Defendant Altez made note of the fact that Plaintiff had filed complaints against him, and refused to treat him. Another unnamed doctor looked at Plaintiff's back, told him he would be fine, and sent him away. On his way out of the health care unit, Plaintiff passed Defendant Altez again, and Defendant Altez refused him treatment.

Plaintiff was subsequently transferred to Stateville Correctional Center after pleading guilty to the charges brought against him. During his time in the custody of the Illinois Department of Corrections, Plaintiff was prescribed antibiotics, borrowed antibiotics from other inmates, and eventually his back healed. He does however have permanent scarring on his back due to the prolonged infection.

Plaintiff alleges that Defendants Dart, Rodriguez, Godinez, Mueller, Couture, and Simon failed to adequately protect him and other Cook County Jail inmates from serious medical conditions such as staph infections and have a policy of providing inadequate treatment for staph infected inmates. He further alleges that these Defendants are in a position of authority to create and implement policy at Cook County Jail. He finally alleges that as a result of these policies, his staph infection was ...


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