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Earlie Span, Jr v. Dr. Thomas Baker

February 22, 2012


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:


Wednesday, 22 February, 2012 11:07:35 AM

Clerk, U.S. District Court, ILCD


Plaintiff, proceeding pro se and currently incarcerated in Western Illinois Correctional Center, pursues claims arising from an alleged failure to timely treat a bone infection in Plaintiff's elbow. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A.


The Court is required by § 1915A to review a Complaint filed by a prisoner against a governmental entity or officer and, through such process, to identify cognizable claims, dismissing any claim that is "frivolous, malicious, or fails to state a claim upon which relief may be granted." A hearing is held if necessary to assist the Court in this review, but, in this case, the Court concludes that no hearing is necessary. The Complaint and its attachments are clear enough on their own for this Court to perform its merit review of Plaintiff's Complaint.

The review standard under § 1915A is the same as the notice pleading standard under Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add'l citation omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" Id., quoting Bell Atlantic, 550 U.S. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).


In or around May, 2011, Plaintiff began experiencing problems with his left elbow, including painful swelling. Defendant Dr. Thomas Baker ordered x-rays and prescribed pain medicine, then a string of antibiotics after the swelling and pain continued to worsen. Eventually, Dr. Baker told Plaintiff that the elbow was not infected, discontinued the antibiotics, and refused to drain the swelling. Plaintiff's elbow allegedly continued to worsen. In September, 2011, some prison nurses allegedly arranged for Plaintiff to see another doctor, who performed some kind of emergency surgery and ordered Vicodin and antibiotics. Plaintiff was later taken to an orthopedic specialist, who determined that Plaintiff had an infection in his bone and needed reconstructive surgery. He was scheduled to have the surgery in December, 2011, but he is still waiting and his pain and suffering continues. Plaintiff further alleges that Defendant Fuqua, the health care administrator, failed to timely schedule his examinations and treatments.


Plaintiff states a plausible Eighth Amendment claim against Dr. Baker for deliberate indifference to Plaintiff's serious medical needs regarding his elbow. Plaintiff's own description of his symptoms allows a plausible inference that his elbow condition is serious, and Dr. Baker's alleged persistence in pursuing ineffective treatment allows a plausible inference of deliberate indifference. Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005)(doctor's persistence in prescribing ineffective treatment that prolonged pain and suffering violated Eighth Amendment).

Whether a claim is stated against Defendant Fuqua, the health care administrator, is unclear. Fuqua is generally entitled to rely on Dr. Baker's professional treatment decisions. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005)("'If a prisoner is under the care of medical experts... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.'")(quoted cite omitted). However, Plaintiff alleges that Defendant Fuqua failed to timely schedule Plaintiff for examinations and treatment. At this point, an Eighth Amendment claim against Defendant Fuqua will remain in the case for further development.

As for Defendant Warden Young, he too is entitled to rely on Dr. Baker's determinations. However, an outside orthopedist has determined that Plaintiff needs surgery, yet the surgery has not occurred. Whether Warden Young is responsible for that cannot be determined on this record. Additionally, Warden ...

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