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Charles White, #N82894 v. Warden Ryker

August 13, 2012

CHARLES WHITE, #N82894, PLAINTIFF,
v.
WARDEN RYKER, WARDEN HODGE, DR. PHIL MARTIN,
DR. FENOGLIO, STEPHNS,
HOVEY, HOMAN, CUMMONS, CUSICK, CLVEY, GOBBLERS, SOYER, HIGGINS, SELLERS, SHEARS, KAISER, DARNOLD, BAKER DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge:

MEMORANDUM AND ORDER

Plaintiff Charles White, an inmate in Lawrence Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 50 year sentence for murder. Plaintiff's claims are now before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A. Upon careful review of the complaint and supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

The following is an overview of the allegations in Plaintiff's complaint (Doc. 1). Plaintiff is on a self-imposed hunger strike. As a result, he has been fed through a feeding tube since at least July 6, 2010. Defendant Fenoglio (physician) removed this feeding tube on September 23, 2010. However, at the time of removal on September 23, Defendant Fenoglio told Plaintiff that if he did not end his hunger strike, his feeding tube would be changed without medical justification in the future. Plaintiff did not end his hunger strike and accordingly, his feeding tube began to be changed without medical cause. Defendant Fenoglio first authorized Plaintiff's tube to be changed twice monthly. The tube was then changed twice weekly, then once a week, then "periodically every day," until ultimately it was changed after each meal every day for over a year (Doc. 1, p. 2). Defendant Fenoglio authorized these tube changes to discourage Plaintiff from protesting by hunger strike. Plaintiff experienced nose and throat bleeds, vomiting, esophageal pain, extremely high blood pressure, and asphyxiation each time his tube was changed. He also had scar tissue from constant scratching and coughing caused by feeding tube changes. Plaintiff requested pain relievers for constant throat and esophageal pain, but the medical staff denied his requests. The medical staff was aware of the serious harm that Plaintiff suffered as a result of the excessive feeding tube changes, yet continued to perform unnecessary changes.

Defendant Fenoglio released Plaintiff from health care while he was on hunger strike and placed him without medical supervision in a cell that could not be seen on camera.*fn1 The room was not sanitized and was full of flies. While in this cell, Plaintiff was tube fed with dirty utensils and containers, and the nurses used brown water to flush out his tube. Further, the nurses who changed Plaintiff's feeding tube often did not properly flush his tube or leave water in it to keep it clean and prevent air from entering Plaintiff's stomach during the feeding process; as a result, Plaintiff experienced cramping. The nurses also did not clean the syringe that was connected to Plaintiff's tube prior to his feedings. The syringe was only changed once every five months.

On multiple occasions, the nurses who performed Plaintiff's tube feedings did not provide him with the amount of supplements that Defendant Fenoglio ordered, telling Plaintiff that if he wanted more, he should "eat on his own." As a result of the nurses' failure to provide the correct amount of supplements, Plaintiff experienced weight loss. Defendant Fenoglio, however, knowing that Plaintiff was losing weight, reduced Plaintiff's supplements. Because of the weight loss, Defendant Fenoglio took blood and urine from Plaintiff in spite of Plaintiff's protests and without a court order.

Plaintiff filed grievances in regard to his feeding tube issues. However, the prison staff claimed that they were unable to locate these grievances. The prison staff also failed to appropriately handle Plaintiff's mail, including legal mail. On April 27, 2011, a lieutenant received legal mail from Plaintiff that was to be signed by staff. However, the mail was never retrieved. Another lieutenant told Plaintiff on May 19, 2011 that his mail was not processed outside of the prison. The prison staff has a history of "mail problems" against Plaintiff (Doc. 1). Plaintiff was also denied telephone privileges, though he was eligible for them.

Plaintiff has been in solitary confinement for approximately 15 months without a disciplinary ticket or hearing. Defendant Ryker placed Plaintiff in solitary confinement and deprived him of his necessities (unspecified property items) because of Plaintiff's protest by hunger strike.

Plaintiff seeks to have his complaint merged with a previous complaint that he filed on May 3, 2010 (White v. Suneja, Case No. 10-cv-332-JPG-PMF (S.D. Ill. filed May 3, 2010)). He also seeks compensatory damages.

Plaintiff filed a motion for a preliminary injunction preventing excessive feeding tube changing on April 6, 2012 (Doc. 8). Plaintiff alleges that Defendant Fenoglio authorized the excessive changing of Plaintiff's feeding tube out of retaliation for Plaintiff's protest by hunger strike and the lawsuit that Plaintiff filed against Defendant Fenoglio. Plaintiff suffered mental anguish as a result of his feeding tube being changed after each meal every day. Defendant Hodge placed Plaintiff in segregation with no pending investigation, no disciplinary report, and no adjustment committee hearing for over 15 months. Defendant Hodge also denied Plaintiff unspecified property by keeping Plaintiff in disciplinary status. Defendant Hodge did this in order to discriminate and retaliate against Plaintiff.

Plaintiff filed a motion for preliminary injunction or motion for temporary restraining order preventing excessive feeding tube changing on July 5, 2012 (Doc. 9). In this motion, Plaintiff alleges that Defendant Fenoglio refused to surgically implant Plaintiff's feeding tube, which, if done, would have allowed Plaintiff's tube to go for long periods without being changed. In retaliation for Plaintiff continuing the hunger strike, Plaintiff's tube was changed after breakfast, lunch, and dinner every day from April 23, 2012 through June 28, 2012 (66 days). When Plaintiff's feeding tube was changed, he experienced asphyxiation and damage to the lungs because the tube became stuck in his lungs.

Plaintiff also filed a request for leave to file an amended complaint (Doc. 11) on August 7, 2012. The motion includes over 20 additional Defendants and omits two previously named Defendants. This motion also requests injunctive relief for the ongoing retaliation and curtailment of Plaintiff's food supplements. Plaintiff alleges in this motion that Doctor Shute (who was not previously named as a Defendant) authorized his feeding tube to be removed after each meal. He also claims that Defendant Fenoglio mandated that Plaintiff's used feeding tubes would be reinserted after removal instead of providing Plaintiff with new tubes upon reinsertion. Defendant Fenoglio refused to give Plaintiff medication for the sore throat that he suffered as a result of his dehydration and only authorized Plaintiff to be fed once every five days. Plaintiff claims that Defendant Hodge is retaliating for Plaintiff's hunger strike and grievance filing. Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into seven counts, which differs from Plaintiff's organization of the counts. The parties and the Court will use the Court's 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.

At the outset, the Court notes that although Plaintiff's claims within this complaint are similar to those within his previous case (Case No. 10-332-JPG-PMF), they occurred in a different time frame. The claims within this complaint arose nearly two years after those in No. 10-332. Therefore, the Court will not merge the complaints.

Count 1 -- Retaliation

In a retaliation claim, "[a]ll that need be specified is the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Naming the suit and the act of retaliation is all that is necessary to state a claim of improper retaliation. Id.

Defendant Fenoglio

Defendant Fenoglio told Plaintiff that if he did not end his hunger strike, his feeding tube would be changed without medical justification. When Plaintiff did not end his hunger strike, Defendant Fenoglio authorized Plaintiff's feeding tube to be changed as much as three times per day to discourage Plaintiff's hunger strike. Plaintiff has named the suit and the act of retaliation. Accordingly, his retaliation claim against Defendant Fenoglio shall receive further consideration.

Defendant Ryker

Defendant Ryker placed Plaintiff in solitary confinement and deprived him of his necessities because of Plaintiff's protest by hunger strike. Again, Plaintiff has named the suit and the act of retaliation. Therefore, his retaliation claim ...


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