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Calvin Merritte # R53322 v. Brinkman

August 16, 2012

CALVIN MERRITTE # R53322 PLAINTIFF,
v.
BRINKMAN, L. SCHNEIDER, JANE DOE 1, JANE DOE 2, JOHN DOE 1,
JOHN DOE 2, P. POTTS, AND STATE OF ILLINOIS, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Calvin Merritte, currently incarcerated at Lawrence Correctional Center in Sumner, Illinois, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 and Illinois tort law. Merritte claims that defendants interfered with medical treatment prescribed after he re-injured an ankle while playing basketball on July 5, 2011. The injury was initially treated with a cold pack, medication, an ace wrap, and instructions for care. Within four days, Merritte was directed to return the crutches to the prison's health care unit. This decision was initially made by correctional officer Brinkman, who observed Merritte and substituted his judgment about the nature of the injury for that of a medical professional. Nurse L. Schneider joined the decision to confiscate the crutches, based solely on Brinkman's observations. In joining Brinkman's view, Schneider ignored Merritte's remarks and obvious symptoms which alerted Schneider (and would have alerted a person having no medical training) to Merritte's medical need for crutches to avoid aggravation of his ankle injury.

Upset with the decision, Merritte contemplated filing a grievance. To this end, he attempted to ascertain Schneider's identity. Schneider refused to identify herself, threatened to initiate disciplinary action, and made an inaccurate entry in Merritte's medical records suggesting that he had voluntarily returned the crutches. Despite Merritte's efforts to manage his ankle injury without crutches, the injury persisted and intensified.

Merritte sought more treatment for his ankle injury on July 18, 2011. He showed Nurse Jane Doe 1 his swollen ankle and she further observed that his shoes were untied. Merritte renewed his request for crutches, which was rejected. Nurse Jane Doe 1 failed to perform a complete physical examination, failed to issue a low bunk permit, and failed to refer Merritte to a medical doctor. At Merritte's request, she ordered an x-ray.

Merritte sought more treatment for his ankle injury on July 27, 2011. Nurse Jane Doe 2 heard his complaints of persistent and intense injury and referred him to a medical doctor. She ordered, among other things, no gym/yard and a low bunk permit.

Between July 27 and August 2 or 3, 2011, Merritte did not receive a low bunk assignment. He attributes the delay to correctional officer John Doe 1, assigned to placement personnel.

At some point, Merritte sought more treatment for his ankle injury. He was seen by Jane Doe 2, who provided pain medications. The medications were an inexpensive but ineffective form of treatment.

Merritte was transferred to Graham Correctional Center on August 17, 2011. Two days later, defendant correctional officer John Doe 2 confiscated plaintiff's ace wrap as contraband. Merritte was transferred to Lawrence Correctional Center on November 22, 2011. He was seen by Nurse P. Potts, who provided pain medications. The medications were an inexpensive but ineffective form of treatment.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. The Court applies the same standard under § 1915A as when deciding a motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In order to state an Eighth Amendment claim in a case involving medical care, plaintiff must show two things: that he had a serious medical need and that each defendant was deliberately indifferent to it. A difference of opinion regarding the way in which a medical condition is to be treated does not give rise to a constitutional violation. Estelle v. Gamble, 429 U.S. 97 (1976); Garvin v. Armstrong, 236 F.3d 896 (7th Cir. 2001). Deliberate indifference may be inferred when a medical professional makes a treatment decision that is so far afield of accepted professional standards as to demonstrate that the decision was not based on the exercise of medical judgment. Duckworth v. Ahmed, 532 F.3d 675, 679 (7th Cir. 2008).

Disposition

Accepting Merritte's allegations as true, the Court finds that he has articulated a colorable federal cause of action:

Count 1: Against Nurse L. Schneider and correctional officer Brinkman for deliberate indifference to a serious need for treatment of an ankle injury in violation of the Eighth Amendment's proscription against cruel and unusual punishment.

The Court has considered the conduct attributed to Nurse Jane Doe 1, Nurse Jane Doe 2, correctional officer John Doe 1, Jane Doe 2, correctional officer John Doe 2, and Nurse P. Potts and finds that the facts do not plausibly satisfy the objective and subjective elements of an Eighth Amendment claim. Absent are facts suggesting that these defendants actually knew about a serious medical treatment need and responded in a culpable way amounting to deliberate indifference. The claims against Nurse Jane Doe 1, Nurse Jane Doe 2, correctional officer John Doe 1, Jane Doe 2, correctional officer John Doe 2, and Nurse P. Potts are DISMISSED without prejudice.

The Court has also considered allegations against Nurse L. Schneider and finds that the facts do not plausibly suggest an Illinois state law claim for intentional infliction of emotional distress. The Court has also considered allegations of medical negligence against the State of Illinois. These state law claims are not colorable in any Court other than the Illinois Court of Claims due to the doctrine of sovereign immunity. See Currie v. Lao, 148 Ill. 2d 151 (Ill. 1992); Turner v. Miller, 301 F.3d 599 ...


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