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Kelvin Merritt, #B78207 v. Defendants.

August 20, 2012


The opinion of the court was delivered by: Michael J. Reagan United States District Judge


Plaintiff Merritt, an inmate in Pontiac Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on an incidents that occurred while Plaintiff was housed at Pinckneyville Correctional Center. Plaintiff is serving a 45-year sentence for murder and a 15-year sentence for attempted armed robbery. 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 governmental entity.

(b) Grounds for Dismissal.- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of the plaintiff's claim, Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Brooks, 578 F.3d at 581. At the same time, however, the factual allegations of a pro se complaint are to be construed liberally. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009).

Upon careful review of the complaint and exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

These allegations are taken from Plaintiff's pro se complaint (Doc. 1). On August 11, 2009, Plaintiff signed a money voucher to see a nurse in sick call. He explained to the nurse that he had a chronic sinus infection and needed to see a doctor for antibiotics. He said he had polyps and a deviated septum, which cause his nose to drain backwards and fluid to build up and infect his glands and throat. The nurse said she would try to get him to see a doctor soon. She gave him ten cold tablets to dry up his fluids, and Tylenol for any pain caused by the cold tablets. When Plaintiff tried to ask about his infected toes, however, the nurse told him he would have to come back. Plaintiff never saw a doctor or received antibiotics.

On August 14, 2009, Plaintiff signed another $2 co-pay and went to sick call. He showed the nurse his big toes, which were discolored black and green. The right big toe was bloody and half the toenail was hanging. Plaintiff explained that his foot was in pain and his toes were numb. Plaintiff also suffered from foot fungus. The nurse would not touch Plaintiff's feet with gloves on. She put in an emergency request to see a doctor. She did not treat the toes, how-ever, and Plaintiff never saw a doctor. Two weeks later, he says, "I was forced to tear off toe nails myself with only fingers and tear all infected flesh from wound in fear of infection spreading" (Doc. 1, p. 14).

On August 22, 2009, Plaintiff again signed a $2 co-pay to see a doctor. In the medical room, Plaintiff saw Nurse Lucas and told her he had written the Healthcare Administrator that he needed to see a doctor about his sinus infection and toe infections. He explained that he had already seen nurses who signed up him to see doctors, but that he hadn't received any treatment. Lucas said he would have to wait to see a doctor and she could not do anything to treat him. Plaintiff asked why they continued to take his money then. Lucas said to file a grievance. In response, Plaintiff asked for a crisis team.*fn1 Lucas told him, "We'll send one after you kill your-self" (Doc. 1, p. 14). C/O Drue then escorted Plaintiff out of the room.

When Plaintiff asked Drue for a crisis team, Drue informed Lt. Williams, who sent over eight officers. C/Os Allen and Hicks grabbed Plaintiff's arms, handcuffed them behind his back, and forced them up, popping Plaintiff's left shoulder. C/Os Allen, Hicks, Drue, Hill, Redding, and others lifted Plaintiff off the ground to take him up the stairs. Plaintiff continued asking for a crisis member. Hicks kneed Plaintiff in his left rib cage. Allen tried to hold onto the handcuffs and force Plaintiff's hands through the food slot while others twisted his fingers. The handcuffs and food slot cut deep into Plaintiff's arms and wrist. Hicks kneed Plaintiff's rib cage again and kicked his left leg. The officers removed the handcuffs and left, leaving Plaintiff with his arms and hands swollen, cut, and bloody; and, Plaintiff alleges, a broken thumb.

Nurse Lucas passed by then, and Plaintiff told her his thumb was broken. She re-plied, "Good for you," and walked off (Doc. 1, pp. 8, 15). Plaintiff says she saw the incident and refused him medical treatment.

At three o'clock that afternoon, Plaintiff again asked for a crisis member. Lt. Skorza came to the cell and told Plaintiff to wait. At his four o'clock dinnertime, Plaintiff declared a hunger strike. Skorza returned and removed him from the cell. On seeing Plaintiff's injuries, Skorza said, "You're really not getting any medical treatment now," and took Plaintiff to segregation (Doc. 1, p. 8). Plaintiff also asserts that at this same time, four o'clock, he placed himself on crisis watch "to seek protection and medical treatment" because of the assault and be-cause he had been denied a crisis member. At segregation, officers stripped Plaintiff's clothes off and put him in a cell without a mattress. (The Court will discuss the cell conditions in segregation below.)

Plaintiff told C/O Dilla he needed medical treatment. Dilla, who had observed Plaintiff's injuries when his clothes were taken, said Plaintiff would have to wait until nine o'clock when the nurses distributed medication. A nurse passed by at nine o'clock, but denied Plaintiff medical treatment.

The next day, August 23, 2009, at seven in the morning, Plaintiff showed C/O Penland his injuries. Penland called health care, and Nurse Melvin came. Melvin explained that he could not receive medical care until he came off crisis watch. Plaintiff later received a co-pay receipt for Melvin's visit even though she had not given him any treatment. On August 24, 2009, Plaintiff saw Warden Schwartz on the gallery. Plaintiff told Schwartz about the assault and about his injuries, including his broken thumb, and that he was not receiving medical treatment. Schwartz asked Nurse Melvin, "Is this him?" (Doc. 1, p. 9). Schwartz said he would talk to Plaintiff after he finished talking to an inmate on hunger strike, but never returned.

On August 25, 2009, Plaintiff showed his injuries to C/O Lafayette, who called Nurse Karen Cassell to the unit. In the shower area, Lafayette and Cassell and another officer ob-served Plaintiff's injuries. Cassell saw all of Plaintiff's physical injuries, including all the cuts on his arms from the assault. She also saw that Plaintiff's thumb was swollen. Plaintiff told her he couldn't feel or move his thumb. Plaintiff then told her about his chronic sinus infection and toe infections. Cassell said a sinus infection is a sick-call issue. She said she couldn't do anything about his toes. Plaintiff showed her a "rash on his groin area," at which time Cassell "came with an attitude and tried to leave" (Doc. 1, p. 16). When Plaintiff challenged her ("So you are not going to give me anything?"), Cassell said she could give him cream for his groin area and Tylenol for his injuries. Plaintiff asked for X-rays for his hand. Cassell said he could not get X-rays while on crisis watch. She gave him Tylenol for three days.

Plaintiff spoke to psychologist Ty Wallace about the assault and asked him to contact Internal Affairs. Regarding his need to be on crisis watch, Plaintiff told Wallace he felt like he might hurt someone and that he could not adapt to his surroundings, due to the assault. Later that day, Plaintiff asked Wallace again to contact Internal Affairs about the assault. He began seeing another psychologist as well, Tracy Stevenson. Plaintiff inquired about the cell conditions in segregation, and Stevenson stated that inmates on crisis watch did not receive showers or hygiene products and that security had the responsibility of cleaning the cells.

On August 26, 2009, Wallace secretly took Plaintiff off crisis watch. Defendants Hicks and Penland came to remove Plaintiff from segregation. Plaintiff asked for Wallace, who arrived 15 minutes later. Wallace told Plaintiff he did not need to be on crisis watch and was simply stressed. Plaintiff disputed that, telling Wallace he knew the difference between stress and the thoughts in his mind. "Minutes later," Penland wrote Plaintiff a false inmate disciplinary report. Plaintiff was put back on crisis watch. (The Court will describe this incident below in the course of Plaintiff's due-process claim.)

Plaintiff discussed the assault and his lack of medical treatment with multiple staff members, including C/Os Cocke, Heck, and Rolla, Lt. Jordan, and psychologist Stevenson. Jordan and Stevenson said Plaintiff had to come off crisis watch to receive medical treatment. Stevenson promised to talk to Internal Affairs, and Wilson told Plaintiff to file a grievance. Plaintiff asked counselors Lewtz and Dolce to assist him in contacting Internal Affairs about the assault and lack of medical treatment. They responded that they had talked to Lt. Bradley about it but were not sure whether there would be an investigation. Lt. Furlowe, a member of Internal Af-fairs, visited Plaintiff. Plaintiff explained the assault to him, but Furlowe said he could not change Plaintiff's cell assignment or question other officers. Plaintiff needed to wait until Lt. Bradley returned on Monday. Furlowe promised to write all the information down for Bradley. Plaintiff told Assistant Warden Wilson "all the above." Wilson told Plaintiff to file a grievance. He also asked how Plaintiff knows Internal Affairs is not investigating. Plaintiff believes Internal Affairs never investigated the assault.

On August 29, 2009, Plaintiff told an unknown nurse he was being denied treatment by nurses on the 7-3 shift and had not been able to see a doctor. He told her that according to nurses Melvin and Gale inmates on crisis watch could not see a doctor or sign up for sick call.

But this nurse had signed up several inmates on crisis watch for sick-call. She did so for him as well. The next day, on August 30, Nurse Gale came and was angry. She said she would only refer him for X-rays on his right thumb and nothing else (Doc. 1, p. 16).

On September 2, 2009, Plaintiff saw Dr. Obadina. Obadina saw Plaintiff's injuries and asked what happened to his arms and hands. He ordered X-rays be taken on Plaintiff's hand "right now" (Doc. 1, p. 17). Obadina did not treat Plaintiff's other medical issues. He prescribed ibuprofen to Plaintiff for pain and sent the X-rays to a radiologist. On or around September 10, 2009, Plaintiff saw Dr. Schafer. Schafer gave Plaintiff his X-ray results and ordered stronger pain medication. (Plaintiff does not say what the results were.) He talked to Schafer about his eye infection and about his chronic sinus infection. He said he was coughing up mucus and blood, and it was hard to swallow. Nurse Gale stopped him, saying "That's it," and called C/O Penland to escort Plaintiff back to his cell (Doc. 1, p. 18).


The Court divides this pro se action into five counts based on Plaintiff's allegations and the arrangement of the complaint. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed. The designation ...

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