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Jimmy Dale Miller v. Warden Ryker

August 27, 2012

JIMMY DALE MILLER, PLAINTIFF,
v.
WARDEN RYKER, WARDEN HODGES, WARDEN CAMPANELLA, PHILLIP MARTIN, HEALTH CARE DIRECTOR, MS. CUNNINGHAM, DIRECTOR OF NURSING,
MR. BLEVINGS, NURSE, MS. GOBLE, NURSE, MS. REED, NURSE, MS. KIMMEL, NURSE,
MS. JARRAD, NURSE, MS. CLEVY, NURSE, MS. LINDA CUSICK, NURSE, MR. HIG- GINS, NURSE, MR. DOWNEN, CORR. COUNSELOR,
CECIL VAUGHN, CORR. COUNSELOR,
MR. REESE, CORR. COUNSELOR, MR. JOHN- SON, CORR. OFFICER,
MR. AUSHBROOK, CORR. COUNSELOR,
MR. D. LINE, CORR. OFFICER, MR. KESSEL, OFFICER,
LT. WALTERS, LT. JAMES J. OCHS, LT. T. STUCK,
MR. CASHBURN, CORR. OFFICER, MR. BUTCHER, LAWRENCE CORR. CNTR. PLUMBER, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, a prisoner at Pinckneyville Correctional Center, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 for incidents that took place while he was temporarily housed at Lawrenceville Correctional Center. 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 amended complaint, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

Counts 1, 2, 4: Deliberate Indifference to Serious Medical Needs

Plaintiff brings four closely related claims based on deliberate indifference to his serious medical needs. The facts from his amended complaint (Doc. 16) are as follows:

Plaintiff was transferred to Lawrence Correctional Center on November 23, 2010. During the medical screening at Lawrence, he told medical personnel he was taking Rantitide (generic for Zantax) for acid reflux. His prescription had expired, however, and he had not had time to refill it before his transfer. He also told them he had contracted an infection while he was in an unsanitary cell at Pontiac Correctional Center. Doctors had diagnosed Plaintiff with a staph infection or MRSA. In addition, Plaintiff had an undiagnosed condition that made his body break out in painful boils. The medical personnel told Plaintiff to put in for sick call. He did, but was not called. About a month later, on December 28, 2010, Plaintiff did get called to sick call. He pleaded with the nurse that he needed Zantax. He felt a constant burning in his stomach. Plaintiff believes he was given a bottle of Maylox [sic] at an earlier visit to sick call. He told the nurse that Maylox was not working. The nurse had him fill out another money voucher.

Two days later, on December 30, Plaintiff called C.O. Aushbrook and told Aushbrook he was in great pain because he did not have his Rantitide. Plaintiff said he needed to see a nurse. Aushbrook said they would immediately speak to the nurse or sick call.

After orientation,*fn1 Plaintiff spoke with the director of nursing, Ms. Cunningham. He told her he had staph or MRSA. He explained that he had an untreated boil condition. He also told her about not having his Rantitide prescription for acid reflux and that he was in great pain every night. Cunningham informed Plaintiff that once an inmate files a money voucher for sick call on the same issue more than three times, he will automatically be scheduled to see a doctor. Cunningham took his name and number but Plaintiff was never called.

On December 31, 2010, at 5:00 a.m., while Nurse Blevings was seeing Plaintiff's cellmate because he was having an asthma attack, Plaintiff tried to tell Blevings about his stomach pain. Blevings told him to drop a sick-call slip. Plaintiff replied that he had done that several times already. Blevings refused to speak further to Plaintiff.

On January 6, 2011, Plaintiff told Nurse Goble about his stomach pain while she was passing out evening medications. He said he had been scheduled to see a doctor about his stomach pain and Rantitide renewal, but the facility went on lock down. He had not had his Rantitide since November 23. He said he couldn't sleep at night and that he forced himself to drink warm water every night to curb the pain. He asked to see a doctor. Goble told him to drop a sick-call slip. Plaintiff said he had already done that several times. He then gave Goble a sick-call slip but was never called to health care.

On January 8, Plaintiff awoke at 1:20 a.m. with intense pain in his stomach, rectum, and scrotum. The pain was so intense that Plaintiff believes his innards were being pushed out. He pushed the medical emergency button repeatedly, but no one responded. He could not yell, kick, or move much because the slightest movement aggravated the pain. At 3:45 a.m., C.O. Johnson came to his cell. Plaintiff explained his medical emergency. Johnson responded, "If you're not complaining of chest pain, not bleeding, breathing, or dying, they're not going to respond" (Doc. 16, p. 12). He told Plaintiff to say something to the nurse at 5:00 a.m. when she makes her rounds.

Plaintiff asked Johnson why no one responded to the emergency button. Johnson explained that the button only makes a light come on a panel, and if no one sees the light, no one would respond (Doc. 16, p. 12). Plaintiff said he'd been pushing the button for over an hour. "Well, I know now," Johnson said. He would have the nurse come see Plaintiff when she gets there. At about 5:00 a.m., Johnson returned with Nurse Reed. Plaintiff told Reed what had happened, and she said to drop a sick-call slip. Plaintiff explained his history and asked Reed if she could give him something for the intense pain. Reed said she would not pull Plaintiff out and give him special care. Plaintiff said he was in pain, to which Reed replied, "So is everybody else!" (Doc. 16, p. 13). She and Johnson then left.

The next day, January 9, Plaintiff was called to sick call by Nurse Kimmel. He explained what had happened the night before and his intense stomach pain and need for Ranti-tide. He told her he was constipated, which was also painful. Kimmel abruptly gave Plaintiff a money voucher. Plaintiff was frustrated and refused to sign it because he was filling out a money voucher for medical payment but not being treated. Kimmel asked if Plaintiff was refusing medical treatment. No, Plaintiff said, but he wouldn't fill out more money vouchers. Kimmel said every time she sees Plaintiff, he has to pay. If he wanted treatment, he would have to pay. When Plaintiff refused to pay or sign a voucher, Kimmel ordered an officer to lock Plaintiff up and said, "There's no free medical treatment!" (Doc. 16, p. 14).

On January 17, 2011, Plaintiff spoke with Nurse Cusick for a second time. She took down Plaintiff's information, but he was not called or given medical treatment. On January 20, Plaintiff explained to Counselor Downen that he was having difficulty getting medical attention and that he was in great pain every night from not having his medication. He had not been able to see a doctor yet. He had an appointment with one, but it was canceled. Plaintiff told Downen he had filed a grievance, and Downen said, "Well, you're not going to like my response," because he had to agree with whatever health care's response was to the grievance. Again Plaintiff said he was in great pain every night and asked if Downen could talk to health care. "No, you'll have to drop a sick-call request," Downen said (Doc. 16, p. 16). Plaintiff spoke to Nurse Higgins on January 21 about needing medical attention, but Higgins "did nothing."

On January 23, Plaintiff again awoke at 3:30 a.m. with excruciating pain in his stomach. He repeatedly pushed the emergency button. He threw up stomach acids and fluids. He had a painful boil in his left nostril and the left side of his face was swollen. About an hour later, C.O. Line came, and Plaintiff told him he was having a boil outbreak and he was throwing up. He needed to see a doctor. Line told Plaintiff, "You're talking to me, you're not bleeding, you're not dying, so it's not an emergency. When the nurse does sick call you can see her then!"

Plaintiff wrote Warden Campanella an extensive letter on January 24. She did not respond, but Plaintiff's cellmate told him Campanella came looking for Plaintiff while he was away. Campanella did not return, however. Plaintiff sent a request to Director of Health Care, Mr. Phillip Martin, and did not receive a response. While on his way to a class, Plaintiff saw Warden Hodges. He asked if he could speak with Hodges about his serious medical condition. Hodges asked an officer, "Did you see him on my appointment list?" and walked away.

Ultimately, "after several months," Plaintiff says he was called to see a doctor, given blood tests, and his medication was ordered. He received medication for his staph infection or MRSA, and Rantitide for acid reflux. On February 10, 2011, he received the results from a blood test for his stomach pain, and he tested positive for H-Pylori virus. Shortly after he received those test results, he was prescribed antibiotics. He asked Nurse Clevy for the antibiotics while she was handing out medication, but Clevy said he would get them when they come in; there were 20 other inmates with stomach virus. There was nothing she could do, she said. Plaintiff did not receive the antibiotics until a month after he was transferred back to Pontiac Correctional Center.

Plaintiff describes another event in which he was denied medical treatment. He was in a fight with another inmate on January 28, 2011. Both inmates fell down a flight of stairs. Lt. James J. Ochs looked at Plaintiff's hands and said, "Oh, he's all right!" then took Plaintiff to segregation. Plaintiff discovered he had injured his left pinky, middle, and index fingers, and that there was skin breakage. He asked Ochs for medical attention. Ochs replied that Plaintiff had re-fused medical attention. When Plaintiff was put in a cell, he noticed his left thumb had doubled in size and was difficult to move. He saw Counselor Vaughn making rounds and showed Vaughn his left hand. He explained the fight and fall down the stairs. Plaintiff said he needed a tetanus shot and an X-ray on his hand. Vaughn took down Plaintiff's name, but did not return, and no one came to examine Plaintiff. Plaintiff looked through the crack of his door and saw Lt. Walters. He yelled to Walters about the fight and said he needed an X-ray. He said his hand was swollen and hurting. Walters said "No!" and left. Later, C.O. Shidler passed by while delivering lunch, and Plaintiff told him about the incident and that he needed to see a nurse. Shidler said he was sorry, he couldn't. He heard Plaintiff had refused medical treatment, so he could only tell Plaintiff to fill out a sick-call request. He brought Plaintiff a pen and request slip and grievances. Plaintiff says he asked an unknown nurse for help, too, while she was passing out medication, but she told him to fill out a sick-call request.

Analysis

In Count 1, Plaintiff claims he notified medical personnel of his constant pain from acid reflux and not having Rantitide. He says Martin, Cunningham, Blevings, Goble, Reed, Kimmel, Jarrad, Clevy, Cusick, and Higgins are all medical personnel who denied him medication for his acid reflux and antibiotics for H-Pylori virus. As a result, Plaintiff was in excruciating pain in his stomach, scrotum, and rectum; constipated; and suffered emotional distress for several months. Similarly, Plaintiff alleges in Count 2 that he informed the Defendants above as well as Campanella, Downen, Johnson, Aushbrook, Line, Walters, and Ochs of his stomach pain, injuries, and needing medical attention, but they were deliberately indifferent to his serious medical needs. In Count 4 Plaintiff alleges he spoke with or wrote to Martin, Cunningham, Blevings, Goble, Reed, Kimmel, Jarrad, Clevy, Cusick, ...


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