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Tony Scott, # N-92280 v. Angel Rector

February 15, 2013

TONY SCOTT, # N-92280, PLAINTIFF,
v.
ANGEL RECTOR, T. PEEK,
NURSE BULLOCK, DR. SHAH,
NURSE GEAIL, WARDEN GAETZ, AND SHERRY BENTON, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, Tony Scott, is currently incarcerated at Pinckneyville Correctional Center ("Pinckneyville"), and has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a six year sentence for burglary. He claims Defendants were deliberately indifferent to his serious medical condition.

More specifically, Plaintiff asserts that he suffers from cervical stenosis, and had three discs surgically removed from his spine before he was sentenced to prison. He needs to have two more discs removed, and suffers from severe chronic back pain. According to Plaintiff, he was taking several prescription medications for pain before going to prison, and while he was in the Cook County Jail (Doc. 1, p. 7). Plaintiff arrived at Pinckneyville on June 26, 2012, and although he has repeatedly complained to the medical professional Defendants of his severe pain, they have failed to provide him with any pain medication. He filed grievances with Defendants Gaetz (Pinckneyville Warden) and Benton (Administrative Review Board), but the grievances were either returned to Plaintiff or forwarded to the Pinckneyville Health Care Unit (Doc. 1, p. 9).

Plaintiff requested Defendants Geail,*fn1 Rector, Peek, and Bullock (all nurses) for a referral to see the doctor for pain medication. However, Plaintiff never received a referral and he still has not been allowed to see a doctor about his back pain (Doc. 1, p. 8).

On one occasion, Plaintiff visited Defendant Dr. Shah (August 7, 2012; Doc. 1-1, p. 22), but Dr. Shah refused to listen to Plaintiff's complaints about his back pain and provided no treatment. When Plaintiff saw Defendant Geail a few days later, she offered him some unidentified pills "out of her hand" (Doc. 1, p. 7; Doc. 1-1, p. 24). Plaintiff seems to imply that he did not take these pills. He also complains that he was charged a $5.00 co-pay for each nurse and doctor visit, despite seeking treatment for a "chronic condition" as defined under state statute and IDOC rules. (730 ILL. COMP. STAT. 5/3-6-2(f)) (Doc. 1, p. 7).

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable claim against Defendants Rector, Peek, Bullock, Shah, and Geail for deliberate indifference to medical needs (Count 1).

However, the alleged overcharge of medical co-payments (Count 2) fails to state a claim upon which relief may be granted, and shall be dismissed. An inmate's constitutional rights are not violated by the collection of a fee for prison medical or dental services. Whether or not a statutory exemption should apply to the co-payment rule (such as for a chronic condition) is a question of state law, not cognizable in a § 1983 action. Poole v. Isaacs, --- F.3d ----, 2012 WL 6720508, at *3 (7th Cir., Dec. 28, 2012) ( "the imposition of a modest fee for medical services, standing alone, does not violate the Constitution"). Accordingly, this claim belongs in state court, not federal court. Yet, it is not the job of judges to also serve as tutors for litigants. The goal here is to determine whether Plaintiff has articulated a colorable federal claim -- he has not. This claim must be dismissed with prejudice.

The claims against Defendants Gaetz and Benton for failing to respond to Plaintiff's grievances are dismissed on initial review. In order to be held individually liable, a defendant must be "personally responsible for the deprivation of a constitutional right." Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)(quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). "[A] state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause." Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995). Plaintiff thus has no claim against Defendants Gaetz or Benton, merely because they did not adequately respond to his grievances and complaints about the lack of treatment for his medical needs.

Furthermore, if a prisoner is under the care of prison medical professionals, then the non-medical prison officials "will generally be justified in believing that the prisoner is in capable hands." Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). "A layperson's failure to tell the medical staff how to do its job cannot be called deliberate indifference; it is just a form of failing to provide a gratuitous rescue service." Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). For these reasons, Plaintiff fails to state a cognizable claim against Defendants Gaetz and Benton.

Pending Motions

Plaintiff's motion for appointment of counsel (Doc. 3) shall be referred to United States Magistrate Judge Wilkerson for further consideration.

Plaintiff's motion for service (Doc. 4) is GRANTED IN PART AND DENIED IN PART. Service shall be ordered below for those Defendants who remain in the action; however, the dismissed Defendants shall not be served with process.

Disposition

COUNT 2 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Defendants GAETZ and BENTON are ...


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