TYRONE BURNS, No. B13733
DR. FENOGLIO, L. RYKER, P. MARTIN, M. HODGE, P. MORAN, and S.A.GODINEZ, Defendants.
MEMORANDUM AND ORDER
G. PATRICK MURPHY United States District Judge
This civil rights action is before the Court on remand from the United States Court of Appeals for the Seventh Circuit. In accordance with the mandate of the appellate court (Doc.32), the preliminary review of the complaint pursuant 28 U.S.C. § 1915A must now be revised accordingly.
1. Procedural History and Synopsis of the Complaint
On December 19, 2011, Plaintiff Tyrone Burns, who is in the custody of the Illinois Department of Corrections (“IDOC”) and currently incarcerated at Lawrence Correctional Center (“Lawrence”), brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff’s central contention is that there was an eight month delay in treating a painful tumor on his right hip, despite a medical recommendation for surgery. He also takes issue with administrators involved in denying the grievance he lodged in an attempt to secure proper medical care. The defendants are: Dr. Fenoglio, Plaintiff’s treating physician at Lawrence; P. Martin, the Lawrence Health-Care Administrator; Warden L. Ryker; Deputy Warden M. Hodge; Grievance Officer P. Moran; and IDOC Director S.A. Godinez. The complaint asserts constitutional claims under the Eighth and Fourteenth Amendments. Plaintiff also invokes the Court’s supplemental jurisdiction under 28 U.S.C. § 1367(a) to assert a state law claim for medical negligence. Plaintiff prays for declaratory judgment, compensatory and punitive damages, as well as injunctive relief.
By Order dated August 23, 2012, all claims against all defendants were dismissed with prejudice (Doc. 13). More specifically, the Court concluded that the Eighth Amendment claim against Dr. Fenoglio was an impermissible demand for specific care that did not rise beyond medical negligence. The other defendants, Ryker, Martin, Hodge, Moran and Godinez, were found to have not been personally involved in Plaintiff’s medical care. The due process claim against those five administrative officials was also dismissed because prison grievance procedures do not give rise to a constitutionally protected liberty interest. Because the Court had not found a colorable federal claim, there was no basis for exercising supplemental jurisdiction over the state law medical negligence claim.
Plaintiff appealed from the entry of final judgment (Docs. 14, 17). By Order and Judgment dated June 3, 2013 (Doc. 13), the Court of Appeals for the Seventh Circuit vacated the final judgment in this case. The Seventh Circuit affirmed the dismissal of the Eighth and Fourteenth Amendment claims against Ryker, Martin, Hodge, Moran and Godinez. However, a colorable Eighth Amendment claim for deliberate indifference against Dr. Fenoglio was recognized. Consequently, the appellate court, citing Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 975 (7th Cir. 2002); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998), reinstated the supplemental state law negligence claim against all named defendants.
2. Procedures and Claims on Remand
Pursuant to the mandate of the Court of Appeals, this Court’s August 23, 2012, Judgment (Doc. 14) is VACATED and the case is REOPENED. The Court’s August 23, 2012, Order (Doc. 13) is VACATED IN PART, in that the only claims remaining on remand are as follows.
Count 1: Defendant Dr. Fenoglio was deliberately indifferent to the serious medical needs of Plaintiff Burns by delaying Burns’ surgery until August 2011, leaving Plaintiff in pain for eight months, in violation of the Eighth Amendment; and
Count 2: Defendants Dr. Fenoglio, L. Ryker, P. Martin, M. Hodge, P. Moran, and S.A. Godinez were negligent when they failed to provide adequate and necessary medical care to Plaintiff Burns, in violation of the law of the State of Illinois.
The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court.
3. Preliminary Review
Having vacated the original threshold order as it pertained to the Eighth Amendment claim against Dr. Fenoglio (Count 1) and the supplemental negligence claim against Defendants Ryker, Martin, Hodge, Moran and Godinez, this Court must perform anew a preliminary review 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 ...