United States District Court, C.D. Illinois, Springfield Division
ROBERT L. WARREN, Plaintiff,
GREGORY SCOTT, ERIC KUNKEL, MICHAEL BEDNARZ, MARIE DURANT, JAVIER PEREZ, WEXFORD HEALTH SOURCES, INC., and VARIOIUS DEFENDANTS TO BE NAMED LATER, Defendants.
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, District Judge.
Plaintiff Robert Warren, proceeding pro se from his detention in the Rushville Treatment and Detention Center ("Rushville"), seeks leave to proceed in forma pauperis on his claims against Defendants under 42 U.S.C. § 1983.
The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim.
In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face." Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (internal quotation omitted).
Warren's Complaint indicates that he is filing this suit based upon equal protection violations, based upon the conditions of his confinement, and based upon receiving cruel and unusual punishment. The only facts contained in his Complaint, however, concern Defendants' alleged failure to provide timely medical care to him.
Warren alleges that, on May 8, 2013, at approximately 5:30 p.m., he began experiencing nausea and fever, and he asked Security Therapy Aide Robert Edwards to notify the Health Care Unit at Rushville of his condition. About an hour later, Security Therapy Aide Steven Brown checked on Warren's condition, discovered that he was still running a fever, and notified Defendant Sergeant Javier Perez and Defendant Captain Marie Durant of Warren's condition.
Warren asserts that he was not transported to the Health Care Unit until approximately 7:20 p.m. because there are no nurses on duty at Rushville between 6:00 p.m. and 7:00 p.m. Warren was examined by Nurse O'Donnell at approximately 8:00 p.m. At 8:20 p.m., Warrant was transferred to a local hospital where, five minutes after his arrival, his appendix burst.
Giving the Complaint the liberal read that it must, the Court finds that Warren's Complaint states a cause of action against Defendant Perez and Durant. Warren does not specify what actions Perez and/or Durant did not did not take, but these are the only two individuals who Warrant identifies and specifically names as party Defendants who had knowledge of his condition but took little or no action to see that he received medical attention.
The United States Court of Appeals for the Seventh Circuit has held:
In cases where prison officials delayed rather than denied medical assistance to an inmate, courts have required the plaintiff to offer "verifying medical evidence" that the delay (rather than the inmate's underlying condition) caused some degree of harm. See, e.g., Petty v. County of Franklin, Ohio, 478 F.3d 341, 344 (6th Cir. 2007); Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005); Surber v. Dixie County Jail, 206 Fed.Appx. 931, 933 (11th Cir. 2006). That is, a plaintiff must offer medical evidence that tends to confirm or corroborate a claim that the delay was detrimental.
Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir. 2007); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010)("A significant delay in effective medical treatment also may support a claim of deliberate indifference, especially where the result is prolonged and unnecessary pain.").
Warren's cause of action may be difficult to prove because the delay only lasted two to three hours, and the Seventh Circuit has held in similar cases-after considering the evidence-that such a short delay did not violate the plaintiff's constitutional rights. E.g., Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002)(holding that the doctor was not deliberately indifferent based upon delays between the initial diagnosis and a return of test results); Langston v. Peters, 100 F.3d 1235, 1241 (7th Cir. 1996)(holding that a one hour delay caused no detrimental effect); Ralston v. Hurley, 2008 WL 41358, * 1 (5th Cir. Jan. 2, 2008)(holding that a nine hour delay caused no detrimental effect); Palazon v. Secretary for Dep't of Corrections, 2010 WL 144021, * 1 (11th Cir. Jan. 15, 2010)("Any delay in receiving surgery was because the hernia remained treatable without surgery. That McKenna felt he should have had surgery earlier than he did is insufficient to support a deliberate indifference claim.").
Indeed, the Seventh Circuit has noted that "an unincarcerated individual may well consider oneself fortunate if he received medical attention at a standard emergency room within that short period of time." Knight v. Wiseman, 590 F.3d 458, 466 (7th Cir. 2009)(delay of two-and-a-half to three hours). However, the Court cannot make such a determination without a greater factual record. Therefore, the Court will allow Warren's Complaint to proceed against Defendants Perez and Durant.
The Court does not need any further factual development as to the other Defendants, however, because Warren has failed to allege that any of these named Defendants had any personal involvement in his treatment or lack thereof. "[I]ndividual liability under § 1983 requires personal involvement in the alleged constitutional deprivation.'" Minix v. Canarecci, 597 F.3d ...