United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, District Judge.
This matter comes before the Court for review of Plaintiff's Second Amended Complaint (Doc. 37) pursuant to 28 U.S.C. § 1915A. The Second Amended Complaint was prepared by counsel recruited by the Court to assist Plaintiff in identifying an unknown Defendant.
Plaintiff, proceeding pro se, originally filed this action on August 10, 2011, as Plummer v. IDOC, et al., Case No. 11-cv-682-MJR. At the time he filed this action, he was incarcerated at Menard Correctional Center ("Menard"), serving a 40-year sentence for murder and an eight-year sentence for attempted murder. Plaintiff has since been transferred to Stateville Correctional Center (Doc. 25).
After screening the original complaint in Case No. 11-cv-682-MJR, this Court severed three of Plaintiff's unrelated claims into new actions, pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007), on August 13, 2012 (Doc. 1). The instant case began with Plaintiff's claim against a single unknown Defendant he initially identified only as "Unknown 8 Gallery Officer" at Menard Correctional Center. Plaintiff alleged that this Defendant was deliberately indifferent to his serious medical needs, when the Officer failed to summon medical attention after Plaintiff experienced asthma-related breathing problems on September 7, 2010.
On September 28, 2012, the Court ordered Plaintiff to submit a First Amended Complaint identifying the unknown Gallery Officer by name, so the case could proceed (Doc. 6). After receiving two extensions of time to allow Plaintiff to pursue discovery, he filed his First Amended Complaint (Doc. 16) on March 4, 2013. However, he still had not been able to identify the Defendant.
On April 2, 2013, this Court granted in part Plaintiff's motions to appoint/recruit counsel, and appointed Catherine R. Grantham for the purpose of conducting discovery and filing a Second Amended Complaint, once the unknown Gallery Officer could be identified (Doc. 17). After filing deadlines passed and were extended, the Court entered a show cause order against counsel, directed her to submit monthly status reports, and sua sponte reinstated the Warden of Menard Correctional Center as a party for the purpose of responding to discovery requests (Docs. 26, 29). Counsel filed her status reports as directed, and filed the Second Amended Complaint, naming Menard Correctional Center and eight individual officers as Defendants, on April 22, 2014 (Doc. 37). This amended complaint did not include the Menard Warden as a party. Meanwhile, Richard Harrington (the Menard Warden), by counsel, filed his Answer to the First Amended Complaint (Doc. 36) on April 7, 2014.
II. The Second Amended Complaint (Doc. 37)
Each of the individual correctional officers named herein is described by his/her assignment to the "South Upper, " "South Upper 8 Gallery, " or "South Yard" area of Menard (Doc. 37, pp. 1-5). Plaintiff levels allegations against all the Defendants collectively, stating that they intentionally denied him immediate medical treatment and conspired to violate his constitutional rights (Doc. 37, p. 5). However, his statement of facts as to the specific events on September 7, 2010, reveal that Plaintiff made his request for medical assistance to only one of the Defendants on duty at that time, and that individual refused to summon medical help (Doc. 37, p. 7-8).
Plaintiff further alleges that Defendant Menard Correctional Center had an official policy, custom, or practice of failing to instruct, supervise, control, or discipline the individual Defendants, and the "policymakers of Defendant Menard Correctional Center" were deliberately indifferent to inmates' rights, thus causing the deprivations of Plaintiff's rights (Doc. 37, pp. 5-6). In addition to the constitutional claims, Plaintiff asserts violations of Illinois state law, and invokes this Court's supplemental jurisdiction to hear those claims.
Specifically, on September 7, 2010, Plaintiff informed the Menard Gallery 8 Officer that he was having problems breathing (Doc. 37, p. 7, ¶ 22). However, this officer failed to inform the Med-Tech, Sergeant, or Lieutenant that Plaintiff needed medical attention. Some 25 to 35 minutes later, the Med-Tech on duty happened to pass by Plaintiff's cell. Plaintiff told the Med-Tech about his symptoms, which included congestion for over eight days, coughing spells, coughing up mucus, and profuse sweating (Doc. 37, p. 8).
The Med-Tech told the Gallery Officer (it is not clear whether this is the same individual who failed to call for help) that Plaintiff must go to the Health Care Unit (HCU) immediately. Once there, Plaintiff's lungs were tested and his peak flow was measured at between 210 and 220. According to the prison health care policy, asthma patients are to receive a breathing treatment if the peak flow level is under 300. Plaintiff was given a breathing treatment and 60 mg. of Prednisone. Following the breathing treatment, his peak flow rose to the 220-260 level. He was then released back to his housing unit. He alleges that this move constituted negligence on the part of the medical staff,  because his peak flow level had not been sufficiently increased (Doc. 37, p. 8).
Further, Menard has an ongoing pattern and practice of denying and delaying medical treatment for prisoners. Plaintiff has experienced numerous incidents of failure to treat his asthma-related breathing problems in a timely or effective manner, and has filed grievances complaining of this conduct (Doc. 37, p. 9). Menard Medical Director Dr. Fahim (who is not a Defendant herein) had previously determined that when Plaintiff was wheezing, he needed immediate treatment.
Based on these factual allegations, Plaintiff now asserts six separate counts for violations of his constitutional rights (Doc. 37, pp. 9-16). Each is summarized below and is titled as pled in the complaint:
Count 1 - Violation of Civil Rights: All Defendants were deliberately indifferent to Plaintiff's medical needs, on numerous occasions (including the September 7, 2010 incident) where they repeatedly refused to respond to his need for medical treatment and failed to give him proper medical care;
Count 2 - Failure to Protect While in Custody: One of the individual Defendants (named collectively in relation to this count) failed to protect Plaintiff when s/he deliberately denied him immediate medical care on September 7, 2010,  despite the fact that this Defendant knew or should have ...