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Ramirez v. Fleming

United States District Court, S.D. Illinois

June 17, 2014

SALVADOR CUELLAR RAMIREZ, [1] # XXXXX-XXX, Plaintiff,
v.
THOMAS N. FLEMING, Defendant.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff, currently incarcerated at the CCA/Eden Detention Center in Texas, ("Eden"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He filed the suit on April 24, 2014, in the Northern District of Texas (Doc. 1). The case was transferred to this Court on May 23, 2014 (Doc. 7). Plaintiff's claim arose during his incarceration at FCI-Greenville, Illinois ("Greenville"). He claims that he lost the vision in his left eye due to the medical malpractice of Defendant Fleming, a private physician who performed surgery on Plaintiff's eye after a referral from the Greenville medical staff. He asserts that this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.

In his complaint, Plaintiff states that he sought medical attention from Dr. Kruse, the Clinical Director at Greenville, for blurry vision in his left eye[2] (Doc. 1, p. 6). Dr. Kruse (who is not listed in the complaint as a Defendant) and other unnamed medical staff at Greenville delayed treatment of Plaintiff's eye problem. In July 2011 he was sent to Defendant Dr. Fleming, who diagnosed him with glaucoma and retinopathy, and recommended surgery (Doc. 1, p. 6).

The warden's response to Plaintiff's Request for Administrative Remedy outlines Plaintiff's medical history (Doc. 1, p. 14). According to that summary, Plaintiff suffers from Non-Insulin Dependent Diabetes, and was diagnosed with Proliferative Degenerative Retinopathy to both eyes. In addition, he had blood in the interior of his left eye.

Defendant Fleming performed laser surgery on Plaintiff's left eye in December 2011, but it did not go well. Plaintiff claims that Defendant Fleming used the laser too many times, burning Plaintiff's left eye and causing him to lose the vision in that eye (Doc. 1, pp. 6-7). While Plaintiff blames Defendant Fleming's incompetence for his injury, he also claims the entire Greenville medical staff is responsible, because they failed to give him proper care before the surgery (Doc. 1, p. 7).

To make matters worse, once Dr. Kruse became aware that Plaintiff had lost his vision, he started to deny all Plaintiff's requests for care, and delayed or denied Plaintiff's follow-up visits to the specialist (it is not clear whether this specialist was Defendant Fleming or another doctor). Id.

Plaintiff seeks monetary damages for his loss of vision, pain, and suffering.

In the complaint, Plaintiff lists only one Defendant - Dr. Fleming. However, in the captions of his motion for leave to proceed in forma pauperis (Doc. 4) and his motion seeking the appointment of counsel (Doc. 5), he included five other individuals as Defendants, as well as the Bureau of Prisons. These additional Defendants are John Cross (Greenville Warden), Dr. Kruse (Greenville Clinical Director), H.S.A. Poliman (H.S.A. presumably stands for Health Service Administrator), P.A. Adesanya (the Court assumes this is a Physician's Assistant), and Dr. Paul Harvey (Regional Clinical Director) (Docs. 4, 5). In the body of the motion for appointment of counsel, Plaintiff asserts his desire to bring a Federal Tort Claim as well as an Eighth Amendment civil rights claim over his medical treatment (Doc. 5, p. 2). However, he does not include any additional factual allegations against any specific Defendant other than Dr. Fleming.

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

After fully considering the allegations in Plaintiff's complaint, the Court concludes that Plaintiff's Eighth Amendment claim against Defendant Fleming (Count 1) is subject to summary dismissal pursuant to § 1915A. However, the factual allegations of the complaint indicate that Plaintiff may have a colorable federal claim against Greenville Doctor Kruse for deliberate indifference to his serious medical needs (Count 2). Further, Plaintiff may have a viable claim under the Federal Tort Claims Act for negligence on the part of Dr. Kruse, and possibly for Defendant Fleming's malpractice (Count 3). The latter two claims shall be referred to the United States Magistrate Judge for further review.

Dismissal of Count 1 - Deliberate Indifference Claim Against Defendant Fleming

In order to state a claim for deliberate indifference to a serious medical need, an inmate must show that he (1) suffered from an objectively serious medical condition; and (2) that the defendant was deliberately indifferent to a risk of serious harm from that condition. "Deliberate indifference is proven by demonstrating that a prison official knows of a substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk. Delaying treatment may constitute deliberate indifference if such delay exacerbated the injury or unnecessarily prolonged an inmate's pain." Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and quotations omitted). The Eighth Amendment does not give prisoners entitlement to "demand specific care" or "the best care possible, " but only requires "reasonable measures to meet a substantial risk of serious harm." Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Importantly, a defendant's inadvertent error, negligence or even malpractice is insufficient to rise to the level of an Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).

Plaintiff's eye condition clearly constituted an objectively serious ailment. However, nothing in the complaint suggests that Defendant Fleming was deliberately indifferent to Plaintiff's condition - only that he performed the surgery in a negligent or incompetent manner. This does not violate the Constitution. Plaintiff therefore cannot maintain a constitutional ...


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