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Howery v. Harrington

United States District Court, S.D. Illinois

November 13, 2014

BERNON L. HOWERY, # B-12703, Plaintiff,



Plaintiff is currently incarcerated at Menard Correctional Center ("Menard"), serving a life sentence for murder and aggravated arson. He has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff also filed another lawsuit at the same time he brought this case ( Howery v. Atchinson, Case No. 14-cv-1133-JPG, filed Oct. 21, 2014). That matter is also under consideration by Judge J. Phil Gilbert.

In the instant case, Plaintiff claims that Defendant Shearing (a Menard physician) has been deliberately indifferent to his serious medical condition. He also seeks to hold Defendant *arrington (the former Menard Warden) liable as the chief administrator of the prison.

Plaintiff's claims stem from an injury he sustained on September 10, 2013. At that time, Plaintiff was 62 years old. He attempted to lift his property box, which was being transported in connection with his court writ, when something "snapped, " and he felt a sudden, intense pain in his lower left back (Doc. 1, p. 9). He screamed in pain as his left leg "collapsed." Id. Plaintiff was immediately taken to the Health Care Unit in a wheelchair, where he was seen by Defendant Shearing.

Defendant Shearing ignored Plaintiff's attempts to tell him about the back injury and the location of his pain. When Defendant Shearing realized that Plaintiff could not get off the examining table, he ordered x-rays of Plaintiff's kidney area. Defendant Shearing "guessed" that Plaintiff was suffering from kidney stones, despite Plaintiff's protestations that he had never had kidney or gallstones (Doc. 1, p. 10). Plaintiff's pain had spread from his hip to the inside of his left thigh and toward his left knee.

Defendant Shearing ordered an I.V. for Plaintiff to induce urination, and he kept Plaintiff overnight in the infirmary. Plaintiff complains that Defendant Shearing gave him no pain medication, however, he notes that a "med tech" gave him some brown pain pills that proved to be ineffective (Doc. 1, p. 23). During the night, Plaintiff twice pulled the needle out of his hand because the I.V. fluid was empty, and he feared that an air bubble would enter his bloodstream and kill him. The next day, a different doctor discharged Plaintiff and ordered a few days' supply of naproxen for his pain, which did not work. Id.

Plaintiff requested medical treatment again because his pain had spread and grown worse (Doc. 1, p. 23). He was seen on September 20, 2013, by a med tech, who said he had injured his sciatic nerve. The med tech ordered Plaintiff to rest and stay off his feet; the med tech also gave Plaintiff pain medication for the next week. Id. Plaintiff was given a "medical lay-in" and "feed-in-cell" permit for September 20 through 24 (Doc. 1, p. 17).

Plaintiff saw Defendant Shearing again a few days later. Dr. Shearing briefly examined Plaintiff but offered no diagnosis (Doc. 1, p. 23). He ordered more x-rays and issued Plaintiff a "slow walk" permit, but took Plaintiff off the eat-in-cell permit and did not order any more pain medication (Doc. 1, pp. 11, 23).

The x-rays of Plaintiff's back and left side were performed on October 3, 2013. When Plaintiff heard nothing about the results, he sent a request to Defendant Shearing on October 15, 2013. The next day, a med tech came to see Plaintiff and informed him that he had a type of arthritis. She gave him a few Tylenols for pain, however, his hip, thigh, and knee continued to hurt (Doc. 1, p. 23).

On October 21, 2013, Plaintiff filed a grievance claiming inadequate medical treatment (Doc. 1, pp. 22-23). He filed a follow-up grievance on November 6, 2013 (Doc. 1, p. 35). He never got any response to either grievance until May 8, 2014, when a new counselor spoke to him about the matter (Doc. 1, p. 6). She later informed Plaintiff that he had no pending medical grievances.

Plaintiff complains that Defendant Shearing's response to his medical needs was inadequate because he never diagnosed Plaintiff's injury, never treated his pain, and offered no other treatment after ordering the second x-ray and issuing the slow-walk permit in October 2013. According to Plaintiff, Defendant Harrington should have ensured that Plaintiff received adequate treatment once he learned about Plaintiff's grievances against Dr. Shearing. Plaintiff now seeks injunctive relief to provide him with "immediate and thorough medical treatment including functional pain medication and an MRI, braces (if needed), and therapy, " as well as compensatory and punitive damages (Doc. 1, p. 14).

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 and relevant exhibits, the Court concludes that the complaint fails to state a constitutional claim upon which relief may be granted against either Defendant. The complaint shall therefore be dismissed. However, Plaintiff shall be given the opportunity to submit an amended complaint as to his claim that Defendant Shearing was deliberately indifferent to his medical needs. If the amended complaint still fails to state a claim, or if Plaintiff does not submit an amended complaint, the entire action shall be ...

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