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Cunningham v. Cross

United States District Court, S.D. Illinois

April 7, 2015

SYLVESTER CUNNINGHAM, # XXXXX-XXX, Plaintiff,
v.
JAMES N. CROSS, DR. DOUGLAS KRUSE, MS. POLLMAN, MARYBEL REEVES, ELIZABETH MILLS, BETTY ULMER, TASHA JOHNSON, and ASHLEY KNEBEL, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, Chief District Judge.

Plaintiff, an inmate in the FCI-Greenville, brings this action seeking injunctive relief and damages for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He claims that Defendants have been deliberately indifferent to his serious medical condition.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. ยง 1915A. However, Plaintiff did not file a complaint herein - his initial (and only) pleading is entitled: "Emergency Motion Requesting Injunctive Relief Regarding Medical Treatment" (Doc. 1).

The Federal Rules of Civil Procedure provide that "[a] civil action is commenced by filing a complaint with the court." FED. R. CIV. P. 3. In other words, "the first step in the action is the filing of the complaint." Id., Advisory Committee Notes, 1937 Adoption. Nonetheless, if Plaintiff's document contains sufficient information to serve as a complaint and establish proper jurisdiction, the Court shall construe it as such. See FED. R. CIV. P. 8(a), (d)(1), & (e). "[I]t is incumbent on [the court] to take appropriate measures to permit the adjudication of pro se claims on the merits, rather than to order their dismissal on technical grounds. Indeed, it is the well-established duty of the trial court to ensure that the claims of a pro se litigant are given a fair and meaningful consideration.'" Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996) (quoting Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir. 1987)).

Plaintiff's motion invokes the Court's jurisdiction pursuant to Bivens, includes a section entitled "Complaint" that recites factual allegations supporting his constitutional claims, and spells out the relief he seeks. The Court shall therefore construe this document (Doc. 1) as Plaintiff's complaint, as well as a motion for injunctive relief.

The Complaint (Doc. 1)

Plaintiff was charged in January 2012 with being a felon in possession of a firearm. He is now in Greenville serving the sentence that was imposed by the Northern District of Iowa for that offense. Long before this conviction, in 2006, Plaintiff was shot in the chest and suffered a paralyzing injury (Doc. 1, p. 2). He has been dependent on a wheelchair for mobility since then.

In 2009, he attempted suicide and was diagnosed with major depressive disorder, marijuana dependence, a history of conduct disorder, and probable antisocial personality disorder. Id. He was hospitalized and prescribed several medications to treat these conditions. He also requires a supply of catheters, suppositories, and adult diapers to manage his personal hygiene. Prior to his incarceration, he was receiving prescribed physical therapy three times per week, and was using leg braces for exercise therapy (Doc. 1, pp. 3-4).

Plaintiff arrived at Greenville on November 6, 2013 (Doc. 1, p. 3). He advised Defendants Pollman (medical administrator) and Kruse (physician) of his needs for continuing physical therapy ("PT"). Defendant Kruse indicated that Greenville, a "Care Level II" facility, did not provide such therapy, nor would Plaintiff be allowed to obtain PT services from an outside provider, but that a physical therapy consultation would be available. Plaintiff asked for a transfer to a "Level III" prison where PT could be provided. However, Defendant Pollman decided that she would not recommend either a medical transfer or a PT consultation for Plaintiff (Doc. 1, p. 4). He has never received a PT consultation nor any physical therapy during his incarceration at Greenville. He has "continued to address his medical concerns" with all the named medical Defendants as well as with Defendant Warden Cross.

In November 2013, Plaintiff told Defendant Mills (physician's assistant) that he was having muscle spasms, and explained to "the medical staff" that he was having chest and back pain from the gunshot wound area. He asked Defendant Ulmer (nurse) to return his leg braces; this request was deferred to "the proper authority" (Doc. 1, pp. 4, 25).

On December 17, 2013, Plaintiff sought medical attention from Defendant Mills for a pressure wound on his right buttock, and complained that he was in extreme pain. She recommended that he exercise; Plaintiff protested that his leg braces had not been returned to him. She gave him some unspecified medication. Plaintiff continues to suffer from this pressure sore caused by the wheelchair and lack of physical therapy (Doc. 1, p. 5).

Also on December 17, 2013, Plaintiff advised Defendant Mills that although he was on "multiple medications, " they were not relieving his ongoing pain. The only medication that helped him was Lyrica. Defendant Mills did not give him any pain medication. He again requested different pain medication on March 21, 2014, and June 3, 2014, complaining that his old medication was not working. His pain continues, which he attributes to the lack of physical therapy.

Plaintiff has renewed his request for a medical transfer to a facility where physical therapy would be available to alleviate his pain and pressure sore. He asked for a transfer on the following dates in 2014: January 8, March 21, June 3, September 18, and December 30. Defendants Kruse and Pollman have either continued to deny the medical transfer or have failed to respond (Doc. 1, pp. 5-6).

Plaintiff also made recent requests (September and December 2014) to Defendants Kruse and Pollman for a new set of leg braces, because the present ones were too stiff and causing bad ...


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