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Fisher v. Larson

United States District Court, S.D. Illinois

April 15, 2015

SAM FISHER, # N-53175, Plaintiff,



Plaintiff Sam Fisher, an inmate at Big Muddy River Correctional Center ("Big Muddy"), brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff asserts constitutional and state law claims against Defendants. (Doc. 1). Specifically, Plaintiff complains that Defendants Gerst, Larson, and Wexford denied him adequate medical treatment for an ingrown toenail and that Defendant Orange prevented him from filing grievances regarding the issue.

Merits Review Under 28 U.S.C. § 1915A

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). Upon careful review of the complaint, the Court finds it appropriate to exercise its authority under § 1915A and dismiss the complaint for failure to state a claim.


In September 2013, Plaintiff began to suffer from an ingrown toenail on his right foot, which he states caused him significant pain. (Doc. 1, p. 6). He sought medical attention, but claims he was not seen by a healthcare professional until mid-November 2013. Id. By that time, Plaintiff claims that his toe had become infected. At an appointment in mid-November, Plaintiff saw Defendant Gary Gerst, a physician's assistant at Big Muddy. Plaintiff asserts that Defendant Gerst refused to treat his ingrown nail, insisting the nail was "perfect, " and directed Plaintiff to soak his feet. Id.

The complaint states that as of July 26, 2014, the toenail had not been removed or adequately treated.[1] Id. at 7. Beyond seeing Defendant Gerst in November 2013, it is unclear what attempts, if any, Plaintiff made to access additional medical care other than filing grievances about his encounter with Defendant Gerst. Attached to the complaint is a memo from Debbie Isaacs, Health Care Unit Administrator, dated July 30, 2014, which states that the "last documentation concerning the offender's toenails is 1/13/14 when he was seen by [physician's assistant]. Offender is again advised to follow proper procedure for health care needs." (Doc. 1, p. 11).

Plaintiff blames the lack of follow-up treatment on Defendant Gerst, who he maintains never referred Plaintiff to Defendant Larson, the medical doctor at Big Muddy. Consequently, Plaintiff states that he never "officially" saw Defendant Larson about the ingrown toenail, although he did show it to him when he attended a routine blood pressure clinic at some point earlier in the year. Id. at 6. At that time, Defendant Larson asked Plaintiff when he was scheduled to be released. When Plaintiff told him he was due to be released in December 2014, Defendant Larson told him "not to worry about it" and that he could have the toenail taken care of once he was released. Id. Plaintiff further alleges that Defendant Shane Orange, a correctional counselor at Big Muddy, tried to prevent Plaintiff from exhausting his administrative remedies by ignoring and/or throwing away grievances filed by Plaintiff. Id.

Documentation attached to the complaint indicates that Plaintiff's toenail was removed in August 2014, although Plaintiff makes no mention of this procedure in his written statement of the claim. ( See Doc. 1, p. 14, "Counselor's Response to Offender's Grievance"). Nonetheless, Plaintiff claims that Defendant Wexford, the private corporation that provides health care to Illinois inmates by contract with the Illinois Department of Corrections, has a policy of deliberately denying medical care "to inmates who they think are short timers.'" Id. at 7.


Count 1: Deliberate Indifference to a Serious Medical Need

Plaintiff claims that Defendants Gerst, Larson, and Wexford acted with deliberate indifference when they denied him adequate medical care for an infected ingrown toenail. To establish an Eighth Amendment medical needs claim, a plaintiff must show that: (1) the medical condition was objectively serious; and (2) the state officials acted with deliberate indifference to his medical needs. See Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000). The complaint satisfies the objective prong of this test. The Seventh Circuit has held that a medical need is objectively "serious" where it has either "been diagnosed by a physician as mandating treatment" or where the need is "so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The complaint alleges that Plaintiff had an ingrown toenail that caused him significant pain and discomfort over several months. ...

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