United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
STACI M. YANDLE, District Judge.
Plaintiff Cicero Maple is currently incarcerated at the Greenville Federal Correctional Institution in Greenville, Illinois. (Doc. 1 at 1.) Proceeding pro se, Maple has filed a Bivens action pursuant to 42 U.S.C. § 1331. (Id. at 1 & 6.) Maple alleges that he was improperly treated for a lump on the back of his head by Physician's Assistant Mills, that Mills engaged in excessive force against Maple when she initially treated him, and that Mills failed to provide Maple with information concerning the procedure. (Id. at 6-8.) Maple seeks an unknown amount of compensatory damages and five million dollars in punitive damages. (Id. at 11.)
This matter is now before the Court for a preliminary review of Maple's complaint pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a government entity." During this preliminary review under § 1915A, the court "shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, " if the complaint "is frivolous, malicious, or fails to state a claim on which relief may be granted" or if it "seeks monetary relief from a defendant who is immune from such relief."
According to Maple's complaint, on the "closing week" of November 2014, Maple went to sick call for a headache and a large lump on the back of his head. (Id. at 5.) He was seen by Mills, who evaluated the lump and informed Maple that it was Lipoma. (Id. ) Mills allegedly told Maple that the lump would be "nothing to take out, " and that he would incur "no scarring" because Mills would only make "a small incision that would not be noticeable." (Id. )
Later that day, Mills attempted an excision on Maple. (Id. ) Mills started by injecting Maple four times near the lump, but "took no effort to shave the area where the incision would be made" or disinfect the area. (Id. ) Mills then made an incision in Maple's scalp and, according to Maple, used her hands and instruments to "poke, squeeze, and cut some more" into the area and repeatedly "manipulate" the lump. (Id. ) Maple claims he was in severe pain during the procedure. (Id. ) After some time, Mills sutured the wound and gave Maple painkillers. (Id. ) She told Maple that the mass was not Lipoma, that she was unable to remove it, and that Maple would have to wait for the incision to heal before Mills or anyone else could perform further treatment. (Id. ) Mills' treatment notes from the procedure indicate that she was considering a follow-up surgical consultation related to Maple's cystic mass. (Id. at 10.) The next day, Maple returned to Health Services for follow up, but was told by Mills that nothing could be done at that time and that she would check up on him. (Id. at 5.)
Per Maple's complaint, in the three months since the original procedure and his follow up with Mills, no further "medical attention" has been provided. (Id. at 4.) Maple also claims that he is still in "terrible pain" and that the incision occasionally bleeds. (Id. at 5.) Aside from his original follow up with Mills, Maple says that he alerted another physician's assistant at the prison that he is still in pain, but was again told that nothing could be done. (Id. at 4-5.)
On March 30, 2015, Maple filed the instant Bivens action against Mills. (Id. at 1.)
The Court begins with a preliminary issue, namely the exhaustion requirement for Bivens claims. Under 42 U.S.C. § 1997e(a), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." There is no futility exception to this requirement: "if a prison has an internal administrative grievance system through which a prisoner can seek to correct a problem, then the prisoner must utilize that administrative system before filing a claim, " regardless of whether the prison's response would provide the prisoner with his desired relief. Massey v. Helman, 196 F.3d 727, 732-33 (7th Cir. 1999). However, a prisoner must only exhaust those remedies that are available to him - when officials "fail to respond to inmate grievances, " the grievance process can become "unavailable." Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002).
Maple seems to have some exhaustion problems: he states in his petition that there is a prisoner grievance procedure at his institution, that he presented the facts relating to his complaint to that institution, and that he is "currently exhausting administrative remedy procedures in order to receive medical attention for the issue at hand." (Doc. 1 at 4.) He further states that he has "filed and [is] still filing sick calls and grievances." (Id. ) Finally, Maple states - in his request for relief - that he is not yet "requesting injunctive or declaratory relief" in this case as the "exhaustion requirement is currently being fulfilled, and plaintiff wishes to proceed with [a] civil action." (Id. at 11.) While these statements suggest that Maple has not satisfied the exhaustion requirement, his complaint is unclear as to whether certain claims may be exhausted and others unexhausted. Further, when referencing his grievances, Maple states that he has been "waiting over three months with no medical attention being provided, " and that "[n]othing has worked so far." (Id. at 4.) These statements might allege a "fail[ure] to respond to inmate grievances, " which could render the grievance process "unavailable" for some or all of Maple's claims. Lewis, 300 F.3d at 833. Given that Maple's complaint is unclear concerning exhaustion, it would be premature for the Court to delve into exhaustion at this stage. See Walker v. Thompson, 288 F.3d 1005, 1005 (7th Cir. 2002) (court should not dismiss sua sponte for failure to exhaust unless the failure is "apparent from the complaint itself" and "unmistakable").
With this preliminary matter out of the way, the Court will turn to the substance of Maple's complaint. Liberally construed, Maple's complaint alleges that Mills was deliberately indifferent to his medical needs at two points: first when she performed the procedure to attempt to remove the cystic mass, and second when she failed to provide follow-up treatment. In addition, Maple claims that Mills engaged in excessive force against him during the attempted excision. Finally, Maple alleges that Mills violated his Fourteenth Amendment right to receive medical information prior to treatment, as she did not provide information about the surgical procedure before attempting to excise the cystic mass in his head.
To facilitate the management of future proceedings, and in accordance with the objectives of Federal Rules of Civil Procedure 8 and 10, the Court finds it appropriate to break the claims in Maple's pro se complaint into numbered counts, as shown below. The parties and the Court will use these designations in all pleadings and orders, unless otherwise directed by the Court. The designation of these counts does not constitute an opinion as to their merit.
COUNT 1: Mills was deliberately indifferent to Maple's medical needs when she performed the procedure on him, in ...