United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the court on the Report and Recommendation ("R & R") (Doc. 35) of Magistrate Judge Philip M. Frazier with regard to the 28 U.S.C. § 1915A review of the Plaintiff's Second Amended Complaint (Doc. 34). The Plaintiff filed a timely an Objection (Doc. 36) to the R & R.
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Plaintiff has filed an objection, so this Court will review de novo those portions of the R & R to which an objection has been filed. Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Magistrate Judge determined that the Plaintiff had articulated a colorable federal cause of action as follows:
Count 1: Eighth Amendment deliberate indifference to serious medical needs claim against Dr. Shearing and Dr. Nwaobasi for failure to treat the plaintiff's ear and throat conditions; and
Count 2: Eighth Amendment deliberate indifference to serious medical needs claim against Medical Technician Amy Lane for delaying the plaintiff's referral to see a physician.
To state an Eighth Amendment claim, an inmate must show that officials either intended to inflict suffering or acted with deliberate indifference, where the official "knows of and disregards an excessive risk to inmate health or safety." Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir.2001) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Plaintiff has made a threshold showing with regard to defendants Shearing, Nwaobasi, and Lane; however, he fails to make a threshold showing with regard to any other defendant. Further, it is unclear in Plaintiff's Amended Complaint what additional defendants he may have been seeking to add. After listing the defendants, Plaintiff states, "All these are not defendants but show continue course of injury still not treated subject to new law suit possibly soon." (Doc. 34, page 4).
As such, the Court will look to Plaintiff's Objection (Doc. 36) which states that the Plaintiff objects, "... that a claim fails to be stated against Atchinson, Butler, Dr. Shearing, Wexford, Oakley."
First, as stated above, a claim is proceeding with regard to Dr. Shearing and Plaintiff's objection in that regard is moot. With regard to Defendants Atchinson, Wexford, and Butler, defendants cannot be held responsible under a theory of respondeat superior and there are no allegations within the Plaintiff's Amended Complaint that any of these individuals' actions raise to the level of an Eighth Amendment violation. This reasoning also applies to defendant Dr. Shicker, Director Andrew Tilden, James Caruso, and Richard Harrington.
Although there is an allegation that defendant Oakley failed to place the Plaintiff on the MD line to see a physician, it was a single, isolated incident which also fails as isolated instances of neglect are generally insufficient to support a claim of Eighth Amendment deliberate indifference. See, Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997). Therefore, defendant Oakley is DISMISSED with prejudice from this action.
Finally, there is no information pertaining to defendant "Ojelade" or John Does 1-15. The Amended Complaint lists Ojelade as a defendant and states "Ojelade is under Wexford at Pontiac, IL 61764." However, there are no allegations within the body of the Amended Complaint with regard to defendant Ojelade and/or John Does 1-15. As such, defendant Ojelade and defendants John Does 1-15 are DISMISSED without prejudice.
Based on the above, the Court hereby ADOPTS the Report in its entirety (Doc. 35) and the Plaintiff's Amended Complaint may proceed on the following counts:
Count 1: Eighth Amendment deliberate indifference to serious medical needs claim against Dr. Shearing for failure to treat the ...