United States District Court, S.D. Illinois
KENNETH BUTUSOV, No. K55823, Plaintiff,
DR. JOHN COE, TRAVIS JAMES, STEPHEN DUNCAN, DR. PHIL MARTIN, and DR. LOUIS SHICKER, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, Chief District Judge.
Plaintiff Kenneth Butusov is an inmate currently housed in Lawrence Correctional Center. Pursuant to 42 U.S.C. § 1983, Plaintiff, who is a paraplegic, brings this action for deprivations of his constitutional rights with respect to how his osteomyelitis has been treated.
This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. 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). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
According to the complaint, in March 2015 an outside wound care center diagnosed Plaintiff as having osteomyelitis. The diagnosis was confirmed by an MRI. The doctor at the wound care center recommended immediate, aggressive treatment with antibiotics, and debridement by a surgeon. Lawrence Medical Director Dr. John Coe and Physician's Assistant Travis James have not followed through with the treatment recommendations, despite multiple requests from Plaintiff. P.A. James has explained that Dr. Coe is "the boss."
The infection has caused Plaintiff to run a fever for weeks. In December 2014, Plaintiff was admitted to the prison infirmary with a fever of 104-106º. Dr. Coe denied Plaintiff's request to be taken to the emergency room. No blood tests were performed, and no wound cultures were taken; Plaintiff was not even given IV fluids.
Plaintiff sent two emergency grievances to Warden Stephen Duncan, but he was told to proceed using the normal grievance procedures. Plaintiff then wrote to IDOC Director Godinez (who is not a named defendant); that letter was forwarded Medical Director Dr. Louis Shicker. Dr. Shicker wrote to Plaintiff, dismissing Plaintiff's concerns. Similarly, Lawrence Health Care Administrator Phil Martin dismissed Plaintiff's complaints. Plaintiff asserts that the nurses all agree that he is not being treated properly, but no one wants to cross Dr. Coe.
Plaintiff contends he is in imminent danger and should be transferred and given immediate treatment for his osteomyelitis. He also seeks compensatory damages.
Based on the allegations in the complaint, the Court finds it convenient to frame the allegations into the following overarching claim.
Count 1: Defendants Coe, James, Duncan, Martin and Shicker were deliberately indifferent to Plaintiff's serious medical needs, in violation of the Eighth Amendment.
The Eighth Amendment to the United States Constitution protects prisoners from being subjected to cruel and unusual punishment. U.S. CONST., amend. VIII. See also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). Prison officials can violate the Eighth Amendment's proscription against cruel and unusual punishment when their conduct demonstrates "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A medical condition need not be life-threatening to be serious; rather, it can be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Thus, at this early juncture Plaintiff's osteomyelitis and ...