United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH, U.S. DISTRICT JUDGE.
cause is before the Court for merit review of the pro se
Plaintiff's complaint pursuant to 28 U.S.C. § 1915A.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2103). However, conclusory statements and
labels are insufficient. Enough facts must be provided to
"'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418,
422 (7th Cir. 2013)(quoted cite omitted).
Plaintiff alleges his constitutional rights were violated in
Kankakee County by Sheriff Timothy Bukowski, Jail
Administrator Chad Kolitwenzew, Nurse Michael Downey, Nurse
Brent Huffines, Nurse Heather Pasel, and Nurse Angie Kemps.
Plaintiff says he entered the Jerome Combs Detention Center
(JCDC) on August 7, 2014. After a physical examination, he
was transferred to the Kankakee County jail where he remained
form August to December of 2014.
December, Plaintiff returned to JCDC where he again received
a physical examination. Defendant Nurse Huffines diagnosed
Plaintiff with hypertension, hyperlipidemia, gastroesophageal
reflux disease, and an ulcer. Nurse Huffines prescribed
several medications which Plaintiff said made him very ill.
Nonetheless, Plaintiff continued to take the medications
until he was transferred to another facility in December of
received an intake examination at his new facility and was
told he was in good health and never needed any of the
prescribed medications. In addition, Plaintiff learned he had
untreated Methicillin-Resistant Staphylococcus Aureus (MRSA).
While not clearly alleged, Plaintiff appears to claim he
reported his symptoms to Defendant Huffines and Pasel, but
they provided no medical treatment.
has adequately alleged Defendants Huffines and Pasel violated
his Eighth Amendment rights when they were deliberately
indifferent to his serious medical condition, MRSA. However,
Plaintiff claims he did not have any serious medical
conditions when Defendant Huffines prescribed various,
unneeded medications. Therefore, it is possible Plaintiff may
be able to demonstrate Defendant Huffines violated his Eighth
Amendment rights when he was deliberately indifferent to a
substantial risk of serious harm when he prescribed the
medications. See Robbins v Waupun Correctional
Institution, 2016 WL 5921822, at *3 (E.D.Wis. Oct. 11,
2016)(“[a]dministering the wrong medication may well
pose a substantial risk of harm, depending on the
lists Defendants Nurse Angie Kemps and Nurse Downey in the
caption of his complaint, but he makes no reference to either
Defendant in the body of his complaint. See Potter v
Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)(“Where
a complaint alleges no specific act or conduct on the part of
the defendant and the complaint is silent as to the defendant
except for his name appearing in the caption, the complaint
is properly dismissed, even under the liberal construction to
be given pro se complaints.”) Plaintiff has also failed
to clearly indicate how Sheriff Bukowski and Administrator
Kolitwenzew were responsible for his claims. The mere fact
that these Defendants were supervisors is not a sufficient
basis for liability.See Sanville v McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001)(it is well established that the
doctrine of respondeat superior or supervisor
liability does not apply to §1983 actions). Therefore,
the Court will dismiss Defendants Kemps, Downey, Bukowski,
Plaintiff makes vague reference to negligence and medical
malpractice. First, “a defendant can never be held
liable under §1983 for negligence.” Williams v
Shaw, 2010 WL 3835852 at 3 (S.D. Ill. Sept. 24, 2010).
Second, if Plaintiff was attempting to claim the state law
tort of medical malpractice, his complaint is not sufficient.
Illinois law requires any Plaintiff who is seeking damages
for medical malpractice to file an affidavit with the
complaint providing required information. See 735
Ill. Comp. Stat. § 5/2- 622(a). Failure to file the
required affidavit is grounds for dismissal of the claim.
See 735 Ill. Comp. Stat. § 5/2-622(g).
Plaintiff may proceed with his claims alleging Defendants
Huffines and Pasel were deliberately indifferent to his
serious medical condition and Defendant Huffines was
deliberately indifferent to a substantial risk of harm.
FOR APPOINTMENT OF COUNSEL
has no constitutional or statutory right to the appointment
of counsel in this case. Therefore, to consider
Plaintiff's motion, the Court must ask “(1) has the
indigent Plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if
so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v.
Mote,503 F.3d 647, 654-55 (7th Cir. 2007), citing
Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). The
Plaintiff has not provided any evidence demonstrating he has