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Longstreet v. Bukowski

United States District Court, C.D. Illinois

November 1, 2016

MARCUS LONGSTREET, Plaintiff,
v.
TIMOTHY BUKOWSKI, et. al., Defendants.

          MERIT REVIEW OPINION

          SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.

         This 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).

         ALLEGATIONS

         The 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.

         In 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 2016.

         Plaintiff 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.

         ANALYSIS

         Plaintiff 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 circumstance.”)

         Plaintiff 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, and Kolitwenzew.

         Finally, 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).

         Therefore, 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.

         MOTION FOR APPOINTMENT OF COUNSEL

         Plaintiff 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 ...


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