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Weaver v. United States

United States District Court, S.D. Illinois

December 1, 2016

MARCUS WEAVER, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          ORDER

          DONALD G. WILKERSON UNITED STATES MAGISTRATE JUDGE

         Now pending before the Court is the Motion to Amend Complaint filed by Plaintiff, Marcus Weaver, on July 15, 2016 (Doc. 17). For the reasons set forth below, the Motion is GRANTED IN PART AND DENIED IN PART.

         Procedural and Factual Background

         Plaintiff Marcus Weaver, an inmate in the custody of the United States Bureau of Prisons (“BOP”), filed this lawsuit on March 15, 2016, complaining that the medical treatment he received for his Herpes Simplex infection while incarcerated at FCI-Yazoo City, FCI-Pekin, and USP-Marion was inadequate and caused his condition to exacerbate, making him prone to infections. The Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found Plaintiff had stated a medical negligence and malpractice claim against the United States of America under the Federal Tort Claims Act for the actions of its employees at FCI-Yazoo City, Mississippi, who failed to diagnose or treat Plaintiff's Herpes Simplex infection (Doc. 12, p. 4).

         On July 15, 2016, Plaintiff submitted an amended complaint, which the Court construes as a Motion to Amend the Complaint, as Plaintiff was not entitled to amend his complaint as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1) at the time of filing. In his proposed amended complaint, Plaintiff sets forth the following claims[1]:

Count One: Medical negligence and malpractice claims against Defendant United States of America under the Federal Tort Claims Act, for the actions of its employees at FCI-Yazoo City, who failed to diagnose or treat Plaintiff's Herpes Simplex infection, allowing his pain and other symptoms to persist;
Count Two: Medical negligence and malpractice claims against Defendant United States of America under the Federal Tort Claims Act, for the actions of its employees at FCI-Pekin, who failed to diagnose or treat Plaintiff's Herpes Simplex infection, allowing his pain and other symptoms to persist;
Count Three: Eighth Amendment deliberate indifference claim against FCI-Yazoo City Defendants Chambers, Natal, Hudson, Martinez, and Ratliff, for failing to conduct appropriate diagnostic tests for Plaintiff's infection, thus delaying diagnosis and proper treatment for his condition; and
Count Four: Eighth Amendment deliberate indifference claim against FCI-Pekin Defendants Moats, Lee Ho, and Wall, for failing to conduct appropriate diagnostic tests for Plaintiff's infection, thus delaying diagnosis and proper treatment for his condition.

         In support of his claims, Plaintiff alleges that he first complained of testicular pain to Defendant Dr. Martinez while he was incarcerated at FCI-Yazoo in May, 2011, but was only told to take ibuprofen. Subsequently, in July, 2011, Plaintiff again sought treatment for his condition, but Defendant Martinez was not available and failed to leave any treatment instructions. As such, Plaintiff was examined by Defendants Natal and Ratliff. Despite bringing to their attention his concerns about white papules, redness, discoloration, and lesions on his genitalia, these Defendants merely prescribed Podophyllum for his genital warts and failed to order diagnostic testing or provide pain medication. Following this examination, Plaintiff demanded that he be examined by Defendant Chambers, who Plaintiff describes as the “Chief Doctor”. In accordance with his demands, Plaintiff was examined by Defendants Chambers and Hudson (identified by Plaintiff as a nurse at FCI-Yazoo). Defendant Chambers recommended ibuprofen and prescribed antibiotics, as well as testing for syphilis and gonorrhea. Plaintiff, however, characterizes Defendant Chambers' efforts as “cosmetic” and a “transparent effort to avoid culpability.” Following this examination, Plaintiff submitted numerous “Communications to Staff” complaining about “a burning sensation and pain in [his] penis”, that was met with a response by Defendant Ratliff to “purchase ibuprofen and return in one-week.” According to Plaintiff, all medical personnel at FCI-Yazoo refused to see him concerning his condition until Defendant Martinez returned from his vacation and, when Defendant Martinez returned and examined Plaintiff, he claims that Defendant Martinez simply told Plaintiff his symptoms were nothing to worry about and provided no treatment.

         From September, 2011 to March 18, 2012, Plaintiff claims he submitted numerous request slips for sick-call informing Defendants that he was experiencing pain, burning, lesions, ulcers, and blisters. Plaintiff claims that the FCI-Yazoo defendants avoided Plaintiff's requests for medical treatment and, when he was examined for other medical conditions, they ignored his complaints about his genitalia.

         During a “clinical encounter” with Defendant Martinez (for which Plaintiff did not provide a date), Plaintiff was tested for Herpes Simplex virus. Plaintiff asserts that either the test results were misread or inaccurate, as he was told by Defendant Martinez that it was negative. Plaintiff claims that despite the presence of numerous symptoms he did not receive any additional testing while at FCI-Yazoo.

         In July, 2012, Plaintiff was transferred to FCI-Pekin, Illinois. Upon his arrival at FCI-Pekin, Plaintiff was examined by Defendant Lee Ho. Plaintiff advised Defendant Lee Ho that he needed two more doses of Podophyllum for his genital warts and described his symptoms. According to Plaintiff, Defendant Lee Ho ordered medication for his genital warts, but failed to address his other symptoms or provide any testing or referrals to an outside specialist. From January, 2013 to February, 2014, Plaintiff claims that he experienced pain, ulcers, blisters, ...


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