United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
Tom Tuduj, currently incarcerated in Menard Correctional
Center (“Menard”), brings this pro se
action for deprivations of his constitutional rights pursuant
to 42 U.S.C. § 1983. According to the Complaint,
Defendants have been deliberately indifferent to
Plaintiff's serious medical condition. Specifically,
Plaintiff contends he suffers from a systemic virus or
infection that has damaged his eyes, necessitating the use of
dark eyeglasses (transition lenses). He further alleges that
the virus or infection requires treatment and/or referral to
connection with his claims, Plaintiff names Eric M. Johnson
(Optometrist), Christine Locchead (Optometrist), Sam Nowabasi
(Physician), Dr. John L. Trost (Physician and Menard Medical
Director), Dr. Ritz (Physician), Jackie Martella (CEO of
Boswell Pharmacy, a private entity contracted to provide
prescription medicine), Todd Brooks (Assistant Warden of
Menard at the time of the alleged violations), Kimberly
Butler (Warden of Menard at the time of the alleged
violations), John R. Baldwin (Director of IDOC), and
“Colligial” (not identified as a Defendant in the
body of the Complaint). Brooks, Butler, and Baldwin are sued
in their official capacities only. The other Defendants are
sued in their individual capacities only.
seeks monetary damages, as well as declaratory and injunctive
relief. Plaintiff's request for injunctive relief
includes, among other things, a request to order Defendants
to have him treated by an infectious disease specialist. The
Court construes Plaintiff's request for injunctive relief
as including a Motion for Preliminary Injunction pursuant to
Federal Rule of Civil Procedure 65(a), as well as a general
prayer for injunctive relief.
case is now before the Court for a preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening - The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
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 any reasonable
person would find meritless. 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.
careful review of the Complaint and any supporting exhibits,
the Court finds it appropriate to exercise its authority
under § 1915A; portions of this action are subject to
to the Complaint, Plaintiff suffers from a systemic virus or
infection. (Doc. 1, p. 9). The virus or infection has damaged
Plaintiff's eyes, causing excruciating eye pain and
sensitivity to light. (Doc. 1, pp. 6-7). Aside from
Plaintiff's reported eye pain and sensitivity to light,
Plaintiff contends it is evident that he is suffering from a
virus or infection because the skin on his face and cranium
is red and inflamed. (Doc. 1, p. 7). Plaintiff has exhibited
one or more of these symptoms since January 2007 to the
present. (Doc. 1, pp. 7-12).
February 2011, Dr. Fuentes, an ophthalmologist,
prescribed Doxycycline and Acyclovir. (Doc. 1, pp. 7-9).
Although not expressly alleged, apparently this was in an
effort to treat the infection and/or virus causing
Plaintiff's eye pain and related symptoms. Id.
The prescribed treatment was not effective. (Doc. 1, p. 9).
On September 19, 2014, Dr. Fuentes prescribed DMSO (Dimethyl
Sulfoxide) as a treatment for Plaintiff's symptoms. (Doc.
1, p. 9). According to the Complaint, Boswell pharmacy is the
entity responsible for providing prescribed medication to
prisoners at Menard. (Doc. 1, p. 3). DMSO is not part of
Boswell's formulary. (Doc. 1, p. 10). Accordingly,
Boswell did not fill Plaintiff's prescription for DMSO.
contends that he has met with Trost “numerous
times” and requested treatment for his condition. (Doc.
1, p. 11). Specifically, Plaintiff has asked that he receive
his prescription for DMSO. (Doc. 1, p. 11). Trost has refused
to assist Plaintiff in obtaining DMSO, has not provided any
alternative treatment, and has failed to refer Plaintiff to
an infectious disease specialist. (Doc. 1, p. 11).
Additionally, both Ritz and Trost participated in a collegial
review that resulted in denying Plaintiff's request for
treatment. (Doc. 1, p. 11).
also met with Caldwell regarding his condition on November
27, 2016. (Doc. 1, p. 10). Plaintiff indicated he was
suffering from a systemic virus or infection that required
treatment. (Doc. 1, p. 11). Plaintiff requested a
prescription for DMSO. (Doc. 1, p. 10). Caldwell refused to
provide the requested prescription. (Doc. 1, p. 10). Caldwell
indicated he could not “get away with”
prescribing DMSO because, unlike Dr. Fuentes, he is not an
ophthalmologist. (Doc. 1, p. 10). Caldwell did not conduct a
physical examination of Plaintiff and apparently did not
provide a course of treatment. (Doc. 1, pp. 10-11). Caldwell
indicated he would refer Plaintiff to Trost, however,
Plaintiff has yet to receive any such referral. (Doc. 1, p.
has had several visits with Nowabasi. (Doc. 1, p. 10). These
visits occurred between 2011 and 2014. (Doc. 1, p. 10). Other
than prescribing hydrogen peroxide in 2014 (which was
subsequently confiscated by a guard), Nowabasi took no action
with regard to Plaintiff's condition. (Doc. 1, p. 10).