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Tuduj v. Baldwin

United States District Court, S.D. Illinois

March 8, 2017

TOM TUDUJ, #MO5570, Plaintiff,


          NANCY J. ROSENSTENGEL United States District Judge.

         Plaintiff 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 a specialist.

         In 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.

         Plaintiff 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.

         This 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 such relief.

         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 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. 2009).

         Upon 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 summary dismissal.

         The Complaint

         According 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).

         In February 2011, Dr. Fuentes, an ophthalmologist, [1] 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.

         Plaintiff 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).

         Plaintiff 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. 11).

         Plaintiff 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). ...

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