United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Gilbert U.S. District Judge
Shaun Williams, an inmate formerly housed in the United
States Penitentiary in Marion, Illinois, brings this action
for alleged violations of his constitutional rights by
persons acting under the color of federal authority. See
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
In his Complaint, Plaintiff alleges that the defendants
ignored his complaints of pain and delayed the treatment of
his serious and painful foot condition, exasperating the
problem and causing permanent damage. (Doc. 1). Plaintiff
also seemingly intends to make claims, based on the same
conduct, under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-80.
This case is now before the Court for a preliminary review of
the Complaint pursuant to 28 U.S.C. § 1915A, which
(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 allow this case to proceed
past the threshold stage.
Complaint (Doc. 1), Plaintiff makes the following
allegations: on September 21, 2012, Plaintiff complained to
Marion medical staff defendants regarding severe pain in his
feet, though upon inspection, they found there was no
malalignment or deformity. (Doc. 1-1, p. 10). Plaintiff
returned to medical on October 12, 2012 complaining of pain
and “crowding” of his toes due to bunions, but
Marion medical staff did not treat Plaintiff for this
condition. Id. Soon thereafter, defendant Leslee
Dunkin [sic], a physician's assistant, noted
there was some deviation with respect to Plaintiff's
condition, but that it was insignificant. (Doc. 1-1, p. 11).
A few days later, an outside podiatry specialist produced a
formal report on Plaintiff's condition finding hallux
valgus and hammertoe, with Plaintiff's left foot at 20
degrees and his right foot at 33 degrees. (Doc 1-1, p. 12).
Plaintiff continued to complain of pain from his bunions to
the Marion medical staff, but his complaints were ignored.
Id. In late November 2012, Marion medical staff
members acknowledged lower back degenerative changes in
Plaintiff, but claimed there were no surgical options to fix
it, despite Plaintiff's belief that the changes were
caused by his feet. Id.
December, the Marion medical staff ignored Plaintiff's
x-ray results, claiming they showed nothing. Id. In
February 2013, a report from Dr. Szoke showed that
Plaintiff's deformity had increased to 22 degrees on his
left foot. Id. Despite this, and Plaintiff's
continued complaints of pain, the Marion medical staff did
nothing. Id. In May 2013, Plaintiff requested a soft
shoe pass from Marion medical staff to alleviate some of his
pain and suffering, but the pass was not approved and
Plaintiff's pain was ignored. (Doc. 1-1, p. 10). In July
2013, Marion medical staff ignored obvious changes to
Plaintiff's deformity, despite a Southern Illinois
Podiatry Report calling them “severe.”
Id. In August 2013, Dr. Paul Harvey, among others,
failed to address Plaintiff's deformity, which by then
was documented to be “exceeding the threshold required
for surgery.” (Doc. 1-1, pp. 10-11). Plaintiff was
given an oversized pair of orthopedic shoes to accommodate
his pain and suffering, but they did not fit. (Doc. 1-1, p.
September 2013, upon review of a podiatry consultation
report, defendant Paul Harvey moved to deny Plaintiff
consideration for surgery due to its being considered
“elective, ” and defendant Duncan informed
Plaintiff his requested surgery would not be approved for
that reason. Id. The defendants on Marion's
medical staff continued to ignore Plaintiff's pain and
suffering after that, and Plaintiff endured 12 months without
care. Id. In October 2014, the Marion medical staff
defendants told Plaintiff his shoes should fit, despite his
complaints that they did not, and soon thereafter they agreed
to allow Plaintiff to return the shoes for replacement, but
his shoes were never replaced. Id.
February 2015, the Marion medical staff defendants provided
Plaintiff the criteria for surgery. (Doc. 1-1, pp. 13).
Plaintiff had qualified for surgery as early as two years
prior, and this information was known by the Marion medical
staff. Id. At this time, Marion medical staff also
acknowledged that Plaintiff's request for surgery would
be honored and that Plaintiff's deformity qualified as
“severe.” Id. Defendant Pass called
Plaintiff's issue a “significant deformity.”
Id. In April 2015, Castillo, another physician's
assistant, told Plaintiff his condition was not debilitating,
despite his having surpassed surgical thresholds long before.
the Complaint alleges that Plaintiff's condition worsened
from a moderate and treatable condition, bunions, to a more
severe and damaging condition that involved severe pain,
arthritis, bone malunion, angular deformity, an uneven gait,
shin and lower back pain, hammer toe, and the need for formal
bone reconstructive surgery. (Doc 1-1, p. 14). This advanced
condition resulted from the neglect and deliberate
indifference of the defendants. Id. Walton, Bagwell,
Castillo, Brooks, Pass, and Harvey, during the relevant time
period, all reviewed relevant medical records pertaining to
Plaintiff's condition, and the medical staff defendants
examined Plaintiff on multiple occasions during which the
deterioration affecting Plaintiff was noted yet ignored.
Id. Plaintiff now has a permanent disability,
requiring him to endure bone reconstructive ...