United States District Court, C.D. Illinois
DUANE P. BALLARD, Plaintiff,
BRITTANY BEARD, et al., Defendants.
MERIT REVIEW ORDER
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
proceeding pro se, alleges deliberate indifference at the
Illinois River Correctional Center. The case is before the
Court for a merit review 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, 649-51 (7th Cir. 2013). 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. United States, 721 F.3d
418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
alleges that on February 3, 2016, he was in the healthcare
unit for treatment of warts of his right arm, chest and back.
Plaintiff asked Defendant Nurse Practitioner Brittany Beard
to examine scabs or sores on the bottom of his left foot.
Defendant allegedly examined the foot and recommended that he
buy lotion from the commissary, but did not otherwise provide
treatment. Plaintiff alleges that this constituted deliberate
indifference as he is a type I, diabetic, and foot infections
can have catastrophic results. Plaintiff does not, however,
claim he developed an infection or other problems as a
result. Plaintiff claims that Defendant Edna Greenhagen, the
Nursing Director, was aware of the scabs and sores on his
foot and is also liable for deliberate indifference.
grieved the lack of treatment to Warden Hammers and alleges
that, since Defendant Hammers had firsthand knowledge of the
claim, he is also liable for deliberate indifference.
Plaintiff claims that Defendants Brookes and Johnson,
Counselors at Illinois River, responded to his grievances,
though they had no medical knowledge. He claims the same as
to Grievance Officer Long who also responded to his
grievances. Plaintiff claims that Wexford is liable for
Defendants Beard, Greenhagan and Hammers not properly doing
successfully plead deliberate indifference, a plaintiff must
allege that the defendant was deliberately indifferent to a
serious risk of substantial harm. “[D]elay in medical
care can only constitute an Eighth Amendment violation if
there has been deliberate indifference which results in
substantial harm.” Newsome v. Godinez, No.
13-1455, 2013 WL 5799769 at *2 (C.D.Ill. Oct. 28, 2013).
“Because no harm resulted from this alleged
cancellation [of a doctor's appointment without the
doctor's approval], no finding of deliberate indifference
is possible.” Id. at 2. Here, Plaintiff has
not pled harm. He objects that Defendants Beard and
Greenhagan did not offer treatment for the condition of his
left foot but does not claim that the lack of treatment
caused him injury. His claims against Defendants Beard and
Greenhagen are DISMISSED.
claim that Warden Hammers exhibited deliberate indifference
for not acting in response to his grievance is also
DISMISSED. A supervisor is not liable merely because a
grievance put him on notice of Plaintiff's complaints.
There is no respondeat superior liability under § 1983
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir.
2003). See also, Diaz v. McBride, 1994 WL 750707, at
*4 (N.D. Ind. Nov. 30, 1994) (holding that a plaintiff could
not establish personal involvement, and subject a prison
official to liability under section 1983, merely by sending
the official various letters or grievances complaining about
the actions or conduct of subordinates.)
claims against Counselors Brooks and Johnson, and Grievance
Officer Long, for their response to his grievances also fail.
“[T]he alleged mishandling of [Plaintiff's]
grievances by persons who otherwise did not cause or
participate in the underlying conduct states no claim.”
Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.
remaining claim, that Wexford is liable for the actions of
Defendants Beard, Greenhagan and Warden Hammers jobs is also
DISMISSED. As noted, there is no respondeat superior
liability under § 1983 so a corporation can only be
liable if Plaintiff were injured due to its policy or
practice. See Woodward v. Correctional Medical Services
of Illinois, Inc., 368 F.3d 917, 927 (7th Cir. 2004) (in
order to be held liable under § 1983, “a municipal
policy or practice must be the direct cause or moving force
behind the constitutional violation”). Since Plaintiff
has failed to allege that he was harmed through a Wexford
policy or practice, he has not pled a plausible claim against
Wexford. See Bell Atlantic v. Twombly, 550 U.S. 544,
IS THEREFORE ORDERED:
Plaintiff's complaint is dismissed for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §
1915A. Any amendment to the Complaint would be futile as
Plaintiff does not claim that the alleged deliberate
indifference caused him injury. This case is therefore
closed. The clerk is directed to enter a judgment pursuant to
dismissal shall count as one of the plaintiff's three
allotted “strikes” pursuant to 28 U.S.C. Section
1915(g). The Clerk of the Court is directed to record
Plaintiff's strike in the three-strike log.
Plaintiff must still pay the full docketing fee of $350 even
though his case has been dismissed. The agency having custody
of Plaintiff shall continue to make monthly payments to the
Clerk of Court, as directed in the Court's prior order.
Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this Court within 30 days of the entry
of judgment. Fed. R. App. P. 4(a). A motion for leave to
appeal in forma pauperis should set forth the issues
Plaintiff plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If Plaintiff does choose to appeal, ...