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Thornton v. Dennison

United States District Court, S.D. Illinois

June 18, 2017

TRAVIS THORNTON, # M-25761, Plaintiff,
v.
JEFFERY DENNISON, DR. DAVID, and WEXFORD HEALTH SOURCES, INC., Defendants.

          MEMORANDUM AND ORDER

          Herndon United States District Judge.

         Plaintiff, currently incarcerated at Shawnee Correctional Center ("Shawnee"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants were deliberately indifferent to his serious medical condition. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.

         Under § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

         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 "no reasonable person could suppose to have any merit" 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. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiffs claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Applying these standards, the Court finds that some of Plaintiffs claims survive threshold review under § 1915A.

         The Complaint

         On October 16, 2016, Plaintiff submitted a sick call request because he was suffering from a painful ingrown toenail. (Doc. 1, p. 5). He subsequently was seen by a nurse, who referred him to the nurse practitioner. On November 15, 2016, the nurse practitioner saw that Plaintiffs toe was infected and discharging a clear liquid mixed with blood. She prescribed Lamisil, but this did not help the infection or relieve Plaintiffs pain.

         On December 6, 2016, Plaintiff submitted another sick call slip, but was not seen for nearly a month. By the time Plaintiff saw Dr. David, the nail had become "a deep open wound" discharging yellowish fluid and blood. The pain had increased to the point that Plaintiff could not put weight on his foot, had to walk on the back of his shoe, and could not wear a sock unless he cut out the toe to relieve the pressure. Dr. David prescribed Bactrim and foot soaks. Plaintiff asked Dr. David to remove the ingrown toenail to relieve his intense pain, but David responded that "they don't remove ingrown toenails at Shawnee, " and assured Plaintiff that the medication and foot soaks would take care of his condition. (Doc. 1, p. 6).

         On December 29, 2016, Plaintiff filed an emergency grievance to Warden Dennison, complaining that he was not getting proper treatment. Specifically, Plaintiff was only getting foot soaks, which were making the problem worse; he was given no bandages to cover the open wound; Dr. David refused to remove the ingrown nail; the antibiotics had not cured the infection and the toe continued to bleed non-stop; and his toe was black and purple. (Doc. 1, p. 6; Doc. 1-1, pp. 5-8). Dennison never responded to Plaintiffs emergency grievance.

         On January 6, 2017, Plaintiff saw the nurse practitioner again because the infection was worse. His toe would "pour blood" if it was moved the wrong way, and had turned dark purple. She referred Plaintiff to Dr. David, who saw him on January 11, 2017. (Doc. 1, p. 6). Dr. David prescribed Cipro and more foot soaks. However, he failed to issue Plaintiff a low-bunk or low-gallery permit even though Plaintiff stated he was missing meals because of the pain from walking up the stairs, and suffered great pain each time he had to climb up or down from the top bunk. (Doc. 1, pp. 6-7). Dr. David again refused to remove the ingrown toenail, saying it would heal itself.

         On February 3, 2017, Plaintiff sought help again due to the ongoing or recurring infection; the toe was still dark purple and draining fluid and blood. The nurse practitioner prescribed more Cipro and recommended to Dr. David that the ingrown nail be cut out. (Doc. 1, p. 7).

         On March 3, 2017, Plaintiff saw Dr. David again and begged him to do something to relieve the unbearable pain that was keeping Plaintiff up at night and causing him to be unable to wear regular shoes and socks. (Doc. 1, p. 8). Dr. David gave Plaintiff a permit to wear shower shoes, but again refused to cut out the problem toenail.

         On April 4, 2017, at Plaintiffs next visit to Dr. David, the infected toe had not improved and the wound was still open. When Dr. David proposed to continue the same treatment of foot soaks, Plaintiff broke down in tears and begged him to have the toenail removed, because he had been in pain since late October and could not take it anymore. The foot soaks had just made the problem worse, and Plaintiff could not walk properly, had missed meals, and could not engage in normal activities. Dr. David agreed to recommend that the toenail be removed, but could not guarantee this procedure would be approved. Dr. David did not respond to Plaintiffs inquiry as to why he had not taken this step months ago. (Doc. 1, p. 9).

         On April 12, 2017, Plaintiff was sent to an outside physician, who performed surgery ...


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