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Moore v. Brace

United States District Court, S.D. Illinois

October 23, 2017

SHUNG MOORE, # B-12832, Plaintiff,


          David R. Herndon, United States District Judge.

         Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He claims that he was subjected to retaliation; was deprived of clothing, bedding, and necessary hygiene supplies, which aggravated a serious medical condition; and was denied medical attention. 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 plaintiff's 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 Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         As background for his retaliation claim, Plaintiff states that on March 29, 2015, he filed a grievance alleging that C/O Brace used excessive force against him. (Doc. 1, p. 9). Two days later, Brace confronted Plaintiff while escorting him to the diabetic line, telling Plaintiff that his grievance was going nowhere and he was wasting his time. Id. Later, Brace and other officers including Lt. Welborn verbally mocked Plaintiff. On April 7, 2015, Plaintiff resubmitted the Brace grievance to his counselor after learning that she had not received it.

         Later on April 7, 2015, while the prison was on lockdown, Plaintiff gave his marked laundry bag containing all his clothing and bedding to Officer Grace (who is not a Defendant) to deliver to the laundry. The next day, Plaintiff's laundry bag and contents were not returned to him. Plaintiff's cellmate's laundry bag had been ripped open and was missing some items, but all other inmates received their laundry. Hood (who is not listed among the Defendants) searched for Plaintiff's laundry but reported it was lost. Plaintiff asserts that Brace caused the disappearance of Plaintiff's clothing and bedding in retaliation for the grievance Plaintiff had filed against him only days before. (Doc. 1, p. 10).

         On April 9, Plaintiff informed several officers that his clothing and bedding had been missing since April 7, but the items were not found and nobody would assist Plaintiff in replacing them. On April 10, 2015, Eoavaldi was called to Plaintiff's cell in response to Plaintiff's request to be placed on a hunger strike. (Doc. 1, p. 11). Eoavaldi had Plaintiff fill out a requisition form to receive more clothing and bedding.

         On April 16, 2015, Plaintiff had not received any replacement items. He was suffering from an “untreated MRSA infection.” (Doc. 1, p. 11). While at the infirmary, Plaintiff informed Morris and Welborn that he was still without clothing or bedding; Morris promised to inform Major Monje of the problem. The nurse who gave Plaintiff his insulin saw that half of Plaintiff's face was extremely swollen, and referred him to be temporarily quarantined because of the MRSA infection. Morris and Welborn saw Plaintiff's condition and his state of uncleanliness due to his lack of clothing and hygiene items. (Doc. 1, p. 12).

         Later on April 16, 2015, after Plaintiff was moved to the quarantine cell, he informed Dunbar that his cell was filthy and he was in need of a change of clothing, bedding, personal hygiene items, and disinfectant for the cell. (Doc. 1, p. 12). Dunbar failed to provide any of these items. Plaintiff saw Eoavaldi that day and told him that he had not received any clothing or bedding despite submitting the request slip to him on April 10. Eoavaldi told Plaintiff he would just have to wait.

         On April 22, 2015, Plaintiff told Dunbar that he still was without clothing, bedding, or hygiene products, but Dunbar just shrugged and walked away. (Doc. 1, p. 12). He also informed a mental health team member (Ms. Thomas) of his predicament, and Thomas promised to inform then-Warden Butler. (Doc. 1, p. 13).

         Between April 28 and May 8, 2015, Plaintiff had three more encounters with Eoavaldi and two with Dunbar, in which he informed those Defendants that he had still never been provided with replacement clothing or bedding, had been without toothpaste, soap, or a washcloth for many days, and that the lack of these items had aggravated his MRSA infection. (Doc. 1, pp. 13-14). Eoavaldi took another clothing request slip from Plaintiff, but Plaintiff still received nothing. Finally on May 13, 2015, Officer Phillips had Plaintiff fill out another clothing slip and personally brought Plaintiff new clothing items and a state-issued hygiene package. Until that time, Plaintiff had been without a change of clothing or bedding for 35 days, and was deprived of hygiene items for 57 days. (Doc. 1, p. 15).

         At the same time that Plaintiff was attempting to get his clothing and bedding replaced, he was unable to obtain sufficient personal hygiene supplies, and medical care for his MRSA infection was delayed and denied. Plaintiff has a chronic MRSA infection which regularly flares up, and his inability to adequately wash himself (he had no soap) or change into clean clothing complicated that condition.

         On April 12, 2015, Plaintiff submitted a commissary request for hygiene items including soap, but the paperwork was lost. (Doc. 1, p. 16). On April 17, 2015, Plaintiff received indigent supplies of miniature shampoo bottles, toothpaste, and toothbrush, but those items only lasted one week, and he was out of soap. He tried again to get soap from the commissary, seeking Dunbar's help on April 23. (Doc. 1, pp. 17-18). Another officer (Warhausen) told John Doe #1 (Commissary Officer) that Plaintiff needed soap for his MRSA condition and had not been allowed to shop at commissary for several weeks. Warhausen reported back to Plaintiff that John Doe #1 refused to allow Plaintiff to purchase the hygiene items, because the commissary was doing inventory at the time. (Doc. 1, p. 18). Also on April 23, 2015, Plaintiff told Sgt. Harris that he needed soap and toothpaste from commissary and had been wearing the same soiled clothing since April 7. Harris refused to take any action to help Plaintiff, telling him he was a “whiner and complainer.” (Doc. 1, p. 19). Plaintiff sent a letter to Dr. Trost requesting a special medical permit allowing him to purchase extra soap from the commissary, with no result. Id.

         On April 10, 2015, Plaintiff submitted a sick call request because he believed his MRSA was worsening. The next day (April 11), the left side of Plaintiff's face was swollen. Officer Griffin conveyed Plaintiff's request for antibiotics to Nurse Maciura, who responded that Plaintiff was scheduled for a sick call visit on April 12. (Doc. 1, pp. 19-20). On April 12, Maciura examined Plaintiff and saw the large sore and swelling on the left side of Plaintiff's face. He explained it was extremely painful, and his outbreaks had been occurring more frequently as documented in his medical records. Maciura denied Plaintiff's request for pain medication and antibacterial ointment, stating that he could ask for those when he sees the doctor.

         On April 13, the left side of Plaintiff's face was swollen to twice its size, his eye was nearly swollen shut, and his pain was extreme. (Doc. 1, p. 21). He was not seen by any medical staff on that day. On April 14, Plaintiff learned he had a doctor's visit scheduled that day, but it was later cancelled. Plaintiff sought help from Officer Hood (who is not named as a Defendant). Hood conveyed Plaintiff's request for urgent medical care to Sgt. Pelker, but Pelker took no action. (Doc. 1, p. 22). On April 15, Plaintiff's doctor visit was cancelled again; both Pelker and Eoavaldi refused to request medical attention for Plaintiff despite being informed of his condition. (Doc. 1, p. 23).

         On April 16, 2015, Plaintiff finally saw Dr. Trost and received treatment for his facial wound and infection. He learned that Maciura (or possibly some other individual) had written in his medical records that Plaintiff had been prescribed antibiotics some days earlier, and had refused to attend a doctor's appointment - neither of which was true. (Doc. 1, p. 24). He faults Maciura and Trost for a 4-day delay before he received any medical treatment. (Doc. 1, pp. 24-25). Furthermore, he asserts that John Doe #2 (a doctor) failed to order antibiotics for him when Maciura allegedly requested them, and cancelled his doctor's call- line passes. (Doc. 1, p. 26). He also names John Doe #3 (medical official) for falsely stating in his medical chart that Plaintiff had received antibiotics and that he went to the yard instead of attending one of his doctor's appointments. Id.

         Plaintiff claims that Wexford, the corporation that employs Dr. Trost and Health Care Administrator Walls, maintained a policy or custom of failing to employ sufficient staff to provide adequate medical care to inmates, and this policy caused the delays and cancellations of Plaintiff's appointments. (Doc. 1, pp. ...

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