United States District Court, S.D. Illinois
DENNIS THOMPSON, No. B-67474, Plaintiff,
MISTY THOMPSON, NURSE TRIPP, JANE DOE, C/O HOFFMAN JACQUELINE LASHBROOK, JOHN TROST, and BRETT MILLER, Defendants.
MEMORANDUM AND ORDER
M. Yandle United States District Judge.
Dennis Thompson, an inmate at Menard Correctional Center
("Menard"), brings this action for deprivations of
his constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff claims that officials at Menard (1) were
deliberately indifferent to his serious medical condition
(degenerative joint/disc disease and associated symptoms);
(2) retaliated against him for engaging in protected activity
(filing lawsuits and grievances); (3) subjected him to cruel
and unusual punishment; and (4) engaged in improper conduct
in relation to a settlement agreement in another civil rights
lawsuit. In connection with his claims, Plaintiff sues Misty
Thompson (a nurse); Nurse Tripp (a nurse); Jane Doe (a
nurse); C/O Hoffman (a correctional officer); Jacqueline
Lashbrook (Menard's warden); and John Trost (a
physician). Plaintiff seeks monetary compensation and
case is now before the Court for a preliminary review of the
Second Amended Complaint (Doc. 11) 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
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.3d816, 821 (7th Cir.
Background and Pending Motions
filed his original Complaint (Doc. 1) on August 7, 2017.
Before the Court could complete a preliminary review of the
original Complaint, Plaintiff filed a Motion for Leave to
File an Amended Complaint (Doc. 5-2), accompanied by an
amended complaint (Doc. 5) and a Motion to Stay the
Court's Merit Review (Doc. 7). Thereafter, Plaintiff
filed a Motion for Leave to File a Second Amended Complaint.
October 30, 2017, the Court granted the Motion for Leave to
File a Second Amended Complaint. (Doc. 10).
the Court DENIES Plaintiffs previous Motion to Amend (Doc.
5-2) and Motion to Stay (Doc. 7) as MOOT. The Court proceeds
with a merits review of the Second Amended Complaint. (Doc.
SECOND AMENDED COMPLAINT
has been diagnosed as being morbidly obese (weighing over 300
pounds) and having degenerative joint/disc disease
("DJD") in his shoulders, knees, hip and the entire
length of his spine. (Doc. 11, pp. 7, 19; Doc. 11-1, pp.
2-5). He has a narrowing of the spinal disc at ¶ 3-4,
L4-5 and L5-sl. Id. The DJD in Plaintiffs right hip
is particularly severe, involving hip dysplasia with a marked
decrease in range of motion. Id.
has previously filed civil rights lawsuits and/or grievances
against staff at Menard including, Defendants Trost, Tripp
and Thompson. (Doc. 11, pp. 12, 15-16, 19, 22). The lawsuits
and/or grievances have involved, among other things, claims
related to Plaintiffs obesity. Id. According to the
Second Amended Complaint, at least one lawsuit has resulted
in an agreement to have Plaintiff exercise as much as
possible in order to lose weight. (Doc. 11, p. 19). One of
Plaintiffs earlier filed civil rights actions is still
pending in the Southern District of Illinois. See
Thompson v. Illinois Department of Corrections et al,
3:15-cv-850-NJR-DGW (hereinafter, "Thompson v.
29, 2016- Thompson Refuses to Provide Ibuprofen
of his severe DJD, Plaintiff takes anti-inflammatory
medication (ibuprofen) on a regular basis. (Doc. 11, p. 12).
At times, HCU employees are unable to refill Plaintiffs
ibuprofen in a timely manner. Id. In the past,
medical staff would simply provide Plaintiff with a small
number of ibuprofen pills from the medical stock supply to
hold Plaintiff over until his refill arrived. However, after
Plaintiff filed one or more lawsuits, things changed.
February 29, 2016, Plaintiffs medical appointment with Trost
was cancelled. Id. As a result, Plaintiff did not
receive his ibuprofen refill. Id. Plaintiff told
Thompson he was out of ibuprofen and was in extreme pain.
Id. As he had in the past, Plaintiff requested
ibuprofen from the medical stock supply. Id.
Thompson told Plaintiff that his appointment was cancelled
because "people like you" keep filing lawsuits and
Trost has to appear for depositions. Id. She then
said, "Tell me why I should go out of my way to give you
anything when Dr. Trost is like the third medical staff
member you have sued...I'm not giving you nothing."
Id. As a result, Plaintiff was without ibuprofen for
several days and was in extreme pain. Id.
regularly harassed Plaintiff from February 2016 until she
left her employment with Menard. (Doc. 1, p. 14). She would
say things like "that's the fat ass who filed a law
suit because he ate like a hog and gained weight. He states
it's our fault." Id. On one occasion, when
Plaintiff was waiting for a medical appointment, he asked if
he could be seen sooner rather than later. Id.
Thompson intervened stating "no, no, no that's the
one I've been telling you about. He's suing the
medical director Trost because he ate like a hog and got
fat." Id. Prisoners and Menard employees
laughed in response. Id. Thompson also said
"I'll knock his fat ass out he can't barely
stand any way with his hip and fat ass belly. I can take one
finger and push him and he'll tilt over and be stuck on
his back like a turtle." Id. An officer then
yelled, "I've fallen and I can't get up."
addition, Thompson regularly woke Plaintiff early in the
morning and any time he was napping. (Doc. 1, p. 15). She
would wake him with taunts regarding his weight (telling him
to get his "fat ass" up) and by referencing his
lawsuits ("you say you want to lose weight and we not
doing our JOB - get up, get up, am I doing my job now?).
and December 2016 - Delay and/or Denial of Medical Care
approximately November 2016, the DJD in Plaintiffs spine and
right hip worsened. (Doc. 11, p. 7). He experienced a severe
arthritic flair up and submitted two separate sick call
requests. Id. Both requests went unanswered.
Id. By December 2016, Plaintiff was experiencing
continuous severe muscle spasms in his pelvic/hip area down
to his thigh and knee. Id. He had fluid buildup
(edema) in his waist, was in severe pain and was unable to
control his bowels and bladder. Id. He defecated and
urinated on himself, his bedding and the floor of his cell.
Id. Even when Plaintiff was able to reach the toilet
in his cell, the severe muscle contractions would cause him
to defecate and/or urinate on himself. (Doc. 11, pp. 7-8).
The muscle spasms and pain prevented Plaintiff from cleaning
up after himself. (Doc. 11, p. 8). He sometimes fell on the
concrete floor while trying to clean, causing further injury.
first week of December 2016, Plaintiff told Thompson, Tripp
and Jane Doe about his worsening condition. (Doc. 11, p. 7).
He "thoroughly explained" his symptoms to each
defendant and showed them medical paperwork confirming his
medical condition. (Doc. 11, pp. 7-8). These individuals had
prior knowledge of Plaintiffs medical condition because they
attended some of his medical appointments. (Doc. 11, p. 8).
Plaintiff also explained that he had no pain medication
because his ibuprofen refills were late and that he had been
missing showers and meals due to his condition. Id.
Plaintiff indicated that his sick call requests had gone
unanswered and asked Thompson, Tripp and Jane Doe to
transport him to the HCU for a medical emergency.
Id. Jane Doe told Plaintiff she only directed
"walk in" escorts to the HCU if a prisoner is
having chest pains. (Doc. 11, p. 9). Plaintiff asked Jane Doe
to submit an emergency sick call on his behalf. Id.
She refused because Plaintiff was not having chest pains.
Id. She also refused to give Plaintiff pain
point, an officer asked Thompson to examine Plaintiff because
he believed Plaintiff was experiencing a medical emergency.
(Doc. 1, p. 7). Thompson refused to help Plaintiff. She told
him, "you know I'm not doing that for you ...you
need to think about these things before you start suing the
very people you need to give you treatment especially the way
you're breaking down." (Doc. 11, p. 9). She declined
to give Plaintiff pain medication and turned to the officer
that called her down and said, "I wish you had told me
it was this fucker who be suing everybody was the prisoner in
distress before I walked downstairs to his cell.. .that's
all his fat ass does is sit around and file grievances and
suits on the staff I'm not giving him shit."
Plaintiff asked Tripp for help, she told him the HCU
employees were having a series of Christmas parties and were
only taking a few sick calls. (Doc. 1, p. 9). She refused to
direct security staff to escort him to the HCU and would not
accept a sick call request from him. Id. She did
agree to bring Plaintiff pain medication later in the day.
Id. However, when she returned, she had forgotten
the medication and told Plaintiff she was too tired to make
another trip. (Doc. 11, p. 10). Plaintiff made a critical
comment regarding the Christmas parties and told Tripp she
was his last hope because the other nurses were also refusing
to help him. Id. Tripp responded, "I did not
tell you to file those lawsuits or to insult me just now, did
I. It seems the suits you filed are coming back to bite you
in the ass huh." (Doc. 1, p. 10). She then said,
"You need to stop with the grievances and lawsuits
because I or no one else is ever going to help you."
remained in this condition, suffering without medical
treatment for two or three weeks. (Doc. 11, pp. 10-12). On
December 9, 2016, on his way to the showers (Plaintiff had
not showered in three weeks), Plaintiff collapsed. (Doc. 11,
p. 10). The gallery officer called for assistance and told
his sergeant that Plaintiff had been seeking treatment for
two weeks. (Doc. 11, pp. 10-11). He said, "medical is
taking it to[o] far now whether he has filed suits or
not." (Doc. 11, p. 11). The sergeant then radioed for a
wheel chair. Id.
Tripp eventually arrived on the scene. Id. She did
not examine Plaintiff or ask him any questions. Id.
Instead, she told security staff "he crapped on himself.
I'm not touching him." Id. Other prisoners
helped Plaintiff into the wheelchair and security staff
wheeled Plaintiff to the HCU. Id. A nurse
practitioner treated Plaintiff. Id. The nurse
practitioner and other medical staff cleaned feces and urine
off of Plaintiff. Id. He was treated with muscle
relaxants and hot towels. Id. The nurse practitioner
expressed surprise when she learned Plaintiff had been denied
treatment for two or three weeks. Id. She indicated
that his medical records "speak volumes, " that his
symptoms are consistent with his diagnosed conditions and
that he could not be faking the symptoms. (Doc. 11, pp.
10-11). After Plaintiff was stabilized, the nurse
practitioner scheduled a follow-up appointment with Trost.
(Doc. 11, p. 12). Due to the severity of Plaintiff s
condition, she issued additional medical authorizations
regarding Plaintiffs cell, as well as shower and meal time
authorizations. Id. She also provided Plaintiff with
a six-month prescription for muscle relaxants (Robaxin) and
pain medication (Ultram). Id.
2017 to the Present - Tripp's Refusal to Dispense
Neurontin as Prescribed
has been prescribed the drug Neurontin, to be taken three
times a day. (Doc. 11, p. 16). If he doesn't take the
drug as prescribed, it is not effective and he is in severe
pain. Id. Unlike Ibuprofen, Plaintiff is not allowed
to keep Neurontin in his cell. Id. Instead, it must
be delivered by medical personnel as needed. On or about June
8, 2017, Tripp began refusing to provide Plaintiff with his
Neurontin prescription (with a single exception). When
Plaintiff confronted Tripp about repeated incidents of
forgetting his Neurontin prescription, she stated "I
didn't forget. I told you about writing grievances and
you didn't stop - you actually wrote more grievances. If
I have it my way you will never get your medication."
Id. Because of Tripp's conduct, Plaintiff has
been missing doses of Neurontin. Id.
Treatment from Trost
Trost referred Plaintiff to an outside specialist (Dr.
Miller) for a consultation regarding a hip replacement. (Doc.
" 1, p. 17). Plaintiff saw Dr. Miller on April 8, 2016.
Id. The prison did not receive Dr. Miller's
treatment plan until October 2016. Id. Dr.
Miller's treatment plan included the following
• Take 15 mg of Mobic, daily.
• Physical therapy stretching and mobilization of hips.
Plaintiff is not a very good candidate for any type of
because of his weight. In addition it would be difficult -
though not impossible - to recover from such a surgery while
Plaintiff is incarcerated.
• Plaintiff would be seen again by Dr. Miller if
referred by prison officials. However, if Plaintiff
experienced additional issues he should be seen for
11, pp. 17-18; Doc. 11-1, pp. 3-5). After Dr. Trost reviewed
the treatment plan, he made the following statement:
What the hell does he mean while you are incarcerated. You
have a life sentence, let me tell you flat out you have
severe hip disease coupled with hip dysplasia. You can barely
walk. Physical exercise therapy would only help you if you
had mild or moderate DJD in terms of stabilizing your hip and
hopefully preventing your DJD from advancing to severe. You
need replacement surgery. With your size it's not going
to be long before your hip starts slipping, catching and
spasming and you have not felt that kind of pain yet...
You'll start to shift more weight to your left side where
you also have DJD in your hip and knee which will cause you
to need both of your hips to be replaced. The records I
supplied Dr. Miller demonstrates you recently had edema so
severe that your calf all the way down to your toes were so
swollen that you could not even tie up your shoes. Thompson,
I'm not ordering physical therapy for you.
(Doc. 11, p. 18).
did not refer Plaintiff for physical therapy. (Doc. 11, pp.
18-19). Plaintiff believes that physical therapy would have
lessened his pain and would have helped him to lose weight.
(Doc. 11, p. 19). His condition has deteriorated as a result
of the lack of physical therapy. Id. Plaintiff has
experienced "slipping, catching, and popping."
Id. This is causing severe pain. Id.
Plaintiff has also fallen due to the issues with his hip.
Id. Plaintiff is experiencing severe spasms and, as
a result, has urinated and defecated on himself. Id.
January 2017,  after his emergency visit to the HCU,
Plaintiff saw Trost for a follow-up visit. Id.
Plaintiff explained his deteriorating condition. Id.
Trost responded, "Yes, I know. I told you this would
happen." Id. Plaintiff asked Trost why he
failed to refer Plaintiff for physical therapy, seek a second
opinion or send Plaintiff back to Dr. Miller. (Doc. 11, p.
20). Trost indicated that he did not want to look like a
"buffoon" by sending Plaintiff back to Dr. Miller
too soon. Id. He stated that he would send Plaintiff
back to Dr. Miller in April 2017- at the one year mark.