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Thompson v. Thompson

United States District Court, S.D. Illinois

October 30, 2017

DENNIS THOMPSON, No. B-67474, Plaintiff,
v.
MISTY THOMPSON, NURSE TRIPP, JANE DOE, C/O HOFFMAN JACQUELINE LASHBROOK, JOHN TROST, and BRETT MILLER, Defendants.

          MEMORANDUM AND ORDER

          Staci M. Yandle United States District Judge.

         Plaintiff 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 injunctive relief.

         This 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 such relief.

         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 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. 2009).

         Procedural Background and Pending Motions

         Plaintiff 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. (Doc. 9).

         On October 30, 2017, the Court granted the Motion for Leave to File a Second Amended Complaint. (Doc. 10).

         Accordingly, 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. 11).

         THE SECOND AMENDED COMPLAINT

         Background

         Plaintiff 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.

         Plaintiff 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).[1] 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. IDOC").

         February 29, 2016- Thompson Refuses to Provide Ibuprofen

         Because 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. Id.

         On 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.

         Harassment by Thompson

         Thompson 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." Id.

         In 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?). Id.

         November and December 2016 - Delay and/or Denial of Medical Care

         In 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. Id.

         In the 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 medication. Id.

         At one 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." Id.

         When 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." Id.

         Plaintiff 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.

         Nurse 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.

         June 2017 to the Present - Tripp's Refusal to Dispense Neurontin as Prescribed

         Plaintiff 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.

         Medical Treatment from Trost

         Dr. 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 recommendations:

• 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 follow-up.

         (Doc. 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).

         Trost 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.

         In January 2017, [2] 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. Id ...


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