United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Gilbert, United States District Judge
was incarcerated at Shawnee Correctional Center
(“Shawnee”) at the time he brought this pro
se civil rights action pursuant to 42 U.S.C. §
1983. He has since been released from custody. (Docs. 8, 9).
Plaintiff claims that Defendant was deliberately indifferent
to a serious medical condition. This case is now before the
Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A.
§ 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).
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).
these standards, the Court finds that some of Plaintiff's
claims survive threshold review under § 1915A.
Complaint consists of a court-provided form (Doc. 1), another
document entitled “Briefing for
Petition/Complaint” (Doc. 1-1), and another labeled
“Petition and/or Complaint” (Doc. 1-2). The
factual allegations supporting his claims are contained in
Docs. 1-1 and 1-2; much of the content of those 2 documents
medical deliberate indifference claims are based on events
between November 14, 2016, and approximately June 5, 2017.
(Doc. 1, p. 5; Doc. 1-2, pp. 1-2). He sought medical
attention for red spots which appeared to be a rash on both
feet and ankles. On November 17, 2016, Pittayathikhan (a
nurse practitioner) prescribed a 1% silver sulfadiazine cream
for Plaintiff to apply to the affected area for 30 days.
(Doc. 1-1, p. 2; Doc. 1-2, pp. 1-3). Plaintiff was called to
the medical unit to receive the medication each day from
November 17 to November 30, 2016. Despite this treatment, the
spots continued to spread up his legs to above his knees.
(Doc. 1-2, pp. 3, 6). Plaintiff noticed that the medication
label stated it was used for burns; as Plaintiff did not have
a burn, he claims that Pittayathikhan wrongly prescribed this
medication. (Doc. 1-1, pp. 1-3; Doc. 1-2, p. 4). Plaintiff
had formerly suffered ulcers on the same areas of his feet
and speculates the spots could have been related to that
condition. (Doc. 1-2, pp. 4-6).
discontinued the silver sulfadiazine. (Doc. 1-1, p. 2). She
ordered a blood test for Plaintiff, performed on December 3,
2016. (Doc. 1-1, p. 3; Doc. 1-2, p. 7). She then ordered a
biopsy, performed on either December 13 or December 23, 2016,
which the results were expected to take 14 days. (Doc. 1-1,
pp. 3-4; Doc. 1-2, pp. 7-8). Meanwhile, Plaintiff had not
been given any other medication since November 30, 2016.
(Doc. 1-2, p. 8). On December 27, 2016, Plaintiff asked for
some cream to put on the rash, but received nothing.
January 13, 2017, Pittayathikhan told Plaintiff that the
biopsy results showed the rash was caused by an allergic
reaction to something. (Doc. 1-1, p. 4). Five days later,
Pittayathikhan gave Plaintiff Triamcinolone Acetonide 0.1%
cream to use for 2 weeks, and hydrocortisone to use for 1
month. Id.; (Doc. 1-2, p. 9). The Triamcinolone
helped Plaintiff's condition to some extent, but it ran
out after 1 week. (Doc. 1-1, pp. 4, 6; Doc. 1-2, pp. 10-11,
13). Instead of issuing Plaintiff a refill, Pittayathikhan
told him to start using the hydrocortisone. (Doc. 1-1, p. 6;
Doc. 1-2, p. 10). On January 27, 2017, Plaintiff asked for a
referral to another provider because the problem had not
improved. (Doc. 1-1, p. 4). Pittayathikhan told him she was
ordering a stronger medication, but in the meantime he should
use Fluocinonide cream and Vitamin A & D ointment. (Doc.
1-1, pp. 6-7; Doc. 1-2, pp. 11-12). That treatment, which
Plaintiff tried for 8 days, was ineffective, and the rash
continued to spread. Id.
February 8, 2017, Plaintiff had another blood test ordered by
Pittayathikhan. (Doc. 1-1, p. 5; Doc. 1-2, p. 12). As a
result, she prescribed thyroid medication (Levothyroxine 25
mg) for Plaintiff on February 14, 2017. (Doc. 1-2, p. 13).
Plaintiff complains that the thyroid condition should have
been detected with the blood test on December 3, 2016, and
Pittayathikhan should have ordered another blood test and/or
prescribed medication sooner. (Doc. 1-1, p. 5; Doc. 1-2, pp.
12-13, 26). Later on in May 2017, Plaintiff had another blood
test and saw Dr. David for follow-up treatment of his thyroid
condition. (Doc. 1-1, p. 8; Doc. 1-2, p. 28). The doctor
increased the dosage of Plaintiff's thyroid medication.
early or mid-February, Pittayathikhan tried another
medication for the rash (Triamcinolone 15 gm 0.1% ointment),
which Plaintiff used for 3 days without any improvement.
(Doc. 1-1, p. 7; Doc. 1-2, p. 13). Then on approximately
February 17, 2017, she put Plaintiff back on the
“correct” medication (Triamcinolone Acetonide
0.1% cream). (Doc. 1-2, pp. 13-14). Plaintiff's supply
lasted until about March 17, 2017, when he notified
Pittayathikhan that he was out. (Doc. 1-2, p. 14). During the
time he was on this medication, he ran out several times and
had to go without it until Pittayathikhan issued him a
refill. Each time the treatment was interrupted, the rash
worsened. (Doc. 1-2, pp. 15-16, 22). It eventually spread all
over his body, including his legs, arms, and face. (Doc. 1-2,
p. 36). He complains that Pittayathikhan failed to call him
back to assess the effectiveness of the treatment over a
period of months, and asserts that the entire course of her
ineffective treatment of his rash violated his rights. (Doc.
1-2, pp. 16, 34, 36).
5, 2017, Plaintiff decided to investigate the possible cause
of his allergic reaction. He changed brands of soap and
shampoo several times with no effect on the rash. (Doc. 1-1,
p. 9; Doc. 1-2, p. 32). When he changed his laundry
detergent, he found that his spots/rash went away. He charges
Pittayathikhan with deliberate indifference for failing to
investigate or diagnose the cause of the allergic reaction,
and instead using a course of treatment that was not
effective. (Doc. 1-1, pp. 9, 11; Doc. 1-2, p. 33). He wants
compensation for his pain, suffering, and the permanent scars
that resulted from the rash. (Doc. 1, pp. 7-8, 13, 15; Doc.
1-2, pp. 36, 38).
Review Pursuant to 28 U.S.C. § 1915A
on the allegations of the Complaint, the Court finds it
convenient to divide the pro se action into
the following counts. The parties and the Court will use
these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as
to their merit. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be
considered dismissed without prejudice.
Count 1: Eighth Amendment deliberate
indifference claim against Pittayathikhan, for discontinuing
medication (Triamcinolone Acetonide 0.1% cream) that gave
some relief for Plaintiff's rash, failing to provide
timely refills of that medication after it was re-prescribed,
and failing to examine Plaintiff on a regular basis to
evaluate the effectiveness of the rash treatment over the
course of several months;
Count 2: Eighth Amendment deliberate
indifference claim against Pittayathikhan, for failing to
properly diagnose the cause of Plaintiff's rash,
persisting in using ineffective medications to treat it, and
failing to discover or attempt to ...