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Hotchkiss v. Pittayathikhan

United States District Court, S.D. Illinois

November 15, 2017

JAMES EUGENE HOTCHKISS, # B-81014, Plaintiff,


          Phil Gilbert, United States District Judge

         Plaintiff 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.[1]

         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

         Plaintiff's 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 is duplicative.

         Plaintiff's 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).

         Pittayathikhan 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, [2] for 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. Id.

         On 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.

         On 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. Id.

         In 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).

         On May 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).

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based 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 ...

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