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Gakuba v. Otey

United States District Court, S.D. Illinois

December 1, 2017

PETER GAKUBA, #M52946, Plaintiff,



         Plaintiff Peter Gakuba, an inmate who is currently incarcerated at East Moline Correctional Center, brings this action pursuant to 42 U.S.C. § 1983. (Doc. 1). According to the Complaint, Plaintiff was injured during court-ordered medical testing for sexually transmitted diseases (“STD”) at Robinson Correctional Center (“Robinson”) on September 15, 2015. (Doc. 1, p. 5). Instead of a urine test, the nursing staff used a swab test that allegedly perforated his urethra. Id. He was then denied medical treatment for the resulting injury. Id. Plaintiff names numerous known and unknown prison officials in connection with claims asserted under the Fourth, Eighth and Fourteenth Amendments as well as Illinois state law. (Doc. 1, pp. 5, 7-8). He seeks a declaratory judgment and monetary damages against the defendants.[1] (Doc. 1, p. 6).

         This case is now before the Court for a preliminary review of the Complaint 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.

Id. 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 in the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). The Complaint survives screening under this standard.

         The Complaint

         Around 3:30 a.m. on September 15, 2015, Plaintiff was awakened and ordered to go to Robinson's health care unit (“HCU”) for court-ordered STD testing. (Doc. 1 p. 5). There, he met with two unknown nurse practitioners (“Jane Doe ##1-2”) who drew his blood. Id. Nurse Doe #2 then inserted a long cotton swab into Plaintiff's penis, causing him intense pain. Id.

         Plaintiff strenuously objected to the procedure. (Doc. 1, p. 5). He insisted that a urine sample could have been used in lieu of the swab. Id. Because Nurse Doe #2 chose the more invasive procedure, Plaintiff suffered from pain, burning and stinging in his urethra that persisted long after the procedure was completed. Id. Hoping to alleviate the pain, Plaintiff tried urinating. Id. When he did so, he noticed that his urine was tinged with blood. Id.

         Plaintiff met with Lieutenant Brookhart and Major Rains later the same morning. (Doc. 1, p. 5). He complained of a suspected perforation to his urethra. Id. They instructed him to return immediately to the HCU for treatment. Id.

         When he did, Plaintiff was seen by two unknown nurses (“Jane Doe ##3- 4”) and a third nurse (“Jane Doe #5”) who he also refers to as “Nurse Kristie Otey.” (Doc. 1, p. 5). Nurse Doe #3 assured Plaintiff that bloody urine and acute burning were normal. Id. She recommended that he drink plenty of water. Id. Plaintiff did not agree with this recommendation. Id. He insisted that the procedure resulted in a perforation or laceration of his urethra and that the recommendation to drink more water-like the procedure itself-was “wrong.” Id.

         Plaintiff met with Lieutenant Brookhart again in October and/or November 2015 and pleaded for treatment. (Doc. 1, p. 5). During the meeting, Plaintiff produced a Ziploc bag full of bloody tissue that he had saved. Id. Lieutenant Brookhart told Plaintiff that DNA evidence must be preserved in a dry paper envelope. Id. The officer nevertheless sent him back to the HCU for further treatment. Id.

         In the HCU, Plaintiff was seen by Major Erickson and Nurse John Doe #1. (Doc. 1, p. 5). They conducted an external examination of his penis. Id. Nurse Jane Doe #6 stood observing. Id. Plaintiff insisted that he needed an immediate referral to an urologist for treatment of a suspected perforation or laceration to his urethra. Id. He was never referred to a specialist. Id.

         In November or December 2015, Plaintiff received a response to an emergency grievance he filed on the date of his injury. (Doc. 1, p. 5). The grievance was “dismissive of Gakuba's injury.” Id. His request for a referral to a specialist was also denied. Id.

         Plaintiff wrote to an unknown Washington bureaucrat (“John Doe #2”) to complain about the incident. (Doc. 1, p. 5). He described the medical procedure as a sexual assault that was performed in violation of the Prison Rape Elimination Act. Id. Plaintiff then asked John Doe #2 to visit him at Robinson during a planned tour of the facility. Id. John Doe #2 agreed to meet with Plaintiff and did so for approximately five minutes during his tour. Id. Plaintiff never heard from him again. Id.

         Plaintiff filed a complaint pursuant to the Prison Rape Elimination Act with Lieutenant Brookhart. (Doc. 1, p. 5). Sometime thereafter, John Doe ##3-7 conducted a shakedown of his cell. Id. During the shakedown, they seized his “preserved DNA corroborating evidence” (the Ziploc bag containing bloody tissue). Id.

         Plaintiff now claims that the swabbing procedure performed on September 15, 2015 caused him to suffer from acute burning, pain and stinging when urinating for weeks. (Doc. 1, p. 5). Years later, he still suffers from emotional distress and post-traumatic stress disorder. Id. He brings claims against the defendants under the Fourth, Eighth and Fourteenth Amendments, as well as Illinois state law. (Doc. 1, pp. 7-8).


         To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court has organized the claims in Plaintiff's pro se Complaint into the following enumerated counts:

Count 1 - Eighth Amendment excessive force claim against Nurse Jane Doe #2 for using a swab test instead or a urine test on Plaintiff on September 15, 2015.
Count 2 - Eighth Amendment claim against Nurse Jane Doe #1 for failing to intervene and stop Nurse Jane Doe #2 from using a swab test instead of a urine test on September 15, 2015.
Count 3 - Fourth Amendment claim against Nurses Jane Doe ##1-2 for carrying out court-ordered medical testing using an invasive swab test instead of a urine test on September 15, 2015.
Count 4 - Claim against Nurses Jane Doe ##1-2 under the Prison Rape Elimination Act for sexually assaulting Plaintiff by using a swab test on ...

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