United States District Court, C.D. Illinois
MERIT REVIEW ORDER
BILLY McDADE UNITED STATES DISTRICT JUDGE
proceeding pro se, asserts an action under 42 U.S.C. §
1983 alleging deliberate indifference to his serious medical
need at the Danville Correctional Center
(“Danville”). The case is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. In reviewing
the Complaint, the Court accepts the factual allegations as
true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir.
2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a
claim for relief that is plausible on its face.”
Alexander v. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
While the pleading standard does not require “detailed
factual allegations”, it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
alleges that on January 30, 2017, he was in the gym when
another inmate dropped a weight on his head. Plaintiff claims
that he felt dizzy and that his left hand, “locked
up” and would not move. Plaintiff was taken to the
healthcare unit where he was given ibuprofen for pain.
Plaintiff went to the healthcare unit on five dates in
February 2017 and one date each in March, April and May,
complaining of headaches and the inability to use his left
“several weeks of complaining, ” Plaintiff was
sent to an outside hospital. There it was determined that he
had swelling of the brain, which had allegedly caused
“nerve damage to the left side of his body”.
Plaintiff thereafter underwent outside physical therapy for
an undisclosed period. He claims that, despite the
therapist's recommendations, he was not referred to a
neurologist and did not receive physical therapy back at
alleges that Defendants, Dr. Young and Nursing Director
Wilson refused to send him for an outside neurology
consultation. He alleges that, though he was scheduled to
receive follow-up therapy, Defendant Nurses Rena, Keri and
Tatman refused to provide it, claiming that he could do the
exercises in his cell.
well established that deliberate indifference to the serious
medical needs of prisoners violates the Eighth Amendment.
Snipes v DeTella, 95 F.3d 586, 590 (7th Cir 1996),
citing Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct.
285 (1976). A claim does not rise to the level of an Eighth
Amendment issue, however, unless the punishment is
“deliberate or otherwise reckless in the criminal law
sense, which means that the defendant must have committed an
act so dangerous that his knowledge of the risk can be
inferred or that the defendant actually knew of an impending
harm easily preventable.” Antonelli v.
Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996).
noted, Plaintiff claims that Defendants Young and Wilson
refused to refer him to a neurologist, as recommended by his
physical therapist. It is unclear whether a physician's
or nursing director's failure to follow the
recommendation of a physical therapist will sustain a claim
of deliberate indifference. However, as the Court must review
the allegations in the light most favorable to the Plaintiff,
it will allow this claim to proceed. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Bell
Atlantic Corp. v. Twombly 550 U.S. 544, 584 (2007). It
will also allow the deliberate indifference claim to proceed
against Nurses Rena, Keri and Tatman for allegedly refusing
to provide the prescribed physical therapy.
alleges against Warden Calloway that he filed an emergency
grievance with the Warden who failed to take any action.
Section 1983, however, limits liability to public employees
“for their own misdeeds, and not for anyone
else's.” Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir.2009). Prison administrators are entitled to
relegate to others the primary responsibility for specific
prison functions without becoming vicariously liable for the
failings of their subordinates. Id. Likewise, those
who review administrative decisions of others, are not liable
either. Id.; *579 George v. Smith, 507 F.3d
605, 609-10 (7th Cir.2007) (“Ruling against a prisoner
on an administrative complaint does not cause or contribute
to the [constitutional] violation.”); Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir.2006). Plaintiff
fails to state a claim against Warden Calloway and he is
DISMISSED. This case shall proceed on the deliberate
indifference claims against Defendants Dr. Young; Nursing
Director Wilson; and Nurses Rena, Keri and Tatman.
makes an additional claim of negligence or malpractice under
Illinois state law. This claim is DISMISSED, however, for
failure to provide a Certificate of Merit as required under
735 ILCS 5/2-622(a). “Section 2-622 provides, in part:
[where] “plaintiff seeks damages for injuries or death
by reason of medical malpractice, hospital, or other healing
art malpractice ... [the plaintiff] shall file an
affidavit' from a medical professional indicating that
the case has merit. 735 ILCS 5/2-622. Failure to file an
affidavit pursuant to § 2-622 is cause for dismissal
under 735 ILCS 5/2-619 pursuant to 735 ILCS 5/2-622”.
Chapman v. Chandra, No. 06-0651, 2007 WL 1655799, at
*2 (S.D. Ill. June 5, 2007). “The United States Court
of Appeals for the Seventh Circuit has implicitly held that
§ 2-622 is a substantive law that should apply to
medical malpractice claims brought in federal courts.”
Id. at *3. Plaintiff will have leave, however, to
replead this claim within 90 days, attaching a certificate of
IS THEREFORE ORDERED:
case shall proceed solely on the deliberate indifference
claims against Defendants Young, Wilson, Rena, Keri and
Tatman, identified herein. Any claims not identified will not
be included in the case, except in the Court's discretion
upon motion by a party for good cause shown, or by leave of
court pursuant to Federal Rule of Civil Procedure 15.
Defendant Calloway is DISMISSED.
plaintiff wishes to pursue his state law negligence claim, he
must file an amended complaint and provide the required
Certificate of Merit within ninety (90) days. The amended
complaint will replace the original complaint in its entirety
and, therefore, it should contain all claims against all
Plaintiff files , a motion for recruitment of pro bono
counsel but does not indicate that he attempted to secure
counsel on his own. Pruitt v. Mote, 503 F.3d 647,
654-55 (7th Cir. 2007).  is DENIED at this time. In the
event that Plaintiff renews his motion for appointment of
counsel, he is to provide copies of the letters sent to, and
received from, prospective counsel.
Plaintiff files  requesting injunctive relief compelling
Defendants to send him to a neurologist. The Seventh Circuit
has repeatedly stated that a preliminary injunction is an
exercise of a very far-reaching power, never to be indulged
in except in a case clearly demanding it. Girl Scouts of
Manitou Council, Inc. v. Girl Scouts of U.S.A., Inc.,
549 F.3d 1079, 1085 (7th Cir. 2008). A party seeking the
injunction has the burden to prove that he will suffer
irreparable harm during the time prior to final resolution of
his claims, the inadequacy of legal remedies available, and
some likelihood of success on the merits. Ty, Inc. v.
Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). At
this point Plaintiff cannot not establish some likelihood ...