United States District Court, S.D. Illinois
JAMES A. NICHOLS, # 12793-026, Plaintiff,
MARK S. INCH, WARDEN B. TRUE, MANDIE BAGWELL, R. PASS, and CALEB MEYERS, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT, UNITED STATES DISTRICT JUDGE
an inmate in the United States Penitentiary in Marion, brings
this action for alleged violations of his constitutional
rights by persons acting under the color of federal
authority. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). He alleges that Defendants were
deliberately indifferent to a serious medical need. 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 plaintiffs 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 Plaintiffs
claims survive threshold review under § 1915 A.
sustained an injury to his right ankle at some unspecified
time. He asserts that he is suffering from severe and
constant pain in that leg, which has become infected. (Doc.
1, pp. 5-6). According to the Complaint, Plaintiff has sought
medical care and complained to prison officials about his
pain and limited mobility from the ankle condition, but his
requests have been ignored. (Doc. 1, pp. 6-7).
Complaint contains few specific facts regarding Plaintiffs
injury or his efforts to obtain care. Plaintiffs attached
exhibits provide some additional detail. On May 29, 2017,
Plaintiff submitted an "Administrative Remedy - Informal
Resolution, " which stated that since 2015, he had made
several requests for treatment, had been to sick call
numerous times, and had written to Dr. Pass (Medical
Director) about the pain in his ankle. (Doc. 1, p. 11).
Plaintiff requested "bone fusion surgery" to treat
the pain and restore his ability to walk normally.
Id. The counselor responded that based on Plaintiffs
history of "significant infection with previous surgery
to that ankle, " surgery posed a high risk and was
"not clinically indicated." (Doc. 1, p. 12).
Instead, Plaintiff was evaluated by the physical therapist to
determine a program of therapy to help with the pain.
20, 2017, Plaintiff filed his BP-9 request for review by
Warden True. (Doc. 1, pp. 5-6, 13). Plaintiff stated that he
was in severe, unbearable pain. (Doc. 1, p. 13). He asked for
a referral to an orthopedic surgeon and to physical therapy
to see what could be done to remedy the pain and help him
walk more normally. He said that if he loses his footing he
falls because he cannot maintain his balance. On June 28,
2017, True responded, noting that Plaintiffs records showed
he had an outside physical therapy consultation on November
28, 2016. The therapist diagnosed him with a "Plantar
Flexion contracture, " discussed a program of home
exercises, and gave him a "Swedo ankle support."
(Doc. 1, p. 15). On June 20, 2017, Plaintiff was re-evaluated
and approved to receive an orthopedic consult, for which a
date had yet to be set.
10, 2017, Plaintiff further appealed, noting that the Swedo
ankle support did not stop his pain, and claiming that
"home exercise" could not start until after he is
released from prison. The pain was preventing him from
sleeping. (Doc. 1, p. 16). Plaintiff noted that he had not
been re-evaluated by the outside therapist, but instead saw
the physician assistant ("PA") at Marion. (Doc.
1, p. 17). The PA noted swelling of the ankle, but failed to
provide Plaintiff with any medication to relieve his pain,
and told Plaintiff the pain was his own fault. In addition,
Plaintiff had already waited nearly 2 months for the
orthopedic consultation, without any treatment to address his
severe pain. Id. The August 11, 2017, response from
the Regional Director noted that an appointment had been set
for Plaintiff to see the orthopedic surgeon, but the date
could not be disclosed to him for security reasons. (Doc. 1,
p. 18). It also stated that Plaintiff was currently
prescribed naproxen for pain management, and that he would be
given a treatment plan after the orthopedic consultation.
next appeal, dated August 31, 2017, noted that the naproxen
had failed to relieve his pain, and medical providers had
ignored his requests for more effective medication. His pain
level was a "constant 10, " and PA Meyers responded
flippantly rather than take any steps to help Plaintiff with
the pain. (Doc. 1, p. 19). Plaintiff expressed concern that
he would be allowed to continue suffering until his expected
November 2017 release. (Doc. 1, p. 20). On September 28,
2017, this appeal was denied. (Doc. 1, pp. 21-22). The
National Inmate Appeals Administrator's response noted
that Plaintiff had his orthopedic specialist evaluation on
September 21, 2017, and prison officials were awaiting that
doctor's report in order to develop a plan for Plaintiff
s care. (Doc. 1, pp. 21-22).
narrative portion of the Complaint, Plaintiff claims that
Inch (Director of the Bureau of Prisons), acting in his
official capacity, denied Plaintiffs appeal over the delay
and denial of medical care. (Doc. 1, p. 5). Warden True
likewise denied Plaintiffs request for administrative remedy,
thus depriving him of adequate care and causing further
damage to his ankle. (Doc. 1, pp. 5-6).
(Marion Health Service Administrator) has allegedly ignored
all of Plaintiffs requests for immediate medical care to
prevent further injury to his ankle, and the resulting delay
has caused further injury, including a severe infection.
(Doc. 1, p. 6). Plaintiff has suffered from continual pain
and limited mobility.
Pass allegedly delayed scheduling Plaintiff for a
re-evaluation for more than 6 months after discovering
Plaintiffs injury, despite Plaintiffs "constant
complaints" and requests for further evaluation of his
ankle. (Doc. 1, p. 7). During this delay, Plaintiff suffered
the additional injury of an infection, which has made it very
difficult for him to walk.
Meyers failed to provide Plaintiff with medical care, and his
delay in care resulted in Plaintiff developing an infection
and impairment of mobility, which "now ...