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Nichols v. Inch

United States District Court, S.D. Illinois

January 10, 2018

JAMES A. NICHOLS, # 12793-026, Plaintiff,



         Plaintiff, 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.

         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 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).

         Applying these standards, the Court finds that some of Plaintiffs claims survive threshold review under § 1915 A.

         The Complaint

         Plaintiff 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).

         The 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.

         On June 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.

         On July 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")[1] 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.

         Plaintiffs 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).

         In the 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.[2] (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).

         Bagwell (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.

         Dr. 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.

         PA 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 ...

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