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Mays v. Santos

United States District Court, S.D. Illinois

March 21, 2018

TIBERIUS MAYS, # N-92625, Plaintiff,
v.
VENERIO BENERRO SANTOS, VIPEN SHAH, ROBERT MUELLER, STEPHANIE WAGGONER, LISA KREB/KREBS, [1] KEVIN KINK, AARON SINGLER, R. WEGMAN, LISA PRATHER, MICKEY WALTON, APRIL WAMPLER, RYAN ERICKSON, DAVID RAINS, MICHELLE NEESE, JOHN DOE Head of Wexford Health, ROGERICK MATTICKS, MELISSA PHOENIX, PHILIP MARTIN, DR. RITZ, ANN LEHR, PAUL RUPERT, LESLIE McCARTY, and TERRI ANDERSON, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN CHIEF JUDGE

         Plaintiff, currently incarcerated at Robinson Correctional Center (“Robinson”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Most of Plaintiff's claims arose while he was incarcerated at Centralia Correctional Center (“Centralia”); these include deliberate indifference to Plaintiff's serious medical conditions, retaliation, and receiving false disciplinary reports. Plaintiff also raises medical deliberate indifference and retaliation claims based on events after his 2017 transfer to Robinson. This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A. Additionally, the Court must consider whether all of Plaintiff's claims may appropriately proceed together in the same action.

         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. Further, the Court shall exercise its discretion to sever unrelated claims into two separate cases.

         The Complaint

         By way of background, Plaintiff explains that in April 2014, while he was at Lawrence Correctional Center (“Lawrence”), he underwent nasal surgery at an outside hospital, and returned to that facility for 2 follow-up visits for “nasal cleaning.” (Doc. 1, p. 6). However, in February 2015, an official at Wexford Health Sources denied authorization for Plaintiff to return for a 6-month follow-up. Id. Plaintiff alleges that he continues to suffer from chronic nasal polyps which impair his ability to breathe, interfere with his sense of smell, cause pain and dizziness when he blows his nose, and cause nosebleeds. He also gets a sore throat and sometimes chokes from breathing through his mouth. (Doc. 1, p. 9). In addition, Plaintiff suffers from asthma and severe lower back pain.

         A. Medical Issues at Centralia

         Plaintiff was incarcerated at Centralia from August 19, 2015, until February 8, 2017. (Doc. 1, pp. 6, 16). He details numerous visits to doctors and other health care professionals during this time. On August 23, 2015, soon after Plaintiff's arrival at Centralia, he requested Dr. Santos to issue him a low-bunk permit and waist-chain cuff permit to alleviate his back condition, and distilled water and a sinus nasal kit for his nasal issues. (Doc. 1, p. 6). Santos did not examine Plaintiff's nose, did not order the sinus kit or distilled water, and changed most of Plaintiff's medications to one-month prescriptions. At Lawrence, those prescriptions had been authorized for multiple months. Plaintiff had to seek medical attention 6 days later (on August 29, 2015) for his enlarged nasal polyps. He returned again on August 31, 2015, for a saline rinse and to renew the waist-chain permit, which were issued by Dr. Garcia (who is not named as a Defendant). For each visit, Plaintiff was charged a $5.00 co-payment. (Doc. 1, pp. 6-7).

         On September 21, 2015, Plaintiff visited sick call to renew his medications, after Dr. Santos' short-term prescription had expired. Plaintiff filed grievances over the $5.00 charge for this and other visits, objecting on the basis that he should not be charged a co-payment when he needed care for a chronic medical condition. Plaintiff also requested to be placed on the “general medicine clinic” for his conditions, which would exempt him from the co-payment. Warden Mueller denied this request and the co-payment grievance. Health Care Administrator Krebs also responded, referencing Dr. Santos' discretion to make treatment decisions. (Doc. 1, p. 7).

         Plaintiff sought treatment for his nasal condition through sick call and saw Dr. Santos several more times in late 2015. He filed complaints against Santos and Krebs over the refusal to classify his condition as “chronic” and the shortened duration of his prescriptions, which caused Plaintiff to incur more co-pay obligations.[2] (Doc. 1 pp. 7-8). He also requested to be sent to an outside specialist for his nasal polyps and low back pain.[3] On some occasions, Plaintiff refused to sign the co-pay voucher and did not receive care. Mueller denied his grievances. While Santos told Plaintiff that his nasal polyps were “chronic, ” he still refused to place Plaintiff on the general medicine clinic in order to stop the $5.00 co-payment charges. Krebs informed Plaintiff that his nasal polyps were not “chronic” under IDOC guidelines. (Doc. 1, pp. 8-9).

         In February 2016, Plaintiff consulted Santos for his lower back pain. Plaintiff was on pain medication and had a low bunk permit, but Santos refused to order physical therapy or a different mattress. (Doc. 1, p. 15). Plaintiff had reported in October 2015 that he was experiencing numbness in his feet and legs while walking, and had “clicking” in his lower back when he sits, along with back pain. (Doc. 1, p. 7).

         In March 2016, Santos refused to refer Plaintiff for an outside consultation for the nasal polyps, even though Dr. Garcia recommended such a referral and Plaintiff was having trouble breathing due to the polyps and chronic congestion. (Doc. 1, pp. 9, 15). In January and March 2016, Plaintiff filed grievances against Santos, and in March 2016, he complained to the Illinois Department of Financial and Professional Regulations about Santos and Krebs. (Doc. 1, p. 10; Doc. 1-1, pp. 9-11). In May 2016, Santos again refused to refer Plaintiff to an outside specialist.

         From March through May 2016, Plaintiff had several visits seeking treatment for the pain, blockage, and difficulty breathing caused by the polyps. (Doc. 1, p. 15). On May 23, 2016, Santos refused to order prednisone and accused Plaintiff of “shopping, ” despite Plaintiff's report that he could not smell, and had severe dizziness and bleeding when he blew his nose. Id. Plaintiff filed a grievance against Santos, which was denied by Prather (IDOC Regional Coordinator) and Phoenix (of the Administrative Review Board). (Doc. 1, p. 16).

         Plaintiff claims that Santos “deliberately” refused and delayed necessary medical attention from an outside specialist for his nasal polyps and chronic back pain. (Doc. 1, p. 10).

         On December 5, 2016, Plaintiff requested a colonoscopy and an outside referral for a prostate test for cancer, both of which were denied, apparently by Santos. Krebs informed Plaintiff that Santos must approve all treatment, medications, and tests. (Doc. 1, p. 13; Doc. 1-2, p. 18). Plaintiff filed another grievance on December 21, 2016, requesting that his medications for the nasal polyps and back pain be issued for a 6-month period; the grievance was denied. Id.

         B. Complaints against Singler - Centralia

         Plaintiff alleges that in July 2016, [4] Singler (a temporary law librarian) issued Plaintiff a disciplinary ticket for unauthorized movement, after Plaintiff complained about Singler forcing him to pay for copies of case law before Plaintiff could read the material. (Doc. 1, p. 10). Plaintiff asserts that Singler's ticket was false and issued in retaliation for Plaintiff's complaint, and violated his right to due process. Rupert (who conducted the disciplinary hearing) ignored Plaintiff's written statement explaining his “not guilty” response to the charge, and incorrectly stated that Plaintiff had pled guilty. (Doc. 1, pp. 11, 19, 22; Doc. 1-1, pp. 12-16; Doc. 1-2, pp. 8-11). Plaintiff's grievance over the disciplinary action led Mueller to remand the matter.

         Plaintiff later filed another grievance against Singler for refusing him library time when he had a court deadline. On August 17, 2016, Singler issued Plaintiff an allegedly false disciplinary ticket for insolence, which Plaintiff claims was an act of retaliation for his complaints. (Doc. 1, p. 11; Doc. 1-1, pp. 17, 20-21; Doc. 1-2, pp. 12-13). Plaintiff challenged that ticket, and also complained that he should not have to buy typewriter ribbons for the law library typewriters. (Doc. 1, p. 11). Singler's alleged retaliation continued and included changing Plaintiff's law library times and losing his court papers. (Doc. 1, pp. 11-12).

         C. PREA Complaint against Bailey - Centralia

         Plaintiff alleges that C/O Bailey #7429 issued Plaintiff a disciplinary ticket on September 30, 2016, which was quickly expunged. (Doc. 1, p. 12). Plaintiff does not list C/O Bailey among the Defendants. (Doc. 1, pp. 2-4). On October 5, 2016, just days after the disciplinary ticket incident, Bailey “committed a PREA[5] violation” by opening Plaintiff's cell door to allow others to view Plaintiff while he was naked, and by staring at Plaintiff's penis. (Doc. 1, p. 12). Plaintiff pursued a PREA complaint, and on October 6, 2016, he was moved by Major Philips (who is not a Defendant) to the “receiving unit.” (Doc. 1, pp. 12-13). While there, Plaintiff's access to out-of-cell activities including yard was more restricted. (Doc. 1, p. 13). Plaintiff alleges that Kink (Warden for Operations) “allow[ed] the retaliatory cell move” to the receiving unit because Plaintiff filed the PREA complaint. (Doc. 1, p. 21). The investigation found that Plaintiff's PREA claim was unsubstantiated; Warden Mueller notified Plaintiff of this outcome in a memo dated October 13, 2016. (Doc. 1, p. 12; Doc. 1-2, p. 14). Kink and Mueller kept Plaintiff in the receiving unit until December 9, 2016, despite Plaintiff's “numerous talks” with them about his placement. (Doc. 1, p. 13).

         D. PREA Complaint against Dr. Santos - Centralia

         After Santos denied Plaintiff's December 5, 2016, request for an outside referral for a prostate cancer test, and following Plaintiff's December 21, 2016, grievance, Plaintiff visited Dr. Santos on December 27, 2016, for a physical. Santos told Plaintiff he was too sick for a physical, but asked if Plaintiff wanted a rectal exam for prostate cancer. (Doc. 1, p. 14). Santos then put his fist in the air, saying, “I do it like this.” Id. Plaintiff responded, “No, a finger.” Id.

         Santos said again, “No, I do it like this, ” while shaking his fist in the air, demonstrating that he would put his fist into Plaintiff's rectum. (Doc. 1, p. 14). Plaintiff claims this is an “offensive and obscene gesture” called “fisting, ” which is a homosexual practice. Id. Plaintiff immediately filed a PREA complaint with Krebs, detailing Santos' behavior, but Krebs did not report this letter to any other prison authorities.

         On December 30, 2016, Plaintiff went to see Santos again. Santos was very agitated and refused to give Plaintiff a physical. (Doc. 1, p. 14).

         On January 2, 2017, Plaintiff called the PREA number to report Santos' behavior. He met with internal affairs officers on January 3, 2017, and gave them a letter about the incident, which included a complaint against Krebs for failure to report the PREA violation.

         On February 8, 2017, Plaintiff was transferred to Robinson, before he received any response to the PREA complaint. Plaintiff did not request the transfer, and believes Santos, Mueller, Waggoner, Kink, and Krebs were all involved in instigating the move in retaliation for his PREA complaint against Santos and for his many grievances over medical and other issues. (Doc. 1, pp. 14, 20-21). Plaintiff's new housing situation at Robinson offered him much less privacy than he had at Centralia, the conditions were not clean, and the dry air irritated his throat. (Doc. 1, p. 14).

         E. Medical Issues at Robinson

         On February 14, 2017, Plaintiff saw Health Care Administrator Martin about his need for prednisone for the nasal polyps, but Martin was arrogant and would not allow Plaintiff to speak. (Doc. 1, p. 16).

         Plaintiff consulted Dr. Shah in February and March 2017 and requested “collegial review” for an outside specialist evaluation for his nasal polyps. Shah and Dr. Ritz denied the referral. (Doc. 1, p. 16). Shah did order prednisone and a nasal rinse kit for 3 months, but he later reduced Plaintiff's dosage of prednisone. (Doc. 1, pp. 16-17). Plaintiff filed grievances over Shah's treatment, claiming his nasal polyps were getting progressively worse. Martin, Erickson (Clinical Service Supervisor), Walton (Counselor), Wampler (Casework Supervisor), and Warden Rains denied his grievances and failed to intervene to correct Shah's improper treatment. (Doc. 1, pp. 17, 19, 22). Administrative Review Board members Lehr, Phoenix, McCarty, and Anderson denied plaintiff's numerous grievances over medical treatment and retaliation. (Doc. 1, pp. 19, 22).

         In June 2017, Shah requested collegial review for an outside consultation, but Ritz (for Wexford Health Sources) denied the request. On August 11, 2017, Plaintiff wrote a letter to Rains and Neese (Warden for Programs, over the Health Care Unit) detailing his inadequate medical care; this letter was also mailed to Dr. Steve Meeks, the IDOC Chief Medical Director (Meeks is not a Defendant). (Doc. 1, p. 17). Meeks overruled Ritz's denial of the outside consultation, and Plaintiff had a CAT scan with an ear, nose, and throat specialist on August 29, 2017. (Doc. 1, pp. 17-18).

         Plaintiff had endoscopic nasal surgery for the polyps on January 5, 2018, at Carle Hospital. (Doc. 1, p. 17). On January 9, 2018, Shah terminated Plaintiff's Tylenol-3 and reduced his nasal rinses. Plaintiff claims these actions were premature and in retaliation for Plaintiff's grievances against Shah. (Doc. 1, pp. 18, 20).

         Plaintiff asserts that Wexford Health Sources (which is not included among the Defendants) maintains policies and customs that incentivize its employees to provide inadequate treatment in order to cut costs. (Doc. 1, pp. 18-19, 23).

         Plaintiff seeks monetary damages for the violations of his rights. (Doc. 1, p. 23).

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

         Based on the allegations of the Complaint, the Court finds it convenient to divide the prose action into the following 10 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 ...


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