McDonald v. Sally

          MERIT REVIEW ORDER

          JAMES E. SHADID UNITED STATES DISTRICT JUDGE

         This cause is before the Court for consideration of Plaintiff's second motion for leave to amend his complaint. [9].

         Plaintiff, a pro se prisoner, filed his original complaint on October 10, 2017. [1] One month later, Plaintiff filed a motion for leave to amend his complaint. [6]. However, Plaintiff's amended complaint was later dismissed for failure to state a claim upon which relief could be granted. See December 1, 2017 Merit Review Order.

         Plaintiff's amended complaint alleged Defendants Nurse Sally and Nurse Susan violated his constitutional rights at the Peoria County Jail in July of 2017 when he had his ears “flushed out.” (Comp, p. 5). Defendant Sally first examined Plaintiff's ears and gave him eardrops to soften the wax and make it easier to clean out his ears. Plaintiff returned five days later. Nurse Susan admitted she had never flushed anyone's ears out, and Plaintiff claimed when she started to work on his right ear “she rammed the tube up my ear, whether it was accidental or not, the pain was unbearable…” (Comp., p. 5-6). Defendant Susan apologized several times, but Plaintiff alleged he continued to suffer in pain and could not hear out of his right ear. Plaintiff further claimed he was not given any pain medication.

         Plaintiff finally alleged he filled out sick call requests, but due to “negligence” he was not called to the medical department. (Comp, p. 6). Plaintiff ultimately saw a doctor and a nurse practioner who both ordered additional eardrops. Plaintiff did not provide the date of this visit, and he did not state whether he was diagnosed with any specific injury or ailment. Nonetheless, Plaintiff claimed he still could not hear out of his right ear and therefore, he asked for 30 million dollars in damages.

         The Court explained Plaintiff could not proceed with an Eighth Amendment claim based on inadequate or inappropriate medical treatment due to negligence. See Shockley v Jones, 823 F.3d 1068, 1072 (7th Cir. 1987); Sellers v. Henman, 41 F.3d 1100, 1102-03 (7th Cir.1994). In addition, if Plaintiff intended to state a claim based on medical malpractice, his complaint was insufficient. See 735 Ill. Comp. Stat. § 5/2-622(a). Nonetheless, it was possible Plaintiff might be able to articulate an Eighth Amendment claim based on the denial of pain medication. However, Plaintiff's complaint did not provide an adequate factual basis for this allegation. Plaintiff was given additional time and directions to file a second amended complaint clarifying his claim. See December 1, 2017 Merit Review Order.

         Plaintiff has now filed his proposed amended complaint which has been filed as a motion for leave to amend. [9]. The motion is granted pursuant to Federal Rule of Civil Procedure 15. [9].

         The Court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff's second amended complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A.

         Plaintiff again identifies Nurse Susan and Nurse Sally as Defendants. Plaintiff says he has included Nurse Sally because she was the supervisor, but this is not a proper basis for liability in a suit pursuant to 42 U.S.C. §1983. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)(“The doctrine of respondeat superior (supervisor liability) does not apply to § 1983 actions..”). Therefore, the Court will dismiss Nurse Sally.

         It is difficult to decipher the remainder of Plaintiff's allegations and it requires reference to his previous complaint. Plaintiff again says he put in a request to have his ears flushed out and he was seen by Nurse Susan on July 28, 2017. The nurse performed the ear-wax irrigation procedure leaving him in pain, but she denied his requests for pain medication. Plaintiff later explains Defendant Nurse Susan told him while no pain medications would be prescribed, he could choose to purchase medication. (Amd. Comp., p. 6). Plaintiff does not allege he could not afford medication.

         Plaintiff says he put in another medical request slip on August 1, 2017, stating “his ears were improperly flushed and only wanted the proper treatment done for his right ear” since he still could not hear properly. (Amd. Comp, p. 5). Plaintiff does not allege he was suffering in pain. Plaintiff filed two more requests and a grievance before he was scheduled to see medical staff.

         Plaintiff saw a nurse practioner around August 18, 2017 and he was given additional ear drops. Plaintiff was again told if he wanted pain medication, it would not be prescribed, but he could purchase medication. Plaintiff admits the pain had subsided by this point, and he again does not claim he could not afford the medication. (Amd. Comp., p. 6).

         Plaintiff filed another grievance on September 2, 2017, when he was not called back to the medical department after he had finished the ear drops. Plaintiff says he received a response noting: ”there has been no ear damage due to medical from ear wax. You are scheduled for this a.m.” (Amd. Comp., p. 6-7). Nonetheless, Plaintiff says he was not called to the medical department.

         Plaintiff says he filed two more grievances, but was not scheduled for an appointment and he still cannot ...