United States District Court, C.D. Illinois
MERIT REVIEW ORDER
E. SHADID UNITED STATES DISTRICT JUDGE
cause is before the Court for consideration of
Plaintiff's second motion for leave to amend his
a pro se prisoner, filed his original complaint on October
10, 2017.  One month later, Plaintiff filed a motion for
leave to amend his complaint. . 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.
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
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.
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.
has now filed his proposed amended complaint which has been
filed as a motion for leave to amend. . The motion is
granted pursuant to Federal Rule of Civil Procedure 15. .
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.
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
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.
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.
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).
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
says he filed two more grievances, but was not scheduled for
an appointment and he still cannot ...