United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, U.S. DISTRICT JUDGE.
case was severed on March 23, 2018, from Eastman v. Doe,
et al., No. 18-cv-543-DRH-DGW (S.D. Ill.). (Doc. 2). It
contains the claims designated as Counts 3 through 5 in the
original case, described as follows:
Count 3 - Santos, Mueller, Kink, Stock,
Krebs, Downes, Johnson, McAbee, Walker, Zelasko, Wegman,
Lahr, Wexford, and IDOC showed deliberate indifference to
Plaintiff's serious medical need involving a deformity
and arthritis in his feet and pain associated therewith in
violation of the Eighth Amendment.
Count 4 - Santos, Mueller, Kink, Stock,
Krebs, Downes, Johnson, McAbee, Walker, Zelasko, Wegman,
Lahr, Wexford, and IDOC committed Illinois medical
malpractice/negligence in their treatment or handling of a
deformity and arthritis in Plaintiff's feet and pain
Count 5 - IDOC violated the Americans with
Disabilities Act and the Rehabilitation Act by failing to
accommodate Plaintiff's needs related to a deformity and
arthritis in his feet.
claims, which pertain to his incarceration at Centralia
Correctional Center (“Centralia”) are now before
the Court for a preliminary review pursuant to 28 U.S.C.
§ 1915A, the Court is required to screen prisoner
Complaints to filter out non-meritorious claims. See
28 U.S.C. § 1915A(a). Any portion of the Complaint that
is legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks money damages from a
defendant who by law is immune from such relief, must be
dismissed. 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.
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).
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). Courts “should not accept as
adequate abstract recitations of the elements of a cause of
action or conclusory legal statements.” Id.
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).
factual allegations relating to Counts 3 through 5 are
was born with a medical condition that causes the bones of
his feet and ankles to collapse out of alignment when weight
is put on them. (Doc. 1, p. 24). This misalignment and
malformation causes Plaintiff's bones to bear weight in
an unnatural way, and as a result, Plaintiff has difficulty
walking. Id. This condition “causes extreme
pain and discomfort that is only alleviated if [Plaintiff is]
wearing braces that hold the ankles and feet in correct
alignment.” Id. Plaintiff suffers from three
types of pain: stabbing pain when he puts weight on his feet
and ankles without corrective footwear; a dull, throbbing,
burning pain that started in February 2015 and continues; and
a sharp, sudden, stabbing, debilitating pain that began in
March 2016 and occurs without warning when Plaintiff does not
have something to support himself with, such as a cane.
Id. This pain has caused Plaintiff to fall many
child, Plaintiff wore custom-fitted orthopedic braces until
he was approximately 12-years old. Id. While
Plaintiff was imprisoned at Big Muddy Correctional Center, a
physician prescribed him foam insoles, which he received
August 20, 2014. Id. After he was transferred to
Centralia, Plaintiff received medical lay-ins after suffering
injuries on March 5, 2016 and April 11, 2016. Id.
Dr. Santos issued Plaintiff the same type of foam insoles on
March 5, 2016 after his first injury. Id. Dr. Santos
ordered an X-ray after the April 11, 2016 injury.
Id. The X-ray “showed the presence and
progression of permanent damage/arthritis in the same areas
affected by [Plaintiff's] medical condition.”
Garcia issued Plaintiff a slow-walker pass on September 21,
2016 and prescribed Plaintiff ACE wraps. Id. On
October 26, 2016, Garcia renewed the slow-walker pass and
issued Plaintiff a “No Prolonged Standing Order.”
Id. On November 9, 2016, Garcia referred Plaintiff
back to Dr. Santos for orthopedic shoes, but Santos denied
them. Id. Garcia recommended orthopedic shoes on
March 15, 2017. Id. Santos issued Plaintiff AFO
braces on July 3, 2017, which Plaintiff received on July 17,
2017. Id. Santos also issued Plaintiff gel insoles
on August 18, 2017. (Doc. 1, p. 25). Dr. Baker issued
Plaintiff a cane and ordered X-rays on September 22, 2017.
Id. These X-rays showed “bi-lateral flat feet
deformity.” Baker ordered lace-up ankle supports on
November 28, 2017, which Plaintiff received on February 8,
the medical devices issued by the Illinois Department of
Corrections (“IDOC”) and Wexford have any
corrective ability. Id. The insoles and gel do not
provide ankle support or correct the ankles or arches.
Id. The AFO braces are not designed for
Plaintiff's medical condition and do not correct his bone
alignment. Id. The ACE wraps are also not
corrective, but instead “simply wrap around the
foot.” Id. The lace-up supports provide stiff
support for Plaintiff's ankles but do not correct the
alignment of his ankles or arches and “so are
ineffective against [his] medical condition.”
also alleges that Dr. Santos refused him pain medication on
two separate occasions. Id. During every visit with
Santos after his March 5, 2016 fall (on at least 11
occasions), Plaintiff asked for and was denied a mobility aid
to prevent falls, orthopedic shoes and an exam with an
orthopedic specialist. Id. Even after Dr. Garcia
recommended orthopedic shoes and after Plaintiff complained
of falls, Santos insisted on issuing Plaintiff foam insoles
knowing that he was already wearing the same insoles when he
was injured. Id. Santos also would not schedule
Plaintiff for any type of rehabilitation services after
discovering that Plaintiff had arthritis. Id.
Krebs, the Health Care Unit administrator, refused to
intervene and allow Plaintiff to be seen by an orthopedic
specialist. Id. She also refused to investigate
Plaintiff's claims of ineffective treatment, and she lied
in her written response to Plaintiff, which was later used to
deny Plaintiff relief in a grievance. Id.
Mueller failed to investigate Plaintiff's claims of
medical malpractice and deliberate indifference against
Santos, as well as Plaintiff's claims “of medical
device interference by a black box device against Majors
Johnson and McAbee.” (Doc. 1, p. 26). He also refused
to intervene and stop these alleged abuses. Id.
Warden Kink and Warden Stock also refused to investigate
Plaintiff's claims of medical device interference by a
black box device, and to intervene and stop these alleged
Downes forced Plaintiff to stand against medical orders,
“resulting in 11 falls and near-falls, and he also
sadistically laughed about a comment he made of
‘kicking [Plaintiff's] legs out from under
[him].'” Id. He could have allowed
Plaintiff to sit down at a stone bench feet away from where
he was standing. Id.
Johnson and McAbee ignored Plaintiff's medical needs by
forcing him to wear a black box device although it prevented
Plaintiff from being able to use his cane. Id. They
also refused to swap the black box for waist chains, which
would have allowed Plaintiff to use his cane, or the cane for
a wheelchair, which would have enabled the black box device
to be used. Id. These solutions would have prevented
unnecessary pain and suffering. Id. Plaintiff had a
“near-fall as a result of Major McAbee's order to
use the black box device on Tuesday, October 10, 2017. Major
Johnson's unconstitutional order was made on Wednesday,
October 4, 2017.” Id.
Walker, Zelasko and Wegman, along with Lahr, refused to allow
Plaintiff's grievances to be reviewed by an ADA
Coordinator. Id. Lahr also refused to investigate
Plaintiff's claims in the two grievances that she
reviewed. Id. “Because of the rules and
regulations as stated, Counselors Walker, Zelasko and Wegman,
along with Lahr, were not permitted to review and answer
[Plaintiff's] grievances.” Id.
“knowingly employs officials who have a track record
for not providing the correct type of care, or outright
refusing to provide care at all, for serious medical
needs.” Id. IDOC allowed employees and
contractors to ignore Plaintiff's medical needs.
Id. As a result of his condition and the pain he
experiences walking, Plaintiff has missed meals, religious