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Mays v. Shah

United States District Court, S.D. Illinois

May 25, 2018

TIBERIUS MAYS, # N-92625, Plaintiff,
v.
VIPEN SHAH, DR. RITZ, PHILIP MARTIN, RYAN ERICKSON, MICKEY WALTON, APRIL WAMPLER, DAVID RAINS, MICHELLE NEESE, ANN LEHR, MELISSA PHOENIX, LESLIE McCARTY, and TERRI ANDERSON, Defendants.

          MEMORANDUM AND ORDER

          HERNDON, DISTRICT JUDGE

         Plaintiff is currently incarcerated at Robinson Correctional Center (“Robinson”). He originally brought this civil rights action on February 6, 2018, when it was filed as Mays v. Santos, et al., No. 18-181-MJR-SCW. After screening the Complaint, the Court severed a number of Plaintiff's claims from the original case into separate actions. (Doc. 1). The instant case contains Counts 8, 9, and 10, which arose at Robinson and were described as follows:

Count 8: Eighth Amendment deliberate indifference claim against Shah, Ritz, and Martin for denying and delaying treatment for Plaintiff's nasal condition at Robinson during 2017;
Count 9: Eighth Amendment deliberate indifference claim against Martin, Erickson, Walton, Wampler, Rains, Neese, Lehr, Phoenix, McCarty, and Anderson for failing to intervene to ensure that Plaintiff would be given adequate medical treatment at Robinson;
Count 10: First Amendment retaliation claim against Shah, for prematurely terminating Plaintiff's post-surgery medication and nasal rinses in January 2018 because Plaintiff filed grievances against Shah.

(Doc. 1, pp. 10-11).

         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 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.

         The Complaint

         The portions of the Complaint which relate to Counts 8, 9, and 10 are summarized as follows.

         Plaintiff had undergone surgery in April 2014 for nasal polyps, while he was incarcerated at Lawrence Correctional Center. (Doc. 2, p. 6). He subsequently had 2 follow-up visits for “nasal cleansing” to the outside hospital where he had the surgery, but in February 2015, he was not allowed to return to the hospital for another 6-month follow-up. According to Plaintiff, 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. 2, p. 9). He suffers from asthma and severe lower back pain as well. Plaintiff was confined at Centralia Correctional Center before being transferred to Robinson, and while there, he unsuccessfully sought a referral to an outside specialist to address his nasal condition. (Doc. 2, pp. 9, 15).

         On February 8, 2017, Plaintiff was transferred to Robinson. (Doc. 2, p. 14). The conditions in his housing area there were not clean, and the dry air irritated his throat. Id. On February 14, 2017, Plaintiff consulted Health Care Administrator Martin about obtaining prednisone (which had been prescribed for Plaintiff in the past) to treat his nasal polyps. Martin was arrogant and condescending, and would not allow Plaintiff to speak. (Doc. 2, p. 16). Plaintiff wrote to the warden and filed a grievance over being denied distilled water for his nasal rinse kit in early February.

         In February and March 2017, Plaintiff consulted Dr. Shah and requested “collegial review” for a referral to an outside specialist for evaluation of his nasal polyps. Shah and Dr. Ritz denied the referral on March 13, 2017, while Plaintiff's condition continued to deteriorate. (Doc. 2, p. 16; Doc. 2-2, pp. 22-23). Shah did order prednisone and a nasal rinse kit for 3 months, but he later reduced Plaintiff's dosage of prednisone. (Doc. 2, 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 exercise their authority to intervene” to correct Shah's improper treatment. (Doc. 2, pp. 17, 19, 22; Doc. 2-2, pp. 30). Administrative Review Board members Lehr, Phoenix, McCarty, and Anderson denied Plaintiff's numerous grievances over medical treatment. (Doc. 2, pp. 19, 22; Doc. 2-2, pp. 31-33, 36-37, 40).

         In June 2017, Shah requested collegial review for an outside consultation for Plaintiff's nasal polyps, but Ritz (for Wexford Health Sources) denied the request. (Doc. 2, p. 17; Doc. 2-2, pp. 26-27).

         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 and his worsening symptoms of pain, dizziness, and obstructed breathing. This letter was also mailed to Dr. Steve Meeks, the IDOC Chief Medical Director (Meeks is not a Defendant). (Doc. 2, p. 17; Doc. 2-2, p. 34). Meeks overruled Ritz's “third denial” of the outside consultation, and Plaintiff had a CAT scan with an ear, nose, and throat specialist on August 29, 2017. (Doc. 2, pp. 17-18; Doc. 2-2, p. 26). Plaintiff also includes a consultation report dated September 8, 2017, from an outside doctor. (Doc. 2-2, p. 35).

         On January 5, 2018, Plaintiff had endoscopic nasal surgery for the polyps at Carle Hospital. (Doc. 2, p. 17). On January 8, 2018, Plaintiff was in the infirmary when Dr. Shah asked him why he was there and what happened.

         Plaintiff responded by asking Shah why he was asking crazy questions. Shah asked Plaintiff to leave. Plaintiff complained to Neese and Martin ...


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