United States District Court, S.D. Illinois
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
Deandre Davis, an inmate of the Illinois Department of
Corrections (“IDOC”), who is currently
incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), brings this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff brings
various claims resulting from the inadequate medical care of
his ulcerative colitis and hernia that he has received at
Pinckneyville. Plaintiff also claims he was sexually
assaulted by Pinckneyville Medical Director, Dr. Myers, and
he continues to be treated by Dr. Myers against his
objections. Because Plaintiff seeks emergency injunctive
relief, the Court will take up this matter without delay.
See Wheeler v. Wexford Health Sources, Inc., 689
F.3d 680 (7th Cir. 2012).
Court must review the Complaint under 28 U.S.C. § 1915A.
Under Section 1915A, any portion of a complaint that is
legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or requests money damages from a
defendant who by law is immune from such relief must be
dismissed. 28 U.S.C. § 1915A(b). At this juncture, the
factual allegations of the pro se Complaint are to
be liberally construed. Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Complaint (Doc. 1, pp. 7-21), exhibits (Doc. 1 pp. 22-116),
and Motion for Temporary Restraining Order and Preliminary
Injunction (Doc. 3), include the following
allegations: Plaintiff suffers from ulcerative colitis
and a hernia. (Doc. 1, pp. 8, 9). On March 13, 2019, he was
seen by Dr. Myers for pain caused by the hernia. Id.
at p. 35. Dr. Myers informed him that, although he is in
pain, Plaintiff will not be approved for surgery because his
hernia is reducible and surgery is usually only approved when
a hernia can no longer be pushed back in. Id. at p.
34. Plaintiff was prescribed a hernia belt, but because the
hernia belt is too small, he is unable to use it.
Id. at pp. 8, 36. Other than the belt, he has not
received any other treatment for the hernia, and he has been
in severe pain.
treat his ulcerative colitis, Plaintiff is to receive an
injection of Humira every two weeks. (Doc. 1, p. 25, 48). At
an appointment with a gastroenterologist on March 26, 2019,
he was told that if he does not receive the injection every
fourteen days, his body would become immune to the
medication. Id. at pp. 26, 48. Since arriving at
Pinckneyville in November 2018, he has not been receiving
these injections in a consistent manner. At times he has
received injections a few days apart, and in one instance he
was given two injections at the one
appointment. Id. at p. 82. According to
Plaintiff, when the injections are administered as
prescribed, he does not have any problems, but because of the
inconsistency in receiving his medication, he has stomach
pains and a sudden increase in symptoms, including bleeding.
Id. at pp. 8, 29-30. Plaintiff claims that prior to
Pinckneyville he has been incarcerated at two other
institutions where he did not have problems receiving his
medication at the proper times. Id. at p. 66.
Despite filing numerous grievances, the nursing staff
continue to mismanage the dispensing of his medication. When
he tells the nursing staff that it is not time for his
medication, nursing staff informs him that he can refuse the
injection by signing a refusal form, but he does not want to
refuse the medication. Id. at p. 66.
2019, Plaintiff was sexually assaulted by Dr. Myers during an
unnecessary procedure that Plaintiff had stated he did not
want performed. Id. at p. 89. Plaintiff alleges that
his gastroenterologist recommended the testing of a stool
sample to see if his colitis had advanced. Instead of taking
a sample, Dr. Myers forced Plaintiff down and inserted his
finger into Plaintiff's anus while making grunting sounds
and laughing. Id. at p. 90. Plaintiff filed a Prison
Rape Elimination Act (“PREA”) report and had an
interview with Lieutenant Frank, but the matter was
prematurely closed with the finding that Dr. Myers was
conducting an optional medical procedure. Id. at p.
91. Despite his objections and requests to been seen by
another health care provider, Plaintiff is still being
treated by Dr. Myers and, on a few occasions, the
appointments were unsupervised. (Doc. 1, pp. 73, 75, 85; Doc.
3, p. 3). Health Care Unit Coordinator Brown has told
Plaintiff that he does not have a choice, either he sees Dr.
Myers or no one. Id. at p. 93.
initial matter, the Court notes that Plaintiff makes general
allegations in the Complaint that because of Defendants'
supervisory function they had responsibility over
“medical staff to ensure proper medical treatment was
given in a proficient manner, ” Id. at p. 17,
and that because Defendants had the power to “correct
these conditions[, they] willfully, deliberately, showed a
reckless, disregard…making Defendants (liable).”
Id. at p. 15. A defendant cannot be held liable,
however, merely because he or she is an administrator or
supervisor. Kinslow v. Pullara, 538 F.3d 687, 692
(7th Cir. 2008). “[T]o be liable under § 1983, the
individual defendant must have caused or participated in a
constitutional deprivation.” Pepper v. Village of
Oak Park, 430 F.3d 806, 810 (7 Cir. 2005). And so, to
the extent Plaintiff is attempting to hold Defendants liable
solely because they are in supervisory positions, these
claims are dismissed with prejudice.
also alleges that Illinois State criminal statute 720 ILCS
5/12-13 has been violated by Defendants' conduct and asks
the Court to report the alleged criminal offense committed by
Dr. Myers to the Illinois State Police. (Doc. 1, p. 12; Doc.
3, p. 5). Criminal violations cannot be charged by private
citizens, and neither can a private citizen initiate criminal
prosecutions in federal court. Accordingly, all of the claims
alleging violations of Illinois's criminal statutes will
be dismissed. See Turner v. Publishers Clearing House
Executives, 39 Fed.Appx. 446, 447 (7th Cir. 2002).
Plaintiff states that he is suing Defendants in their
individual and official capacities. (Doc. 1, p. 10). State
officials named in their official capacities may not be sued
for monetary damages in federal court. See Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989);
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.
2001). Therefore, the official capacity claims directed
against these individuals will be dismissed with prejudice.
Warden Thompson will remain in the case, in his official
capacity only, to address any injunctive relief that might be
on the allegations in the Complaint, the Court finds it
convenient to delineate the claims in this case into the
following three Counts:
Count 1: Eighth Amendment claim against Dr.
Myers for deliberate indifference to Plaintiff's serious
medical needs regarding his hernia.
Count 2: Eighth Amendment claim against Dr.
Myers for cruel and unusually punishment by sexually
assaulting Plaintiff during a medical appointment.
Count 3: First Amendment claim against Dr.
Myers for sexually assaulting Plaintiff in retaliation for
Plaintiff complaining about the incorrect administration of
Count 4: Fourteenth Amendment claim against
Thompson, Hale, Mercier, Lieutenant Frank, and Dr. Lane for
violating his due process rights by not conducting the sexual
assault investigation in accordance with an administrative
order, the Prison Rape Elimination Act (“PREA”),
and prison grievance procedures.
Count 5: Eighth Amendment and PREA claim
against Warden Thompson, Lieutenant Frank, Brown, Hale,
Mercier, and Dr. Lane for failing to protect Plaintiff from
the risk of another sexual assault by Dr. M yers.
Count 6: Eighth Amendment claim against Dr.
Myers, Health Care Administrative Unit, nursing staff, and
Christine Brown for deliberate indifference to
Plaintiff's serious medical needs regarding treatment of
his ulcerative colitis.
Count 7: Fourteenth Amendment claim against
Warden Thompson, Mercier, Hale, and Brown for the mishandling
of Plaintiff's grievances regarding his medical
Count 8: First Amendment retaliation claim
against Warden Thompson, Dr. Myers, Brown, Lieutenant Frank,
Dr. Lane, Mercier, and Hale.
Count 9: Eight Amendment claim of
falsification of medical records by Brown and nursing staff.
Count 10: Conspiracy claim against Warden
Thompson, Dr. Myers, Brown, Lieutenant Frank, Mercier, Hale,
and Dr. Lane for failing to fully investigate and attempting
to cover the alleged sexual assault against Plaintiff.
parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a
judicial officer of this Court. Any other claim that
is mentioned in the Complaint but not
addressed in this Order is considered dismissed without
prejudice as inadequately pled under