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Davis v. Thompson

United States District Court, S.D. Illinois

August 20, 2019

DEANDRE DAVIS, #K79658, Plaintiff,
v.
WARDEN THOMPSON, P. MYERS, C. BROWN, LT. FRANK, MERCIER, HALE, and DR. LANE, Defendants.

          MEMORANDUMAND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE

         Plaintiff 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).

         The 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).

         The Complaint

         Plaintiff's 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:[1] 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.

         To 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.[2] 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.

         In May 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.

         Preliminary Dismissals

         As an 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.

         Plaintiff 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).

         Finally, 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 ordered.

         Discussion

         Based 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 his medication.
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 treatment.
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.

         The 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 Twombly.[3]

         Coun ...


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