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Burns v. Cunningham

United States District Court, S.D. Illinois

September 13, 2019

SHAUNE BURNS, #N51789, Plaintiff,



         Plaintiff Shaune Burns, an inmate of the Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Lawrence Correctional Center (“Lawrence”), brings this civil action pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights. Plaintiff claims that Defendants have been deliberately indifferent to his serious medical needs by not ensuring that he receives his medications on time. Along with the Complaint (Doc. 1), Plaintiff filed a Motion for Temporary Restraining Order (“TRO”) and Preliminary Injunction (Doc. 2). On July 17, 2019, the Court denied Plaintiff's request for a temporary restraining order and deferred ruling on his request for a preliminary injunction and screening the Complaint. (Doc. 7).

         The Complaint is now before the Court for preliminary review pursuant to 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) and Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2), include the following allegations:[1] Plaintiff suffers from H. pylori, which is treated by taking the medication Omeprazole. (Doc. 2, p. 3). Without this medication he becomes very sick, is unable to eat or sleep, vomits blood, and suffers sever pain, which feels like lava when vomiting. (Doc. 1, pp. 9, 39, 46; Doc. 2, p. 5). If his illness goes untreated, Plaintiff's condition could progress into cancer. (Doc. 1, p. 46; Doc. 2, pp. 3, 5). While at Lawrence, his Omeprazole medication has run out on three different occasions. (Doc. 1 pp. 9, 23, 39). He has also experienced delays in receiving refills for his other medications that are prescribed to treat pain, high blood pressure, and mental illness. (Doc. 1, pp. 26, 59-60; Doc. 2, p. 3).

         Sometime in April 2018, Plaintiff was told that his medication had been ordered, but he did not receive it for two weeks and, as a result, developed an infection. Id. at p. 25. On May 11, 2018, he saw a doctor who prescribed him antibiotics to treat the infection. Even though he had informed staff that he was allergic to penicillin, Plaintiff was given amoxicillin and had an allergic reaction. Id. at p. 26. Id. A nurse came and retrieved the amoxicillin from Plaintiff, but he was never prescribed a replacement antibiotic. Id.

         Plaintiff again ran out of his H. pylori medication on August 28, 2018, and did not receive a refill until September 2, 2018. Id. at p. 27. Two days later he saw medical and was told by a nurse that “they have been having problems get[t]ing the meds pas[s]ed out.” Id.

         Plaintiff states that medical staff has told him to put requests in for medication one week before the medicine runs out. Id. at p. 22. As instructed, on May 19, 2019, two weeks prior to running out of his medication, and again on May 23, 2019, one week before running out, Plaintiff put in medical requests for a medication refill. Id. at pp. 22, 24. He did not receive a refill until eight days after the medication had ran out. Id. at p. 9. Because of the delay, he became ill and was again prescribed antibiotics for three weeks. Id.


         Based on the allegations of the Complaint, the Court designates a single claim:

Count 1 - Eighth Amendment claim against Cunningham, McFarland, John/Jane Doe, Jane Doe, and Brookhart for deliberate indifference to serious medical needs by failing to ensure that Plaintiff received his medication refills in a timely manner.

         The parties and the Court will use this designation 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 should be considered dismissed without prejudice as inadequately pled under the Twombly pleading standard.[2]

         In order to survive preliminary review under Section 1915A a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 9(a)(2), which includes “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 547. Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), the Court “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. A complaint must include “enough detail to illuminate the nature of the claim and allow defendants to respond.” George v. Smith, 507 F.3d 605, 608 (7th Cir. 2007).

         Plaintiff brings his claims under Section 1983 and so to state a claim he must allege that each defendant was personally involved in the deprivation of a constitutional right. Matz v. Klotka,769 F.3d 517, 528 (7th Cir. 2014). A government official may not be held liable under Section 1983 on a theory of respondeat superior- based on the unconstitutional conduct of a subordinate. Ashcroft v. Iqbal,556 U.S. 662, 676 (2009). Additionally, “a supervisor is not liable just because a complaint is made and an effective solution is not forthcoming.” Ol ...

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