United States District Court, C.D. Illinois
MERIT REVIEW ORDER
BILLY McDADE, UNITED STATES DISTRICT JUDGE
is a civil detainee at the Rushville Treatment and Detention
Center who is proceeding pro se, after having paid
the full filing fee. Plaintiff has filed a complaint and,
incorporated into the complaint, a request for injunctive
relief. The Court will direct the Clerk to file [ECF 1 pp.
4-5] as a separate document titled “Motion for
Preliminary Injunction.” The Court now undertakes a
review of the complaint, accepting the factual allegations as
true and liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
April 26, 2019, Plaintiff was transferred from the Graham
Correctional Center (“Graham”) to Rushville where
he is civilly detained under the Illinois Sexually Violent
Persons Commitment Act, 725 ILCS 207/1, et seq.
Plaintiff has, for an undisclosed amount of time, suffered
from Mycosis fungoides cancer, a cutaneous T-cell lymphoma
which “generally affects the skin, but may progress
internally over time”. Plaintiff indicates that since
2010 and while at Graham, he received treatment from an
outside dermatologist. He last saw the dermatologist on March
18, 2019, at which time the specialist recommended that he
follow-up with another dermatologist after his transfer.
Plaintiff arrived at Rushville, he was seen by Defendant Dr.
Marcowitz who agreed that he should be seen by a specialist.
Defendant Marcowitz told Plaintiff that he would obtain the
hospital records and submit a referral recommendation to
Wexford. On May 5, 2019, Plaintiff submitted a request for
treatment to Defendant Blasing, the Director of Nursing. He
was thereafter told by Defendants Markowitz, Blasing, Jones
and Fisher that they could not treat him until they had
received his medical records. Plaintiff claims that in the
interim, he is not receiving his previously prescribed light
therapy and that his medications have run out.
indicates, further, that Defendant Jones, a Medical
Administrative Assistant, and member of the Collegial Board,
has failed to authorize referral to an outside specialist.
Plaintiff claims, without detail or explanation, that
Defendants Marcowitz, Blasing, Fisher and Jones have made a
decision to provide him “non-medical treatment.”
has not included a prayer for relief with his complaint
though he has incorporated the motion requesting injunctive
relief. He has also attached to his complaint 23 pages of
documents which include medical records and grievances. These
exhibits were not reviewed in the drafting of this merit
review order. Fitzgerald v. Dep't of Corr.,
07-61, 2007 WL 951861, at *1 (W.D. Wis. Mar. 26, 2007) (not
reviewing attachments to complaint). “A number of the
exhibits are copies of petitioner's inmate grievances and
prison officials' responses to them, none of which are
necessary to the complaint.”
Plaintiff is a civil detainee rather than convicted prisoner,
his § 1983 claim is reviewed under the Due Process
Clause of the Fourteenth Amendment, rather than the Eighth
Amendment. Civilly committed sex offenders such as Plaintiff
have a Fourteenth Amendment right to adequate medical care.
Smego v. Payne, 469 Fed.Appx. 470, 474 (7th Cir.
2012). To successfully plead deliberate indifference to a
serious medical need, Plaintiff must allege that
Defendants' conduct was objectively, rather than
subjectively, unreasonable. In other words, that Defendant
“knew, or should have known, that the condition posed
an excessive risk to health or safety” and
“failed to act with reasonable care to mitigate the
risk.” Darnell v. Pineiro, 849 F.3d 17, 35
(2nd Cir. 2017). This standard is higher than that required
to prove negligence, or even gross negligence and is
“akin to reckless disregard.” Miranda v.
County of Lake, 900 F.3d 335, 2018 WL 3796482 at *12
(7th Cir. 2018).
Plaintiff alleges that he has cancer which, without
treatment, can worsen and spread to other parts of the body.
He claims that Defendants have failed to provide him
medication and light treatment or refer him to a
dermatologist. It is not clear, however, that Nursing
Director Blasing had the authority to order the treatment or
the referral. The same applies to Defendant Jones. While
Plaintiff faults her for not providing the outside referral,
it is not clear that in her role as a Medical Administrative
Assistant on the Collegial Board, she had the authority to do
so. See Walker v. Benjamin, 293 F.3d 1030, 1038 (7th
Cir. 2002) (defendant not liable for delays not within his
control). See also, Lambert v. Adler, 578 Fed.Appx.
976, 978 (7th Cir. 2014) (individual who did not control
committee, not personally responsible for its actions).
Plaintiff also implicates Defendant, Dr. Fisher, he has not
pled any particulars as to this Defendant. He does not claim
that he spoke with Defendant Fisher, or that Defendant was
aware of his underlying condition or the alleged lack of
treatment. Section 1983 liability is predicated on fault, so
to be liable, a defendant must be “personally
responsible for the deprivation of a constitutional
right.” Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir.2001) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir.2001)). “A
defendant will be deemed to have sufficient personal
responsibility if he directed the conduct causing the
constitutional violation, or if it occurred with his
knowledge or consent.” Ames v. Randle, 933
F.Supp.2d 1028, 1037-38 (N.D.Ill.2013) (quoting
Sanville, 266 F.3d at 740). Plaintiff fails to plead
a colorable claim against Defendant Fisher.
Plaintiff states a colorable claim only as to Defendant
Marcowitz who, by his own admission, had the authority to
request referral to a specialist. As Plaintiff has not
included a prayer for relief but included a request for a
preliminary injunction, the claim shall proceed against
Defendant Markowitz for injunctive relief only. If Plaintiff
seeks declaratory relief or compensatory and punitive
damages, he must file an amended complaint requesting this
will be given 30 days in which to replead as to the other
Defendants, should he wish. If he does not do so, and does
not amend, this claim will proceed against Defendant
Markowitz seeking injunctive relief.
IS THEREFORE ORDERED:
Plaintiff's complaint will proceed on the deliberate
indifference claim asserted against Defendant Markowitz,
requesting injunctive relief. Defendants Blasing, Fisher and
Jones are DISMISSED, though Plaintiff will be given an
opportunity, within 30 days, to replead his claims against
them. If Plaintiff files an amended pleading is to be
captioned Amended Complaint and it is to include a prayer for
relief. The amended complaint must contain all of
Plaintiff's claims against Defendants without reference
to a prior pleading. Any additional claims shall not be
included in the case, except at the Court's discretion on
motion by a party for good cause shown or pursuant to Federal
Rule of Civil Procedure 15.
Clerk is directed to file [ECF 1 pp. 4-5] as a separate
document titled “Motion for Preliminary
Injunction.” 3. Plaintiff's Motions ...