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Smith v. Rose

United States District Court, C.D. Illinois

November 1, 2019

WALTER SMITH, Plaintiff,
v.
ROSE et al., Defendants.

          MERIT REVIEW

          JOE BILLY McDADE, UNITED STATES DISTRICT JUDGE

         Plaintiff, proceeding pro se and currently incarcerated at the Hill Correctional Center (“Hill”), pursues a § 1983 action alleging failure to protect and deliberate indifference to his serious medical needs at the Pontiac Correctional Center (“Pontiac”). The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to “state a claim for relief that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal quotation marks omitted). While the pleading standard does not require “detailed factual allegations”, it requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On August 18, 2017, Plaintiff was being escorted to the healthcare unit by Defendant Officers Rose and Slaton so he could receive an insulin injection. Plaintiff was restrained with Defendant Rose behind him and Defendant Slaton in front, holding the lead cuff. As they neared the cell of another inmate, Plaintiff observed that the inmate was holding a cup outside of his cell and stopped short. Defendant Rose, however, instructed him to proceed. As the three walked by the cell, a hot liquid was splashed on them. Plaintiff claims that it hit the left side of his neck, face and shoulder causing a burning sensation. The Officers were also hit, and Defendant Slaton called Defendant Lieutenant Evans, informing her of the event. Lieutenant Evans responded and, using paper towels, wiped Plaintiff's face. Lieutenant Evans thereafter took Plaintiff to the nurses' station, informing Nurse Paul that Plaintiff had had a hot liquid thrown on him.

         Plaintiff indicates that once at the nurses' station, Defendant Nurse Paul administered the insulin shot. Plaintiff claims, however, that although his eyes and skin were burning, Nurse Paul left the room, stating that he was only there to give out insulin. In the meantime, Defendant Evans had left to respond to another call involving the inmate who assaulted Plaintiff and the Officers. Plaintiff was returned to his cell by another, unidentified officer as Defendants Rose and Slaton were, themselves, receiving medical treatment.

         When Plaintiff was returned to his cell, he continued to feel extreme pain on the left side of his face. He also claims that his eyes were burning, and his eyesight was blurry. Plaintiff noticed an odor to the substance and believes it was a type of oil. Plaintiff was able to wash his face in his cell but claims that the pain got worse. Plaintiff, and the inmate on either side of him, began yelling and kicking their cells doors to summon aid.

         Defendants Evans, Nolan, Moorse and two Doe Officers responded. Defendant Evans told Plaintiff that they were there to give him a shower. Plaintiff told her, however, that he needed medical attention due to the burning in his eyes and face. Defendant Evans ordered that Defendant Nolan take Plaintiff to the healthcare unit. Once there, an unidentified Nurse irrigated Plaintiff's eyes and ears and sent him back to his cell. Plaintiff asserts that he continued to experience burning pain that evening and the following day. He complained to Defendant Nurses Corra and Tammie who provided no treatment. Defendant Nurse Joyce, not a party, who was on duty the following morning, irrigated Plaintiff's face and ear and gave him two Ibuprofen. Plaintiff pleads that, that morning, he had asked Defendant Officer Rhoads for medical attention. It appears likely that Nurse Joyce's treatment to Plaintiff was rendered in response to Defendant Rhoads's request.

         Later that day, Plaintiff asked Defendant Officer Welch to summon a crisis team. Defendant Welch called for the mental health team and Defendant Roll responded. Rather than relaying a mental health concern to here, however, Plaintiff told Defendant Roll that he needed medical treatment. Defendant Roll left to inform healthcare. About an hour later, Defendant Nurse Jade Dreiling responded. She told Plaintiff she did not find his complaints credible as the officers who had also been assaulted indicated that the assailant had thrown only water.

         Plaintiff was seen by Dr. Ojelade on August 22, 2017, four days after the event. Plaintiff does not disclose any particular symptoms he was experiencing, though he alleges that he wanted to be referred to an eye doctor and to be given pain medication. Plaintiff claims that Dr. Ojelade did not examine him, but stated that looking at Plaintiff, he could see that there was nothing wrong with him. Plaintiff was returned to his cell. He does not disclose any further medical treatment requested, refused or rendered.

         ANALYSIS

         Plaintiff alleges that all Defendants, including the medical Defendants who were not present at the time, are liable for failing to present the assault. He also asserts that he should not have been housed in proximity to the seriously mentally ill inmate assailant. Plaintiff does not allege, however, that any of the named Defendants were responsible for cell assignments or that any could have prevented him being in a cell block which housed a mentally ill inmate. See McGill v. Duckworth, 944 F.2d 344, 348-49 (7th Cir. 1991) (plaintiffs may not “tax employees of the prison system with the effects of circumstances beyond their control.”

         Plaintiff cannot assert a failure to protect claim as to the majority of the Defendants as they were not present and had no opportunity to intervene prevent the occurrence. See Watkins v. Ghosh, No. 11- 1880, 2014 WL 840949, at *3 (N.D. Ill. Mar. 4, 2014) (for failure to intervene plaintiff must establish that the defendant had a realistic opportunity to prevent the harm and failed to do so). The Court will examine, however, whether he has a colorable claim as to Defendants Rose and Slaton.

         To be liable for failure to protect, Defendants must have had “actual knowledge of impending harm” and of a “specific threat to [plaintiff's] safety.” McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991). In addition, Defendants' response to the threat must have been so inadequate as to amount to “a reckless disregard for the risk and ‘effectively condone[s] the attack.'” Id. (internal citation omitted) (quoting Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010)). Here, Plaintiff alerted Defendants to the potential threat from the inmate almost contemporaneously with its occurrence. There is no inference that Defendants appreciated the risk, had an opportunity to prevent it or recklessly disregarded it. This, particularly, as Defendants Rose and Slaton were, themselves, victims of the assault.

         Here, Plaintiff fails to plead facts that any Defendant, including Defendants Rose and Slaton, were aware of the risk to Plaintiff and consciously disregarded it. Plaintiff's failure to protect claim is DISMISSED in its entirety.

         Plaintiff also asserts a deliberate indifference claim against Defendants Ojelade, Evans, Rose, Nolan, Slaton, Rhoads, Welch, Roll, and Nurses Tammie, Corra, Paul and Jade Dreiling and individuals identified only as John Doe #1 and 2 and Jane Doe #1. “The Eighth Amendment safeguards the prisoner against a lack of medical care that may result in pain and suffering which no one suggests would serve any penological purpose.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)(internal quotations and footnote omitted). A claim does not rise to the level of an Eighth Amendment issue, however, unless the punishment is ‚Äúdeliberate or otherwise reckless in the criminal law sense, which means that the defendant must have committed an act so ...


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