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Swanigan v. Elk

United States District Court, C.D. Illinois

December 11, 2019

ZACHARY SWANIGAN, Plaintiff,
v.
DR. JOHNATHAN ELK, et. al., Defendants

          MERIT REVIEW ORDER

          JAMES E. SHADID UNITED STATES DISTRICT JUDGE.

         This cause is before the Court for merit review of the Plaintiff's complaint. The Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A.

         Plaintiff, a pro se prisoner, claims Defendants Dr. Jonathan Elk, Dr. Garcia, Nurse Stephanie Dorethy, Nurse Jane Doe, Sergeant Peel, Placement Office John Doe, Correctional Officer John Frost, and Lois Lindorf violated his constitutional rights at Hill Correctional Center.

         Plaintiff injured his right knee on March 10, 2019 while playing basketball. Plaintiff met with Defendant Dr. Elk the next day and the doctor sent Plaintiff for an x-ray and ultimately for an MRI. The MRI was performed at an outside hospital and revealed “complete disruption of the reconstructed anterior cruciate ligament, complex tear of the posterior horn of the medial meniscus, horizontal tear of the posterior horn and body of the lateral meniscus.” (Comp., p. 17). The hospital recommended an evaluation by an orthopedist. Dr. Elk submitted a request for orthopedic evaluation, but after a collegial review with Dr. Garcia, the request was denied. Instead, the doctors agreed Plaintiff should first receive a physical therapy evaluation. (Comp, p. 22).

         Plaintiff says he has suffered constant, excruciating pain since he injured his knee and he is unable to perform the recommended physical therapy exercises. Despite his repeated complaints of pain, Dr. Elk and Dr. Garcia have refused to provide any other medical care and have not referred Plaintiff to an orthopedist. In addition, Dr. Elk canceled Plaintiff's pain medication prescription for Ultram in March of 2019.

         Plaintiff has reported his continued pain and spoke with Nurse Jane Doe during sick call on September 6, 2019, but Plaintiff has still not been scheduled to see the doctor and he has not received any additional medical care.

         Plaintiff has alleged Defendants Dr. Elk, Dr. Garcia, and Nurse Jane Doe were deliberately indifferent to his serious medical condition. It is unclear from the face of Plaintiff's complaint whether he fully exhausted his administrative remedies for this claim before filing his lawsuit. Plaintiff did file an emergency grievance concerning the lack of medical care which was denied at Hill Correctional Center on July 10, 2019. (Comp., p. 13). Plaintiff immediately appealed the decision to the Administrative Review Board (ARB), but the ARB denied the grievance as untimely since Plaintiff injured his knee in March of 2019. (Comp., p.12). However, the ARB did not address the fact that Plaintiff was grieving the on-going lack of medical care.

         Plaintiff next alleges on August 2, 2019 he was transferred to another cell. Plaintiff informed Defendant Peel he had a bottom bunk permit due to his injured knee and the Sergeant said it should not be a problem because Plaintiff was the only one assigned to the cell. However, when the next shift took over, Plaintiff was moved to a different cell with an inmate who also had a bottom bunk permit. Plaintiff reported the conflict to a different staff sergeant, but the unnamed sergeant refused to take any action.

         On August 17, 2019, Plaintiff went to sick call and informed a nurse he did not have a lower bunk. The nurse referred Plaintiff to a doctor, but Plaintiff says he was forced to sleep on the floor with his injured knee from August 2, 2019 to August 27, 2019.

         While Plaintiff might be able to proceed with another Eighth Amendment claim based on the knowing denial of his bottom bunk permit, there are two problems with the claim as stated in his complaint.

         First, Plaintiff has not identified the Defendant responsible for this allegation. For instance, Plaintiff says Defendant Peel told Plaintiff he could use the bottom bunk because he had no cellmate. However, a different individual working a later shift moved Plaintiff to a cell without an available bottom bunk. Plaintiff does not allege Defendant Peel knew about the move or that Plaintiff discussed the matter further with Defendant Peel.

         Second, Plaintiff has not clearly identified any other potential Defendant. Plaintiff has listed Placement Officer John Doe, but he makes no mention of this individual in the body of his compliant. Therefore, it is unclear if the placement officer was responsible for the move to the specific cell, or if the officer knew about the conflict over bottom bunk assignments. In addition, Plaintiff has not clearly indicated whether he intended to name the Staff Sergeant John Doe or the second Jane Doe Nurse as Defendants.

         More concerning, Plaintiff's second claim involving the denial of his lower bunk permit occurred in August of 2019. It is unclear if Plaintiff filed a second grievance addressing this issue and it is doubtful he could have completed the grievance process before he filed his complaint two months later on October 11, 2019. Since Plaintiff has not clearly identified any Defendant who was responsible for knowingly denying him a bottom bunk and forcing him to sleep on the floor, Plaintiff has failed to articulate a separate claim.

         If Plaintiff has completed the grievance process and he can identify an appropriate Defendant, Plaintiff may file an amended complaint including this allegation. The amended complaint must stand complete on its own, include all claims against all Defendants, and must not make reference to the original complaint. If Plaintiff does not know the name of the responsible Defendant, he may identify the individual as a John or Jane Doe, but he must provide some description of the individual ...


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