Opinion
Civil No. 05-743-GPM.
August 9, 2006
MEMORANDUM AND ORDER
Plaintiff, an inmate in the St. Clair County Jail, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case now is before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. — The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal. — On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint —
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are legally frivolous and, thus, subject to summary dismissal.
Plaintiff states that on August 29, 2005, he slipped and fell on a wet floor at the St. Clair County Jail, knocking out two bottom teeth. He reported his injury to Defendant Scrubberg, who allegedly did not report the injury to medical personnel for over an hour. Meanwhile, Plaintiff's mouth was bleeding, and he had pain in his mouth, back, shoulder, and arm from the fall. Eventually Defendant Johnson arrived; Plaintiff alleges that she showed "very little concern" for him, then left and did not return for an hour. Later, at the nurse's station, Defendant Slate called the dentist, Defendant Gardner, and Plaintiff was given pain medication and an ice pack. X-rays were ordered, but Plaintiff claims that x-rays were never taken. Two days later, Plaintiff went to see Gardner and asked about having his mouth fixed; Gardner told him that he would have to wait until he was released from custody to get further treatment. Gardner repeated that same admonition over two weeks later when Plaintiff asked him about the x-rays. Plaintiff also complained several times about pain in his neck, back, shoulder, and arms, as well as developing numbness in his fingers and toes. Johnson told him to wear socks, and Defendant Collins told him to stop filing requests for medical attention, but Plaintiff did not receive any medical attention for this problem.
The Supreme Court has recognized that "deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825 (1994). This encompasses a broader range of conduct than intentional denial of necessary medical treatment, but it stops short of "negligen[ce] in diagnosing or treating a medical condition." Estelle, 429 U.S. at 106. See also Jones v. Simek, 193 F.3d 485, 489 (7th Cir. 1999); Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996), cert. denied, 519 U.S. 897 (1996).
A prisoner raising an Eighth Amendment claim against a prison official therefore must satisfy two requirements. The first one is an objective standard: "[T]he deprivation alleged must be, objectively, 'sufficiently serious.'" Farmer, 511 U.S. at ___, 114 S. Ct. at 1977. As the Court explained in Farmer, "a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Id. The second requirement is a subjective one: "[A] prison official must have a 'sufficiently culpable state of mind,'" one that the Court has defined as "deliberate indifference." Id; see Hudson v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 998, 117 L.Ed.2d 156 (1992) ("[T]he appropriate inquiry when an inmate alleges that prison officials failed to attend to serious medical needs is whether the officials exhibited 'deliberate indifference.'"); Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L.Ed.2d 251 (1976) ("[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain.'").Vance v. Peters, 97 F.3d 987, 991-992 (7th Cir. 1996), cert. denied, 520 U.S. 1230 (1997). However, the Supreme Court stressed that this test is not an insurmountable hurdle for inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. . . . Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.Farmer, 511 U.S. at 842.
The Seventh Circuit's decisions following this standard for deliberate indifference in the denial or delay of medical care require evidence of a defendant's actual knowledge of, or reckless disregard for, a substantial risk of harm. The Circuit also recognizes that a defendant's inadvertent error, negligence, or even ordinary malpractice is insufficient to rise to the level of an Eighth Amendment constitutional violation.
Neglect of a prisoner's health becomes a violation of the Eighth Amendment only if the prison official named as defendant is deliberately indifferent to the prisoner's health — that is, only if he 'knows of and disregards an excessive risk to inmate health or safety.'Williams v. O'Leary, 55 F.3d 320, 324 (7th Cir.), cert. denied, 516 U.S. 993 (1995); see also Steele, 82 F.3d at 179; Miller v. Neathery, 52 F.3d 634, 638-39 (7th Cir. 1995).
Based on the allegations in the complaint, the Court is unable to dismiss the claims against Johnson, Gardner, and Collins at this point in the litigation. See 28 U.S.C. § 1915A.
However, Plaintiff's claims against the other defendants do not rise to the level of an Eighth Amendment violation. He states that he wrote to Justus about the situation, but he makes no allegations that Justus received these complaints or took any action in response. He merely mentions that he complained to Madglin about his medical problems; no other allegations are made against her. His only allegation against Scrubberg is his delay in summoning medical attention when he first learned of the injury. However, an allegation of mere delay in providing treatment, without more, will not state a claim for deliberate indifference. Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). Likewise, his only allegation against Slate is that she called the dentist. Finally, he makes no allegations at all against Sounders. Therefore, these five Defendants are dismissed from this action with prejudice.
APPOINTMENT OF COUNSEL
With his complaint, Plaintiff also filed a motion for appointment of counsel (Doc. 3). When deciding whether to appoint counsel, the Court must first determine if a pro se litigant has made reasonable efforts to secure counsel before resorting to the courts. Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). Plaintiff makes no showing that he has attempted to retain counsel. Therefore, the Court finds that appointment of counsel is not warranted at this time. Accordingly, Plaintiff's motion for appointment of counsel is DENIED. DISPOSITION IT IS HEREBY ORDERED that Defendants JUSTUS, MADGLIN, SCRUBBERG, SLATE, and SOUNDERS are DISMISSED from this action with prejudice.
The Clerk of Court is DIRECTED to prepare Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons) for Defendants COLLINS, GARDNER, and JOHNSON. The Clerk shall forward those forms, USM-285 forms submitted by Plaintiff, and sufficient copies of the complaint to the United States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule 4(c)(2) of the Federal Rules of Civil Procedure, to serve process on Defendants COLLINS, GARDNER, and JOHNSON in the manner specified by Rule 4(d)(2) of the Federal Rules of Civil Procedure. Process in this case shall consist of the complaint, applicable Forms 1A and 1B, and this Memorandum and Order. For purposes of computing the passage of time under Rule 4(d)(2), the Court and all parties will compute time as of the date it is mailed by the Marshal, as noted on the USM-285 form.
With respect to former employees of the St. Clair County Jail who no longer can be found at the work address provided by Plaintiff, the County shall furnish the Marshal with that Defendant's last-known address upon issuance of a Court order which states that the information shall be used only for purposes of effectuating service (or for proof of service, should a dispute arise), and any documentation of the address shall be retained only by the Marshal. Address information obtained from the County pursuant to such order shall not be maintained in the Court file nor disclosed by the Marshal.
The United States Marshal shall file returned waivers of service, as well as any requests for waivers of service that are returned as undelivered, as soon as they are received. If a waiver of service is not returned by a defendant within THIRTY (30) DAYS from the date of mailing the request for waiver, the United States Marshal shall:
• Request that the Clerk prepare a summons for that defendant who has not yet returned a waiver of service; the Clerk shall then prepare such summons as requested.
• Personally serve process upon that defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
• Within ten days after personal service is effected, the United States Marshal shall file the return of service for that defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally-served defendant in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2) unless that defendant shows good cause for such failure.
Plaintiff is ORDERED to serve upon each defendant or, if appearance has been entered by counsel, upon that attorney, a copy of every further pleading or other document submitted for consideration by this Court. He shall include with the original paper to be filed with the Clerk of Court a certificate stating the date that a true and correct copy of any document was mailed to defendants or their counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to a United States Magistrate Judge for further pretrial proceedings.
Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs.
IT IS SO ORDERED.