ROBERT M. BOYD v. JOHNSON

ROBERT M. BOYD, #B-51078, Plaintiff,

v. YOLANDA JOHNSON, MARVIN POWERS, MS. VINARD, NURSERONDA, and STACY WILLIAMS, Defendants.

CASE NO. 10-cv-701-MJR

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Dated: March 29, 2011

MEMORANDUM AND ORDER

REAGAN, District Judge:

Plaintiff Robert M. Boyd, an inmate in Tamms Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 45 year sentence for attempt murder, in addition to sentences on several other offenses. This case is now 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). An action fails to state a claim upon which reliefcan be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7^th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7^th Cir. 2009).

Upon careful review of the complaint, the Court finds it appropriate to exercise its authority under Section 1915A; portions of this action are subject to summary dismissal.

The Complaint

Plaintiff suffers from severe seizures due to epilepsy, as well as from depression, dementia and an intellectual functioning disorder. His complaint consists of three counts: (1) Failure to provide adequate medical care to prevent his chronic grand mal seizures; (2) Deprivation of liberty by placing him in extended isolation; and (3) Violations of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by failing to institute safety measures to prevent serious injury or death from his chronic grand mal seizures, failing to properly treat his disabling seizure disorder, and exacerbating his condition by placing him in isolation. He has sued each Defendant in his or her individual and official capacities.

Plaintiff seeks injunctive relief requiring the Defendants to provide him with testing and treatment for his seizure disorder, provide him with a cell with a working emergency call button and a sign to alert guards to his seizure condition, and remove the plexiglass covering on his cell door. He also seeks compensatory and punitive damages.

Discussion

Based on the allegations in the complaint, the Court finds it convenient to divide the pro se action into four (4) counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

Count 1 - Deliberate Indifference to Serious Medical Needs

Generally, an inmate's dissatisfaction with the medical care he receives in prison does not state a constitutional claim for deliberate indifference, even if the quality of care was substandard to the point of negligence or malpractice. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Sanville v. McCaughtry, 266 F.3d 724, 734 (7^th Cir. 2001); Snipes v. DeTella, 95 F.3d 586, 591 (7^th Cir. 1996). However, in certain instances, a constitutional claim may lie if prison officials' actions amount to a failure to treat a serious medical condition.

To prevail on an Eighth Amendment claim, a plaintiff must show that the responsible prison officials were deliberately indifferent to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 590 (7^th Cir. 1999). Deliberate indifference involves a two-part test. The plaintiff must show that (1) the medical condition was objectively serious, and (2) the state officials acted with deliberate indifference to his medical needs, which is a subjective standard.

Sherrod v. Lingle, 223 F.3d 605, 619 (7^th Cir. 2000). 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 considers the following to be indications of a serious medical need: (1) where failure to treat the condition could "result in further significant injury or the unnecessary and wanton infliction of pain;" (2) "[e]xistence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment;" (3) "presence of a medical condition that significantly affects an individual's daily activities;" or (4) "the existence of chronic and substantial pain." Gutierrez v. Peters, 111 F.3d 1364, 1373 (7^th Cir. 1997).

To show deliberate indifference, a prison official must "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists" and must actually "draw the inference." Farmer, 511 U.S. at 837. However, a plaintiff inmate need not prove that a defendant intended the harm that ultimately transpired or believed the harm would occur. Walker v. Benjamin, 293 F.3d 1030, 1037 (7^th Cir. 2002) (discussing Haley v. Gross, 86 F.3d 630, 641 (7^th Cir. 1996)).

The Seventh Circuit has found that an Eighth Amendment claim may be stated where a prison doctor persists in a course of treatment known to be ineffective and fails to order further testing or refer the inmate to a specialist. Greeno v. Daley, 414 F.3d 645, 655 (7^th Cir. 2005) (doctor continued ineffective treatment, and refused to order endoscopy or specialist referral over a two-year period during which plaintiff suffered from ulcer); Kelley v. McGinnis, 899 F.2d 612,616-17 (7^th Cir. 1990) (inmate may prevail if he can prove that defendant "deliberately gave him a certain kind of treatment knowing that it was ineffective" (citing Estelle, 429 U.S. at 104 n.10) and noting that "repeated, long-term negligent treatment" could amount to deliberate indifference); but see Jolly v. Knudsen, 205 F.3d 1094, 1097 (8^th Cir. 2000) (doctor who changed dosage levels of anti-seizure medications and referred inmate to specialist was not deliberately indifferent).

Plaintiff alleges that he has suffered from severe epilepsy for the entire 16 years he has been in prison. Defendant Marvin Powers, M.D., has treated Plaintiff since he arrived at Tamms in 2003, in addition to a previous period from 1998 to 1999. Plaintiff has been on the anti-seizure medications Dilantin and Tegretol for an extended period, but this treatment has not alleviated his grand mal seizures, which Plaintiff claims have become worse since January 2010. He alleges that he suffered four severe seizures on January 14, 2010, another on February 24, 2010, and three others between March 31 and August 25, 2010. The seizures have caused loss of consciousness, cessation of breathing, vomiting, dizziness, nausea, pain, loss of bladder control, as well as head and other injuries from falling to the concrete floor. Plaintiff claims he had to be revived with CPR twice after his seizures on January 14, 2010.

Despite the worsening of Plaintiff's seizure condition, which has also been accompanied by unexplained severe weight loss (67 pounds), Defendant Powers has continued to treat Plaintiff with the same medications that have historically failed to ameliorate his symptoms. Furthermore, Plaintiff alleges that Defendant Powers has been unable to get these medications stabilized in Plaintiff's system.

Plaintiff complains at length about his treatment following a seizure on February 24,2010. When he regained consciousness, he was lying on a mattress in the infirmary, soaked in his own urine, and was told by staff he had been in that condition for two hours. He claims Defendants Powers, Vinard (Health Care Administrator), Williams (Nursing Supervisor), and Nurse Ronda all failed to properly treat him for that seizure, doing nothing but a blood draw to check his medication levels.

Plaintiff also complains that the Defendants have failed to provide follow up treatment that was recommended by an outside physician who...