Wagner v. McCann

TERRY WAGNER (#R-07282), Plaintiff,

v.WARDEN TERRY McCANN, et al., Defendants.

Case No. 10 C 2160

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: July 27, 2011

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff, Terry Wagner (the "Plaintiff"), a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Plaintiff claims that the Defendants, correctional officials and health care providers at the Stateville Correctional Center, have violated the Plaintiff's constitutional rights by acting with deliberate indifference to his serious medical needs. More specifically, the Plaintiff claims that he has received inadequate care and treatment for his chronic rashes, resulting in unnecessary pain and suffering. This matter is before the court for ruling on Defendants Anthony Ramos' and Allen Karraker's Motions to Dismiss the Amended Complaint for failure to state a claim. For the reasons stated herein, Anthony Ramos' Motion to Dismiss is denied and Allen Karraker's Motion to Dismiss is granted.

I. LEGAL STANDARD

It is well established that pro se complaints are to be liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006) . Pro se submissions are held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).

To satisfy the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), the plaintiff must only state his basic legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004). In addition, when considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court assumes all factual allegations in the complaint to be true, viewing all facts-as well as any inferences reasonably drawn therefrom - in the light most favorable to the plaintiff. Parish v. City ofElkhart , 614 F.3d 677, 679 (7th Cir. 2010); Bell Atlantic Corp., 550 U.S. at 563 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). A well-pleaded complaint may proceed even if it appears "that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Bell Atlantic Corp., 550 U.S. at 556.

Nevertheless, the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp., 550 U.S. at 555. While a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). The court "need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). "The complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010)(citing Ashcroft v. Iqbal, _ U.S. _, 129 S.Ct. 1937, 1949 (2009)). Furthermore, a plaintiff can plead himself orherself out of court by pleading facts that undermine the allegations set forth in the complaint. See, e.g., Whitlock v. Brown, 596 F.3d 406, 412 (7th Cir. 2010)(citations omitted): "A judicial admission trumps evidence. This is the basis of the principle that a plaintiff can plead himself out of court."

II. FACTS

The Plaintiff alleges the following facts relative to the movants and assumed true for purposes of the motions to dismiss:

The Plaintiff is an Illinois state prisoner, confined at the Stateville Correctional Center at all times relevant to this action. (Amended Complaint, p. 2, ¶ 5.) Defendant Anthony Ramos ("Ramos") was the facility's warden at the time of some of the events giving rise to this action. (Id., ¶ 7.) Defendant Alex Karraker ("Karraker") is a supervisor for Wexford Health Sources, Inc., which employs individuals to work at Stateville and other correctional facilities. (Id., ¶ 10.)

In April of 2006, the Plaintiff developed a rash on his body. (Amended Complaint, ¶ 23.) A staff physician (Defendant Tilden, who has not joined the motions to dismiss) prescribed the Plaintiff Tolnaftate ointment. According to www.wikipedia.org, Tolnaftate is an antifungal medication designed to control skin infections. (Id., ¶ 24.)

On June 5, 2006, the Plaintiff returned to the health care unit, reporting that the rash had spread to his face. (Id., ¶ 25.) Defendant Tilden prescribed additional medications. (Id., ¶ 26.)

The Plaintiff returned to the health care unit later that month and received additional medication. (Id., ¶ 26.)

On September 21, 2006, more medication was prescribed. (Id., ¶ 27.) Stateville physicians refused, however, to refer the plaintiff to an outside specialist. (Ibid.)

On December 20, 2006, the Plaintiff had a consultation with another physician, Defendant Ghosh ("Ghosh")(also a non-movant). (Id., ¶ 28.) Ghosh found that the skin rash was "chronic" and warm to the touch. (Ibid.) The Plaintiff was once again given Tolnaftate, even though it had not alleviated the problem during the first course of treatment. (Ibid.)

On April 1, 2007, the Plaintiff filed a grievance regarding the perceived deficiencies in the medical care he was receiving. (Id., ¶ 13.) The grievance was ultimately denied. (Amended Complaint, ¶ 34.)

On June 14, 2008, Ghosh issued the Plaintiff a medical pass; however, the facility was on "lockdown" at the time. (Id., ¶ 35.)

On June 25, 2008, the Plaintiff had a consultation with Ghosh. (Id., ¶ 36.) Ghosh promised the Plaintiff that he was sending him to see an outside specialist. (Ibid.) However, the Plaintiff was not taken to see an outside physician. (Ibid.)

On July 27, 2008, the Plaintiff wrote a letter to Ghosh requesting a renewal of his medical shower permit. (Id., ¶ 37.) Ghosh did not respond to the letter. (Ibid.)

On July 30, 2008, the Plaintiff wrote to Ghosh again, worried that his rashes would recur if the medical permit were not renewed. (Id., ¶ 38.)

On August 4, 2008, the Plaintiff wrote Ghosh again, complaining that he was "itching all over his body." (Id., ¶ 39.) Ghosh did not respond to the letter or issue a pass to the health care unit. (Ibid.)

On August 8, 2008, the Plaintiff wrote Ghosh once again. (Id., ¶ 40.) The Plaintiff advised Ghosh that the rashes had returned and that his face and back felt as if they were "on fire." (Ibid.) Ghosh still failed to take any action. (Ibid.)

In September 2008, the Plaintiff was finally given a medical shower permit and new medication, both of which apparently alleviated his condition over the next year. (Id., ¶ 42.)

On September 4, 2008, the Plaintiff wrote a letter to Wexford Health Sources, Inc., advising the company, too, that he was "suffering" and that his face and back felt on fire.

On September 15, 2009, after learning that inmates were forging medical shower permits, Ramos stopped all medical showers without making any case-by-case determinations. (Id., ¶ 43.)

On September 30, 2009, Plaintiff wrote to Ramos to apprise the warden of his condition and explain why he needed medical showers. (Id., ¶ 44.) In response, Ramos assured the Plaintiff that he would be seen by Ghosh for a re-evaluation. (Id., ¶ 45.)

On October 7, 2009, the Plaintiff wrote to Ghosh, asking for an expedited evaluation because he was "itching and scratching." (Id., ¶ 42.) The letter produced no results. (Ibid.)

On October 15, 2009, the Plaintiff wrote a second letter to Ramos. (Id., ¶ 47.) The Plaintiff advised Ramos, "I haven't been evaluated and I'm suffering here, sir, [so] I would really appreciate your assistance in this matter." (Ibid.)

On October 16, 2009, the Plaintiff wrote to Ghosh again, alerting the doctor that his back, chest and face once again felt "on fire." (Id. , ¶ 48.)

On October 22, 2009, the Plaintiff filed another grievance regarding his medical care. (Id., ¶ 50.) The Plaintiff alsosent letters to Ghosh and Ramos, both of whom "let the plaintiff suffer in pain." (Ibid.) The grievance was ultimately denied. (Id., ¶ 53.)

On November 17, 2009, the Plaintiff wrote a letter to Karraker about Ghosh's substandard care. (Id., ¶ 51.) Karraker did not act to ensure that the Plaintiff received adequate treatment. (Ibid.)

III. DISCUSSION

Accepting the Plaintiff's allegations as true, the Court concludes that his Amended Complaint states a viable claim of deliberate indifference with respect to Ramos. However, Karraker must be dismissed for lack of direct, personal involvement.

A. Personal Involvement of Warden Ramos

The Plaintiff has articulated a tenable Eighth Amendment claim against Ramos. The Amended Complaint indicates that Ramos was personally and directly involved in the alleged denial of medical care; moreover, the Amended Complaint supports an inference that Ramos acted with deliberate indifference to the Plaintiff's serious medical needs.

Correctional officials and health care providers may not act with deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). The fact that aprisoner received some medical treatment does not necessarily defeat his claim;...