J. PHIL GILBERT, District Judge.
Plaintiff, a former inmate at the Clay County Jail, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks equitable relief and damages for deprivations of his constitutional rights. This case is now before the Court for a preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A, which provides:
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 relief can 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). 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, 556 U.S. 662, 678 (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 (7th 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. Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).
Plaintiff originally filed this action on May 16, 2016 against Andy Myers and Pat Greenwood. (Doc. 1). The Court dismissed this action on June 30, 2016, although the dismissal was without prejudice as to claims 1, 2, 5, 8, and 9. (Doc. 12). On July 11, 2016, Plaintiff filed an Amended Complaint, which additionally names Bill Gross, Darrin Barbee, and Ramiee Phillips as Defendants, as well as provides more factual background. The Court now turns to the Amended Complaint for review pursuant to 1915A. The Court notes that although it will consider the exhibits attached to Plaintiff's Complaint at Doc. 1-1, the allegations in the Amended Complaint must be able to stand on their own, as the Amended Complaint supersedes the Complaint, rendering it a nullity.
Plaintiff was booked into the Clay County Jail on December 10, 2015. (Doc. 16, p. 7). He observed two other inmates make free phone calls, but when he asked Darrin Barbee for a free phone call, Barbee denied it. (Doc. 16, p. 7). Plaintiff cannot call his family collect. (Doc. 16, p. 7). Plaintiff filed a grievance on this issue, which Greenwood denied. (Doc. 16, p. 7) (Doc. 1-1, p. 10).
On January 13, 2016, Plaintiff requested a copy of a legal directory, the civil rules of procedure, and a § 1983 complaint form. (Doc. 16, p. 6). Myers denied the request. (Doc. 16, p.
6). The response indicated that no legal directory will provide numbers if requested. (Doc. 1-1, p. 8). The response further stated that the rules of civil procedure are available through Plaintiff's attorney or from the law library. (Doc. 1-1, p. 8). Plaintiff was also told to draft his own complaint. (Doc. 1-1, p. 8).
On April 21, 2016, Plaintiff requested postage to mail in the original complaint in this case; Plaintiff needed postage because the complaint was heavier than he could mail with a first class stamp. (Doc. 16, p. 6). Myers denied that request, stating that he was entitled to one stamp per week, and that rollovers were not permitted. (Doc. 16, p. 6). The Court notes that Plaintiff filed his case on May 16, 2016. (Doc. 1). On June 10, 2016, Plaintiff again requested law library access and copies. (Doc. 16, p. 12). Myers responded stating, "this is not county jail standards, contact your court appointed lawyer." (Doc. 16, p. 12). Plaintiff filed another grievance on June 16, 2016 because he wished to access the law library in order to work on the present case. (Doc. 16, p. 12).
Plaintiff had a phone call with his attorney, Scott Ealy on January 18, 2016. (Doc. 16, p. 6). Bill Gross and Pat Greenwood monitored the call, even after Plaintiff requested privacy. (Doc. 16, p. 6). The Amended Complaint indicates that all phones in the Clay County jail are monitored. (Doc. 16, p. 7). The grievance response indicates that the monitoring was performed at the request of Plaintiff's attorney. (Doc. 1-1, p. 7). Plaintiff alleges that his attorney did not request monitoring. (Doc. 16, p. 6). Plaintiff requested a call with his attorney on March 17, 2016. (Doc. 16, p. 7). Plaintiff alleges that he is unable to call his attorney collect, and that he has seen other inmates, like Matt Brown, make direct calls to their attorneys, presumably without having to call collect. (Doc. 16, p. 7). Plaintiff requested another call on March 27, 2016, which Myers also denied. (Doc. 16, p. 7). Plaintiff believes that he has been treated unfairly and differently from other inmates. (Doc. 16, p. 7).
Plaintiff broke a tooth while eating lunch on April 9, 2016. (Doc. 16, p. 8). He requested pain medication from Phillips, who denied it because Plaintiff was indigent. (Doc. 16, p. 8). Plaintiff requested pain medication again the next day on April 10, 2016. (Doc. 16, p. 8). This time Gross denied the request. (Doc. 16, p. 8). On April 10, 2016, Plaintiff filed a grievance to Greenwood. (Doc. 16, p. 8). Greenwood responded by asking if Plaintiff wanted to see the dentist. (Doc. 16, p. 8) (Doc. 1-1, p. 17). Plaintiff said "yes," but Greenwood told him that no dentist in Clay County takes Medicaid. (Doc. 16, p. 8). Gross denied Plaintiff pain medication again on April 19, 2016; Greenwood "noted" Plaintiff grievance about the incident, but took no action. (Doc. 16, p. 8) (Doc 1-1, p. 18). Plaintiff also wrote a grievance to Myers regarding his broken tooth on April 19, 2016. (Doc. 1-1, p. 22). On May 4, 2016, Plaintiff was furloughed to rehab. (Doc. 16, p. 8). While he was there, he was treated for an infection in his broken tooth, which included prescription ibuprofen and an antibiotic. (Doc. 16, p. 8). He was eventually taken to Everyone's Family Dental to repair the tooth. (Doc. 16, p. 9).
Plaintiff requested information on HIV/AIDS and STD testing. (Doc. 16, p. 9). Greenwood responded, "will check and let you know." (Doc. 16, p. 9) (Doc. 1-1, p. 4). Plaintiff alleges that he has been an intravenous drug user, had unprotected sex, and fresh tattoos, putting him at high risk for those types of infections. (Doc. 16, p. 9). He further alleges that the jail offers no information regarding the availability of those tests, in violation of Illinois' County Jail Act. (Doc. 16, p. 9).
On April 25, 2016, Plaintiff was transferred to St. Clair County for a court writ. (Doc. 16, p. 9). Clay County jail allegedly did not send any prescription medication with Plaintiff, and so he was without his medication for three days. (Doc. 16, p. 10). Plaintiff takes medication for anxiety, depression, and post-traumatic stress disorder. (Doc. 16, p. 10). He suffers from anxiety attacks, flashbacks, nightmares, and headaches. (Doc. 16, p. 10). He takes Buspirone and Citalopram for these conditions. (Doc. 16, p. 10). Myers denied Plaintiff's grievance and stated "that is the responsibility of the facility where you are housed." (Doc. 16, p. 10) (Doc. 1-1, p. 1).
After receiving psychiatric treatment elsewhere, Plaintiff returned to the Clay County Jail on June 1, 2016. (Doc. 16, p. 10). Allegedly, Plaintiff had orders from a psychiatrist that he was to have a psychiatric follow-up and a medical check. (Doc. 16, p. 10). Myers noted the order. (Doc. 16, p. 10). On June 8, 2016, Plaintiff filed a grievance because his anxiety attacks and headaches were getting worse. (Doc. 16, p. 10). Myers responded that "this will be addressed." (Doc. 16, p. 10). Plaintiff filed another grievance on June 15, 2016 alleging that he was suffering from panic attacks, flashbacks, and severe headaches. (Doc. 16, p. 11). Plaintiff wrote a third grievance regarding his symptoms on June 22, 2016. (Doc. 16, p. 11). Myers allegedly responded, "we will see about making you an appointment." (Doc. 16, p. 11).
During this back and forth on June 14, 2016, Greenwood asked Plaintiff if she could show his medical and psychiatric records to the sheriff to "get you some help." (Doc. 16, p. 11). The records were returned to Plaintiff approximately one hour later and Plaintiff was told that the records were faxed to the County's lawyers. (Doc. 16, p. 11). Plaintiff takes issue with the release of his medical records. (Doc. 16, p. 11).
Previously, the Court divided Plaintiff's claims into nine counts. As Plaintiff has added some claims to the Amended Complaint and abandoned others, the Court feels it is appropriate to re-number the Complaint into eight counts at this time. The Courts and the parties will use the revised designations in all pleadings and filings going forward. The following claims survive threshold review:
The following claims fail to survive threshold review and will be dismissed:
The Due Process clause of the Fourteenth Amendment prohibits punishment of persons who have not yet been convicted of a crime. Bell v. Wolfish, 441 U.S. 520, 536, n. 16 (1979); Smith v. Dart, 803 F.3d 304, 310 (7th Cir. 2015); Martin v. Tyson, 845 F.2d 1451, 1455 (7th Cir. 1988). As Plaintiff was a pre-trial detainee, the analysis proceeds under the Fourteenth Amendment, although the Seventh Circuit has noted that conditions of confinement claims under the Fourteenth Amendment have "little practical difference" from claims brought pursuant to the Eighth Amendment. Smith, 803 F.3d at 310. Claims brought pursuant to the Fourteenth Amendment may be analyzed under Eighth Amendment standards. Id. (citing Smego v. Mitchell, 723 F.3d 752, 756 (7th Cir. 2013) ("[T]he protection afforded under [the Due Process Clause] is functionally indistinguishable from the Eighth Amendment's protection for convicted prisoners."); Hart v. Sheahan, 396 F.3d 887, 892 (7th Cir. 2005) ("[T]he standards applicable to complaints by convicts and by pretrial detainees about unsafe conditions of confinement merge.")) (other citations omitted).
Under a deliberate indifference standard, Plaintiff's claims in
In
Here, Plaintiff alleges that he was not given over-the-counter pain medication for his broken tooth when he requested it from Phillips and Gross. He has further alleged that he requested a dentist visit from Greenwood, who refused to take Plaintiff to one. Plaintiff grieved these issues to both Greenwood and Myers. Plaintiff has alleged that when he received dental treatment, he needed pain killers, antibiotics to treat an infection, and dental care. Based on the treatment that Plaintiff ultimately received, it appears that his broken tooth was a serious medical need, and he alleges that Greenwood, Gross, and Phillips did not provide him with medical treatment when confronted by the broken tooth. As to Myers, although Plaintiff does not allege that he ever asked Myers directly for treatment or medication, he included a grievance on the issue that Myers signed off on. Non-medical defendants who have been made aware of a prisoner's serious medical need via the grievance process may be held liable in certain circumstances. Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015). That is sufficient at this stage, and
As to
Nevertheless, Plaintiff has alleged that he suffers from serious psychiatric issues, which cause daily symptoms, and that Myers did not take action on recommendations for follow-up care made by outside medical providers. While this claim requires further factual development, at this stage, Plaintiff has made a plausible deliberate indifference claim regarding his mental health needs, and
However, all other claims must be dismissed. What the Court has now designated
Although Plaintiff has provided additional detail in his Amended Complaint, it still fails to show any prejudice. The Court's previous Order pointed out that it only knew of two legal matters at issue: Plaintiff's underlying criminal case and this civil case. In his Amended Complaint, Plaintiff has confirmed that those are the legal matters at issue. But Plaintiff has an appointed counsel in his criminal matter, which satisfies the state's obligation to provide him with access to the courts. See Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir. 1987) (finding that an offer to appoint counsel in a criminal cases satisfies a state's obligation to provide legal assistance and that a prisoner had no right to demand law library access in the alternative). Plaintiff has also not explained how the phone monitoring prejudiced him or affected his criminal case.
And as to the present matter, the Court cannot find any prejudice. Plaintiff alleges that he was not given a stamp to mail his original complaint in, but three weeks after that allegation, his complaint was filed. Plaintiff has not alleged that he has concerns about the statute of limitations, or any other time provision that would act to bar this action as a result of the delay. Plaintiff further alleges that he was not given access to the law library in order to prepare his Amended Complaint, yet he filed the Amended Complaint two weeks prior to the deadline imposed by the Court. Plaintiff may "feel" that Defendants have been "unfair," but unless he can articulate some form of prejudice, for example, a missed deadline or some other circumstance that caused him to actually lose a viable claim, he has not stated a claim upon which relief can be granted.
Although Plaintiff has now named the Defendant (Barbee) that he alleges deprived him of a phone call when he arrived at the jail, he has not provided any reason for the Court to vacate its prior Order dismissing this count with prejudice. Plaintiff was not granted leave to amend this claim, so the analysis on whether the claim can proceed turns on whether the prior order was correct. Plaintiff has not identified any ground legally or factually why the Court's prior order was erroneous. See Fed. R. Civ. P. 59(e). Therefore
Turning now to
As discussed in more detail above, to state a deliberate indifference claim, a plaintiff must allege that he suffered from a serious medical need. This claim was originally dismissed because Plaintiff did not articulate a reason why he needed an AIDS/HIV or STD test. Now Plaintiff has alleged that he engaged in high risk behavior for those conditions prior to his incarceration. But the Court cannot find any case that holds that a fear of developing a serious medical need, however legitimate, is the same as having a serious medical need. Generally, a serious medical need is one "that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would perceive the need for a doctor's attention." Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir. 2007). Here, Plaintiff has not alleged that he was previously diagnosed with any of the conditions. He has also not alleged that he was experiencing any symptoms that would indicate a need for testing or treatment to a layperson. Therefore the Court finds that Plaintiff has failed to state a claim upon which relief could be granted. As this is Plaintiff's second bite at the apple,
In contrast, the Court finds that Plaintiff has articulated a serious medical need when he says he was deprived of his psychotropic medication in
Finally, turning to
Since filing this action, Plaintiff has filed two motions seeking recruitment/appointment of counsel. (Doc. 2) (Doc. 17). Those motions will be referred to a magistrate judge for disposition.
Defendants are
Pursuant to Local Rule 72.1(a)(2), this action is
Further, this entire matter is
Plaintiff is
Finally, Plaintiff is