continuing to treat severe vomiting with antacids over three years created an issue of material fact as to deliberate indifference
How later courts described this case
- continuing to treat severe vomiting with antacids over three years created an issue of material fact as to deliberate indifference
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
JESUS HERNANDEZ, )
Plaintiff, )
)
v. ) Case No. 4:19-cv-04033-JBM
)
KUL B. SOOD, )
Defendant. )
MERIT REVIEW ORDER
JOE BILLY McDADE, U.S. District Judge:
Plaintiff pro se, Jesus Hernandez, who is currently incarcerated at Graham Correctional
Center, filed a complaint [1] under 42 U.S.C. § 1983 and a motion seeking this Court’s
assistance in recruiting counsel [5] as provided by 28 U.S.C. § 1915(e)(1).
Plaintiff’s complaint is before the Court for merit review pursuant to 28 U.S.C. §1915A,
which requires the Court to “screen” Plaintiff’s complaint, and through such process, 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(b)(1)-(2). In reviewing the complaint, the Court accepts the factual allegations
as true, liberally construing them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649
(7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must
be provided to “state a claim for relief that is plausible on its face.” Alexander v. United States,
721 F.3d 418, 422 (7th Cir. 2013) (citation omitted).
1
The events described in Plaintiff’s complaint occurred while he was incarcerated at Hill
Correctional Center from August 2013 to April 2017. During that time, Plaintiff had a bullet
lodged in his left thigh, which caused him pain and suffering. Plaintiff states that Defendant
Sood, Plaintiff’s treating physician, knew that he had a medical appointment to remove the
bullet, which was scheduled to occur before Plaintiff’s incarceration, but Sood refused to
authorize surgery and instead, prescribed Naproxen and 800 milligrams of ibuprofen. Plaintiff
asserts that Sood continued prescribing that medication for four years even though Sood knew of
the risks. According to Plaintiff, the long-term use of ibuprofen caused damage to his liver and
the lining of his stomach, which has caused Plaintiff to suffer stomach aches and constant
urination. Plaintiff was transferred to a different facility where the bullet was removed.
Plaintiff’s allegations state a plausible claim against Defendant Sood in his individual
capacity for deliberate indifference to Plaintiff’s serious medical needs. “[A] situation that might
establish a departure from minimally competent medical judgment is where a prison official
persists in a course of treatment known to be inactive.” Petties v. Carter, 836 F.3d 722, 729-30
(7th Cir. 2016); see also Greeno v. Dailey, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat
severe vomiting with antacids over three years created an issue of material fact as to deliberate
indifference). “While the cost of treatment is a factor in determining what constitutes adequate,
minimum-level care, medical personnel cannot simply resort to an easier course of treatment that
they know is ineffective.” Petties, 836 F.3d at 730.
The Court notes that in addition to filing his complaint, Plaintiff has filed a motion for
recruitment of counsel [5]. In considering Plaintiff’s motion, the Court must ask two questions:
“(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively
2
precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). The Court
denies Plaintiff’s motion for recruitment of counsel, with leave to renew upon demonstrating that
he has attempted to hire counsel, which typically requires writing to several lawyers and
attaching the responses received. If Plaintiff files another motion for recruitment of counsel, he
should also provide his education level, prison classes he has completed, employment history in
and out of prison, and prior litigation experience, if any.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of Plaintiff’s complaint under 28 U.S.C. § 1915A,
the Court finds that Plaintiff has alleged enough facts to proceed with his Eighth
Amendment deliberate indifference claim against Defendant Sood. Plaintiff’s
claim against Sood is in his individual capacity only. Any additional claims shall
not be included in the case, except at the Court’s discretion on motion by a party
for good cause shown or pursuant to Federal Rule of Civil Procedure 15.
2) The Court DENIES Plaintiff’s motion for recruitment of counsel [5], with leave
to renew.
3) The Court DENIES as moot Plaintiff’s motions for status [6, 7].
4) This case is now in the process of service. Plaintiff is advised to wait until counsel
has appeared for Defendant before filing any motions, in order to give
Defendant notice and an opportunity to respond to those motions. Motions filed
before Defendant’s counsel has filed an appearance will generally be denied as
premature. Plaintiff need not submit any evidence to the Court at this time
unless otherwise directed by the Court.
5) The Court will attempt service on Defendant by mailing a waiver of service.
Defendant has sixty days from service to file an Answer. If Defendant has not
filed Answers or appeared through counsel within ninety days of the entry of
this order, Plaintiff may file a motion requesting the status of service. After
Defendant has been served, the Court will enter an order setting discovery and
dispositive motion deadlines.
3
6) If Defendant no longer works at the address provided by Plaintiff, the entity for
whom that Defendant worked while at that address shall provide to the Clerk
said Defendant’s current work address, or, if not known, said Defendant’s
forwarding address. This information shall be used only for effectuating service.
Documentation of forwarding addresses shall be retained only by the Clerk and
shall not be maintained in the public docket nor disclosed by the Clerk.
7) Defendant shall file an Answer within sixty days of the date the waiver is sent by
the Clerk. A motion to dismiss is not an answer. The answer should include all
defenses appropriate under the Federal Rules. The answer and subsequent
pleadings shall be to the issues and claims stated in this Order. In general, an
answer sets forth Defendant’s positions. The Court does not rule on the merits of
those positions unless and until a motion is filed by Defendant. Therefore, no
response to the Answer is necessary or will be considered.
8) This District uses electronic filing, which means that, after Defendant’s counsel
has filed an appearance, Defendant’s counsel will automatically receive
electronic notice of any motion or other paper filed by Plaintiff with the Clerk.
Plaintiff does not need to mail to Defendant’s counsel copies of motions and
other papers that Plaintiff has filed with the Clerk. However, this does not apply
to discovery requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and responses
directly to Defendant’s counsel. Discovery requests or responses sent to the
Clerk will be returned unfiled unless they are attached to and the subject of a
motion to compel. Discovery does not begin until Defendant’s counsel has filed
an appearance and the Court has entered a scheduling order, which will explain
the discovery process in more detail.
9) Defendant’s counsel is granted leave to depose Plaintiff at his place of
confinement. Defendant’s counsel shall arrange the time for the deposition.
10) Plaintiff shall immediately notify the Court, in writing, of any change in his
mailing address and telephone number. Plaintiff’s failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this
lawsuit, with prejudice.
11) If Defendant fails to sign and return a waiver of within thirty days after the
waiver is sent, the Court will take appropriate steps to effect formal service
through the U.S. Marshals service on Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of Civil
Procedure 4(d)(2).
4
12) The Clerk is directed to enter the standard qualified protective order pursuant
to the Health Insurance Portability and Accountability Act.
13) The Clerk is directed to attempt service on Defendant through the standard
procedures.
ENTERED June 17, 2019.
s/ Joe Billy McDade
________________________________
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE
5