Harold v. Brannon

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

TONY HAROLD, )

Plaintiff, )

)

vs. ) No. 19-4199

)

CHRISTINE BRANNON, et. al., )

Defendants )

MERIT REVIEW ORDER

This cause is before the Court for merit review of the Plaintiff’s complaint. The

Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through

such process to 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.

Plaintiff, a pro se prisoner, has filed his complaint pursuant to 42 U.S.C. §1983

against several Defendants at East Moline Correctional Center including Warden

Christine Brannon, Assistant Warden Robert Hamilton, Maintenance Engineer Pat Ruhl,

Grounds Supervisor Kenny Grant, Grounds Supervisor Terry Stone, and an unspecified

number of Jane and John Doe Defendants. (Comp., p. 1, 2-3).

Plaintiff says on June 13, 2019, he was “directed to walk along a certain route

with his assigned housing unit while returning from the Dietary Department.” (Comp.,

p. 5). Plaintiff says while walking, he fell in a “sinkhole/hole” which was about three

feet deep and a half a foot wide. Plaintiff says holes in the walkway are visible, but

residents are ordered to follow a particular pathway. Plaintiff also says some prison

employees believe the holes are caused by erosion and improper upkeep of the

grounds. Plaintiff claims prison staff was deliberately indifferent to the hazardous

condition and “grossly negligent” in their duty to maintain a safe environment for

inmates. (Comp., p. 6).

After he fell, Plaintiff was in severe pain and unable to stand. Plaintiff was

transported to the prison hospital. Plaintiff claims he suffered “permanent injuries,”

but he does not provide any additional information or even state what part of his body

was injured. (Comp., p. 6).

Plaintiff does claim Dr. Rankin issued several medical restrictions and crutches

to assist Plaintiff. However, Plaintiff says Dr. Rankin misdiagnosed his injury. Plaintiff

refers to an x-ray which is not attached to his complaint. Plaintiff again provides no

further explanation of this allegation, but claims Dr. Rankin committed the state law

tort of medical malpractice.

There are several problems with Plaintiff’s complaint. First, Plaintiff is

attempting to allege Defendants violated his Eighth Amendment rights based on the

hazardous hole in the walkway. To state a claim pursuant to §1983 claim, Plaintiff must

allege Defendants were deliberately indifferent to a serious risk of substantial harm.

Grieveson v. Anderson, 538 F.3d 763, 775 (7th Cir. 2008)(internal citation omitted). “[T]he

defendant need not intend harm, but he must know that an excessive risk exists to the

plaintiff's health and safety if no corrective action is taken.” Watkins v. Lancor, 2013 WL

812521, at *1 (E.D.Wis. March 5, 2013) citing Farmer v. Brennan, 511 U.S. 825, 827 (1994).

However, the actual risk to the Plaintiff “is evaluated on an objective basis—the

allegedly dangerous prison condition must deprive an inmate of the minimal civilized

measure of life's necessities.” Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004)(internal

citation omitted).

Therefore, even if a defendant knew about a dangerous prison condition and

purposefully ignored it, a plaintiff will not be entitled to relief if the complaint does not

allege a sufficiently serious condition. Christopher, 384 F.3d at 882. Many courts have

found “poorly maintained surfaces….do not pose a substantial risk of serious harm

supporting a constitutional violation…” Reyes v. Brown, 2017 WL 1355004, at *5 (S.D.Cal.

April 4, 2017)(listing cases); see also Christopher, 384 F.3d at 882 (exposure to a dangerous

softball field did not offend contemporary standards of decency); Watkins, 2013 WL

812521, at *1 (plaintiff’s claim that prison failed to fix known leak resulting in plaintiff’s

fall and injury “does not offend contemporary standards of decency” and instead

alleges “ordinary negligence.”); Hopkins v. Dittmann, 2012 WL 3882321, at *3 (E.D.Wis.

Sept. 6, 2012)(even assuming defendants knew walkway was snow-covered and icy, it

was not an objectively serious condition pursuant to the Eighth Amendment); Seymore

v. Dep't of Corr Servs., 2014 WL 641428, *4 (S.D. N.Y. Feb. 18, 2014)(alleged exposure to

unsafe living conditions including bathroom floor with potholes, cracks and leaks

which caused inmate to slip and fall, failed to meet the standard for an Eighth

Amendment violation).

Instead, Plaintiff’s complaint alleges Defendants were negligent when they failed

to repair holes in the walkway or street which does not rise to the level of an Eighth

Amendment violation. See Giles v. Tobeck, 895 F.3d 510, 513 (7th Cir. 2018)(“negligence

or even gross negligence is not enough to show a constitutional violation.”); Hopkins,

2012 WL 3882321, at *3 (plaintiff’s slip and fall allegation “states a classic claim for

negligence, which he is free to allege in state court.”).

Second, if Plaintiff was intending to allege a Defendant violated his Eighth

Amendment rights based on the medical care provided, he has failed to adequately

state a claim. To state a constitutional claim, Plaintiff must allege a Defendant was

deliberately indifferent to a serious medical condition. Hayes v. Snyder, 546 F.3d 516,

522 (7th Cir. 2008). Plaintiff has failed to identify a serious medical condition since he

does not identify or describe his injury. In addition, Plaintiff has not explained how any

individual was deliberately indifferent to his injury.

At most, Plaintiff says the doctor somehow misdiagnosed his injury, but again,

Plaintiff has alleged negligence, not deliberate indifference. Estelle v. Gamble, 429 U.S. 97,

106 (1976)(“a complaint that a physician has been negligent in diagnosing or treating a

medical condition does not state a valid claim of medical mistreatment under the Eighth

Amendment. Medical malpractice does not become a constitutional violation merely

because the victim is a prisoner.”); Parks v. McCoy, 35 Fed.Appx. 239, 241 (7th Cir. 2002)

(“Numerous cases hold, however, that medical misdiagnoses or malpractice do not

violate the Eighth Amendment.”).

Plaintiff has clearly alleged “medical malpractice,” but this is a state law claim.

(Comp., p. 7). Plaintiff can only proceed with a medical malpractice claim in federal

court if he also adequately states a federal claim such as deliberate indifference to a

serious medical condition. In addition, Illinois law also requires any Plaintiff who is

seeking damages for medical malpractice to file an affidavit with the complaint

providing required information about his condition. See 735 Ill. Comp. Stat. § 5/2-

622(a); see also Young v. United States, -- F.3d --, 2019 WL 5691878 (7th Cir. Nov. 4,

2019)(allowing pro se Plaintiff until summary judgment stage to comply with affidavit

requirement in federal court).

Finally, while Plaintiff mentions Dr. Rankin in the body of his complaint, he does

not identify the doctor or any other medical provider as a Defendant.

Plaintiff is further admonished liability under §1983 hinges on personal

involvement in a constitutional deprivation. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Therefore, Plaintiff cannot simply list Jane and John Doe Defendants without at least

describing the involvement of the unnamed individuals with his claims.

For all the stated reasons, Plaintiff’s complaint is dismissed for failure to state a

claim upon which relief can be granted. If Plaintiff believes he can articulate an Eighth

Amendment claim based on deliberate indifferent to a serious medical condition, he

may file an amended complaint within 21 days. The proposed amended complaint

must include all claims against all individuals and must stand complete on its own

without reference to Plaintiff’s first complaint.

In addition, Plaintiff must clarify his injury and symptoms, must clearly identify

his medical Defendants, and must explain how each Defendant was deliberately

indifferent to his claim.

If Plaintiff would instead prefer to pursue his negligence claims in state court, he

may file a motion to voluntarily dismiss within 21 days and the Court will dismiss this

lawsuit and refund any unpaid portion of the filing fee. Plaintiff is admonished he

must file any complaint in state court within the two year statute of limitations period.

Finally, Plaintiff’s motion for appointment of counsel is denied with leave to

renew. [5]. Plaintiff must first clearly articulate a federal claim.

IT IS THEREFORE ORDERED:

1) The Plaintiff’s complaint is dismissed for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. Section 1915A.

2) If Plaintiff believes he can articulate an Eighth Amendment claim based on

deliberate indifference to a serious medical condition, he may file an amended

complaint in compliance with this order within 21 days. If Plaintiff fails to file

his amended complaint on or before December 27, 2019, or fails to follow the

Court’s directions, his case may be dismissed.

3) If Plaintiff would prefer to pursue his Illinois negligence claims in state court,

he may file a motion to voluntarily dismiss within 21 days or on or before

December 27, 2019. The Court will then dismiss this action and refund any

unpaid portion of the filing fee.

4) Plaintiff’s motion for appointment of counsel is dismissed with leave to renew.

[5].

5) The Clerk of the Court is directed to provide Plaintiff with a blank complaint

form and reset the internal merit review deadline within 30 days of this order.

Entered this 6th day of December, 2019.

s/James E. Shadid

_________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE