Price v. Osmundson

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JOSEPH PRICE, )

)

Plaintiff, )

v. ) Case No. 21-cv-4160-MMM

)

HILL CORRECTIONAL CENTER, et al., )

)

Defendants. )

MERIT REVIEW ORDER – THIRD AMENDED COMPLAINT

Plaintiff, proceeding pro se, files a Third Amended Complaint under 42 U.S.C. § 1983

alleging deliberate indifference to his serious medical needs at Hill Correctional Center (“Hill”).

(Doc. 29). The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In

reviewing the complaint, the Court accepts the factual allegations as true, liberally construing them

in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (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

and internal quotation marks omitted). While the pleading standard does not require “detailed

factual allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).

ALLEGATIONS

While in the med line at Hill on February 27, 2021, Plaintiff alleges that he told Defendant

Komer, a licensed practical nurse, that he was experiencing very bad pain on his left side. Komer

told Plaintiff that he needed to request a sick call. Plaintiff put in for sick call that night.

The following day, Plaintiff saw Defendant Komer in the cell house corridor right outside

of the c-wing door. It is unclear precisely what occurred during this encounter, but at some point,

Plaintiff alleges that Sergeant Jabes came out of the office and told Plaintiff to go back to his wing.

Later that day or the next day, Defendant Komer called Plaintiff to the office and asked

him to sign a refusal pursuant to an order from Defendant Boone, the Health Care Unit (“HCU”)

Administrator. Plaintiff alleges that Boone does not have the power to do that because she is not a

doctor. Plaintiff states that the refusal was to be put in a room in the HCU. By this point, Plaintiff

claims that “the pain was so bad rubber bands was popping inside me.” (Doc. 29 at 5).

On March 2, 2021, Plaintiff’s cellmate called for help so Plaintiff could be taken to the

HCU. Defendant Kramer, a nurse practitioner, ordered a chest x-ray and EKG and directed

Plaintiff to be placed in a room in the HCU. She allegedly did not exam Plaintiff on March 2, 2021,

and did not see him again until March 9, 2021.

On March 3, 2021, an unidentified nurse noticed that Plaintiff was in a lot of pain and was

not improving and ordered Plaintiff to be taken by ambulance to the hospital. The doctor who

examined Plaintiff at the hospital allegedly told Plaintiff that he had a COPD and emphysema

attack. The doctor prescribed medication to treat Plaintiff’s cough and pain.

Plaintiff returned to Hill on March 4, 2021, and was placed in the same room in the HCU.

On March 5, 2021, Plaintiff noticed a large black bruise on his left side approximately twelve

inches long and six inches wide. Plaintiff states that an unidentified nurse in the HCU notified

Defendant Boone about Plaintiff’s bruise so she could see how bad it was. Plaintiff asked Boone

why Defendant Kramer had not returned to see him, and Boone replied that Kramer was busy

taking care of everyone because Hill no longer had a doctor.

On March 9, 2021, Defendant Kramer saw Plaintiff during her rounds in the HCU. Plaintiff

told Kramer that he had been in the same room for several days; it had not been cleaned; and he

could not breathe due to the dust. Plaintiff signed a paper to be released from the HCU because

Kramer told him that “it was [his] ‘demise’ that [he] was going to die in a room in the HCU because

of [his] COPD, emphysema, [and] asthma.” Id. at 6. Defendant Boone ordered Plaintiff to remain

in the HCU for one more day. On March 10, 2021, Plaintiff returned to his cell house.

On March 15, 2021, Plaintiff was called to have an updated picture taken. When Assistant

Warden Williams came into the room, Plaintiff showed him the big black bruise. Williams said,

“what is that?” Id. Plaintiff states that he had a small lump on his left side at that time, but it is now

“a very big lump.” Id. Plaintiff alleges that Defendant Boone called him to the HCU and placed

him in the first aid room, where they were joined by Defendant Kramer and Defendant Don Wood,

the Director of Nursing. Kramer told Plaintiff that he had “hyperextension lung” and would see

Dr. Osmundson, the Medical Director, for an examination on May 5, 2021. Id.

Plaintiff returned to the HCU on May 5, 2021, for his appointment from Defendant

Osmundson. Plaintiff alleges that Dr. Osmundson put his hand on Plaintiff’s penis and testicles

during the examination. Plaintiff told Dr. Osmundson that there was nothing wrong with his

genitals, but he placed his hand on Plaintiff’s genitals a second time. Plaintiff opened the door and

yelled for an aid to help. Plaintiff claims that “it was nothing but a set up by HCUA Boone, Don

Wood, [and] NP Kramer.” Id. at 7.

The next day, Plaintiff called the Prison Rape Elimination Act (“PREA”) hotline multiple

times to make a complaint about Defendant Osmundson.1 Plaintiff was then seen by Defendant

Little, who Plaintiff claims did nothing.

1 42 U.S.C. § 15601, et seq.

On August 30 and 31, 2021, Plaintiff continued to call the PREA hotline. On September 1,

2021, Defendant Crouse, a lieutenant at Hill, called Plaintiff to sign a complaint against Dr.

Osmundson. An investigation was completed only twelve days later.

Plaintiff alleges that Grievance Officer Garza, who is not named as a defendant, will not

answer his grievance and he is unable to get the medical care he needs from Defendants Kramer

and Dr. Osmundson because he filed a lawsuit against them.

ANALYSIS

Defendants Komer, Kramer, Boone, and Wood

It is well established that deliberate indifference to a serious medical need is actionable as

a violation of the Eighth Amendment. Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008).

Deliberate indifference is proven by demonstrating that a prison official knows of a substantial

risk of harm to an inmate and “either acts or fails to act in disregard of that risk.” Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011). A claim does not rise to the level of an Eighth Amendment

issue, however, unless the punishment is “deliberate or otherwise reckless in the criminal law

sense, which means that the defendant must have committed an act so dangerous that his

knowledge of the risk can be inferred or that the defendant actually knew of an impending harm

easily preventable.” Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996).

The allegations against Defendants Komer, Kramer, Boone, and Wood are too vague to

state a claim for deliberate indifference and do not demonstrate that Defendants knew of a

substantial risk of harm to Plaintiff and failed to act in disregard of that risk. See Arnett, 658 F.3d

at 751. When Plaintiff began experiencing a bad cough and pain, he was admitted to the HCU,

medical staff monitored his condition, and he was taken to the hospital when his condition

worsened and treated by a doctor. Upon his return from the hospital, Plaintiff remained in the HCU

for several more days. It appears that he asked to be discharged because the room was dusty and

had not been cleaned, but it is unclear from Plaintiff’s complaint if he requested that the room be

cleaned or if he was denied cleaning supplies.

Additionally, after Defendants were notified about the bruise on Plaintiff’s side, an

appointment was arranged with Defendant Osmundson, the Medical Director, for further

examination and treatment. There is no indication that Defendants Komer, Kramer, Boone, and

Wood knew that Defendant Osmundson would sexually assault Plaintiff during this appointment,

and they are not responsible for his alleged actions.

Plaintiff states that he has been denied medical care by Kramer and Dr. Osmundson

because he filed a lawsuit against them, but he fails to state whether he requested sick calls or if

was also denied visits with other medical staff at Hill.

Defendants Komer, Kramer, Boone, and Wood are DISMISSED without prejudice for

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will

be given a final opportunity to file a Fourth Amended Complaint within 30 days.

Defendant Dr. Osmundson

The Eighth Amendment prohibits “unnecessary and wanton infliction of pain, thus

forbidding punishment that is ‘so totally without penological justification that it results in the

gratuitous infliction of suffering.’” Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003)

(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Where prison officials harass or touch an

inmate in a “manner intended to humiliate and inflict psychological pain,” such conduct may

constitute cruel and unusual punishment under the Eighth Amendment, even if no serious physical

injury results. Id.; see also Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (explaining the

alleged pain sufficient to constitute an Eighth Amendment violation may be physical or

psychological); Lieberman v. Budz, No. 00 C 5662, 2013 WL 157200, at *14 (N.D. Ill. Jan. 15,

2013) (stating “the right of a prisoner or detainee to be free from sexual harassment” is clearly

established, including the right “not to be groped for sexual reasons”). Here, the Court finds that

Plaintiff has sufficiently alleged that Defendant Osmundson violated his Eighth Amendment rights

when Defendant touched Plaintiff’s genitals during a medical examination when there was no

apparent medical or penological justification for so doing.

Defendants Little and Crouse

Plaintiff states that after he was allegedly assaulted by Dr. Osmundson, he called the PREA

hotline multiple times before he was seen by Defendant Little, who Plaintiff alleges did “nothing.”

It is unclear from Plaintiff’s complaint what Little was in the position to do in response to

Plaintiff’s calls.

Plaintiff alleges that Defendant Crouse called him to sign a complaint against Dr.

Osmundson on September 1, 2021, and an investigation was completed only twelve days later.

Although it appears there was some delay between when the alleged assault occurred and when

the complaint was signed on September 1, 2021, it is unclear how Plaintiff was harmed or why

Crouse is responsible.

Plaintiff’s allegations against Little and Crouse are too vague to state a federal claim. See

Fed. R. Civ. P. 8. Therefore, Defendants Little and Crouse are DISMISSED without prejudice for

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will

be given a final opportunity to file a Fourth Amended Complaint within 30 days.

Exhaustion of Administrative Remedies

Finally, Plaintiff indicates that he filed a grievance concerning the facts in his complaint,

but he admits that the grievance process is not complete. (Doc. 29 at 4). Plaintiff must complete

the grievance process before filing a lawsuit, not after. Ford v. Johnson, 362 F.3d 395, 398 (7th

Cir. 2004). If a prisoner fails to follow all of the necessary grievance procedures, the claim will

not be exhausted, and will be barred, even if there are no remaining administrative remedies

available. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). It is recognized that the

failure to exhaust is “an affirmative defense that ordinarily should be raised—and must be proven—

by the defendant. A district court may dismiss a complaint where ‘the existence of a valid

affirmative defense, such as the failure to exhaust, is so plain from the face of the complaint that

the suit can be regarded as frivolous…But the defense must be unmistakable….’” Boyce v. Illinois

Dep’t of Corr., 661 F. App’x 441, 443 (7th Cir. 2016) (internal citations omitted). Here, it is

unclear why the grievance process is not complete, as Plaintiff provided no explanation in his

complaint. Plaintiff is hereby placed on notice that, if he failed to exhaust prison grievance

procedures which were available to him, his complaint must be dismissed. Out of an abundance of

caution, Plaintiff will be given an opportunity to address this issue in the event that he files an

amended complaint.

IT IS THEREFORE ORDERED:

1. This case shall proceed on the deliberate indifference claim as stated above against

Defendant Dr. Osmundson. All other claims are dismissed and will not be included in the case,

except in the Court’s discretion upon motion by a party for good cause shown, or by leave of Court

pursuant to Federal Rule of Civil Procedure 15.

2. Defendants Komer, Kramer, Boone, Wood, Little, and Crouse are DISMISSED

without prejudice for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §

1915A. Plaintiff shall have a final opportunity to file a Fourth Amended Complaint within 30 days

from the entry of this Order. Plaintiff’s Fourth Amended Complaint will replace Plaintiff’s Third

Amended Complaint in its entirety. The Fourth Amended Complaint must contain all allegations

against all Defendants. Piecemeal amendments are not accepted.

3. Plaintiff’s Motion to Request Counsel [32] is DENIED. The Court cannot order an

attorney to accept pro bono appointment on a civil case such as this. Pruitt v. Mote, 503 F.3d 647,

653 (7th Cir. 2007). Plaintiff has made reasonable efforts to find counsel, so the question is

“whether the difficulty of the case—factually and legally—exceeds the particular plaintiff's

capacity as a layperson to coherently present it to the judge or jury himself.” Id. at 655. “[T]he

district court must consider both halves of this equation—the difficulty of the case and the

competence of the litigant.” Bracey v. Grondin, 712 F.3d 1012, 1016-17 (7th Cir. 2013). Relevant

factors as to competency include, but are not limited to, a plaintiff's literacy, education, litigation

experience, communication skills, psychological history, intellectual capacity, physical and mental

health, and ability to conduct discovery. Id. at n. 3 (citing Pruitt, 503 F.3d at 655). The inquiry is

individualized, taking all the relevant facts into consideration, including the stage of the litigation.

Navejar v. Igiola, 718 F.3d 692, 696 (7th Cir. 2013). Plaintiff’s claim of deliberate indifference is

not complex and involves issues of which Plaintiff has direct, personal knowledge. The Court finds

that Plaintiff appears competent to litigate the case himself, especially at this early stage of the

litigation process.

4. This case is now in the process of service. The Court advises Plaintiff to wait until

counsel has appeared for Defendant before filing any motions 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 60 days from service to file an Answer. If Defendant has not filed an Answer or

appeared through counsel within 90 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.

6. If Defendant no longer works at the address Plaintiff provided, the entity for whom

Defendant worked while at that address shall submit to the Clerk Defendant’s current work

address, or, if not known, 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 60 days of the date the Clerk sends the waiver

of service. 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 position. The Court

does not rule on the merits of those positions unless and until Defendant files a motion. 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 documents 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. Counsel for Defendant is hereby granted leave to depose Plaintiff at Plaintiff’s

place of confinement. Counsel for Defendant shall arrange the time for the deposition.

10. Plaintiff shall be provided a copy of all pertinent medical records upon request.

11. Plaintiff shall immediately inform 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.

12. If Defendant fails to sign and return a waiver of service to the Clerk within 30 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 Defendant to pay the full costs of formal

service pursuant to Federal Rule of Civil Procedure 4(d)(2).

13. Within 10 days of receiving from defense counsel an authorization to release

medical records, Plaintiff is directed to sign and return the authorization to defense counsel. The

Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

14. The Clerk is directed to set an internal court deadline 60 days from the entry of this

Order for the Court to check on the status of service and enter scheduling deadlines.

ENTERED: July 6, 2022

s/ Michael M. Mihm

Michael M. Mihm

U.S. District Court Judge