Lofton v. Trusewych

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

FRANKLIN LOFTON, )

Plaintiff, )

)

vs. ) Case No. 21-3265

)

BRITTANY GREENE, et. al., )

Defendants )

MERIT REVIEW ORDER

JAMES E. SHADID, U.S. District Judge:

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, claims Defendants Warden Brittany Greene, Dr.

Trusewych, Wexford Health Sources, Nursing Director Hays, Healthcare Administrator

Ashcraft, and Nurses Smith, Bowman, Adams, Clarkson, Winfield, and Jane Doe

violated his constitutional rights at Western Illinois Correctional Center.

On January 9, 2021, Plaintiff was suffering with extreme pain in his left

abdominal area. Plaintiff was taken to the Health Care Unit (HCU) by wheelchair and

transferred to an outside hospital. Plaintiff says he was diagnosed with “low

phosphorus levels” and doctors thought he might be dehydrated. (Comp., p. 3).

Plaintiff was given pain medication and returned to the correctional center.

Defendant Nurse Bowman “was the reception nurse” and Plaintiff reported the

pain mediation was wearing off and he was feeling slight pain. (Comp., p. 3). The

Defendant advised Plaintiff if it got worse, he should report it to a correctional officer.

Two days later on January 11, 2021, Plaintiff began throwing up and was again

returned to HCU. Plaintiff advised Defendant Nurses Adams, Smith, and Clarkson he

was dizzy, fatigued, short of breath, and suffering with abdominal pain. Plaintiff asked

to see a doctor, but he was given medication for nausea and returned to his housing

unit.

Plaintiff returned to HCU on January 14, 2021 and reported to unspecified

medical staff members that his symptoms were getting worse. Plaintiff now had pain

when he urinated. Plaintiff again asked to see a doctor, but Plaintiff was told he would

be placed on a waiting list.

Plaintiff met with Defendant Dr. Trusewych the next day. The Defendant Doctor

performed a prostate exam and diagnosed Plaintiff with prostatitis. Plaintiff was given

medication and told if his symptoms, he should inform an officer.

Two hours later, Plaintiff says his right side “went numb” and he had no control

over his right-side motor skills. (Comp., p. 4). Plaintiff hit the emergency call button,

but Defendant Officer John Doe failed to investigate. An inmate ultimately notified a

correctional officer approximately 13 minutes later and an emergency response team

was notified. Plaintiff says he was not taken to HCU until 30 minutes after he hit the

call button.

Plaintiff was taken to Culbertson Memorial Hospital, and then transferred to St.

Johns Hospital in Springfield, Illinois. Plaintiff was diagnosed with hemolytic anemia

or a disorder in which red blood cells are destroyed faster than they can be made.1

Plaintiff says blood tests revealed his dangerously low blood oxygen levels. Plaintiff

was given four units of blood, a steroid, and other supplements. Plaintiff remained in

the hospital for eight days.

When Plaintiff returned to Western Illinois Correctional Center, he was not

immediately provided with prescribed insulin to help regulate his blood sugar. On

January 24, 2021, Plaintiff reported headaches, dizziness, and blurred vision to

Defendant Nurse Jane Doe. The Defendant checked Plaintiff’s blood sugar level, but

despite high levels, said she could not provide insulin until the order was filled.

Plaintiff returned to the HCU the next day and his blood sugar level was even

higher, but Defendant Nurse Winfield took no action. Plaintiff continued to suffer with

headaches, dizziness, and blurred vision for three days.

Plaintiff has adequately alleged Defendants Dr. Trusewych and Nurses Bowman,

Adams, Smith, and Clarkson were deliberately indifferent to his serious medical

1 JOHNS HOPKINS, Hemolytic Anemia, https://www.hopkinsmedicine.org/health/conditions-and-

diseases/hemolytic-anemia (last visited April 11, 2022).

condition when they either delayed or failed to provide adequate care, follow-up, or

testing for Plaintiff’s symptoms from January 9, 2021 to January 15, 2021.

Plaintiff further alleges Defendant Nursing Director Ashcraft Hayes and HCU

Administrator Ashcraft were deliberately indifferent to his serious medical condition

when they knew of his frequent visits to HCU, his symptoms, and his requests to see a

doctor, but delayed scheduling a physician’s visit from January 9, 2021 to January 15,

2021.

Plaintiff also claims Defendant Correctional Officer John Doe was responsible for

a delay in providing care for his serious medical condition when he failed to respond to

the emergency call button. “To show that a delay in providing treatment is actionable

under the Eighth Amendment, a plaintiff must also provide independent evidence that

the delay exacerbated the injury or unnecessarily prolonged pain.” Petties v. Carter, 836

F.3d 722, 730-31 (7th Cir. 2016). While it is doubtful Plaintiff can show the brief delay

attributed to this Defendant rises to the level of a constitutional violation, Plaintiff can

proceed past initial review. See Latko v. Cox, 2021 WL 5234863, at *3 (7th Cir. 2021)

(finding a 15-minute delay in summoning medical help is not constitutionally

insignificant as a matter of law).

Next, Plaintiff alleges Defendant Nurses Winfield and Jane Doe failed to take any

action to obtain the prescribed and needed insulin for three days despite blood test

results and reported headaches, dizziness, and blurred vision.

Plaintiff has not articulated any claim against Warden Greene and his allegation

that Wexford “provided nurses that inadequately treated plaintiff” does not articulate a

constitutional claim. (Comp, p. 8). See i.e. Hansen v. Wexford Health, 2021 WL 2413393, at

*1 (N.D.Ind. June 14, 2021)(“ Wexford Health isn't liable under 42 U.S.C. § 1983 for what

its employees did”); see also Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).

Plaintiff next alleges Defendants Dr. Trusewych, Hayes, Ashcraft, and Nurses

Bowman, Adams, Smith, Winfield, Clarkson, and Jane Doe were negligent, committing

the state law tort of medical malpractice. Illinois law 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, 942 F.3d. 349, (7th Cir. Nov. 4, 2019). Plaintiff must

comply with these requirements before the summary judgment phase in this case. See

Young, 942 F.3d. at 351-352. Failure to do so will lead to the dismiss of his medical

malpractice claim. Id.

Plaintiff has also filed a Motion for Appointment of Counsel. [5]. The Court

cannot require an attorney to accept pro bono appointment in a civil case. The most the

Court can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070,

1071 (7th Cir. 1992).

Almost everyone would benefit from having a lawyer, but there are too

many indigent litigants and too few lawyers willing and able to volunteer

for these cases. District courts are thus placed in the unenviable position of

identifying, among a sea of people lacking counsel, those who need counsel

the most. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014).

Ultimately “[t]he question is not whether a lawyer would present the case more

effectively than the pro se plaintiff; if that were the test, district judges would be

required to request counsel for every indigent litigant.” Pruitt v. Mote, 503 F.3d 647, 655

(7th Cir. 2007)(internal quotation omitted). The text is whether the litigant is competent

to litigate his own claims. Pruitt, 503 F.3d 655.

Specifically, the Court must consider two questions. First, “has the indigent

plaintiff made a reasonable attempt to obtain counsel or been effectively precluded

from doing so.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), citing Farmer v. Haas, 990

F.2d 319, 322 (7th Cir. 1993). Plaintiff has provided a list of attorneys he has contacted.

Therefore, the Court must focus on the second inquiry, “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.” Pruitt, 503 F.3d at 655.

The Court must consider all aspects of the litigation including gathering evidence and

responding to motions. Eagan v. Dempsey, 2021 WL 456002, at *8.

Plaintiff says he has no legal or medical training and therefore needs assistance.

However, Plaintiff’s complaint provides a clear overview of his claims which is more on

point than many pro se litigants. Plaintiff will be able to obtain copies of medical records

during discovery. In addition, Plaintiff is clearly able to testify personally to the pain he

experienced, his attempts to obtain help, and the responses he received, which can be

used to show evidence of deliberate indifference. See Ledford v. Sullivan, 105 F.3d 354,

358 (7th Cir. 1997)(expert testimony not necessarily required to establish deliberate

indifference).

Once the Defendants are served, the Court will set this matter for a hearing to

discuss Plaintiff’s claims, potential defenses, the Doe Defendants, and needed

discovery. In addition, the Court will enter a Scheduling Order which will provide

additional information to assist a pro se Plaintiff with the discovery process. Based on

the current record, the motion is denied. [5].

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the

Court finds the Plaintiff alleges: a) Defendants Dr. Trusewych and Nurses

Bowman, Adams, Smith, and Clarkson were deliberately indifferent to Plaintiff’s

serious medical condition when they either delayed or failed to provide adequate

care, follow-up, or testing for Plaintiff’s symptoms from January 9, 2021 to

January 15, 2021; b). Nursing Director Ashcraft Hayes and HCU Administrator

Ashcraft were deliberately indifferent to Plaintiff’s serious medical condition

when they knew of his frequent visits to HCU, his symptoms, and his requests to

see a doctor, but delayed scheduling a physician’s visit from 9, 2021 to January

15, 2021; c) Defendant Correctional Officer John Doe was deliberate indifferent to

Plaintiff’s serious medical condition when he failed to respond to an emergency

call button on January 15, 2021 for approximately 15 minutes; and d) Plaintiff

alleges Defendant Nurses Winfield and Jane Doe failed to take any action to

obtain the prescribed and needed insulin for three days despite blood test results

and reported headaches, dizziness, and blurred vision. Plaintiff may also

proceed with a state law medical malpractice claim against Defendants Dr.

Trusewych, Hayes, Ashcraft, and Nurses Bowman, Adams, Smith, Winfield,

Clarkson, and Jane Doe if he complies with the requirements of 735 Ill. Comp.

Stat. § 5/2-622(a) by summary judgment state. See Young v. United States, 942

F.3d. 349, (7th Cir. Nov. 4, 2019). Plaintiff must comply with these requirements

before the summary judgment phase in this case. The federal claims are stated

against the Defendants in their individual capacities 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) This case is now in the process of service. Plaintiff is advised to wait until

counsel has appeared for Defendants before filing any motions, in order to give

Defendants notice and an opportunity to respond to those motions. Motions filed

before Defendants' 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.

3) The Court will attempt service on Defendants by mailing each Defendant a

waiver of service. Defendants have 60 days from service to file an Answer. If

Defendants have not filed Answers or appeared through counsel within 90 days

of the entry of this order, Plaintiff may file a motion requesting the status of

service. After Defendants have been served, the Court will enter an order setting

discovery and dispositive motion deadlines.

4) With respect to a Defendant who 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.

5) Defendants shall file an answer within 60 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 Defendants' positions. The Court does not rule on the merits of

those positions unless and until a motion is filed by Defendants. Therefore, no

response to the answer is necessary or will be considered.

6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of

his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will

file Plaintiff's document electronically and send a notice of electronic filing to

defense counsel. The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not

available, Plaintiff will be notified and instructed accordingly.

7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place

of confinement. Counsel for Defendants shall arrange the time for the deposition.

8) 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.

9) Within 10 days of receiving from Defendants’ counsel an authorization to

release medical records, Plaintiff is directed to sign and return the authorization

to Defendants’ Counsel.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Dismiss Defendants Wexford and Warden Greene for failure to state a claim

upon which relief can be granted pursuant to by 28 U.S.C. §1915A; 2) Deny

Plaintiff’s motion for appointment of counsel, [5]; 3) Attempt service on

Defendants pursuant to the standard procedures; 4) 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; and 5) Enter the Court's

standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

ENTERED this 14th day of April, 2022.

s/James E. Shadid

____________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE