The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEANDRE DAVIS, )
)
Plaintiff, )
)
v. ) Case No. 19-cv-892-RJD
)
CHRISTOPHER SCOTT THOMPSON, et al., )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
This matter is before the Court on Plaintiff’s Motion for Leave to Amend the Complaint
(Doc. 42). Defendants filed a response indicating they do not contend the motion is untimely, but
request that the Court conduct a preliminary merit review of the amended complaint under 28
U.S.C. § 1915A. Plaintiff’s Motion is GRANTED.
Plaintiff filed this action on August 15, 2019, alleging his constitutional rights were
violated while he was incarcerated at Pinckneyville Correctional Center. Plaintiff alleges he
received inadequate medical care for his ulcerative colitis and hernia. Plaintiff also alleges he
was sexually assaulted by Pinckneyville Medical Director Dr. Myers, and continued to be treated
by Dr. Myers, over Plaintiff’s objections. Plaintiff is currently proceeding in this action on the
following claims (as enumerated in the Court’s threshold review order at Doc. 5):
Count One: Eighth Amendment claim against Dr. Myers for deliberate indifference to
Plaintiff’s serious medical needs regarding his hernia.
Count Two: Eighth Amendment claim against Dr. Myers for cruel and unusual
punishment by sexually assaulting Plaintiff during a medical appointment.
Count Three: First Amendment claim against Dr. Myers for sexually assaulting Plaintiff
in retaliation for Plaintiff complaining about the incorrect administration of
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his medication.
Count Five: Eighth Amendment claim against Lt. Frank, Brown, and Dr. Lane for
failing to protect Plaintiff from the risk of another sexual assault by Dr.
Myers.
Count Six: Eighth Amendment claim against Dr. Myers and Christine Brown for
deliberate indifference to Plaintiff’s serious medical needs regarding
treatment for his ulcerative colitis.
Count Nine: Eighth Amendment claim of falsification of medical records by Brown.
In his motion to amend, Plaintiff explains that at the time of his initial filing, incidents and
events were continuing, and exhaustion was not yet complete. Plaintiff indicates he seeks to add
new defendants under the theory that they violated his due process and equal protection rights
under the Eighth and Fourteenth Amendments. Plaintiff also asserts these individuals subjected
him to deliberate indifference to his serious medical needs and retaliation after filing his original
complaint.
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that
leave to amend should be freely given "when justice so requires." The Seventh Circuit maintains
a liberal attitude toward the amendment of pleadings "so that cases may be decided on the merits
and not on the basis of technicalities." Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.
1977). The Circuit recognizes that "the complaint merely serves to put the defendant on notice
and is to be freely amended or constructively amended as the case develops, as long as
amendments do not unfairly surprise or prejudice the defendant." Toth v. USX Corp., 883 F.2d
1297, 1298 (7th Cir. 1989); see also Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996) (quoting
Duckworth v. Franzen, 780 F.2d 645, 649 (7th Cir. 1985)) ("The Federal Rules of Civil Procedure
create [a system] in which the complaint does not fix the plaintiff's rights but may be amended at
any time to conform to the evidence."). A court may also deny a party leave to amend if there is
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undue delay, dilatory motive or futility. Guise v. BMW Mortgage, LLC, 377 F.3d 795, 801 (7th
Cir. 2004).
After a review of the proposed amended complaint, the Court finds Plaintiff has stated the
following claims, and that such claims are neither futile nor unduly delayed or prejudicial1.
Count One: Eighth Amendment claim against Dr. Myers for deliberate indifference to
Plaintiff’s serious medical needs regarding his hernia.
Count Two: Eighth Amendment claim against Dr. Myers for cruel and unusual
punishment by sexually assaulting Plaintiff during a medical appointment.
Count Three: First Amendment claim against Dr. Myers for sexually assaulting Plaintiff
in retaliation for Plaintiff complaining about his medical treatment and
filing grievances concerning the same.
Count Four: Eighth Amendment claim against Lt. Frank, Brown, Dr. Lane, and Dr.
Reddling for failing to protect Plaintiff from the risk of another sexual
assault by Dr. Myers.
Count Five: Eighth Amendment claim against Dr. Myers, Christine Brown, K. Blaise,
Kelley, Mileur, Rueter, Danny, and Nurse Jane Doe(s) for deliberate
indifference to Plaintiff’s serious medical needs regarding treatment for his
ulcerative colitis.
Count Six: Eighth Amendment claim of falsification of medical records by Brown.
Count Seven: Eighth Amendment deliberate indifference claim against Wexford Health
Sources, Inc. for implementing policies that caused him to receive
inadequate medical treatment for his hernia.
Count Eight: First Amendment retaliation claim against Lt. Frank and Warden
Thompson for raising Plaintiff’s security risk and effecting a disciplinary
transfer for Plaintiff due to his filing of grievances and a PREA complaint.
Count Nine: Eighth Amendment deliberate indifference claim against Officer Jakowski
for denying Plaintiff’s request for medical attention in June 2019.
The Clerk of Court is DIRECTED to file Plaintiff’s proposed amended complaint as the
First Amended Complaint. Plaintiff will proceed in this action on the claims enumerated above.
1 The Court has also renumbered the original counts for clarification.
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The Clerk of Court shall prepare for Defendants Bryan T. Kelley, Laura Mileur, K. Blaise,
Jana D. Rueter, Wexford, Inc., Dr. Randy Reddling, Nurse Danny, Mr. Jakowski, and Christine S.
Thompson: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of Summons), and (2)
Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy
of the First Amended Complaint, and this Order to Defendants’ places of employment as identified
by Plaintiff. If Defendants fail to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to
effect formal service on Defendants, and the Court will require Defendants to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure. Plaintiff shall
serve upon Defendants (or upon defense counsel once an appearance is entered), a copy of every
further pleading or other document submitted for consideration by the Court. Plaintiff shall
include with the original paper to be filed a certificate of service stating the date on which a true
and correct copy of any document was served on Defendants or counsel. Any paper received by a
district judge or magistrate judge that has not been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
IT IS SO ORDERED.
DATED: March 11, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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