an action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”
How later courts described this case
- an action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”
- articulating factors court considers when evaluating motions for counsel
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANGEL ENRIQUE ROMERO )
GALINDEZ, #17931-069, )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-00655-JPG
)
FAISAL AHMED, )
K. SCHNEIDER, and )
FEDERAL BUREAU OF PRISONS, )
)
Defendants. )
MEMORANDUM & ORDER
GILBERT, District Judge:
Plaintiff Angel Enrique Romero Galindez is an inmate in the custody of the Federal Bureau
of Prisons (BOP) and is currently confined at the Federal Correctional Institution located in
Greenville, Illinois (FCI-Greenville). He brings this action for alleged violations of his
constitutional rights by persons acting under color of federal authority pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971).1 (Doc. 1). In the Complaint, Plaintiff claims he
was denied medical care for a left leg injury by medical staff at FCI-Greenville. (Id. at 4-5). He
seeks money damages and an order requiring the defendants to carry out their duties.2 (Id. at 6).
The Complaint is subject to review under 28 U.S.C. § 1915A. Section 1915A requires the
Court to screen prisoner complaints and filter out non-meritorious claims. 28 U.S.C. § 1915A(a).
1 Plaintiff originally filed this action in the United States District Court for the Northern District of Illinois,
and the case was transferred to this District on July 6, 2020. (Docs. 1, 6-8).
2 The Court construes this request as one for injunctive relief at the close of the case. If Plaintiff requires
more immediate relief, he may file a separate motion for a temporary restraining order and/or preliminary
injunction pursuant to Federal Rule of Civil Procedure 65 at any time during the pending action. If he
chooses to do so, Plaintiff should identify the exact relief he seeks and the facts that support his request for
relief.
Any portion of the Complaint that is legally frivolous or malicious, fails to state a claim for relief,
or requests money damages from an immune defendant must be dismissed. 28 U.S.C. § 1915A(b).
At this juncture, the factual allegations are liberally construed. Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
Plaintiff makes the following allegations in the Complaint: Plaintiff’s body has rejected a
metal rod and screw that were surgically placed in his left leg twenty-six (26) years ago.
(Doc. 1, pp. 4-5, 7, 11-13). When he attempts to walk, he can feel the metal rod rubbing against
his bone. (Id. at 4). Each step causes “extreme pain.” (Id.).
For the past eleven months, Plaintiff has requested medical treatment for this condition.
He submitted numerous treatment requests in February, April, and June 2020. He was seen once
in February 2020. At the appointment, Plaintiff requested and received an x-ray. He was also
prescribed pain medication. However, the medication did not ease his pain, and it caused serious
side effects, including nausea, vomiting, and respiratory problems. In fear for his life, Plaintiff
stopped taking the medication. (Id.).
He continued requesting medical treatment to no avail. In June, he saw Dr. Ahmed and
P.A. Schneider, who disregarded his complaints of pain as being “impossible.” (Id. at 2, 5, 13).
Dr. Ahmed ignored Plaintiff’s request for a referral to a specialist for further evaluation and
treatment. (Id. at 13).
Based on the allegations, the Court finds it convenient to designate the following claim in
the pro se Complaint:
Count 1: Eighth Amendment claim against Defendants for denying Plaintiff adequate
medical care for his left leg injury at FCI-Greenville in 2020.
Any claim that is mentioned in the Complaint but not addressed herein is considered
dismissed without prejudice as inadequately pled under Twombly.3
Discussion
Plaintiff brings his claim against FCI-Greenville medical staff pursuant to Bivens, which is
the federal counterpart to a civil rights claim against state actors pursuant to 42 U.S.C. § 1983.
Bush v. Lucas, 462 U.S. 367, 374 (1983). Because actions brought under § 1983 and “those of the
Bivens-type are conceptually identical and further the same policies, courts have frequently looked
to [§ 1983] and [its] decisional gloss for guidance” in construing the scope of the Bivens remedy.
Green v. Carlson, 581 F.2d 669, 673 (7th Cir. 1978).
It is well settled that “deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
To establish deliberate indifference to a serious medical need, a prisoner must show that he or she
has a medical need that is “sufficiently serious.” Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.
1997). “An objectively serious medical need is ‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.’” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001)
(quoting Zentmyer v. Kendall Cnty., Ill., 220 F.3d 805, 810 (7th Cir. 2000)) (internal citation
omitted). The condition described in the Complaint is sufficiently serious to support a claim.
Plaintiff must also show that the defendants responded to his medical condition with
deliberate indifference. This subjective standard is satisfied for screening purposes, if the
defendant knew of and disregarded “an excessive risk to inmate health or safety.” Gutierrez,
3 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).
111 F.3d at 1369. Plaintiff’s allegations suggest that Dr. Ahmed of P.A. Schneider may have been
deliberately indifferent when they denied him treatment. Count 1 shall receive further review
against both of these individuals. Although Bivens offers a damages remedy for certain
constitutional violations against individual federal officers, the remedy does not extend to their
employers, such as the BOP or the United States. Correctional Servs. Corp. v. Malesko, 534 U.S.
61, 71-72 (2001). Therefore, this claim shall be dismissed with prejudice against the BOP.
Pending Motion
Plaintiff’s Motion for Attorney Representation (Doc. 4) is DENIED without prejudice.
See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (articulating factors court considers when
evaluating motions for counsel). An indigent plaintiff seeking representation by court-recruited
counsel must demonstrate: (a) reasonable efforts to locate counsel on his own; and (b) an inability
to litigate the matter without representation. Plaintiff has not satisfied these requirements because
he has not demonstrated any efforts to locate counsel and identified no barriers to self-
representation that prevent him from litigating this matter on his own. The Court finds that his
limited education and language skills served as no impediment to preparing and filing coherent,
organized, and timely pleadings in this matter. At this point, Plaintiff appears fully capable of
representing himself.
Disposition
IT IS ORDERED that the Complaint (Doc. 1) survives screening. COUNT 1 will receive
further review against Defendants AHMED and SCHNEIDER. However, COUNT 1 is
DISMISSED with prejudice against Defendant FEDERAL BUREAU OF PRISONS.
The Clerk of Court is DIRECTED to TERMINATE Defendant FEDERAL BUREAU
OF PRISONS as a party in CM/ECF and ENTER the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
Further, the Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons
and form USM-285 for service of process on Defendants FAISAL AHMED and
K. SCHNEIDER; the Clerk shall issue the completed summons. The United States Marshal
SHALL serve Defendants FAISAL AHMED and K. SCHNEIDER pursuant to Rule 4(e) of the
Federal Rules of Civil Procedure. Rule 4(e) provides, “an individual – other than a minor, an
incompetent person, or a person whose waiver has been filed – may be served in a judicial district
of the United States by: (1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is located or where service is
made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint
to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy
of each to an agent authorized by appointment or law to receive service of process.” All costs of
service shall be advanced by the United States, and the Clerk shall provide all necessary materials
and copies to the United States Marshals Service.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendants, or if an
appearance has been entered by counsel, upon that attorney, a copy of every pleading or other
document submitted for consideration by this Court. Plaintiff shall include with the original paper
to be filed a certificate stating the date that a true and correct copy of the document was mailed to
each defendant or counsel. Any paper received by a district judge or a magistrate judge which has
not been filed with the Clerk or which fails to include a certificate of service will be disregarded.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to
Administrative Order No. 244, Defendants should only respond to the issues stated in this
Merits Review Order.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give security
for the same, the applicant and his or her attorney were deemed to have entered into a stipulation
that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall
pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: 7/24/2020
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
Notice
The Court will take the necessary steps to notify the appropriate defendants of your lawsuit
and serve them with a copy of your complaint. After service has been achieved, the defendants
will enter their appearance and file an Answer to your complaint. It will likely take at least 60
days from the date of this Order to receive the defendants’ Answer, but it is entirely possible that
it will take 90 days or more. When all of the defendants have filed answers, the Court will enter a
Scheduling Order containing important information on deadlines, discovery, and procedures.
Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,
in order to give the 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.
The plaintiff need not submit any evidence to the court at this time, unless otherwise directed by
the Court.