McKinnon v. Big Muddy River Correctional Center

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANDREW McKINNON, #B89426, )

)

Plaintiff, )

)

vs. ) Case No. 20-cv-699-NJR

)

BIG MUDDY RIVER CORRECTIONAL )

CENTER, )

MARGON TAYLOR, )

DENNIS LARSON, )

JOHN DOE #1 (Lieutenant Officer), )

JANE DOE #2 (Nurse at Medical Office), )

JOHN DOE #3 (3-C House Wing Officer), )

and JANE DOE #4 (X-Ray Nurse), )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Andrew McKinnon is an inmate in the custody of the Illinois Department

of Corrections (“IDOC”) who is currently incarcerated in the Big Muddy River

Correctional Center (“BMRCC”). He brought this action for deprivations of his

constitutional rights pursuant to 42 U.S.C. § 1983, claiming deliberate indifference to a

serious medical condition. He seeks monetary damages.

Upon initial review, the Court dismissed McKinnon’s original Complaint (Doc. 1)

without prejudice because of several deficiencies. (Doc. 22). McKinnon’s First Amended

Complaint (Doc. 25) is now before the Court for preliminary review under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out non-

meritorious claims. 28 U.S.C. § 1915A(a). Any portion of a Complaint that is legally

frivolous, 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. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d

816, 821 (7th Cir. 2009).

THE FIRST AMENDED COMPLAINT

McKinnon makes the following allegations in the First Amended Complaint: On

an unspecified date, McKinnon slipped and fell on a wet floor that was not marked with

any warning signs. (Doc. 25, pp. 1, 6, 33-35). Assistant Warden Taylor was responsible for

safety in the institution. (Doc. 25, p. 1). Lt. Officer John Doe #1 was the officer McKinnon

“talk[ed] to in the chow hall that morning.” (Doc. 25, p. 3). Nurse Jane Doe #2 took the

report of McKinnon’s slip and fall accident. (Doc. 25, p. 4). McKinnon told 3-C House

Wing Officer John Doe #3 about the slip and fall. (Doc. 25, p. 4). McKinnon filed a

grievance (#20-5-19) over the issue on April 21, 2019. (Doc. 25, pp. 6, 17).

McKinnon had unspecified medical conditions that predated the injury. He is in

significant pain and cannot sleep on either shoulder or the pain wakes him up. He cannot

walk far before his back gets stiff and his knee clicks. McKinnon made many requests to

Dr. Larson for a referral to a physical therapist and treatment with heating and cooling

pads without success. He previously received this therapy/treatment, but it was

discontinued. (Doc. 25, pp. 6-7, 35; Doc. 25-1, pp. 41, 43, 47). McKinnon uses a wheelchair

and cane for mobility.

The x-ray machine at BMRCC is “ancient,” requiring x-ray Nurse Jane Doe #4 to

take several images, but she was still unable to get a clear x-ray after McKinnon’s fall.

(Doc. 25, pp. 5, 7). McKinnon complained about the poor images to Dr. Larson and

requested a referral to an outside doctor where a good x-ray could be taken, but Dr.

Larson denied the referral. (Doc. 25, p. 7).

McKinnon asserts that the delay in addressing his pain, the failure to provide

treatment for his conditions, and the denial of referrals to outside specialists amounts to

deliberate indifference. (Doc. 25, pp. 7-8). He seeks damages for pain and suffering.

(Doc. 25, p. 12).

PRELIMINARY DISMISSALS

As McKinnon was advised in the Order dismissing his original Complaint, the

BMRCC is not a proper party to this action. A state prison cannot be sued for money

damages because it is a division of the Illinois Department of Corrections, which is a state

agency. The Supreme Court has held that “neither a State nor its officials acting in their

official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh

Amendment bars suits against states in federal court for money damages); Billman v. Ind.

Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune

from suit by virtue of Eleventh Amendment). The BMRCC is therefore dismissed from

the action with prejudice.

DISCUSSION

Based on the allegations in the First Amended Complaint, the Court designates

the following claims in this pro se action:

Count 1: Eighth Amendment deliberate indifference claim against

Taylor, John Doe #1, and John Doe #3, for failing to warn

Plaintiff of the wet floor hazard or correct the dangerous

condition.

Count 2: Eighth Amendment deliberate indifference claim against

Dr. Larson, Jane Doe #2, and Jane Doe #4, for delaying and

denying medical care and specialist referrals for Plaintiff’s

painful medical conditions.

The parties and the Court will use these designations in all future pleadings and orders,

unless otherwise directed by a judicial officer of this Court. Any other claim that is

mentioned in the Complaint but not addressed in this Order should be considered

dismissed without prejudice as inadequately pled under the Twombly pleading

standard.1

Count 1

To maintain a constitutional claim for deliberate indifference, a plaintiff must

allege that the defendants knew about a serious risk of substantial harm yet acted or failed

to act in disregard of that risk. The mental state of deliberate indifference is an

indispensable component of the claim—the defendant need not intend the harm to occur,

but s/he must know that an excessive risk exists to the plaintiff’s health or safety if no

corrective action is taken. Farmer v. Brennan, 511 U.S. 825, 827 (1994); Christopher v. Buss,

384 F.3d 879, 882 (7th Cir. 2004).

Courts have consistently held that slippery prison floors do not implicate the

Constitution. See Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“an inch or two” of

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that an action fails to state a

claim upon which relief can be granted if it does not plead “enough facts to state a claim that is

plausible on its face.”).

accumulated water in the shower was not “an excessive risk to inmate health or safety”);

Bell v. Ward, 88 F. App’x 125 (7th Cir. 2004) (affirming the dismissal of a slip-and-fall claim

on 1915A review because accumulation of water on prison floor did not present a risk of

serious injury); Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001) (“[F]ailing to provide a

maximally safe environment, one completely free from ... safety hazards, is not [a

constitutional violation].”); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“slippery

prison floors ... do not state even an arguable claim for cruel and unusual punishment”).

Here, McKinnon seeks to impose liability on Warden Taylor for the wet floor

condition because Taylor is responsible for institutional safety. McKinnon does not allege

that Taylor had actual knowledge of the wet floor or the lack of warning signs, therefore,

there is no factual support for a claim that Taylor knew about the condition but was

deliberately indifferent to the danger it posed. At most, McKinnon’s allegations suggest

possible negligence on Taylor’s part, but negligence does not violate the Constitution and

is not enough to support a claim of deliberate indifference. Daniels v. Williams, 474 U.S.

327, 332 (1986); Farmer v. Brennan, 511 U.S. 825, 837 (1994). Count 1 therefore fails to state

a constitutional claim against Taylor on which relief may be granted.2

As for Officers John Doe #1 and #3, McKinnon states only that he reported the wet

floor to these individuals after he slipped and fell. Again, this allegation fails to establish

that John Doe #1 or John Doe #3 had any knowledge of the floor hazard before McKinnon

2 While McKinnon fails to state a federal constitutional claim, he may be able to bring a negligence

suit in the Illinois Court of Claims. That said, the Court takes no position on the merits, viability,

or timeliness of such a claim.

fell, or that they were deliberately indifferent to a serious risk of harm. The claims against

John Doe #1 and John Doe #3 also shall be dismissed for failure to state a claim upon

which relief may be granted. Count 1 will be dismissed in its entirety.

Count 2

Prison medical providers violate the Eighth Amendment’s prohibition against

cruel and unusual punishment when they act with deliberate indifference to a prisoner’s

serious medical needs. See Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state such a

claim, a prisoner must plead facts and allegations suggesting that (1) he suffered from an

objectively serious medical condition, and (2) the defendant acted with deliberate

indifference to his medical needs. Id. See also Farmer v. Brennan, 511 U.S. 825, 834 (1994);

Estelle v. Gamble, 429 U.S. 97, 104 (1976). Delaying treatment may constitute deliberate

indifference if such delay exacerbated the injury or unnecessarily prolonged an inmate’s

pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and quotations

omitted). However, a defendant’s inadvertent error, negligence, misdiagnosis, or even

ordinary malpractice is insufficient to rise to the level of an Eighth Amendment

constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008);

Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (courts will not take sides in

disagreements with medical personnel’s judgments or techniques). Further, the Eighth

Amendment does not give prisoners entitlement to “demand specific care” or “the best

care possible,” but only requires “reasonable measures to meet a substantial risk of

serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).

McKinnon’s description of his significant and persistent shoulder and back pain is

sufficient at this stage to qualify as an objectively serious medical condition. The

remaining question is whether Defendants were deliberately indifferent to that condition.

McKinnon states that Nurse Jane Doe #2 made a report on his slip and fall incident. This

minimal involvement does not suggest any deliberate indifference on her part. Nurse

Jane Doe #4 was responsible for taking x-rays and the quality of images was impaired by

the poor condition of the x-ray machine. This does not show deliberate indifference by

Nurse Jane Doe #4. Both nurses will therefore be dismissed from this claim.

McKinnon complains that Dr. Larson failed to refer him for an outside x-ray,

refused to continue his physical therapy or heat/cold treatments, and denied referrals for

any other outside diagnosis or treatment. A medical judgment that such care was not

necessary would not amount to a constitutional violation. But if Dr. Larson’s decision(s)

resulted in a denial of treatment for McKinnon’s pain or a delay in providing him with

pain relief, McKinnon may succeed in showing that Larson was deliberately indifferent.

Count 2 against Dr. Larson is therefore not subject to dismissal at this early stage.

MOTION FOR COUNSEL

McKinnon’s motion for recruitment of counsel (Docs. 29, 31) is DENIED at this

time without prejudice. There is no constitutional or statutory right to counsel in federal

civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty,

433 F.3d 1001, 1006 (7th Cir. 2006). In determining whether to recruit counsel, the Court

considers two factors. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). This motion and

McKinnon’s earlier motion demonstrate that he has made a reasonable attempt to obtain

counsel. (Doc. 31; Doc. 16). At this early stage, however, it appears that McKinnon is

competent to litigate the case himself. See Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013);

Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010). McKinnon states that he has only a

grade school education and cannot currently access the law library because of COVID-19

restrictions. Nonetheless, his Amended Complaint competently sets forth the relevant

facts and his legal claims. Although the motion is denied at this juncture, McKinnon may

renew his request for counsel if necessary, as the case progresses.

DISPOSITION

IT IS HEREBY ORDERED that Count 1 is DISMISSED without prejudice for

failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A.

Defendants Taylor, John Doe #1, Jane Doe #2, John Doe #3, and Jane Doe #4 are

DISMISSED from the action without prejudice. Defendant Big Muddy River

Correctional Center is DISMISSED from the action with prejudice.

IT IS FURTHER ORDERED that COUNT 2 against Dr. Larson survives

preliminary review pursuant to 28 U.S.C. § 1915A and shall proceed for further

consideration.

The Clerk of Court shall prepare for Defendant LARSON: (1) Form 5 (Notice of a

Lawsuit and Request to Waive Service of a 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 (Doc. 25), and this Memorandum and Order to Defendant’s place of

employment as identified by McKinnon. If Defendant fails 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 Defendant, and the

Court will require Defendant to pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure.

If Defendant cannot be found at the work address provided by McKinnon, the

employer shall furnish the Clerk with his current work address, or, if not known, his last-

known address. This information shall be used only for sending the forms as directed

above or for formally effecting service. Any documentation of the address shall be

retained only by the Clerk and shall not be maintained in the court file or disclosed by

the Clerk.

Defendant is 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, Defendant need only respond to the issues stated in

this Merit Review Order.

McKinnon is ADVISED that if judgment is rendered against him and the

judgment includes the payment of costs under 28 U.S.C. § 1915, he will be required to

pay the full amount of the costs, even though his application to proceed in forma pauperis

was granted. See 28 U.S.C. § 1915(f)(2)(A).

McKinnon is further ADVISED that he is under a continuing obligation to keep

the Clerk of Court and the opposing parties 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).

Finally, based on the allegations in the First Amended Complaint, the Clerk of

Court is DIRECTED to ENTER the standard qualified protective order pursuant to the

Health Insurance Portability and Accountability Act.

IT IS SO ORDERED.

DATED: April 13, 2021 Tl ) (oantteng

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify Defendant of your lawsuit and serve

him with a copy of your Complaint. After service has been achieved, Defendant will enter

an appearance and file an Answer to your Complaint. It will likely take at least 60 days

from the date of this Order to receive Defendant’s Answer, but it is entirely possible that

it will take 90 days or more. When Defendant has filed an Answer, 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 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 specifically directed to do so.

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