Rios v. Burrell

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESUS RIOS, #Y29535 )

)

Plaintiff, )

vs. ) Case No. 3:21-cv-00565-SMY

)

THOMAS BURRELL, )

LOUIS SHICKER, )

LU WALKER, and )

ROB JEFFREYS, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Jesus Rios, a former inmate of the Illinois Department of Corrections, filed the

instant lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at

Shawnee Correctional Center.1 This case is now before the Court for preliminary review of the

Complaint under 28 U.S.C. § 1915A. Any portion of the 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).

The Complaint

Plaintiff makes the following allegations in the Complaint (Doc. 1): Plaintiff saw Dr.

Thomas Burrell on July 6, 2018 and was told he had a tooth that needed to be extracted. He agreed

to the extraction and saw Dr. Burrell a few times in 2018 and 2019. During that time, Plaintiff

experienced pain while eating and exercising. The tooth was not extracted until August 22, 2019.

The extraction took over an hour and a half during which Plaintiff was in severe pain. Dr. Burrell

1 Plaintiff was incarcerated at Shawnee Correctional Center at the time he filed the Complaint (Doc. 1). He

subsequently filed a Notice of Change of Address which indicates he is no longer incarcerated (Doc. 16).

was unable to extract the root of the tooth. He told Plaintiff he would be scheduled for oral surgery

and prescribed Ibuprofen for pain relief.

After the procedure, Plaintiff’s gums had cuts and scratches and were swollen and bleeding.

He suffered immense pain and experienced extreme pounding throughout his head. The condition

became worse and continued for a couple of weeks. Ibuprofen did not help with the pain and the

prescription ran out after ten days. During a follow-up appointment on August 28, 2019, Plaintiff

told Dr. Burrell about the extreme pain. Dr. Burrell told Plaintiff there was no infection and he

would not give him anything else for pain. Plaintiff experienced difficulty eating, sleeping,

showering, and performing everyday activities due to the pain. After a couple of weeks, the pain

subsided, but his gums were extremely sore and easily irritated when eating.

Plaintiff filed a grievance on September 3, 2019, but grievance officers, counselors, and

Warden Walker ignored his pain. He submitted his grievance to the ARB, but nothing was done.

Plaintiff had oral surgery on September 13, 2019 at an outside facility. The oral surgeon

told him that Dr. Burrell “messed you up something good.” Plaintiff told the oral surgeon about

the pain he experienced after the partial extraction. The oral surgeon stated he would prescribe

Tylenol-3 for post-surgery pain relief. However, Dr. Burrell cancelled the prescription and ordered

Ibuprofen to be given to Plaintiff for pain relief. Plaintiff was not taken for his follow-up

appointment with the oral surgeon.

Based on the allegations in the Complaint, the Court designates the following claims in this

pro se action:

Count 1: Eighth Amendment claim against Dr. Burrell, Louis Shicker, Lu

Walker, and Rob Jeffreys for exhibiting deliberate indifference to

Plaintiff’s serious medical needs related to a delay in dental

treatment and a tooth extraction.

Count 2: State law medical negligence claim against Dr. Burrell for delaying

dental treatment and a negligent tooth extraction.

Any claim that is mentioned in the Complaint but not addressed in this Order is dismissed without

prejudice as inadequately pled under the Twombly pleading standard. 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 that is plausible on its face.”).

Preliminary Dismissals

Federal Rule of Civil Procedure 10(a) requires the names of all parties to be included in

the case caption. Plaintiff asserts a claim against Wexford Health Sources, Inc., but it is not named

as a defendant in the case caption. As such, Wexford is not a party and Plaintiff cannot proceed

against it. See Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (holding pro se

Complaint cannot assert a claim against individual mentioned in body of Complaint but not named

in the caption).

Plaintiff seeks to assert a respondeat superior claim against Louis Shicker. However, the

doctrine of respondeat superior does not apply to actions filed under § 1983. Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Because there are no allegations that Shicker was

personally involved in the deprivation of Plaintiff’s constitutional rights, he will be dismissed. See

Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014) (“[I]ndividual liability under § 1983 requires

personal involvement in the alleged constitutional deprivation”) (internal citations and quotation

marks omitted).

Plaintiff asserts claims against Defendants in their individual and official capacities.

Because he seeks monetary damages,2 he must bring his claims against them in their individual

capacities only. Brown v. Budz, 904 F.3d 904, 918 (7th Cir. 2005); Shockley v. Jones, 823 F.2d

2 Plaintiff’s only claim for injunctive relief – a request for an examination of Dr. Burrell’s past and present cases to

evaluate whether he is competent to practice dentistry – is not an available form of relief in this § 1983 lawsuit.

1068, 1070 (7th Cir. 1987). This is because an official capacity claim against an individual is

really a lawsuit for money damages against the State, which is barred by the Eleventh Amendment

and the doctrine of sovereign immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71

(1989); Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000). Accordingly, the official capacity

claims are dismissed without prejudice.

Discussion

Count 1

Prison officials and medical staff violate the Eighth Amendment’s prohibition on cruel and

unusual punishment when they act with deliberate indifference to a prisoner’s serious medical

needs. Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state a claim, a prisoner must allege

facts suggesting that (1) he suffered from an objectively serious medical condition, and (2) the

defendant acted with deliberate indifference to his medical needs. Id. Plaintiff’s allegations are

sufficient to state a viable deliberate indifference claim in Count 1 against Dr. Burrell.

Plaintiff also alleges deliberate indifference on the part of Warden Walker and IDOC

Director Jeffreys who were allegedly made aware of his objectively serious medical condition and

inadequate dental care by way of his September 3, 2019 grievance and failed to take any action to

rectify the situation. However, the grievance documents Plaintiff attached to the Complaint

contradict this claim.3 In the September 3, 2019 grievance, Plaintiff complains about the August

22 and 28, 2019 appointments with Dr. Burrell and seeks pain medication, an x-ray of his tooth,

and proper dental treatment. By the time Warden Walker reviewed the grievance on October 7,

3 The documents attached to the Complaint are deemed incorporated into it and “[t]o the extent that an exhibit attached

to or referenced by the complaint contradicts the complaint’s allegations, the exhibit takes precedence.” Phillips v.

Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013); see also Sanders v. Bertrand, 72 F.App’x 442 (7th

Cir. 2003) (upholding dismissal of claim following screening under 28 U.S.C. § 1915A based on facts in documents

attached to complaint). It is possible for a plaintiff to plead himself out of court by including exhibits to the complaint

that show he is not entitled to the relief he seeks. Centers v. Centennial Mortg. Inc., 398 F.3d 930, 933 (7th Cir. 2005).

2019 and IDOC Director Jeffreys reviewed the appeal of the grievance on November 12, 2019, the

grievance was moot because Plaintiff had oral surgery on September 13, 2019. There is no

indication that they were aware of alleged ongoing unconstitutional conduct and facilitated,

approved, condoned, or turned a blind eye to it so as to subject them to liability. See Perez v.

Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015). They cannot be held liable solely based on their

position as administrators as the doctrine of respondeat superior does not apply to actions filed

under § 1983. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Accordingly, Count 1

will be dismissed as to Walker and Jeffreys.

Count 2

Plaintiff asserts a state law medical negligence claim against Dr. Burrell. Where a district

court has original jurisdiction over a civil action such as a § 1983 claim, it also has supplemental

jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state

claims “derive from a common nucleus of operative fact” with the original federal claims.

Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). Because Plaintiff's allegations

of medical negligence derive from the same facts as his Eighth Amendment deliberate indifference

claim, this Court will exercise supplemental jurisdiction over the claim.

An Illinois medical negligence claim requires the plaintiff to show: (1) the applicable

standard of care; (2) the defendant breached the standard of care and was negligent; and (3) and

the breach was a proximate cause of the plaintiff's injury. Chambers v Igram, 858 F.2d 351, 355

(7th Cir. 1988). Plaintiff’s allegations are sufficient to proceed on a medical negligence claim

against Dr. Burrell.4

4 The Court notes that Plaintiff has not provided the affidavit and medical report required under Illinois state law, i.e.,

735 ILCS § 5/2-622. If he intends to proceed with this claim, Plaintiff must file an affidavit stating that “there is a

reasonable and meritorious cause” for litigation of the medical malpractice claim, along with a physician's report in

support of the affidavit. See Young v. United States, 942 F.3d 349 (7th Cir. 2019). His failure to do so is not dispositive

Disposition

Counts 1 and 2 will proceed against Defendant Thomas Burrell, in his individual capacity.

The Complaint fails to state a claim against Defendants Louis Shicker, Lu Walker, and Rob

Jeffreys and they are dismissed without prejudice. The Clerk of Court is DIRECTED to

TERMINATE Walker, Jeffreys, and Shicker as defendants.

The Clerk shall prepare for Thomas Burrell: (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 Complaint, and this Memorandum and Order to

Defendant’s place of employment as identified by Plaintiff. 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 the Defendant, and the

Court will require the 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 Plaintiff, the employer shall

furnish the Clerk with the Defendant’s current work address, or, if not known, the Defendant’s

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

of his claim at this point. Id. However, Plaintiff must comply with the requirements set forth in 735 ILCS § 5/2-622

before the Court considers summary judgment on the merits of the case.

Review Order.

Plaintiff 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, regardless of whether his application to proceed in forma pauperis is granted. See 28 U.S.C.

§ 1915(f)(2)(A).

Plaintiff is further ADVISED that he is under a continuing obligation to keep the Clerk of

Court and the 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).

Based on the allegations in the 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: July 20, 2021 s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the 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 the Defendant’s Answer, but it is entirely possible that it will take 90 days

or more. When Defendant has filed his 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 the 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.