# Perez v. McCray

> District Court, N.D. Illinois · February 12, 2025

URL: https://www.frixlaw.com/law-library/cases/10798908

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** February 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Fred F. Perez (K-78591), )
)
Plaintiff, )
) Case No. 24 C 0426
v. )
) Judge John J. Tharp, Jr.
Nurse McCray, et al., )
)
Defendants. )

ORDER
Defendants Shebel and McCray have filed motions to dismiss [25] [53]. Defendants’
motions seek dismissal of Plaintiff’s claim for objectively unreasonable medical care at the Cook
County Jail. The motions are denied for the reasons described in the initial review order of
February 15, 2024, and for the reasons stated below. Liberally construed, Plaintiff’s complaint
states a claim for objectively unreasonable medical care against Defendants Shebel and McCray
and they must answer the complaint by March 5, 2025. Plaintiff’s motion for recruitment of
counsel [94] is denied.

STATEMENT
Plaintiff Fred Perez, a state prisoner incarcerated at Robinson Correctional Center, initiated
this civil rights action pro se under 42 U.S.C. § 1983. Before the Court are Defendant Shebel’s
motion to dismiss (Dkt. 25) and Defendant McCray’s motion to dismiss (Dkt. 53).
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See Hallinan v.
Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under Rule
8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must
“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Under federal notice
pleading standards, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. Put differently, a “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “In reviewing
the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded
facts in the complaint as true.” Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013).

Plaintiff alleges that beginning on May 5, 2023, and continuing through December of 2023,
he reported pain and medical issues with his feet to each of Defendants McCray, Shelton, Shebel,
Joyner, Sims, Tellado, and Taiwo Pa-Colamide, on different occasions, and none of them did
anything to alleviate his discomfort. (Dkt. 6, pgs. 5-17.) Plaintiff alleges that although he had been
referred to a podiatrist for treatment for the issues with his toenails and his feet, he was never taken
to see the specialist due to delays caused by Defendants. (Id.) Plaintiff alleges that throughout this
eight-month time-period he had ongoing pain, and it impeded his ability to walk. (Id.) Defendants
Susan Shebel and Jeelan McCray have each moved to dismiss the complaint.
To state a claim that medical/jail staff violated his Fourteenth Amendment rights to
adequate medical care, Plaintiff must allege facts suggesting that (1) he suffered from an
objectively serious medical condition, and (2) staff's response to it was objectively unreasonable.
Miranda v. County of Lake, 900 F.3d 335, 352-53 (7th Cir. 2018). A showing of negligence or
even gross negligence is not sufficient under either the Eighth or Fourteenth Amendment. Id. An
unnecessary delay in treatment can constitute a Fourteenth Amendment injury if it unnecessarily
prolonged a detainee’s pain. Turner v. Reena, No. 17 C 2434, 2019 WL 2357031, at *4 (N.D. Ill.
June 4, 2019), aff’d sub nom. Turner v. Paul, 953 F.3d 1011 (7th Cir. 2020).

The Court completed initial review on the complaint pursuant to 28 U.S.C. § 1915A on
February 15, 2024 (Dkt. 6), finding that Plaintiff stated a claim against Defendants all Defendants,
including Shebel and McCray for objectively unreasonable medical care for his medical issues
with his feet as well as ongoing pain and difficulty walking.
Defendant Shebel:
Defendant Shebel argues that Plaintiff has failed to allege her personal involvement in
Plaintiff’s medical care. She also argues she is entitled to qualified immunity. Defendant McCray’s
motion argues that despite the Court’s finding to the contrary in its initial review order of February
15, 2024, Plaintiff failed to state a claim for objectively unreasonable medical care. Defendant
Shebel’s arguments miss the mark on both counts. First, Shebel ignores the initial review order in
attempting to argue lack of personal involvement. In its order, the Court found that, liberally
construing Plaintiff’s allegations he stated a claim of objectively unreasonable medical treatment
relating to his feet, overgrown toenails, and the resulting pain which was ineffectively treated.
(Dkt. 5.) Plaintiff was referred to a specialist to treat his condition. See, e.g., Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005) (“A serious medical condition is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would perceive
the need for a doctor’s attention.”); see also Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014).
The claim against Shebel, as made clear in the initial review order, is that she had knowledge of
Plaintiff’s condition and his difficulty in obtaining adequate care, by way of his grievances, but,
in spite of her knowledge and training as a registered nurse, did nothing to assist Plaintiff. As such,
as stated in the initial review order, Plaintiff has stated a claim for objectively unreasonable
medical care against Defendant Shebel.
To the extent Shebel argues that Plaintiff fails to state a claim for failure to properly handle
grievances, Shebel is correct on the law, however, again, the argument ignores the initial review
order, which states specifically, that Plaintiff may proceed against Shebel on his claim of
inadequate medical care, but that Plaintiff failed to state a claim for the handling of his grievances.
(Dkt. 5, pg. 3.)
With regard to Defendant Shebel’s argument that she is entitled to qualified immunity,
based on the pleading, the argument centers on Shebel’s handling of Plaintiff’s grievances. As
stated above, the Court stated in its initial review order of February 15, 2024, that Plaintiff may
pursue a claim against Shebel for objectively unreasonable medical care, but not for the handling
of his grievances. (Dkt. 5.) Accordingly, the qualified immunity argument is denied as moot and
Defendant Shebel’s motion (Dkt. 25) is denied.
Defendant McCray:
As to Defendant McCray’s motion, she makes two arguments: (1) she takes issue with the
form of Plaintiff’s complaint (failure to provide individual numbered paragraphs laying out his
claim; and (2) failure to state a claim. With regard to the form of Plaintiff’s complaint, Defendant
McCray’s argument fails. A complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement
must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The statement also must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face,” which means that the pleaded facts must show there is “more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When screening a
pro se plaintiff’s complaint, courts construe the plaintiff’s allegations liberally. Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). Courts also must “accept all well-pleaded facts as true and
draw reasonable inferences in the plaintiff’s favor.” Roberts v. City of Chicago, 817 F.3d 561, 564
(7th Cir. 2016). The Court already determined that Plaintiff’s complaint sufficiently satisfied Fed.
R. Civ. P. 8(a) in its initial screening order of February 15, 2024. (Dkt. 5.) Prisoners are not lawyers
and, liberally construed, Plaintiff’s complaint contains sufficient factual information to
successfully withstand initial review pursuant to 28 U.S.C. § 1915A. Courts screen prisoners’
complaints in the same manner they review motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011).
With regard to Plaintiff’s claims against Defendant McCray, Plaintiff describes multiple
interactions with McCray on several dates in 2023. (Dkt. 6.) He further alleges her inaction led to
delay in care which contributed to his ongoing pain and limiting his ability to walk. (Id.) As such,
as stated in the Court’s initial review order of February 15, 2024, Plaintiff has stated a claim for
objectively unreasonable medical care against Nurse McCray and her motion (Dkt. 53) is denied.
For the foregoing reasons, Defendants Shebel and McCray’s motions to dismiss (Dkt 25
and 53) are denied. These Defendants shall file their answers to the operative complaint (Dkt. 6)
by the date stated above.
Finally, Plaintiff’s motion for attorney representation (Dkt. 94) is denied. “There is no right
to court-appointed counsel in federal civil litigation,” Olson v. Morgan, 750 F.3d 708, 711 (7th
Cir. 2014), but the Court may request that an attorney represent an indigent litigant on a volunteer
basis under 28 U.S.C. § 1915(e)(1). In deciding whether to recruit counsel, the Court must engage
in a two-step analysis: (1) has the plaintiff made a reasonable attempt to retain counsel on his own
or been effectively precluded from doing so; and, if so, (2) given the factual and legal complexity
of the case, does the plaintiff appear competent to litigate the matter himself. Pruitt v. Mote, 503
F.3d 647, 654-55 (7th Cir. 2007) (en banc). The analysis does not focus solely on the plaintiff’s
ability to try the case but takes into consideration his ability to gather evidence and prepare and
respond to motions. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013). Factors to be considered
include: (1) the stage of litigation, Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010); (2)
plaintiff’s submissions to date, Olson, 750 F.3d at 712; (3) plaintiff’s medical and mental health
issues, id.; (4) whether plaintiff has been transferred to a different facility, Junior v. Anderson, 724
F.3d 812, 815 (7th Cir. 2013); (5) plaintiff’s intelligence, literacy, education, communication
skills, and litigation experience, Pruitt, 503 F.3d at 655; and (6) the complexity of the case, id. at
655-56.
After considering the above factors, the Court concludes that solicitation of counsel is not
currently warranted. Plaintiff has successfully withstood initial screening and two motions to
dismiss. This case is in the discovery stage and the Magistrate Judge is ably managing that process,
and the parties are working together to move the process forward, reasonably. While Plaintiff
contends that the issues in this case (medical care) are complex and may require expert testimony
at later stages in the litigation, the tasks before Plaintiff at this point are straightforward and
reasonable deadlines are being set to allow the parties to complete their tasks in discovery. Plaintiff
communicates clearly in his submissions to the Court, and he has proven himself able to make
arguments as necessary in prosecuting his claim. Should the case proceed to the point where
Plaintiff requires counsel to manage medical evidence, or expert testimony, Plaintiff is free to
renew his motion for counsel if he can establish that he is unable to proceed on his own. Thus, the
motion for counsel is denied.

Date: 2/12/2025 /s/ John J. Tharp, Jr.
John J. Tharp, Jr.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10798908. Public record. Not legal advice.