Russell v. Adesanya

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

DAVID RUSSELL, )

Plaintiff, )

)

v. ) Case No. 3:24-cv-3240-SEM-EIL

)

LATOYA HUGHES, et al., )

Defendants. )

MERIT REVIEW ORDER

SUE E. MYERSCOUGH, United States District Judge:

Plaintiff pro se David Russell has filed a Complaint (Doc. 1)

under 42 U.S.C. § 1983, which is now before the Court for

screening. Plaintiff’s Complaint may proceed on a deliberate

indifference claim against Defendant Adesanya, but the remaining

Defendants are dismissed. Plaintiff has also filed a Motion to

Request Counsel (Doc. 5), which is denied without prejudice.

I. COMPLAINT

A. Screening Standard

The Court must “screen” Plaintiff’s Complaint and dismiss any

legally insufficient claim or the entire action if warranted. 28 U.S.C.

§ 1915A. A claim is legally insufficient if it “(1) is frivolous,

malicious, or fails to state a claim upon which relief may be

granted; or (2) seeks monetary relief from a defendant who is

immune from such relief.” Id. In reviewing the complaint, the Court

accepts the factual allegations as accurate, liberally construing

them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649

(7th Cir. 2013). However, conclusory statements and labels are

insufficient. Enough facts must be provided to “state a claim for

relief that is plausible on its face.” Alexander v. United States, 721

F.3d 418, 422 (7th Cir. 2013) (citation omitted).

B. Facts Alleged

At all times relevant to his Complaint, Plaintiff was an inmate

within the Illinois Department of Corrections (“IDOC”) at Graham

Correctional Center (“Graham”). Plaintiff’s Complaint names as

Defendants IDOC Director LaToya Hughes, Graham Warden Steven

Campbell, Health Care Unit Administrator (“HCUA”) Stephanie

Howard, Physicians Assistant (“PA”) Timothy Adesanya, Dr. S. Cole,

and Medical Director L. Emerick.

Plaintiff alleges that on March 21, 2024, he injured his left

pinky finger, which immediately caused swelling, loss of mobility,

and excruciating pain. Plaintiff was taken to the Health Care Unit

(“HCU”) where he was seen by Defendant Adesanya. Without any

testing to determine a diagnosis, Defendant Adesanya manipulated

Plaintiff’s pinky, causing extreme pain, and then constructed a

makeshift splint out of a plastic utensil. Defendant Adesanya told

Plaintiff that an x-ray was scheduled for March 25, after which a

follow-up appointment would be scheduled.

Plaintiff was not seen for a follow-up appointment. He

submitted numerous sick call requests to be seen in the HCU, on

March 27, April 1, and April 7, 2024. He continued to suffer from

pain, swelling, and loss of mobility in his injured finger.

On April 11, 2024, Plaintiff saw Defendant Adesanya for a

previously scheduled appointment regarding a prior back injury.

During the appointment, Plaintiff complained that he had not

received his x-ray results or further treatment for his finger.

Defendant Adesanya reviewed the March 25 x-ray and told Plaintiff

that the x-ray only showed Plaintiff’s left hand without his injured

pinky finger. Plaintiff was told that a second x-ray would be

scheduled for April 15, 2024.

On April 30, 2024, Plaintiff was called to the HCU to turn in

his makeshift splint. Plaintiff complained to Defendant Adesanya

that he was still experiencing severe pain and swelling, as well as

loss of mobility.

Plaintiff filed a grievance which he marked as an emergency

grievance, but Defendant Campbell denied that the grievance was

an emergency. Defendant Howard later responded to the grievance,

stating that all treatment was appropriate and allegedly refusing to

refer Plaintiff to further treatment. Plaintiff also alleges that

Defendant Emerick was informed about Plaintiff’s injury and

refused to authorize an MRI of Plaintiff’s finger.

Plaintiff continued to submit sick call requests. In June,

Plaintiff was seen by Defendant Cole, who reissued a splint for

Plaintiff’s finger and prescribed Mobic for swelling. Defendant Cole

told Plaintiff that she would follow up with him in six weeks, but

Plaintiff alleges that follow-up appointment did not occur. He has

continued to submit sick call requests because he still suffers pain,

loss of mobility, and disfigurement of his finger.

C. Analysis

In order to state an Eighth Amendment claim of deliberate

indifference to a serious medical need, a complaint must adequately

allege that (1) the plaintiff had an objectively serious medical need,

and (2) the defendant was deliberately indifferent to that need.

Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

Plaintiff has adequately alleged that he suffered from a serious

medical condition because his finger injury caused him severe pain

and because he lost mobility and use of that finger. Defendant

Adesanya was aware of Plaintiff’s need for care but provided

Plaintiff only with a “makeshift” splint, which he removed even

when Plaintiff still had significant swelling, pain, and loss of

mobility. Plaintiff may, therefore, proceed on a deliberate

indifference claim against Defendant Adesanya.

“Section 1983 creates a cause of action based on personal

liability and predicated upon fault; thus, liability does not attach

unless the individual defendant caused or participated in a

constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th

Cir. 1996). Supervisory prison staff can, therefore, only be held

liable for deliberate indifference if they “know about the conduct

and facilitate it, approve it, condone it, or turn a blind eye.” Doe v.

Purdue University, 928 F.3d 652, 664 (7th Cir. 2019). In addition,

the denial or mishandling of a grievance does not, in itself, amount

to a constitutional violation. Owens v. Hinsley, 635 F.3d 950, 953

(7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner’s]

grievance by persons who otherwise did not cause or participate in

the underlying conduct states no claim.”).

Plaintiff’s Complaint does not allege that Defendant Hughes

had any knowledge of his injury. She may not be held liable simply

because she is in a supervisory position as Director of IDOC.

Plaintiff alleges that Defendant Campbell deemed his grievance

a non-emergency and that Defendant Howard later responded that

Plaintiff had been treated appropriately. As indicated above,

Plaintiff may not bring a claim against Defendants based only on

their denial or alleged mishandling of a grievance. Owens, 635 F.3d

at 953.

Plaintiff’s only allegation against Defendant Cole is that, after

she properly reissued him a splint and prescribed medication for

his swelling, he did not actually see her for a six-week follow-up

appointment as she had ordered. While Plaintiff alleges the follow-

up appointment did not occur, he does not allege that Defendant

Cole deliberately failed to schedule the appointment, refused to see

him, or cancelled the appointment. Cf. Duane v. Lane, 959 F.2d

673, 677 (7th Cir. 1992) (deliberate indifference is “something

approaching a total unconcern for [the plaintiff’s] welfare”). Even

liberally construing the facts in Plaintiff’s favor at this stage, it is

not clear who Plaintiff is alleging was responsible for the lack of

follow-up scheduling.

Finally, Plaintiff alleges that Defendant Emerick did not

approve an MRI. But “[a]n MRI is simply a diagnostic tool, and the

decision to forego diagnostic tests is ‘a classic example of a matter

for medical judgment’” that does not implicate the Eighth

Amendment’s right to be free from cruel and unusual punishment.

Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014), quoting Estelle v.

Gamble, 429 U.S. 97, 107 (1976). Therefore, Plaintiff may not

proceed on a claim against Defendant Emerick.

II. REQUEST FOR COUNSEL

Plaintiff has also filed a Motion to Request Counsel (Doc. 5).

A pro se litigant has no right to counsel in a civil case. Olson

v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However, the federal

statute authorizing in forma pauperis status provides a court “may

request an attorney to represent any person unable to afford

counsel.” See 28 U.S.C. 1915(e)(1). A court does not have the

authority to require an attorney to accept pro bono appointments in

civil cases. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).

When considering a request for counsel by a pro se litigant the

Court undertakes a two-part inquiry: (1) whether the plaintiff made

a reasonable attempt to obtain counsel or has been effectively

precluded from doing so, and, if so, (2) given the difficulty of the

case, does the plaintiff appear competent to litigate it himself. Pruitt

v. Mote, 503 F.3d 647, 655 (7th Cir 2007).

As to the first inquiry, plaintiffs normally make this showing

by filing copies of letters sent to several attorneys seeking

assistance, along with copies of the responses they received from

the attorneys they contacted. In his Motion, Plaintiff has listed four

law firms that he has contacted in writing, and he attaches as an

exhibit the letter that he sent to each, requesting representation in

this case. Plaintiff has been unsuccessful in obtaining

representation from any of these firms. The Court finds that

Plaintiff has satisfied this first, threshold requirement.

Turning to the second requirement, the Court must consider

“whether the difficulty of the case—factually and legally—exceeds

the particular plaintiff’s capacity as a layperson to coherently

present it to the judge or jury himself.” Pruitt, 503 F.3d at 655.

This inquiry must be a “practical one, made in light of whatever

relevant evidence is available on the question.” Id. The court

should take account of all evidence in the record relevant to the

plaintiff’s ability to litigate. Navejar, 728 F.3d at 696. Such

evidence may include any physical, intellectual, or psychological

limitations the plaintiff may have and the practical problems the

plaintiff may encounter in gathering evidence from individuals

employed by an institution where he is no longer housed. Navejar,

718 F.3d at 698.

In his Motion, Plaintiff attests that he has completed only

grammar school. He also requests counsel because this case

involves medical issues and the state of mind of the defendants (i.e.,

deliberate indifference).

Plaintiff’s Complaint was detailed and contained specific dates

regarding medical appointments, tests, and medications. Plaintiff

clearly has knowledge of the relevant facts at issue, as well as

access to various relevant records, including grievance records,

which he attached as exhibits to his Complaint. The Court also

finds that Plaintiff was able to communicate the alleged facts

contained in his Complaint in a clear, organized manner. In

addition, while Plaintiff’s deliberate indifference claim involves

medical issues, the nature of the particular injury, and the

symptoms are not overly complex and Plaintiff’s claim is proceeding

against only one Defendant.

Recruiting pro bono counsel in this District is difficult, as the

need far exceeds the supply. McCaa v. Hamilton, 959 F.3d 842, 845

(7th Cir. 2020) (“District courts are thus inevitably in the business

of rationing a limited supply of free lawyer time.”). Although

“[a]lmost everyone would benefit from having a lawyer, [] there are

too many indigent litigants and too few lawyers willing and able to

volunteer for these cases.” Dewitt v. Corizon, Inc., 760 F.3d 654,

657 (7th Cir. 2014) (internal quotation omitted); Mejia v. Pfister,

2021 WL 647085, * 4 (7th Cir. Feb. 19, 2021) (“For its part, the

district court found itself having to [choose] how best to allocate

scarce resources, for it remains the sad reality that there are too

many indigent litigants and too few lawyers willing and able to

volunteer for these cases.”) (internal quotation omitted).

Assistance in recruiting counsel is appropriate only where the

plaintiff shows his case is one of those few in which it appears from

the record the legal and factual difficulty exceeds his ability to

prosecute. Pruitt, 503 F.3d at 654-55. This question is different

from whether a lawyer might do a better job. Id.

Upon a full review of the record before it at this time, the

Court finds Plaintiff is able to represent himself at this stage of the

case. Plaintiff’s Motion (Doc. 5) is DENIED without prejudice.

Plaintiff may renew the request should his circumstances change,

at a later stage of litigation.

IT IS THEREFORE ORDERED:

1) According to the Court’s Merit Review of Plaintiff’s

Complaint under 28 U.S.C. § 1915A, Plaintiff has alleged

enough facts to proceed with an Eighth Amendment

deliberate indifference claim against Defendant Adesanya.

Additional claims shall not be included in the case, except

at the Court’s discretion on motion by a party for good

cause shown or under Federal Rule of Civil Procedure 15.

The Clerk is therefore directed to DISMISS LaToya

Hughes, Steven Campbell, Stephanie Howard, Dr. Cole,

and Dr. Emerick as Defendants.

2) Plaintiff’s Motion to Request Counsel [5] is DENIED

without prejudice.

3) Plaintiff’s Motions for Status [6], [11] are MOOT.

4) This case is now in the process of service. The Court

advises Plaintiff 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 evidence to the Court unless otherwise

directed by the Court.

5) The Court will attempt service on Defendant by mailing

waivers of service. Defendant has sixty days from service

to file an Answer. If a Defendant has not filed an Answer or

appeared through counsel within ninety days of the entry

of this Order, Plaintiff may file a motion requesting the

status of service. After Defendant has been served, the

Court will enter an order setting discovery and dispositive

motion deadlines.

6) Concerning a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that

Defendant worked while at that address shall submit to

the Clerk said Defendant’s current work address or, if not

known, said Defendant’s forwarding address. This

information shall be used only for effectuating service.

Documentation of forwarding addresses shall be retained

only by the Clerk and shall not be maintained in the

public docket nor disclosed by the Clerk.

7) Defendant shall file an Answer within sixty days of the

date the Clerk sends the waiver. A motion to dismiss is

not an answer. The Answer should include all defenses

appropriate under the Federal Rules. The Answer and

subsequent pleadings shall be to the issues and claims

stated in this Order. In general, an answer sets forth a

Defendant’s positions. The Court does not rule on the

merits of those positions unless and until a Defendant

files a motion. Therefore, no response to an Answer is

necessary or will be considered.

8) This District uses electronic filing, which means that,

after Defendant’s counsel have filed an appearance,

counsel will automatically receive electronic notice of any

motion or other paper filed by Plaintiff with the Clerk.

Therefore, Plaintiff does not need to mail copies of

motions and other documents that Plaintiff has filed with

the Clerk to Defendant’s counsel. However, this does not

apply to discovery requests and responses. Discovery

requests and responses are not filed with the Clerk.

Instead, Plaintiff must mail his discovery requests and

responses directly to Defendant’s counsel. Discovery

requests or responses sent to the Clerk will be returned

unfiled unless they are attached to and the subject of a

motion to compel. Discovery does not begin until

Defendant’s counsel have filed an appearance, and the

Court has entered a scheduling order, which will explain

the discovery process in more detail.

9) Defendant’s counsel is granted leave to depose Plaintiff.

Defendant’s counsel shall arrange the time for the

deposition.

10) Plaintiff shall immediately notify the Court, in writing, of

any change in her mailing address and telephone number.

Plaintiff’s failure to inform the Court of a change in

mailing address or phone number will result in the

dismissal of this lawsuit with prejudice.

11) If a Defendant fails to sign and return a waiver of service

to the Clerk within thirty days after the waiver is sent, the

Court will take appropriate steps to effect formal service

through the U.S. Marshals service on that Defendant and

will require the Defendant to pay the total costs of formal

service under Federal Rule of Civil Procedure 4(d)(2).

12) The Court directs the Clerk to enter the standard qualified

protective order under the Health Insurance Portability

and Accountability Act.

13) The Court directs the Clerk to attempt service on

Defendant under the standard procedures.

ENTERED May 6th, 2025.

s/ Sue E. Myerscough

____________________________________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE