MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
Plaintiff David L. Simpson, an inmate in U.S. Penitentiary Marion, brings this action for deprivations of his constitutional rights pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Torts Claims Act, §§ 1346, 2671-2680 ("FTCA"). Plaintiff seeks injunctive relief,
An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.
Sometime between December 7 and 12, 2016, Plaintiff smashed his left hand between a set of faulty doors in the medical department waiting room. (Doc. 1, p. 5). The doorway to the medical staff's offices shares the same corner with the door to the R&D department. Id. Plaintiff was going into the R&D office area. Id. He opened the door, using the amount of force he usually used on other similar doors throughout the facility. Id. However, this particular door had faulty hardware; specifically, the mechanism to keep the door from opening too fast was broken. Id. This caused the door to fly open faster than Plaintiff anticipated, and he caught his hand in the middle of the area where the R&D door met the medical office door. Id. As a result, Plaintiff's hand was crushed. Id. He broke a finger, sprained a finger, busted open his hand, and suffered from general bruising and spraining. Id.
Plaintiff reported this incident to John Doe #1, but was only given gauze and a bandage. Id. He was also scolded for getting blood on the floor, although it is not clear that Doe #1 did the scolding. Id. Plaintiff later followed up with Ms. Bagwell, the Health Services Administrator. Id. She said that she knew about the door problem prior to the incident. Id. As of the time the Complaint was filed, the door was still not repaired. Id. Plaintiff eventually had an x-ray taken; medical records attached to the Complaint show that he saw a physician's assistant for his hand on December 16, 2016. (Doc. 1, p. 9).
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into 3 counts. 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. The following claims survive threshold review:
Plaintiff has also attempted to bring another Count, but for the reasons elucidated below, this claim does not survive threshold review.
The FTCA is a statutory waiver of sovereign immunity that allows a plaintiff to bring claims against the United States
28 U.S.C. § 1346(b)(1).
This statute allows prisoners to bring suit for injuries sustained due to the negligence of prison officials. United States v. Muniz, 374 U.S. 150 (1963); Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003). The FTCA looks to the elements of state law, and applies the law of the state where the "act or omission occurred." 28 U.S.C. § 1346(b)(1); Richards v. United States, 369 U.S. 1, 9-10 (1962). Plaintiff has alleged that the relevant acts occurred at Marion, a federal penitentiary located in Illinois. In Illinois, a plaintiff bringing a negligence claim must show 1) a duty of care owed by the defendants; 2) a breach of that duty; 3) an injury and 4) proximate cause. Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011) Iseberg v. Gross, 879 N.E.2d 278 (2007).
Here, Plaintiff was in the custody of the Defendant United States; custody is the type of "special relationship" that creates a duty of care. Glade ex. Rel. Lundskow v. United States, 692 F.3d 718, 723 (7th Cir. 2012). So the first element is satisfied. Plaintiff has also alleged Bagwell admitted to him in a conversation that she knew that the door was broken prior to the incident, but that no steps had been taken to fix it. This is a sufficient allegation that prison officials were negligent in arranging for the door to be fixed or alternatively, that someone had undertaken to fix the door in a negligent manner. Plaintiff has also plausibly alleged that he suffered an injury and that the negligence was the proximate cause of his injury.
But Plaintiff's claims against Bagwell must be dismissed with prejudice. Other than the comment she allegedly made that indicates that she knew the door was broken prior to this incident, Plaintiff has not alleged that she was involved in the chain of events. Plaintiff has not alleged that she herself was responsible for fixing the door or that she personally negligently fixed the door. Given Bagwell's position as Health Services Administrator, neither is plausible. Plaintiff has also not alleged that Bagwell delayed or denied him medical treatment. In an action under the FTCA, the United States of America is the only proper Defendant. See 28 U.S.C. § 2679(b); FDIC v. Meyer, 510 U.S. 471 (1994). Therefore, as Bagwell is not a proper defendant under the FTCA, and the allegations here do not establish any other grounds for liability, Bagwell will be dismissed with prejudice.
Turning now to
"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); see also Farmer v. Brennan, 511 U.S. 825, 842 (1994). The Eight 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). Deliberate indifference may also be shown where medical providers persist in a course of treatment known to be ineffective. Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005).
Here Plaintiff has alleged that he suffered from a broken and split hand that required immediate treatment. The Court will presume at this stage that the injury constitutes a serious medical need. See Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (acknowledging that the parties did not dispute that a split hand was a serious medical need). Additionally, Plaintiff has alleged that when he showed his hand to nurse Doe #1, that all she did was bandage him up without referring him for further treatment. This kind of delay can plausibly state a claim for deliberate indifference, and so at this stage, Plaintiff's
But Plaintiff's FTCA claim for medical negligence must be dismissed at this time. As stated above, FTCA claims draw on the state law from the state where the incident happened, which in this instance is Illinois. Under Illinois law, a Plaintiff "[i]n any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice," must file an affidavit along with the complaint, declaring one of the following: 1) that the affiant has consulted and reviewed the facts of the case with a qualified health professional
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILL. COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However, whether such dismissal should be with or without prejudice is up to the sound discretion of the court. Sherrod, 223 F.3d at 614. "Illinois courts have held that when a plaintiff fails to attach a certificate and report, then `a sound exercise of discretion mandates that [the plaintiff] be at least afforded an opportunity to amend her complaint to comply with section 2-622 before her action is dismissed with prejudice.'" Id.; see also Chapman v. Chandra, Case No. 06-cv-651-MJR, 2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Plaintiff has failed to file the necessary affidavits or reports. Therefore, the claim in
The Clerk of Court is
Service shall not be made on the Unknown (John Doe #1) Defendant until such time as Plaintiff has identified him or her by name in a properly filed amended complaint. Plaintiff is