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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
JACKEY L. BOND,
Plaintiff,
v.
DR. AGUINALDO, et al.,
Defendants.
228 F. Supp. 2d 918
October 30, 2002, Decided
October 31, 2002, Docketed
Plaintiff
Jackey L. Bond, a prisoner at Stateville Correctional Center, filed suit under 42
U.S.C. § 1983, alleging that neglect of his medical conditions amounts to cruel
and unusual punishment in violation of the Eighth Amendment. Bond names as
defendants medical and administrative officials at Stateville and Pinckneyville
correctional centers.
Bond seeks
leave to proceed without prepayment of the filing fee. Court records show,
however, that Bond has filed three federal actions that have been dismissed for
failure to state a claim upon which relief may be granted. n1 Under the
"three strikes" rule enacted by the Prison Litigation Reform Act
(PLRA), Bond may not proceed without
prepayment of the filing fee unless he "is under imminent danger of
serious physical injury." 28 U.S.C. § 1915(g). As Bond alleges that his
medical problems are serious and ongoing and causing him severe pain, the court
finds he meets this standard for pleading purposes, and grants his renewed
motion for leave to proceed without prepayment. The court will enter a separate
order assessing the initial partial payment of the filing fee required by 28
U.S.C. § 1915(b)(1) and ordering installment payments as required by 28 U.S.C.
§ 1915(b)(2).
n1 See Bond v. Steigman, No. 95 C 4681
(N.D. Ill.), dismissed September 25, 1995 by Judge Castillo; Bond v. Bosse, No.
98 C 3033 (C.D. Ill.), dismissed April 23, 1998 by Judge Mills; and Bond v.
Little, No. 99 C 3310 (C.D. Ill.), in which Judge Scott granted a motion to
dismiss on February 6, 2001. None of these dismissals has been reversed on
appeal, although an appeal in No. 98 C 3310 is pending.
Only Bond's
claim that he is presently being denied medical care permits him to invoke the
"imminent danger" exception to the "three strikes" rule.
Clearly, "by using the term "imminent," Congress indicated that
it wanted to include a safety valve for the "three strikes" rule to
prevent impending harms, not those harms that had already occurred." Abdul-Akbar
v. McKelvie, 239 F.3d 307, 315 (3rd Cir. 2001). Nevertheless, the language of the exception does
not state that only those defendants directly responsible for the
"imminent danger of serious physical injury" may be sued in a suit
allowed to proceed under the exception, and the court has found no authority so
holding.
All of Bond's claims address
the same conditions for which he is presently being denied care, and the court
accordingly finds that Bond may proceed not only against those defendants
responsible for his present treatment at Stateville, but against those
responsible for his treatment during his earlier sojourns at both Stateville
and Pinckneyville as well. If defendants contend that the scope of this suit
should be limited to Bond's present medical needs, they may move the court, citing
relevant authority.
Under 28 U.S.C. § 1915A,
another provision of the PLRA, the court is required to review complaints filed
by prisoners against governmental entities or their officers or employees and
dismiss any portion of the complaint it finds frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a
defendant immune from such relief. In determining whether the complaint states
a claim upon which relief may be granted, the court applies the standard
employed in deciding a motion to dismiss under Rule 12(b)(6), taking all
well-pleaded allegations of the complaint as true and viewing them in the light
most [*920] favorable to the plaintiff. Zimmerman v. Tribble, 226 F.3d 568,
571 (7th Cir. 2000).
Bond alleges that when he was transferred to Stateville July 7,
1999, he suffered from back pain but was told by defendant Dr. Aguinaldo that
there was nothing wrong with him. Sometime later he developed hoarseness, but
Dr. Aguinaldo only told him to stop talking. Bond states that in October of
2000 he was seen by an E.N.T. (ear, nose and throat) specialist who found cysts
on his vocal cords that he believed to be caused by acid reflux from Bond's stomach to his esophagus. Bond was
also seen by a "voice specialist" who told him that until the acid
reflux problem was solved he could do nothing for him. Dr. Joseph Smith, the
medical director, and Barbara Miller, the health-care unit administrator,
ignored Bond's requests for treatment of acid reflux as recommended by the
E.N.T. specialist. Bond's grievances were denied by Stateville's grievance
officer, two successive assistant wardens, and the warden, and the denial was
upheld by the Director of the Illinois Department of Corrections.
On February 7, 2001, Bond was transferred to Pinckneyville
Correctional Center, where Drs. Garcia and Doughty also refused to carry out
the treatment recommended by the specialist. As at Stateville, the health-care
unit administrator, Christine Mitchell, did not intervene, and Bond's
grievances were denied by grievance officer Wilbur Gene Pursell, Assistant
Warden Julius Flagg, and Warden Guy D. Pierce. Again, IDOC Director Snyder
upheld the denial.
On February 27, 2002, Bond was returned to Stateville. On March
5, 2002, he asked medical technician Mike Borkowski to put him on the sick-call
list, saying that his throat was sore from acid reflux and he was experiencing
excruciating pain in his back, but Borkowski refused. A few days later Bond
wrote Dr. Kevin Smith, the medical director, asking to be seen, but received no
response. On March 19, Bond again asked Borkowski to be put on the list, but
Borkowski again refused. Bond alleges that up to the date of the complaint,
July 8, 2002, he has been denied medical attention.
In order to
be liable under 42 U.S.C. § 1983 for denying a prisoner appropriate medical
care, a prison official must have been deliberately indifferent to the
prisoner's serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). Because deliberate indifference
requires actual knowledge of a serious risk of harm, Bond may not sue the
non-medical personnel who denied his grievances. Except in the unusual case
where it would be evident to a layperson that a prisoner is receiving
inadequate or inappropriate treatment, prison officials may reasonably rely on
the judgment of medical professionals. Durmer
v. O'Carroll, 991 F.2d 64, 69 (3rd Cir. 1993);
Williams v. Cearlock, 993 F. Supp. 1192 (C.D. Ill. 1998); McEachern v.
Civiletti, 502 F. Supp. 532, 534 (N.D. Ill. 1980)(Aspen, J.)("[Defendants]
are prison administrators, not licensed medical practitioners. Lacking the
requisite expertise, they must necessarily place their confidence in the
reports of the prison doctors whenever an inmate disputes a medical opinion as
to what treatment is necessary and proper."). The complaint does not
permit the inference that the non-medical defendants to whom Bond complained
actually knew that his treatment was medically inappropriate, and consequently
they cannot be liable.
The court accordingly
dismisses Grievance Officer Judy Welsh, Assistant Wardens Jerry Springborn and
Jonathan [*921] Walls, and Warden Kenneth Briley, all of
whom denied Bond's grievances at Stateville, their counterparts at
Pinckneyville, Grievance Officer Wilbur Gene Pursell, Assistant Warden Julius
Flagg and former Warden Guy D. Pierce, as well as IDOC Director Snyder, who
approved the final decision of the Administrative Review Board denying review.
Bond may proceed against the remaining defendants.
The clerk is directed to issue summons to defendants Aguinaldo, Smith, Miller, Garcia, Doughty,
Gonzales, Mitchell and Borkowski, and the United States Marshals Service is
appointed to serve them. The Marshal is authorized to mail a request for waiver
of service to defendants in the manner prescribed by Fed.R.Civ.P. 4(d)(2)
before attempting personal service on defendants.
Bond is instructed to
file all papers concerning this action with the clerk of court in care of the
prisoner correspondent. Bond must send an exact copy of any filing to
defendants or, if represented by counsel, to defendants' counsel, and must
include with the original filing a certificate of service stating to whom exact
copies were mailed and the date of mailing. Any paper sent directly to the judge or that otherwise fails to
comply with these instructions may be disregarded by the court or returned.
ENTER ORDER:
ELAINE E. BUCKLO
United States District Judge
Dated: October 30, 2002