In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2962

RAUL C. GOMEZ,

Plaintiff-Appellant,

v.

MICHAEL P. RANDLE, I.D.O.C. Director, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 11 C 1793—Milton I. Shadur, Judge.

ARGUED APRIL 3, 2012—DECIDED MAY 14, 2012

Before BAUER, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge. In a pro se complaint filed on

March 15, 2011, Raul C. Gomez alleged various First and

Eighth Amendment violations by the Illinois Department of Corrections (“IDOC”) and Stateville Correctional

Center prison officials under 42 U.S.C. § 1983. The district

court appointed counsel for Gomez and allowed him

to proceed in forma pauperis. Gomez’s attorney met with

him in person on one occasion and thereafter filed a
2 No. 11-2962

motion to withdraw as counsel. In that motion, the attorney stated his belief that Gomez’s claims were either

barred by the statute of limitations or not warranted

under existing law. The district court, largely relying on

counsel’s affirmations, granted the motion to withdraw

and dismissed Gomez’s case. Because we find that

the district court’s dismissal was premature as to all

but one of the defendants, we affirm in part and reverse

in part the judgment of the district court and remand

for proceedings consistent with this opinion.

I. BACKGROUND

Gomez alleges the following facts, which we assume

to be true for purposes of this appeal. Marion v. Columbia

Corr. Inst., 559 F.3d 693, 694 (7th Cir. 2009). Gomez was

an inmate at Stateville Correctional Center on May 16,

2009, when he was wounded in the right upper arm by

one of the pellets fired from a 12-gauge shotgun. On

that day at approximately 9:45 a.m., as Gomez waited in

front of his cell (#922) to be keyed in by Corrections

Officer Dunlap, a fight broke out between two unarmed

inmates by the staircase near cell #926. Sergeant Palmer

and Officer Dunlap attempted to break up the fight.

During this effort, an unknown corrections officer with

a 12-gauge shotgun fired two shots from the catwalk

into the inmate population. Gomez, his cellmate, and an

inmate in #923 were hit by pellets from these two shots.

After the fight was contained, Palmer and Dunlap

keyed the inmates back into their cells. Gomez showed

his wound, which was bruised and bleeding, to Dunlap,
No. 11-2962 3

who assured Gomez he would get someone to look at his

arm. Dunlap returned approximately five minutes later

with an unknown medical technician. The medical technician wanted to treat Gomez in the health care unit

but Dunlap refused to move Gomez because the prison

was on lockdown. Instead, Gomez asked the medical

technician if he could be treated in his cell and she responded that she would bring him some medical supplies. The medical technician never returned with

these supplies.

At approximately 2:00 p.m. that same day, Gomez

saw Palmer and again requested medical supplies.

Palmer believed the medical technician had already

provided those supplies to Gomez, but agreed to call

the medical staff again. At 5:36 p.m., the same unknown

medical technician was passing out medications to

inmates when she passed Gomez’s cell. Gomez asked

about his medical supplies and she responded that he

would be okay. According to Gomez’s grievance, which

was attached to his complaint, the medical technician

told Gomez she wanted to help him but she was told

by staff security not to document any medical treatment

for gunshot wounds for any of the inmates. Gomez requested her name but she merely laughed and walked

away mumbling.

Realizing that no medical supplies were on their way,

Gomez took it upon himself to wash his wound and

excise a small smashed piece of metal from his arm.

He then wrapped his wound with a torn piece of his

bed sheet. Gomez asserts that he was still in pain and
4 No. 11-2962

bleeding at this time, so he wrote an emergency grievance

to the warden.

Four days later, Gomez was treated in the health care

unit. His wound was photographed, cleaned, and bandaged. Gomez also received a tetanus shot. The doctor

who treated Gomez expressed concern that Gomez was

not brought to the health care unit the day of his injury

to prevent infection. Gomez’s arm was x-rayed two

days later.

A couple of weeks after receiving medical treatment,

Gomez believes IDOC Director Michael P. Randle sent

an internal affairs (“IA”) investigator to meet with

Gomez and intimidate him into dropping his grievance.

The investigator searched Gomez’s cell and took the

shirt Gomez was wearing on the day of his injury. The

investigator later returned to Gomez’s cell and stated

there was no proof that the hole in his shirt was caused

by a shotgun pellet. He then threatened to put Gomez

in segregation or have him transferred to Menard Correctional Center, where Gomez had known enemies. The

investigator also asked Gomez to agree to a polygraph

examination, but Gomez refused unless the medical

technician and Dunlap agreed to take one as well.

Gomez was placed on transfer to Menard Correctional

Center. The day prior to his scheduled transfer, Gomez

told a different IA investigator named Turner that he

would not pursue his grievance or file a lawsuit if he

was allowed to stay at Stateville. Turner told him it was

“too late.” Gomez was transferred to Menard and is

currently incarcerated there.
No. 11-2962 5

Gomez’s emergency grievance was first addressed on

May 21, 2009, by the warden, who determined that

Gomez’s condition was not an emergency because he

had already been treated. Accordingly, the grievance

counselor responded to Gomez’s grievance on June 8,

2009, noting, “As stated by the Warden below, you have

been treated by the health care unit and IA will follow

up. There is no justification for any monetary compensation.” (Compl. at 11.) On July 9, 2009, Grievance

Officer Margaret Thompson reviewed Gomez’s grievance and recommended that it be denied. This decision

was approved by the Chief Administrative Officer on

July 13, 2009. Gomez lacks additional documentation beyond this date because at some point he was

transferred to Pontiac Correctional Center on segregation status for an unrelated incident and prison

officials lost his correspondence box. He asserts that

he wrote to the Administrative Review Board twice

requesting a copy of their response but did not receive it.

Gomez filed suit on March 15, 2011, against IDOC

Director Randle, Sergeant Palmer, Corrections Officer

Dunlap, and three unknown defendants. These unknown

defendants include the Stateville warden, the medical

technician, and the corrections officer who fired at

the inmates from the catwalk. Gomez’s complaint, construed liberally, asserts claims under 42 U.S.C. § 1983

for excessive force, deliberate indifference, and retaliation in violation of the First and Eighth Amendments.

Gomez requested compensatory and punitive damages

from each defendant, as well as legal costs, termination,

and any additional relief deemed proper by the district
6 No. 11-2962

court. Gomez also applied for leave to proceed in forma

pauperis and requested legal counsel.

On March 22, 2011, the district court appointed William

A. Barnett, Jr., to represent Gomez. A status hearing was

held on May 10, 2011. On August 8, 2011, Barnett filed

a motion to withdraw as Gomez’s attorney. In that

motion, Barnett stated that he had withdrawn from the

active practice of law and would withdraw from the

trial bar of the district court once relieved of his appointment as Gomez’s attorney. Barnett also asserted that

he interviewed Gomez in person, reviewed the case

law under 42 U.S.C. § 1983, and believed that “Plaintiff’s

claims are not warranted under existing law and cannot

be supported by good faith argument for extension,

modification or reversal of existing law.” (Mot. to Withdraw at 2.) Specifically, Barnett reported to the court:

Plaintiff was injured by the negligent action of a

correctional officer who has not been identified.

He removed the pellet himself shortly thereafter.

He was not given immediate medical attention

by the unidentified medical technician on the

cell block at the time, but he was in fact treated

several days later, and has not suffered any significant aggravation of the initial wound which

has since healed. None of the named defendants

appear to have had any involvement in his injuries.

The statute of limitations ran on May 16, 2011.

Neither counsel nor Plaintiff were able to identify

either the correctional officer who fired the shotgun or the medical technician who failed to treat
No. 11-2962 7

him initially prior to May 16, 2011. Accordingly,

there does not appear to remain any defendant

who can be found liable for Plaintiff’s injury.

Id. The following day, the district court granted the

motion to withdraw and dismissed Gomez’s complaint. In

doing so, the district court quoted four paragraphs of

Barnett’s motion, noted that under these circumstances

Gomez could not meet the standards established by

Estelle v. Gamble, 429 U.S. 97 (1976), and held, “All of

that being the case, attorney Barnett’s motion to withdraw is granted. Gomez does not have a viable

Section 1983 claim, and this action is dismissed.” (Mem.

Order at 2-3.) Gomez timely appealed.

II. ANALYSIS

We review de novo a district court’s dismissal of a prisoner’s complaint during the screening process conducted

under 28 U.S.C. § 1915A. Ortiz v. Downey, 561 F.3d 664,

669 (7th Cir. 2009). Applying the same standard used

for Rule 12(b)(6) dismissals, we construe the complaint

in a light most favorable to Gomez and accept all wellpled factual allegations as true. Arnett v. Webster, 658

F.3d 742, 751 (7th Cir. 2011). Gomez’s complaint asserts

three claims for relief and we address each one in turn.

A. Excessive Force

Gomez’s first claim alleges that the unidentified corrections officer who fired two rounds from a shotgun
8 No. 11-2962

A plaintiff’s lack of knowledge about a defendant’s identity 1

is not a “mistake” within the meaning of Federal Rule of

Civil Procedure 15(c) such that the plaintiff could amend his

complaint outside the statute of limitations period upon

learning the defendant’s identity. See Baskin v. City of Des

Plaines, 138 F.3d 701, 704 (7th Cir. 1998). Accordingly, once

the statute of limitations period expires, Gomez cannot amend

his complaint to substitute a new party in the place of

“John Doe.”

into the inmate population used excessive force in violation of the Eighth Amendment’s ban on cruel and

unusual punishment. The district court held that this

claim was barred by the statute of limitations because

Gomez failed to identify the unknown officer before

the statute of limitations ran on May 16, 2011, exactly two

years after Gomez’s injury occurred. Although the 1

district court correctly noted that the statute of limitations for a § 1983 claim in Illinois is two years, see

Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008),

it failed to recognize that “the limitations period is

tolled while a prisoner completes the administrative

grievance process.” Walker v. Sheahan, 526 F.3d 973, 978

(7th Cir. 2008).

In this case, Gomez filed his emergency grievance on

May 16, 2009. Thus, the statute of limitations was tolled

from that date until the grievance process was complete. Unfortunately, we cannot ascertain this latter date

because Gomez no longer has a copy of the Administrative Review Board’s final decision. Because of this uncertainty, the district court erred in dismissing Gomez’s

excessive force claim as untimely.
No. 11-2962 9

Moreover, we believe Gomez’s complaint properly

states a claim for relief. “[W]henever prison officials

stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the

core judicial inquiry is . . . whether force was applied in

a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm.” Hudson

v. McMillian, 503 U.S. 1, 6-7 (1992). Thus, a § 1983

plaintiff must establish that prison officials acted

wantonly; negligence or gross negligence is not enough.

Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005). In

this case, Gomez alleged that the unidentified officer on

the catwalk fired two shotgun rounds at inmates who

were not involved in the fight and located four cells

away. In addition, Gomez asserts that the two inmates

involved in the fight were unarmed and Dunlap and

Palmer were able to break up the fight. Construing

Gomez’s pro se complaint liberally, there are enough

factual allegations to infer that the unidentified officer

acted maliciously in using deadly force against inmates

who were not involved in the ongoing altercation. Accordingly, this claim was prematurely dismissed.

B. Deliberate Indifference

Next, Gomez asserts that prison officials were deliberately indifferent to his serious medical needs in violation

of the Eighth Amendment. The district court dismissed

this claim for three reasons: (1) Gomez’s allegations

were insufficient to meet the standard set forth in Estelle

v. Gamble, 429 U.S. 97 (1976); (2) none of the named de-
10 No. 11-2962

fendants were involved in Gomez’s injuries; and (3) any

claim against an unnamed defendant was barred by

the statute of limitations. As explained in the previous

section, we reject the district court’s statute of limitations rationale.

A prisoner’s claim for deliberate indifference must

establish “(1) an objectively serious medical condition;

and (2) an official’s deliberate indifference to that condition.” Arnett, 658 F.3d at 750. Deliberate indifference

is proven by demonstrating that a prison official knows

of a substantial risk of harm to an inmate and “either

acts or fails to act in disregard of that risk.” Id. at 751.

Delaying treatment may constitute deliberate indifference if such delay “exacerbated the injury or unnecessarily prolonged an inmate’s pain.” McGowan v. Hulick,

612 F.3d 636, 640 (7th Cir. 2010) (citing Estelle, 429 U.S.

at 104-05). “Even a few days’ delay in addressing a

severely painful but readily treatable condition suffices

to state a claim of deliberate indifference.” Smith v.

Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).

We find that, at this early stage in the proceedings,

Gomez’s complaint asserts sufficient factual allegations

to state a claim for relief under the Eighth Amendment

and Estelle. First, Gomez has sufficiently pled that he

was suffering from an objectively serious medical condition. “A medical need is considered sufficiently serious

if the inmate’s condition has been diagnosed by a

physician as mandating treatment or is so obvious that

even a lay person would perceive the need for a doctor’s

attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)
No. 11-2962 11

(internal quotation marks and punctuation omitted). The

medical condition need not be life-threatening; “it could

be a condition that would result in further significant

injury or unnecessary and wanton infliction of pain if

not treated.” Id. (quoting Gayton v. McCoy, 593 F.3d 610,

620 (7th Cir. 2010)). Here, Gomez alleges he suffered a

shotgun wound and shortly thereafter experienced excessive bruising and bleeding around the wound. Gomez

asserts that he was in pain and believed the wound was

becoming infected. In addition, Dunlap, Palmer, and

the medical technician all believed Gomez needed treatment shortly following his injury. This is enough to

plead a serious medical need.

Gomez has also sufficiently alleged deliberate indifference, at least with respect to the unknown medical technician and Sergeant Palmer. The medical technician told

Gomez that she would bring him medical supplies to

treat his injury, but he never received these supplies.

Palmer became aware of Gomez’s injury while he was

on rounds and, although he agreed to check on Gomez’s

medical supplies, there is no evidence that he carried

out that promise. Thus, despite these officials’ knowledge

of his injuries, Gomez did not receive treatment until

four days later. And even though this delay did not

exacerbate Gomez’s injury, he experienced prolonged,

unnecessary pain as a result of a readily treatable condition. See Smith, 666 F.3d at 1040. We have previously

upheld similar claims for relief. See, e.g., Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.

2009) (prisoner complaining of severe pain from his IV

was not treated for four days); Edwards v. Snyder, 478 F.3d
12 No. 11-2962

827, 830 (7th Cir. 2007) (prisoner who dislocated his

finger was not treated for two days); Cooper v. Casey, 97

F.3d 914, 916-17 (7th Cir. 1996) (prisoners beaten and

maced by prison guards were not treated until the following day). At this stage in the proceedings, Gomez

has alleged enough to establish deliberate indifference

as to Palmer and the unknown medical technician. Accordingly, this claim was also prematurely dismissed.

Any claim against Corrections Officer Dunlap, however, was properly dismissed. After Dunlap first became

aware of Gomez’s injury, he returned approximately

five minutes later with a medical technician. When the

medical technician requested to take Gomez to the

health care unit, Dunlap refused because the prison was

on lockdown. The medical technician, in Dunlap’s presence, assured Gomez that she would bring medical supplies to his cell. Dunlap and the medical technician

then left the area together. These allegations do not establish that Dunlap acted or failed to act in disregard to

Gomez’s injury. Everything in Gomez’s complaint indicates that Dunlap was not deliberately indifferent to

Gomez’s serious medical needs. Thus, the deliberate

indifference claim against Dunlap was properly

dismissed and Dunlap should no longer be a party to

this case.

C. Retaliation

Finally, Gomez asserts a claim of retaliation in violation

of his First Amendment right to use the prison grievance

system. The district court failed to address this claim
No. 11-2962 13

entirely in its opinion dismissing Gomez’s complaint.

Again, we find that Gomez’s complaint properly states

a claim for relief.

To prevail on his First Amendment retaliation claim,

Gomez must show that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity

in the future; and (3) the First Amendment activity was

‘at least a motivating factor’ in the Defendants’ decision

to take the retaliatory action.” Bridges v. Gilbert, 557

F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason,

542 F.3d 545, 551 (7th Cir. 2008)). Gomez easily satisfies

all three prongs at the pleading stage.

First, Gomez alleges that he used the prison’s

grievance system to address his injury and the lack of

treatment he received following his injury. “A prisoner

has a First Amendment right to make grievances about

conditions of confinement.” Watkins v. Kasper, 599 F.3d

791, 798 (7th Cir. 2010). In addition, Gomez suffered a

deprivation when he was transferred from Stateville to

Menard, where he had known enemies. “[A]n act in

retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the

act, when taken for different reasons, would have been

proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.

1987). Moreover, it can be inferred that this punishment

would likely deter future First Amendment activity.

Finally, Gomez alleges that the IA investigator, sent to

intimidate him by IDOC Director Randle, threatened

Gomez with a transfer to Menard. Even after Gomez
14 No. 11-2962

indicated that he would no longer pursue his grievance

or file a lawsuit if he could stay at Stateville, he was told

it was “too late.” No other explanation for Gomez’s

transfer is available at this early stage in the proceedings.

Thus, we conclude from Gomez’s complaint that his

grievance was a motivating factor in the defendants’

decision to transfer him to Menard. Because Gomez

properly asserted a claim for retaliation, his complaint

was prematurely dismissed.

III. CONCLUSION

For the foregoing reasons, we AFFIRM in part, REVERSE

in part, and REMAND this matter to the district court

for proceedings consistent with this opinion. Circuit

Rule 36 shall apply.

5-14-12