Order Forgn (01/2005)
United States District Court, Northern District of Illinois . 4W
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CASE NUMBER 12 C 2520 DATE APR 12 2012
CASE Paul Smith (#B-52357) vs. Dr. L. Williams
TITLE

The plaintiff's motion for leave to file in forma pauperis [#3] is granted. However, the complaint is summarily
dismissed on initial review pursuant to 28 U.S.C. § 1915A for failure to state a federal claim. The case is
terminated. Dismissal is without prejudice to filing a medical malpractice action in state court. The trust fund
officer at the plaintiff's place of confinement is authorized and ordered to make deductions from the plaintiff's
account and payments to the clerk of court in accordance with this order. The clerk is directed to mail a copy of
this order to the trust fund officer at the Stateville Correctional Center. This dismissal counts as one of the
plaintiff's three allotted dismissals under 28 U.S.C. § 1915(g).

@ [For further details see text below.] Docketing to mail notices.

STATEMENT

(CONTINUED)

The plaintiff, an Illinois state prisoner, has brought this pro se civil rights action purportedly pursuant to
42 U.S.C. § 1983. The plaintiff alleges that a physician at the Stateville Correctional Center prescribed both
ibuprofen and aspirin at the same time on two occasions without warning the plaintiff of the possibility of an
adverse interaction between the two drugs. This case is a re-filing of Smith v. Williams, Case No. 11 C 4399
(N.D. IIL), which was dismissed without prejudice on September 7, 2011, in light of the plaintiff's failure either

to pay the statutory filing fee or to submit a properly completed application to proceed in forma pauperis.

The court finds that the plaintiff is unable to prepay the filing fee. Accordingly, the court grants the

plaintiffs motion to proceed in forma pauperis and assesses an initial partial filing fee of $330.56 pursuant to
28 U.S.C. § 1915(b)(1). The trust fund officer at the plaintiff's place of incarceration is authorized and ordered
to collect, when funds exist, the partial filing fee from the plaintiff's trust fund account and pay it directly to the
clerk of court. Thereafter, the trust fund officer at the plaintiffs place of confinement is directed to collect
monthly payments from the plaintiffs trust fund account in the amount of 20% of the preceding month’s income

credited to the account. Monthly payments shall be forwarded to the clerk of court each time the account balance
exceeds $10 until the full $350 filing fee is paid, Separate deductions and payments shall be made with respect

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STATEMENT (continued)

to each action or appeal filed by the plaintiff. All payments shall be sent to the Clerk, United States District Court,
219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly identify the
plaintiff's name and this case number.

However, under 28 U.S.C. § 1915(e)(2), the court is required to dismiss a suit brought in forma pauperis
at any time if the court determines that it is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. Here, even accepting the
plaintiff's factual allegations as true, the court finds that the complaint fails to state a federal claim as a matter of
law.

The plaintiff alleges that Dr. Williams prescribed both ibuprofen and aspirin at the same time on February
8, 2010, and again on April 9, 2010. In 2011, the plaintiff noticed that the ibuprofen bottle bore the following
warning: “DO NOT TAKE ASPIRIN OR ASPIRIN-CONTAINING PRODUCTS WITHOUT KNOWLEDGE
AND CONSENT OF YOUR PHYSICIAN.” (See attached Exhibit to Complaint.) The plaintiff sues Williams for
medical malpractice, negligence, gross negligence, and deliberate indifference, asserting that any doctor should have

known to perform lab tests before mixing the two medications.

The plaintiffs claim does not rise to the level of a constitutional violation. Neither medical malpractice
nor a mere disagreement with a doctor’s medical judgment amounts to deliberate indifference. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Fields v. Smith, 653 F.3d 550, 554
Not even circumstances suggesting gross negligence are sufficient to establish a constitutional violation. Ortiz v.
Webster, 655 F.3d 731, 736 (7th Cir. 2011) (citing Estelle, 429 U.S. at 106; McGowan v. Hulick, 612 F.3d 636, 640
(7th Cir. 2010)). The court is aware that some medical authorities advise against mixing aspirin and ibuprofen, and
that other health experts recommend taking the two drugs at different times of day. But the court need not reconcile
medical professionals’ opposing views on the subject. Williams’ decision, in his medical judgment, to prescribe
both ibuprofen and aspirin at the same time does not manifest the type of “blatantly inappropriate” treatment that
would trigger liability under 42 U.S.C. § 1983. See Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005).

The court is particularly reluctant to find a constitutional violation in the absence of any alleged injury
whatsoever. The plaintiff does not claim that he felt any adverse side effect, let alone that the mixed drugs caused
a significant health complication. To the contrary, he specifically maintains that he filed suit only after reading the
cautionary warning on one of the pill bottles in 2011. There is an ancient maxim, de minimis non curat lex (the law
does not concern itself with trifles). See, e.g., Purtell v. Mason, 527 F.3d 615, 627 (7th Cir. 2008) (admonishing
counsel against filing a “trivial’-even if not technically frivolous—lawsuit). If the plaintiff believes that he has a
cause of action against Williams for medical malpractice, he must file suit in state court.

For the foregoing reasons, this suit is dismissed for failure to state a claim upon which relief may be granted.
The plaintiff is warned that if a prisoner has had a total of three federal cases or appeals dismissed as frivolous,
(CONTINUED)

—

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° _ STATEMENT (continued)

malicious, or failing to state a claim, he may not file suit in federal court without prepaying the filing fee unless he
is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within thirty
days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis should set
\| forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). Ifthe plaintiff does choose
| to appeal, he will be liable for the $455 appellate filing fee irrespective of the outcome of the appeal. Evans v.
| Mlinois Dept. of Corrections, 150 F.3d 810, 812 (7th Cir. 1998). Furthermore, if the appeal is found to be non-
| meritorious, the plaintiff may also accumulate another “strike.”

As a housekeeping matter, the court additionally notes that the plaintiff made a material omission on his
complaint form. The court’s civil rights complaint form instructed the plaintiff to list all previous lawsuits.
(Complaint, p. 3.) The plaintiff, however, disclosed only one prior lawsuit, failing to mention at least nine others.
The plaintiff's effective “fraud” on the court offers an independent justification for “immediate termination of the
suit.” Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999). The U.S. Court of Appeals for the Seventh Circuit has
| affirmed dismissal for failure of an inmate plaintiff to fully divulge his litigation history. See Hoskins v. Dart, 633
F.3d 541, 543-44 (7th Cir. 2011). The plaintiff must be honest, accurate, and complete in any court filings he

submits.

As a final concern, the plaintiff is reminded that he is required to sign every document he files. See Fed.
R. Civ. P. 11(a).

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