¥

1995) (essentially on all fours with Sherrod-Bey’s claim here) ;
and cf. Garvin v. Fairman, No. 94 C 4435, 1995 WL 548638, at *4

(N.D. Ill. Sept. 13) and Anderson v. Unknown Officers, No. 91 C¢

20238, 1993 WL 515856, at *7 (N.D. Ill. Nov. 30). It is of
course true that a rash could perhaps prove to be a symptom of a
serious malady, but it is truly frivolous to place Sherrod-Bey’s
situation in that category. Such frivolousness is established
conclusively not only by Sherrod-Bey’s own failure to take his
problem seriously enough to cause him to return to the sick call
to see Dr. Aguinaldo (or any other doctor) again, but also by the
very fact that nothing of any other nature developed during the
ensuing year-plus (note that Sherrod-Bey’s letter to Dr. Smith in
early 2001 said not a word about any further complications or
further problems, complaining only about Dr. Aguinaldo’s asserted
inaction during the first and only visit).

As for the equally essential ingredient of “deliberate
indifference,” Aguinaldo’s counsel has misleadingly cited to
Salazar v. City of Chicago, 940 F.2d 233, 238 (7 Cir. 1991), a
case that antedated the Supreme Court’s decision in Farmer v.
Brennan, 511 U.S. 825 (1994). More than seven years later every
attorney who undertakes representation in this area of Section
1983 law ought to know that Farmer expressly rejected the intent-
to-harm standard that had formed part of the Salazar formulation.

And the fact that Dr. Aguinaldo has chosen to retain private


i

q!

Finally, AC 471 says that Sherrod-Bey sustained “an additional 60
days of pain and suffering” by reason of Dr. Aguinaldo’s failure
to have prescribed medication on the occasion of his single
observation of Sherrod-Bey back in 1999.

It is of course conventional wisdom that the standard for
Section 1983 claims of the wrongful denial of medical treatment
to persons in custody derives from the Eighth Amendment (via the
Fourteenth), with that standard having been announced a quarter-
century ago in the seminal decision in Estelle v. Gamble, 429
U.S. 97, 106 (1976):

Thus, a complaint that a physician has been negligent

in diagnosing or treating a medical condition does not

state a valid claim of medical mistreatment under the

Eighth Amendment. Medical malpractice does not become

a constitutional violation merely because the victim is

a prisoner. In order to state a cognizable claim, a

prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious
medical needs. It is only such indifference that can
offend "evolving standards of decency" in violation of

the Eighth Amendment.

In this instance Sherrod-Bey flunks both halves of the
“deliberate indifference” and “serious medical needs” tests.

To look first at the seriousness (or in this instance the
lack of seriousness) of the medical need identified by Sherrod-
Bey, in several cases colleagues of this Court have rejected
allegations of a skin rash, unaccompanied by any other evidence

of a more serious medical condition, as coming within that

standard--see Ware v. Fairman, 884 F.Supp. 1201, 1206 (N.D. Ill.


ur

counsel rather than the Attorney General’s office does not at all
lessen the legitimacy of that expectation or excuse counsel’s
proposed reliance on pre-Farmer caselaw.

But that error on the part of Aguinaldo’s counsel does not
help Sherrod-Bey, for the Farmer articulation of “subjective
recklessness” as the test for deliberate indifference “requires
the prisoner to show that the prison official was subjectively
aware of the prisoner’s serious medical need and disregarded an
excessive risk that a lack of treatment posed to the prisoner’s
health or safety from lack of treatment” (Wynn v. Southward, 251
F.3d 588, 593 (7 Cir. 2001) (per curiam), citing Farmer, 511
U.S. at 837; and see also among a host of post-Farmer cases to
the same effect, Collignon v. Milwaukee County, 163 F.3d 982, 989
(7 Cir. 1998)). This opinion has already scotched the notion
that Sherrod-Bey exhibited a “serious medical need,” and as for
any showing of the necessary disregard, Collignon, id. teaches
such disregard exists “only if the professional's subjective
response was so inadequate that it demonstrated an absence of
professional judgment, that is, that no minimally competent.
professional would have so responded under those circumstances.”
Nothing asserted by Sherrod-Bey comes even close to meeting the
post-Farmer standard, even when his allegations are coupled with
all reasonable favorable inferences, as is taught by the cases.

As stated at the outset, AC Count V does not pose a viable


Minsge Onde Form (6°97)

United States District Court, Northern District of Illinois

(>)

VY | Docketing to mail notices.

Mail A 450 form. docketing deputy initiats

Copy to judge/magistrate judge.

date mailed notice

courtroom
WAH deputy’s
initials

Date/time received in
central Clerk’s Office

trailing deputy initials

40

er,
Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 00 C 7877 DATE 8/6/2001
CASE Joe N. Sherrod-Bey etc. Vs. Kenneth R. Briley et al.
TITLE
Un the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.
Memorandum Opinion and Order
DOCKET ENTRY:
@) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) im Answer brief to motion due . Reply to answer brief due :
(4) 0 Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conferencefheld/continued to] [set for/re-set for] on. set for at
(7) a Trial[set for/re-set for] on at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OGeneral Rule 21 OFRCP41(a)(1) CFRCP4I1(a)(2).
(0) +@ [Other docket entry] | Enter Memorandum Opinion and Order. Dr. Aguinaldo’s motion to dismiss
granted. Amended complaint count V is dismissed. (no. 38-1)

ald [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber af potes

Notices mailed by judge’s staff.

AVG 07 2001
Notified counsel by telephone. date dochoted



Section 1983 claim. That count is dismissed, as is Dr. Aguinaldo
as a defendant. This Court will await a further response by Dr.
Aguinaldo’s counsel as to whether a Rule 54(b) determination of
finality (and hence appealability) is desired here (see National

Metalcrafters v. McNeil, 784 F.2d 817, 821 (7% Cir. 1986)).

Milton I. Shadur
Senior United States District Judge

Date: August 6, 2001


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOE N. SHERROD-BEY #N-13582,
Plaintiff,

)
)
)
)
v. ) No. 00 C 7877
)
KENNETH R. BRILEY, et al., )

)

)

AUG 0 7 cum

Defendants.
MEMORANDUM OPINION AND ORDER

This is one of several 42 U.S.C. §1983 (“Section 1983”)
actions originally brought pro se by Stateville Correctional
Center (“Stateville”) inmate Joe Sherrod-Bey (“Sherrod-Bey”) .
Two such actions remain pending and are now being handled by
counsel appointed to represent Sherrod-Bey pro bono publico.

Dr. Evaristo Aguinaldo (Sherrod-Bey having inadvertently
misspelled his last name as “Agunaldo”) has been added as a
defendant--he is named in Amended Complaint (“AC”) Count V--and
has moved to be dismissed from the action. For the reasons
stated in this memorandum opinion and order, the motion is
granted and Dr. Aguinaldo is dismissed as a defendant.!

According to the AC, which must of course be credited for

1 Sherrod-Bey’s appointed counsel have served him well, in

part by offering successful resistance to a dismissal motion
filed by defendants other than Dr. Aguinaldo. It was therefore
unsurprising to learn that the same level of professionalism has
led counsel to interpose no objection to Dr. Aguinaldo’s current
(and meritorious) motion. At the same time, this opinion will
spell out the relevant legal analysis in some detail, so’ that
Sherrod-Bey himself will understand the lack of viability of this
aspect of his lawsuit.



4)

purposes of such a Fed. R. Civ. P. (*Rule”) 12(b) (6) motion, Dr.
Aguinaldo saw Sherrod-Bey only once, during a sick call at
Stateville back in December 1999. At that time Sherrod-Bey
complained of “an extensive skin rash that had developed on the
lower part of Sherrod-Bey’s body, wiast [sic] down” (AC 466).
Dr. Aguinaldo didn’t prescribe any medication for the rash (id.
467), and the rash later “spreaded [sic] to the upper portion of
Sherrod-Bey’s body” (id. 68).

Nonetheless Sherrod-Bey does not say that he ever returned
to Dr. Aguinaldo or to the sick call with any further complaint
or to seek any further examination.? Instead, more than a _ year
later (about January 26, 2001) Sherrod-Bey wrote a letter to
Stateville’s Medical Director Dr. Joseph Smith (Dr. Aguinaldo’s
immediate supervisor) to complain about the latter’s failure to
have prescribed medication for the rash (AC 969). Then AC 470
goes on to describe Dr. Smith's response:

on or about February 14, 2001 Dr. Smith wrote Sherrod-

Bey a letter which stated “By far, the most common

cause of your rash is a fungal dermatitis and I have

written a prescription for you. This cream will work,

but needs to be used for two-three months. The only

exception is when the rash is so extensive that it

required oral medication but the cream is the approach
most physicians recommend.”

2 We may rest assured that if Sherrod-Bey had done so, he
certainly would have alleged that in the AC. This is not a
matter of drawing an adverse inference against Sherrod-Bey, which
would be problematic under Rule 12(b) (6), but rather of pointing
out that no favorable inference may reasonably be drawn in his
favor.