official custom or policy. Compare Wynn vy. Southward, 251 F.3d 588, 592 (7" Cir.
2001); see also Miller, 220 F.3d at 494. The plaintiff clarifies in his brief opposing
dismissal that he is suing (he defendants in both their individual and official capacities,
but the defendants correctly assert that the plaintiff has no viable official capacity claim.
The plaintiff may proceed against the defendants only in their individual capacities.
V._Injunctive Relief

Finally, the plaintiffs requests for injunctive relief (“proper medical services,”
“access to proper medical machines,” etc.) must be dismissed as moot since he is no
longer in the custody of the Cook County Department of Corrections. A pretrial
detainee’s claims for injunctive relief are rendered moot when the detainee is transferred
to a state correctional center. Martin v. Davis, 917 F.2d 236, 339 (7" Cir. 1990), cert.
denied, 501 U.S. 1208 (1991): Henderson v. Sheahan, 196 I'.3d 839, 849 n.3 (7" Cir.
1999), cert. denied, 530 U.S. 1244 (2000).

CONCLUSION

In sum, the amended complaint is dismissed only as to the plaintiff's now-moot
requests for injunctive relief and insofar as the defendants are sued in their official
capacities. The court finds that the plaintiff has satisfied the administrative exhaustion
requirement; the court further finds that the plaintiff has made a prima facie showing that
the defendants acted with deliberate indifference to his serious medical needs. The

plaintiff will accordingly be permitted to proceed on his claims against the defendants to

13



“very bad pain” and that his throat was bleeding. (/d.) On an unspecified date, the
plaintiff voiced the same complaints to the defendant Mansour, who failed to make sure
that the plaintiff’s tracheotomy tube was cleaned or that he received other needed medical
attention. (/d.) Throughout the relevant time period, the plaintiff wrote letters to the
defendant McAuley requesting his assistance. Ud.)

The plaintiff could barely eat or drink and he “fell out” (presumably, fainted) due
to shortness of breath. (/d.) Fellow inmates were forced to give the plaintiff “bear hugs”
to force the clogged fluids out of his lungs so that he could breathe. Ud.)

DISCUSSION

The defendants’ motion to dismiss will be denied. The plaintiff has demonstrated
that he availed himself of administrative remedies prior to bringing suit. Furthermore,
accepting the plaintiff's factual allegations as true, the amended complaint states a
colorable cause of action against the four named defendants. The undeveloped record
supports an inference that the defendants acted with deliberate indifference to the
plaintiff's serious medical needs. Consequently, the plaintiff will be permitted to proceed
on his claims, at least to the extent that the plaintiff is suing the defendants in their
individual capacities for monetary damages.

I, Exhaustion
The court makes a preliminary finding that the plaintitf satisfied [or at least

attempted to satisfy] the PLRA administrative exhaustion requirement before filing suit.



plaintiff could prove “no set of facts ... which would entitie him to relief.” See Haines,
404 U.S. at 521.”

It is well established that the Due Process Clause prohibits deliberate indifference
to the serious medical needs of a pretrial detainee. Qian v. Kautz, 168 F.3d 949, 955 (7"
Cir. 1999); Salazar v. City of Chicago, 940 F.2d 233, 237-38 (7" Cir. 1991). Deliberate
indifference has both an objective and a subjective element. the inmate must have an
objectively serious medical condition, and the health care provider must be subjectively
aware of and consciously disregard a risk to the inmate’s health or safety. Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Estelle v. Gamble, 429 U.S. 97, 103-04 (1976);
Sherrod v. Lingle, 223 F.3d 605, 610 (7" Cir. 2000). In this case, the plaintiff has made a
tentative showing of both prongs.

Contrary to the defendants’ assertion, the plaintiff has stated facts indicating that
his clogged post-tracheotomy tube constituted an objectively serious medical need.
According to the plaintiff, both the medical screener while he was being processed at the
jail and physicians at the Cook County Hospital thought his condition was sufficiently
serious as to require hospitalization. The plaintiff additionally maintains that he
experienced bleeding, fainting, a great deal of pain, decreased ability to eat and drink, and
so much difficulty breathing that fellow inmates literally had to squeeze the air out of
him. See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7" Cir. 1997) (a condition is

objectively serious if “failure to treat [it] could result in further significant injury or


received no responses to his grievances. See amended complaint at p. 3: “I wrote
[grievances | and given (sic) them to the social worker and wrote letters to the people in
charge. Never heard anything. ... I never got an answer.” ]n response to the motion to
dismiss, the plaintiff has submitted [in addition to copies of multiple letters to the
defendant McAuley and one to the Internal Affairs division] copies of twenty-two,
apparently non-processed grievances he allegedly filed concerning the need for medical
attention. The grievances date from July 2001 to May 2002.

The plaintiff maintains that he received no responses to his grievances. Because
the plaintiff purportedly received no decision on his grievances, he was therefore unable
to appeal. The court is aware of no Cook County Jail regulation permitting an inmate to
bypass institutional review and appeal to the Administrator of Program Services if he
receives no response from the correctional rehabilitation worker.

Second, with respect lo the sole grievance that bears a response, the plaintiff was
granted—or ostensibly granted-the basic relief sought at the first level. A grievance dated
February 14, 2002, bears the following Response Statement: “Mr. Myers was ‘bumped’
along with several other patients. With 4 chemotherapy & | radiation therapy patients to
be moved daily, other patients’ appts are being rescheduled. Mr. Myers is tentatively
scheduled for later this month.” (See unmarked exhibit to the plaintiff's Motion to

Respond to Said Motion to Dismiss.) Because the plainti!f’s concerns about the lack of



The Prison Litigation Reform Act of 1996 (“PLRA”) contains a comprehensive
administrative exhaustion requirement dictating that “[n]o action shall be brought with
respect to prison conditions . . . by a prisoner . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997(e)(a). “[E]xhaustion is now required for all
actions brought with respect to prison conditions, whether under § 1983 suits or any other
Federal law.” Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988 (2002). “[I]f a prison
has an internal administrative grievance system through which a prisoner can seek to
correct a problem, then the prisoner must utilize that administrative system before filing a
claim” under 42 U.S.C. § 1983. Massey v. Helman, 196 3d 727, 733 (7" Cir. 1999),
cert. denied, 532 U.S. 1065 (2001).

As the defendants correctly point out, the plaintiff never completely exhausted the
multi-level grievance process. The court recognizes thal an inmate must comply with the
rules established by the State with respect to the form and timeliness of grievances. Pozo
v. McCaughiry, 286 F.3d 1022, 1023-25 (7" Cir. 2002) (where prisoner failed to avail
himself of the administrative grievance process in a timely manner, he was barred from
pursuing relief in federal court). Informal letters do not satisfy the administrative
exhaustion requirement; furthermore, an inmate must appeal any adverse decisions prior
to initiating suit.

However, this case differs from Pozo in two significant respects: first, the plaintiff

has shown that he made numerous efforts to avail himself of the grievance process but



If. Personal Involvement

The amended complaint sets forth facts briefly detailing the direct, personal
involvement of each of the named defendants, as required by Gentry v. Duckworth, 65
F.3d 555, 561 (7" Cir. 1995); Vance v. Washington, 97 F.3d 987, 991 (7" Cir. 1996), cert.
denied, 520 U.S. 1230 (1997) (citations omitted). McAuley allegedly ignored numerous
letters pleading for assistance. Thig, rather than providing any treatment, simply told the
plaintiff that there was nothing the health care staff could do for him without the right
equipment. McAuley made no arrangements for the medical! care the plaintiff says he
needed, Altez may have referred the plaintiff to an ENT doctor at the Cook County
Hospital, but he failed to render any of the follow-up care recommended by the hospital
physicians, even though the plaintiff complained that his tracheotomy tube was clogged
and that he was having problems breathing. Mansour is similarly alleged to have failed to
ensure that the plaintiffs tracheotomy tube was cleaned or that he received other needed
medical attention when the plaintiff asked for treatment. None of the defendants is sued
solely on the basis of respondeat superior. The complaint adequately articulates the
direct, personal involvement of each named defendant.

ILL_Deliberate Indifference to Serious Medical Needs

The record will require further development as to whether the defendants acted

with deliberate indifference to the plaintiff's medical needs. It is not the case that the


Minute Order Form (06/97)

United States District Court, Northern District of [linois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other
than Assigned Judge

DAVID H. COAR

CASE NUMBER 02 € 1590 DATE SEP 4- 2002
CASE Ronald Myers, #N-30973 vs. Dr. James McAuley, et al.
TITLE
{In the following box (a) indicate the party filing the motion, e.g., pliin'ilf, defendant, 3rd party plaintiff, and (b) state briefly the natuse
MOTION: of the motion being presented,

DOCKET ENTRY:

courtroom
deputy’s
initials

mijn

Date/time received in
i contrat Clerk’s Office

clave mailed novice

a) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

G3) o Answer brief lo motion due__ Reply to answer brief due

(4) a Ruling/Hearing on set for at

() ia Status hearingfheld/continued to] [set for/re-set for]on set fort

(6) im} Pretrial conference[held’continued to] [set for/re-set for]on___ set for _at .

(7) QO Trial[set for/re-set for} on at

(8) QO [Bench/Jury trial] [Hearing] held/continued to _ at _

(9) o This case is dismissed [with/without] prejudice and without costs[bv‘agreement/pursuant to}

OOFRCP4(m) O General Rule2l O FRCP41(ay(l) O FRCP41(a)(2).

(10) Ml [Other docket entry} For the reasons set forth in the accompany ing Memorandum Opinion and Order, the
defendants’ motion to dismiss [#23] is granted in part and denied in part. The plaintiff's requests for injunctive
relief are dismissed as moot in light of his transfer from county jail custody to state custody; the amended
complaint is also dismissed insofar as the defendants are sued in their offtgial capacities, [he|motion to dismiss
is denied in all other respects. The defendants are directed to answer tie an\ended c plaint wii twenty-one
days of the date of this order. r ,

(11) [See attached Memorandum Opinion and Order.] rN By

No notices required, advised in open court. Document
Number
No notices required, | umber cf notices,
Notices mailed by judge’s staff. | SEP -5
Notified counsel by telephone. date dockere 2002
¥ | Docketing to mail notices
Mail AO 450 form docket
Copy to judge/magistrate judge. i

nailing deputy initials



Peters, 97 F.3d 987, 992 (7" Cir. 1996), cert, denied. 520 U.S. 1230 (1997). The fact that
a prisoner received some medical attention does not necessarily defeat his claim;
deliberate indifference to a serious medical need can be manifested by “woefully
inadequate action” as well as by no action at all. Reed y, McBride, 178 F.3d 849, 854 (7"
Cir, 1999). A plaintiff can show that the professional disregarded a serious medical need
“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.” Collignon v. Milwaukee County,
163 F.3d 982, 989 (7" Cir. 1998).

In the case at bar, the plaintiff alleges that he was ail but denied needed medical
treatment despite entering the jail after undergoing surgery which required follow-up
care. The plaintiff maintains that the defendants failed to act on his pleas for medical
treatment, virtually throwing up their hands and saying there was nothing they could do
for him. Although the plaintiff concedes in his response to the motion to dismiss that
laerdal suction was ultimately performed in May 2002 [two months after he filed suit], the
plaintiff may nevertheless be entitled to damages for the alleged ten-month delay in
receiving treatment.

In short, the court must accept as true at this stage of the proceedings that the
plaintiff was forced to go long periods of time without needed medical care. If, as the

plaintiff clairns, he had a “serious” medical need, then the doctors may be liable for

11



unnecessary and wanton inlliction of pain”), citing McGuckin v. Smith, 974 F.2d 1050,
1060 (9° Cir. 1997). The court will therefore assume for purposes of this motion that the
plaintiff's medical needs were “serious.” It is irrelevant that the plaintiffs tracheotomy
pre-dated his incarceration if he still had a serious need for post-surgical care. If the
plaintiff endured considerable pain, as he alleges, it is also immaterial whether he
suffered lasting injury.

The defendants additionally argue that there was no deliberate indifference
because mere disagreement with a physician’s treatment does not implicate the
Fourteenth Amendment. It is true that neither medical malpractice, Steele v. Choi, 82
F.3d 175, 178-79 (7° Cir.), cert. denied, 519 U.S. 897 (1996), nor dissatisfaction with a
doctor’s prescribed course of treatment, Snipes y. DeTella, 95 F.3d 586, 592 (7" Cir.
1996), cert. denied, 519 U.S. 1126 (1997), gives rise to a constitutional claim, But the
defendants mischaracterize the nature of the plaintiff's claims: the plaintiff maintains that
he was essentially denied basic, needed medical care. The plaintiff does not simply
demand a particular treatment.

The subjective element of deliberate indifference encompasses conduct such as the
refusal to treat a prisoner’s chronic pain, Jones v. Simek, 193 F.3d 485 (7" Cir. 1999), the
refusal to provide pain medication prescribed by a doctor, Ralston v. McGovern, 167 F.3d
1160, 1162 (7" Cir. 1999), or erroneous treatment based on a substantial departure from

accepted medical judgment, practice, or standards. Sherrod, 223 F.3d at 611; Vance v.

10



medical attention were supposedly being addressed and rectified by the health care unit,
there would have been no reason to appeal the decision to the next level of review.

Requiring a prisoner who has won his grievance in principle to file another
grievance to win in fact is certainly problematic. Alihough the time spent in
exhausting administrative remedies is tolled for purposes of limitations on
filing a federal complaint . . . this would be cold comfort to a prisoner
caught in some never-ending cycle of grievances. For, if'a prisoner who
wins on his initial grievance must file one further gricvance to get practical
relief, what is to prevent the prison system from repeatedly failing to follow
through and requiring the prisoner to endlessly seck a real resolution?

Dixon v. Page, 291 F.3d 485, 490 (7" Cir. 2002) (internal citation omitted). Although
Dixon dealt with multiple grievances as opposed to the ayipeal process, the same
reasoning applies. The jail cannot fail to follow through on promised action and then
reasonably fault the plaintiff for failing to complete the administrative review process.

In short, all but one of the plaintiff's grievances were evidently tost or destroyed
without being addressed. ‘The court finds as a matter of law that because no action was
taken on those grievances, the plaintiff had no “available” administrative remedy and thus
cannot be barred from pursuing relief in federal court. Furthermore, because the one
answered grievance seemingly resolved the problem at the institutional level, the plaintiff
was entitled to rely in good faith that the promised follow-up would occur; he therefore
had no occasion to appeal the decision. Accordingly, the court deems the exhaustion
requirement effectively satisfied. The complaint will not be dismissed for failure to fully

exhaust administrative remedies prior to bringing suit.


(Amended Complaint, p. 6.) The plaintiff explained to a doctor during his initial medical
screening that he had a tracheotomy tube in his throat. (/a.) The plaintiff was told that he
would be housed in the hospital ward, but due to a paper mix-up, he was instead placed in
the facility’s maximum security segregation unit. (/d.)

The next day, the plaintiff was transferred to the general population. (/d.) A
correctional officer remarked that the plaintiff should be in the hospital. (/d.) A nurse
examined the plaintiff, but not a doctor. (/d.) The plaintiff was moved to a different
housing unit [but not, apparently, the medical unit]. (/d.)

The plaintiff did not see a doctor for two weeks. (/d.) The plaintiff told a nurse
that his tracheotomy tube had to be cleaned out, but a nurse informed him that they did
not have the right pumps. (/d.) The defendant Thig likewise informed the plaintiff that
there was nothing the health care staff could do for the plaintiff because they lacked the
proper equipment. (/d., pp. 6-7.)

The defendant Altez arranged for the plaintiff to see an ear-nose-throat doctor at
the Cook County Hospital. (/d. at p. 7.) The ENT doctors at the Cook County Hospital
recommended that the plaintiff be hospitalized, but their recommendation was ignored.
(id.)

On February 15, 2002, the plaintiff told Altez that his throat was clogged and that
he was having problems. (/d.) Altez failed to take any action. (/d.) The plaintiff went

another two weeks without seeing a doctor, despite complaining to a nurse that he was in



the extent that they are sued in their individual capacities. This order is not intended to
discourage either party from filing a properly supported motion for summary judgment.

IT IS THEREFORE ORDERED that the defendaats' motion to dismiss (docket
#23) is granted in part and denied in part. The complaint is dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) as to the plaintiffs claims for injunctive relief, as well as to the
plaintiff's claims against the defendants in their official capacities. The motion to dismiss
is denied in all other respects.

IT IS FURTHER ORDERED that the defendants answer or otherwise plead within

twenty-one days of the date of this order.

David H. Coar
United States District Judge

Date: 0.

14


set of facts in support of lis claim which would entitle him to relief.” Haines, 404 US. at
521; Zimmerman vy. Tribble, 226 F.3d 568, 571 (7" Cir. 2000).

When considering whether to dismiss a complain for failure to state a claim upon
which relief’ can be granted, the court takes the allegations in the complaint as true,
viewing all facts--as well as any inferences reasonably drawn therefrom--in the light most
favorable to the plaintiff. Awsry v. Northwest Premium Services, Inc., 144 F.3d 1037,
1039 (7" Cir. 1998). Dismissal should be denied whenever it appears that a basis for
federal jurisdiction in fact exists or may exist and can be stated by the plaintiff. Jones v.
Edgar, 3 F. Supp. 2d 979, 980 (C.D. Ul. 1998).

FACTS AND PROCEDURAL HISTORY

The plaintiff, Ronald Myers, is a state prisoner. (Address Change Notice, docket
#17.) At the time of the events giving rise to this action, the plaintiff was an inmate at the
Cook County Jail. (Amended Complaint, p. 2, Part I. “Plaintiff(s)” section.)

The defendant James McAuley is the Cook County Jail’s Medical Director. (/d.,
Part I, “Defendant(s)” section.) The defendants Andrew Thig (sued as “Ting”), M.
Mansour, and Carlos Altez are all staff physicians at the jail. (/d., pp. 2-2A.)'

The plaintiff alleges the following facts, which wil! be accepted as true for

purposes of this motion: The plaintiff arrived at the Cook County Jail on July 26, 2001.

‘By Minute Order of March 6, 2002, the court rejected the original complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B) and directed the plaintiff to file an amended
complaint curing various pleading and filing deficiencies. The plaintif{’s amended
complaint dropped all other defendants named in the original pleading.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED

EASTERN DIVISION SEP 5 2002
RONALD MYERS, #N-30973 )
Plaintiff,
vy. NO. 02 € 1590
DR. JAMES McAULEBY, et al. HON. PAVID H. COAR
Defendants. }

MEMORANDUM OPINION AND ORDER

The plaintiff, currently a state prisoner, has brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, health care
providers at the Cook County Jail, violated the plaintiffs constitutional rights by acting
with deliberate indifference to his serious medical needs. More specifically, the plaintiff
alleges that the defendants refused to provide proper, post-tracheotomy treatment. This
matter is before the court for consideration of the defendants’ motion to dismiss the
amended complaint. For the reasons stated in this order, the motion will be denied,
except to the plaintiff is suing the defendants in their official capacities and to the extent
he seeks injunctive relief.

It is well established that pro se complaints are to be Jiberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972), reh'g denied, 405 U.S. 948 (1972); see also
MeCormick y. City of Chicago, 230 F.3d 319, 325 (7" Cir. 2000). They can be dismissed

for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no


withholding treatment solely because they did not have “the right equipment.” The
defendants must explain why they could not either obtain the necessary tools to address
the plaintiff's medical needs or make arrangements for him to be treated outside the
institution, A reasonable person could infer, based on the plaintiff's representations, that
the defendants acted with deliberate indifference. The undeveloped record does not
support a finding in favor of the defendants as a matter of law. The court disagrees that
the amended complaint reflects “prompt and continual medical attention.”

IV. Official vs. Individual Capacity

The complaint will be dismissed against the defendants only insofar as they are
sued in their official capacities. The plaintiff's failure explicitly to indicate in the
amended complaint whether he was suing the defendants in their individual or official
capacities is a non-issue. The Court of Appeals for this circuit has specifically rejected
the presumption that § 1983 plaintiffs who fail to designate whether a defendant is sued in
his individual or official capacity have intended the suit as an official capacity action.
See, e.g., Miller v. Smith, 220 F.3d 491, 494 (7" Cir, 2000); Hill v. Shelander, 924 F.2d
1370, 1373 (7" Cir. 1991). An official capacity suit will be presumed only “when the
indicia of an official policy or custom are present in the complaint.” Hill, 924 F.2d at
1373.

In this case, the plaintiff is not suing Cook County and he does not allege that an

official policy or custom violated his constitutional rights: hc does not even mention any

12