Perez v. Fenoglio

• Decision Date: 07 July 2015
• Docket Number: No. 12–3084.,12–3084.
• Parties: Miguel PEREZ, Plaintiff–Appellant, v. James FENOGLIO, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

792 F.3d 768

Miguel PEREZ, Plaintiff–Appellant

v.James FENOGLIO, et al., Defendants–Appellees.

No. 12–3084.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 30, 2014.

Decided July 7, 2015.

Andrew P. Legrand, Attorney, Gibson Dunn & Crutcher LLP, Dallas, TX, for Plaintiff–Appellant.

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

Opinion

WILLIAMS, Circuit Judge.

Miguel Perez, an inmate at Lawrence Correctional Center, brought an action under 42 U.S.C. § 1983 against various prison officials alleging cruel and unusual punishment in violation of the Eighth Amendment. According to his pro se complaint, prison officials were deliberately indifferent to his severe hand injury, delaying his receipt of medically necessary surgery for ten months. This delay caused Perez needless pain and suffering and left him with permanent loss of hand functioning. The district court, after denying Perez's request for pro bono counsel, screened his complaint under 28 U.S.C. § 1915A, and dismissed it sua sponte, with prejudice, for failure to state a claim. This appeal followed.

We find that the district court's dismissal of Perez's claims was premature. Liberally construed, Perez's pro se complaint states valid Eighth Amendment claims against members of the prison's medical staff and various grievance officials. It also states, by way of an attached grievance, a valid First Amendment retaliation claim. Therefore, we reverse the district court's dismissal and remand for proceedings consistent with this opinion.

I. BACKGROUND

We accept the facts alleged in Perez's complaint as true and review them in the light most favorable to him. Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir.2014). On May 16, 2010, while an inmate at Lawrence Correctional Center in Sumner, Illinois, Miguel Perez was injured during a prison basketball game. He suffered a torn ligament

in his right hand, dislocation of his thumb, tissue damage, and a “gaping wound ” between his thumb and right index finger. No physician was on duty at the prison, so Perez was seen by a nurse, C. Brooks,¹ who wrapped his hand with gauze. She stated that she could not provide pain medicine to Perez or stitch his wound because only physicians were authorized to do so.

The following day, Perez returned to the prison infirmary and was seen by a physician, Dr. James Fenoglio, who prescribed Perez antibiotics, but did not stitch his wound

. Recognizing the severity of the injury, Dr. Fenoglio stated that Perez “would need to go to the outside hospital to see a hand surgeon” and recommended a specialist at the Carle Clinic in Champaign, Illinois. Before Perez could see the specialist, a referral request had to be approved by Phil Martin, the prison's Health Care Administrator. Martin waited several days before issuing his approval, during which time Perez languished in pain and attempted to manage an open, bleeding wound.

Four days after sustaining his hand injury, on May 20, 2010, Perez filed a grievance with the prison. In it, he explained that he had an open, bleeding wound

and was experiencing extreme levels of pain and discomfort. He also claimed he was being “punished in retribution for a prior grievance” he filed on January 2, 2010, which complained of a delay in receiving his prescription depression medication. Perez's May 20th grievance was rejected by Counselor C. Vaughn, whose decision was affirmed by Grievance Officer Pamela Moran.

On May 21, 2010, Perez was taken to the Carle Clinic, where he was seen by a physician's assistant, Julie Young. Young diagnosed Perez with “a large soft tissue tear” and “[p]robable right thumb MCP [metacarpophalageal] joint subluxation/dislocation with [a] possible radial collateral ligament tear

.” Young determined that Perez had “2 [centimeters] soft tissue laceration ... extend[ing] from the web-space proximally across the base of the thumb,” and a “wound [that] itself is quite deep ... gaping open several [millimeters] and ... more when he abducts his thumb.” Young could not suture the wound, however, because it was already five days old. She determined that the hand would have to be treated through “surgical revision” or “secondary intention,” the process by which a wound heals outward from its base because the skin edges cannot be brought together. Young ordered that Perez receive twice-daily dressing changes and cleanings with hydrogen peroxide. She also suggested “possible splinting or casting for the thumb injury” and scheduled Perez for a “wound check” for early the following week.

Prison officials did not follow Young's care instructions, nor did they take Perez to his follow-up appointment. As a result, Perez claims to have filed another grievance on June 17, 2010 requesting that he be returned to the Carle Clinic. Around this time, he also appealed the denial of his May 20th grievance. Brian Fairchild, an officer with the Administrative Review Board, and Gladyse Taylor, the Acting Director of the Illinois Department of Corrections, rejected this appeal, stating the issue was appropriately addressed by the institutional administration.

On December 6, 2010, seven months after his initial visit, Perez was brought back to the Carle Clinic, where he was seen by Dr. Cliff Johnson. Dr. Johnson determined that Perez had an “obvious subluxation of the right thumb MCP joint,” “hyperextension of the MCP joint,” and “laxity of the radial collateral ligament.” He also took “X-rays ... of [his] right thumb [that] show[ed] some early wear and tear changes as well as ulnar deviation of the thumb MCP joint.” Dr. Johnson presented Perez with two treatment options. He could undergo surgery (a right thumb MCP fusion procedure) or he could “live with it” and have a Thermoplast spica splint custom made for his hand. However, he was not sure if Perez would be able to wear such a splint in prison. Dr. Johnson further stated that if Perez wished to try the splint, the prison should “schedule him back in therapy [at the clinic] for that appointment.” He explained these options to Perez and sent his recommendations to Dr. Fenoglio.

Following this visit, Perez was seen at the prison by Dr. Fenoglio, who elected to wrap Perez's hand in an Ace bandage

. While wrapping his hand in the bandage, he told Perez, “[t]hat's [your] thumb-splica splinter.”²

On January 10, 2011, Perez filed another grievance. This time, he detailed the seven-month delay between his visits to the Carle Clinic, described continued pain and suffering, complained about the indifference of the prison's medical staff, and requested that he be provided with either a custom-made spica splint or surgery.

On February 15, 2011, Perez was brought back to the Carle Clinic, where Dr. Johnson informed him and prison officials that “MCP joint fusion

” was “the only surgical solution” remaining for Perez. The following month, Perez received the surgery. However, as a consequence of the ten-month delay, Perez claims to have sustained irreparable damage to his hand, resulting in “decreased usage.”

Following the surgery, on April 27, 2011, Perez submitted a “resident request” to Warden Lee Ryker, asking for “assist[ance] in obtaining a resolution to [his] grievance”; he received no response. He also sent a letter to the Administrative Review Board requesting his grievance be processed. His appeal was not answered.

On September 8, 2011, Perez filed a pro se complaint under 42 U.S.C. § 1983 for damages and injunctive relief. He also requested that the district court recruit counsel to represent him pro bono under 28 U.S.C. § 1915(e)(1). The district court twice denied Perez's request for counsel. It then screened his complaint under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed it sua sponte, with prejudice, for failure to state a claim. So, Perez filed this appeal.³

II. ANALYSIS

On appeal, Perez makes four claims: (1) the district court erred in dismissing his case for failure to state an Eighth Amendment claim; (2) the district court failed to address the First Amendment claim of retaliation stated in his complaint; (3) the district court abused its discretion by dismissing his complaint with prejudice; and (4) the district court abused its discretion by refusing to grant his request for pro bono counsel. We address each in turn.

A. Perez's Complaint States a Valid Eighth Amendment Claim

Our review of the district court's dismissal of Perez's complaint under § 1915A for failure to state an Eighth Amendment claim is de novo, taking the allegations in the complaint as true and drawing all reasonable inferences in Perez's favor. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039 (7th Cir.2012) (per curiam). Because Perez's complaint is pro se, we construe it “liberally,” holding it to a “less stringent standard than formal pleadings drafted by lawyers.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.2011).

“The Eighth Amendment safeguards the prisoner against a lack of medical care that ‘may result in pain and suffering which no one suggests would serve any penological purpose.’ ” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). To state an Eighth Amendment claim based on deficient medical care, a plaintiff must allege an objectively serious medical condition and an official's deliberate indifference to that condition. Arnett, 658 F.3d at 750. Because there is no dispute that Perez's alleged injury was sufficiently serious, the only issue in this appeal is whether the complaint alleges deliberate indifference. Deliberate indifference occurs when a defendant realizes that a substantial risk of serious harm to a prisoner exists, but then disregards that risk. See Farmer v. Brennan,

511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (plaintiff must show that officials are “aware of facts from which the inference could be drawn that a substantial risk of serious...