In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2962
R AUL C. G OMEZ,
Plaintiff-Appellant,
v.
M ICHAEL P. R ANDLE, 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.
A RGUED A PRIL 3, 2012—D ECIDED M AY 14, 2012
Before B AUER, P OSNER, and K ANNE, Circuit Judges.
K ANNE, 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 Depart-
ment 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 attor-
ney 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. B ACKGROUND
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 tech-
nician 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 re-
sponded that she would bring him some medical sup-
plies. 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 re-
quested 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 ban-
daged. 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 Cor-
rectional 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 compen-
sation.” (Compl. at 11.) On July 9, 2009, Grievance
Officer Margaret Thompson reviewed Gomez’s griev-
ance and recommended that it be denied. This decision
was approved by the Chief Administrative Officer on
July 13, 2009. Gomez lacks additional documenta-
tion beyond this date because at some point he was
transferred to Pontiac Correctional Center on segrega-
tion 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, con-
strued liberally, asserts claims under 42 U.S.C. § 1983
for excessive force, deliberate indifference, and retalia-
tion 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 appoint-
ment 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 With-
draw 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 signifi-
cant 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 shot-
gun 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 with-
draw 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. A NALYSIS
We review de novo a district court’s dismissal of a pris-
oner’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 well-
pled 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 cor-
rections officer who fired two rounds from a shotgun
8 No. 11-2962
into the inmate population used excessive force in viola-
tion 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.1 Although the
district court correctly noted that the statute of limita-
tions 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 com-
plete. Unfortunately, we cannot ascertain this latter date
because Gomez no longer has a copy of the Administra-
tive Review Board’s final decision. Because of this uncer-
tainty, the district court erred in dismissing Gomez’s
excessive force claim as untimely.
1
A plaintiff’s lack of knowledge about a defendant’s identity
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.”
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 viola-
tion 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. Ac-
cordingly, this claim was prematurely dismissed.
B. Deliberate Indifference
Next, Gomez asserts that prison officials were deliber-
ately 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 limita-
tions 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 condi-
tion.” 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 indif-
ference if such delay “exacerbated the injury or unneces-
sarily 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 condi-
tion. “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 ex-
cessive 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 treat-
ment shortly following his injury. This is enough to
plead a serious medical need.
Gomez has also sufficiently alleged deliberate indiffer-
ence, at least with respect to the unknown medical techni-
cian 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 condi-
tion. 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 fol-
lowing day). At this stage in the proceedings, Gomez
has alleged enough to establish deliberate indifference
as to Palmer and the unknown medical technician. Accord-
ingly, this claim was also prematurely dismissed.
Any claim against Corrections Officer Dunlap, how-
ever, 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 pres-
ence, assured Gomez that she would bring medical sup-
plies to his cell. Dunlap and the medical technician
then left the area together. These allegations do not estab-
lish that Dunlap acted or failed to act in disregard to
Gomez’s injury. Everything in Gomez’s complaint indi-
cates 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 pro-
tected by the First Amendment; (2) he suffered a depriva-
tion 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 pro-
tected 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. C ONCLUSION
For the foregoing reasons, we A FFIRM in part, R EVERSE
in part, and R EMAND this matter to the district court
for proceedings consistent with this opinion. Circuit
Rule 36 shall apply.
5-14-12