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Ortiz v. Walker

May 15, 2006


The opinion of the court was delivered by: Harold A. Baker United States District Judge

Case Management Order #1 (Merit Review)

The plaintiff, currently incarcerated in Big Muddy Correctional Center, filed this action regarding the lack of medical treatment for serious injuries.

The court is required by 28 U.S.C. §1915A to conduct a merit review of the Complaint, and through such process to identify cognizable claims and dismiss claims that are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted . . . ." A merit review hearing was scheduled to aid the court in this review, but was cancelled as unnecessary. The Complaint and exhibits already clearly set out the claims.

The merit review standard is the same as the motion to dismiss standard. The plaintiff's pro se complaint is liberally construed, taking the allegations as true and drawing all reasonable inference in the plaintiff's favor. Haines v. Kerner, 404 U.S. 519 (1972). Dismissal is appropriate only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines, 404 U.S. at 521.


On September 3, 2003, the plaintiff seriously injured his knee. He was taken to the health care unit, where he complained of excruciating pain. He was given pain medication and observed for 23 hours. He was discharged from the health care unit the next day with a single crutch. Eventually, he received a second crutch, but it was obviously defective, missing the rubber cap that keeps the crutch from slipping. The plaintiff's cell assignment was not changed to low gallery, bottom bunk, so the plaintiff had to maneuver stairs with the defective crutch to travel to and from his cell.

On September 6, 2005, the defective crutch slipped while the plaintiff was descending a flight of stairs. The plaintiff fell down the flight of stairs, injuring his knee further, and also seriously injuring his back and wrist.

The plaintiff received an MRI of his knee. The MRI indicated that his ligament was not cut "completely," which the plaintiff interprets as meaning that a partial cut or tear existed. Dr. Pullisetty, apparently an orthopedist working outside the prison, saw the plaintiff and asked the plaintiff his out date. Upon learning the plaintiff's out-date, Dr. Pullisetty told the plaintiff he could live with the condition until his release. Dr. Pullisetty was acting as an agent of the prison when he failed to recommend surgery or some other effective treatment. Other doctors and a physical therapist have opined that surgery is needed on the knee.

To date, the plaintiff has received "no relief for his injury and is forced to live in pain that does not allow movement or everyday activity." He suffers from severe pain and fluid build-up in his knee. He still cannot bend the knee or walk without crutches.

The plaintiff asks that his injuries "be cured by medical means," (which the court construes as a request for injunctive relief) and for damages.



Many of the defendants' failures sound like negligence--the failure to exercise ordinary care. "Negligence on the part of an official does not violate the Constitution, and it is not enough that he or she should have known of a risk." Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004), citing Haley v. Gross, 86 F.3d 630, 641 (7th Cir.1996); see also Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001)("A plaintiff cannot establish a violation of the Eighth or Fourteenth Amendment by a showing that officials were negligent . . ."). To be held liable under the U.S. Constitution, officials must act with "deliberate indifference," a much more difficult standard to prove than negligence. Deliberate indifference is more than even gross negligence--it "'approaches intentional wrongdoing' . . . essentially a criminal recklessness standard, that is, ignoring a known risk.'" Johnson v. Snyder, -F.3d -, 2006 WL 861122 *3 (7th Cir. 2006)(quoted cites omitted).(7th Cir. 2006).

If the plaintiff is trying to make out a negligence action based on state law, federal courts lack jurisdiction over it (that is, the federal courts lack the power to decide the claim). The Illinois Court of Claims has exclusive jurisdiction over tort claims against the State. See Jinkins v. Lee, 807 N.E.2d 411, 418 (2004)(action is against state and must be brought in Court of Claims where employee was acting within ...

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