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Thomas v. Sample

October 12, 2006

KEVIN L. THOMAS, INMATE #05714-000, PLAINTIFF,
v.
P. BAKKE, L. SAMPLE, AND P. TRIVILLION, DEFENDANTS.



The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

Plaintiff, a former inmate in the United States Penitentiary in Marion, Illinois, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

PROCEDURAL BACKGROUND

Plaintiff filed his complaint in August 2005 naming two defendants, P. Bakke and L. Sample. In September 2005, Plaintiff filed a motion "to reinstate parties," which the Court construed as an attempt to amend the complaint because the only request in the motion was to add four new defendants to the action (Doc. 8). The Court denied the motion because Plaintiff's attempt to amend did not comply with the Federal Rules of Civil Procedure nor the Court's local rules. In the order denying the motion (Doc. 13), the Court granted Plaintiff thirty days leave to amend his complaint in accordance with the rules, specifically informing Plaintiff that his amended complaint must include all claims he wished to pursue against all defendants with an explanation as to how the additional defendants were personally responsible for violating his constitutional rights. On September 11, 2006, Plaintiff filed his amended complaint (Doc. 15). Despite Plaintiff's earlier attempt to add four new defendants in the action, the amended complaint included only one additional defendant.

THRESHOLD REVIEW

Under 28 U.S.C. § 1915A, the Court must conduct a preliminary review of the complaint. That statute provides, in pertinent part:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds that none of the claims in the complaint may be dismissed at this point in the litigation.

FACTUAL BACKGROUND

Based on the Plaintiff's factual allegations and exhibits submitted with the complaint, Plaintiff alleges the following. On March 21, 2005, Defendant Sample used excessive force against Plaintiff in an unspecified manner, causing him a head injury. Defendant Trivillion, an employee at the prison hospital, denied Plaintiff treatment for the injuries he sustained and refused to determine whether Plaintiff had sustained serious head injuries. Thereafter, Plaintiff began experiencing painful headaches. He sought treatment for the pain beginning on March 29, 2005, specifically requesting x-rays and pain ...


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