The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
Although Rodney Patton ("Patton") is a non-lawyer, he is no stranger to the federal courts.*fn1 This time Patton sues Cook County, its Sheriff Tom Dart and several persons affiliated with the Cook County Department of Corrections ("County Jail") and its Cermak Health Service, claiming a violation of his constitutional rights under the principles established by Estelle v. Gamble, 429 U.S. 97, 104 (1976) and its numerous progeny. For the reason stated in this memorandum order, both Patton's Complaint and this action are dismissed, so that his contemporaneous Motion for Appointment of Counsel is denied as moot.
To begin with, however, this Court must address the procedure established by 28 U.S.C. §1915*fn2 that applies to all prisoners who seek to proceed in forma pauperis, as Patton has done here. Patton's contemporaneous In Forma Pauperis Application and the attached printout reflecting all transactions in his inmate trust fund account at the County Jail show that the average monthly deposits during his 3-1/2 month tenure there calculate out to $61.43, so that the initial partial filing fee that he must pay comes to $12.29 (see Section 1915(b)(1)).
Because the account was insufficient as of the March 15 date of the printout to cover that amount, the trust fund officer at County Jail (to whom a copy of this memorandum order is being sent) is ordered to remit that payment on account as soon as the trust fund account is sufficient for that purpose, remitting that initial fee directly to the Clerk of Court ("Clerk"):
United States District Court 219 South Dearborn Street Chicago IL 60604 Attention: Fiscal Department Both the initial payment and all future payments shall clearly identify Patton's name and the 07 C 1761 case number assigned to this action.
As for the remainder of the $350 filing fee, which Patton is also ordered to pay pursuant to Section 1915(b)(2), the trust fund officer at County Jail (or at any other correctional facility where Patton may hereafter be confined) is authorized to collect monthly payments from his trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from the trust fund account shall be forwarded to the Clerk each time the amount in the account exceeds $10 until the full $350 filing fee is paid.
With that said, this Court turns to the initial screening called for by Section 1915A(a). In that respect, although Patton asserts that he has a constitutional right to receive physical therapy for what he describes as "a back problem located at T10, T11, T12, S1, and S5 which were seen on x-ray at Cermak Health Services," what the Complaint further alleges conclusively defeats his claim as a matter of law. Even on the assumption that Patton's "back problem" constitutes a "serious medical need" within the scope of Estelle and other cases applying its doctrine,*fn3 what the Complaint reveals is at most a difference of opinion between two doctors who are affiliated with Cermak.
In that regard Dr. Ed Fowler is said to have ordered physical therapy after examining Patton, while Dr. Nagib Ali, whom Patton identifies in the Complaint as "the head medical doctor for Division One," also examined Patton thereafter and prescribed instead a regimen of push-ups and sit-ups as well as "prescrib[ing] noprisyn for pain."*fn4 This Court of course expresses no view as to the correctness of either of those professional evaluations--what is clear instead under the caselaw is that even if Dr. Ali's second opinion is medically wrong, the worst that is involved here is arguable medical malpractice--not the deliberate indifference to serious medical needs that is required to establish a constitutional violation.
Accordingly, for purposes of any claim under 42 U.S.C. §1983, as contrasted with a possible state law claim for malpractice (as to which this Court also expresses no view), Patton's Complaint "fails to state a claim upon which relief may be granted" (Section 1915A(b)(1)). Hence this Court dismisses both the Complaint and this action (id.). As ...