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Ellis v. USP Marion Health Services

December 11, 2008

EDWARD B. ELLIS, PLAINTIFF,
v.
USP MARION HEALTH SERVICES, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the United States Penitentiary located in Terre Haute, Indiana (USP-Terre Haute), brings this action for negligence and for deprivations of his constitutional rights pursuant to 28 U.S.C. § 1331. Plaintiff seeks damages for allegedly being denied adequate medical care for a leg injury. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

THE COMPLAINT

Plaintiff alleges that while confined at the United States Penitentiary located in Marion, Illinois, (USP-Marion) his right leg was injured as a result of a "violent assault." Specifically, Plaintiff alleges that his leg muscle has become detached from his femur. As treatment for this injury, Plaintiff alleges that he was provided only aspirin and an "Ace bandage." Plaintiff claims that due to the inadequate treatment he received, his leg has "atrophied," has "shrunk to the size of his forearm" and that it is "useless." Plaintiff claims that Defendants Welch, Duncan, and Szoke were deliberately indifferent to his injury or, at a minimum, negligent in diagnosing and treating it. Plaintiff claims that Defendant Chastain ignored his complaints about inadequate treatment and failed to take corrective action because Plaintiff is an Arab-American.

Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into three counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

COUNT 1: Against Defendants Chastain, Szoke, Welch, Duncan, and USP Marion

Health Services (Health Services) for denying him adequate medical care for his leg injury in violation of Plaintiff's Eighth Amendment rights. COUNT 2: Against Defendants Szoke, Welch, Duncan, and Health Services for providing him negligent medical care pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq.

COUNT 3: Against Defendant Chastain for deliberately denying Plaintiff medical care on the basis of Plaintiff's race/ethnicity in ...


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