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Gallo v. Feinerman

February 9, 2009

CARL GALLO, PLAINTIFF,
v.
ADRIAN FEINERMAN, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Stateville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. §§ 1983 and 1985(3). Plaintiff seeks damages for allegedly being deprived of medical care in violation of his Eighth Amendment rights and for an alleged conspiracy to deprive him of his rights. 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 he has ulcerative colitis which he describes as "a chronic non-specified inflammatory and ulcerative disease arising in the colon musosa, characterized most often by blood[y] diarrhea." Plaintiff alleges that he has suffered from this condition for approximately 10 years. Plaintiff also states that he suffers from GERD.*fn1

Plaintiff states that since February 2004*fn2 he has been forced to take his medication for his condition on an empty stomach, which is against AMA recommendations.*fn3 Plaintiff contends that Defendant Ahmed refused to schedule the distribution of his medication closer to meal time. Exhibits attached to the complaint indicate that Plaintiff was ultimately allowed to self-administer his medication. These exhibits also indicate that Plaintiff exhausted his administrative remedy on April 27, 2004, when the Administrative Review Board denied his grievance.

Plaintiff alleges that on or about August 27, 2004, Defendant Ahmed cancelled his prescription for Prevacid and, instead, substituted a prescription of Prilosec OTC . Plaintiff claims that the Prilosec increased the "amount of blood, pus and mucus" in his stool. When Plaintiff complained to Defendant Ahmed, Ahmed responded by telling Plaintiff "I'm the boss and your not getting what you want." Exhibits attached to the complaint indicate that Plaintiff exhausted his administrative remedy on October 20, 2004, when the Administrative Review Board denied his grievance concerning this matter.

Plaintiff asserts that on July 29, 2005, Defendant Feinerman discontinued his prescription for Prevacid - a prescription that had been written by Dr. Krieg (not a defendant) on July 14, 2005. Exhibits attached to the complaint indicate that Defendant Feinerman discontinued Prevacid because it is no longer part of the prison's formulary (list of approved prescription medications). Plaintiff does not contest the reason provided for discontinuing Prevacid. Rather he challenges Defendant Feinerman's actions after he canceled the Prevacid prescription.

In lieu of Prevacid, Defendant Feinerman provided Plaintiff with a prescription for Prilosec OTC. Plaintiff claims that he is "allergic" to Prilosec because it causes him severe abdominal pain, cramping, increased bowel movements (containing blood and mucus), joint pain, nausea, chest pains, swollen tongue, and inflamed colon. Following Plaintiff's complaint concerning the drug, Plaintiff states that Defendant Feinerman canceled the prescription for Prilosec, but has not prescribed any other medication for his GERD. Dr. Feinerman apparently contends that there is insufficient evidence that Plaintiff is allergic to Prilosec. Plaintiff contends that his medical records show that he has had an "allergic" reaction to Prilosec.

Finally, Plaintiff alleges that Defendant Feinerman "refused to provide him effective medical treatment . . . for migraine head aches and tension, neck and spinal pain." In his grievances - which are attached to the complaint - Plaintiff claimed only that Defendant. Feinerman refused to prescribe him Tylenol. ...


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