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Sheppard v. Revell

July 14, 2009

ANTONIO SHEPPARD, PLAINTIFF,
v.
SARA REVELL, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at USP Hazelton, 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).

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). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. ___, 2009 WL 1361536, *13 (May 18, 2009).

THE COMPLAINT

Liberally construing the complaint and attached exhibits, it appears that Plaintiff Sheppard was transferred to FCI Greenville in 2002. Plaintiff states that upon his arrival at FCI Greenville he was subjected to harassment by staff and other inmates. Sheppard asserts that on or about April 11, 2006 (while confined at FCI Greenville), he was attacked by another prisoner. Sheppard reported the attack the next day and was examined by Defendant Goldstein who observed that Sheppard had "an abrasion mid upper nose, no bleeding or open areas noted." Nevertheless, Sheppard complained of pain and, therefore, Goldstein noted Sheppard's medical records for a follow-up. Exhibits attached to the complaint, indicate that Sheppard had his nose x-rayed several times. None of the x-rays has shown that Sheppard's nose was broken. Sheppard insists that mere x-rays, alone, cannot shown broken bones and has repeatedly asked for an MRI or to see a specialist. Sheppard claims that the medical staff have refused to refer him to a specialist for his nose or schedule an MRI and, therefore, he is being denied adequate medical care in violation of the Eighth Amendment.

Sheppard also contends that the April 11 attack occurred because the Defendants failed to adequately protect him from assault in violation of the Eighth Amendment.

In addition to his claim that he was denied adequate medical care for his nose, Sheppard claims that he was not given appropriate drugs to control his psychological problems. Exhibits attached to the complaint show that Sheppard was prescribed 20 mg of Paxil, which was then upgraded to 40 mg of Paxil in response to his complaints. Plaintiff claims that the failure to give him appropriate drugs for his psychological problems violates his Eighth Amendment rights.

Finally, Sheppard claims that he was retaliated against by being transferred to USP Hazelton, which he ...


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