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Mounson v. Walker

July 16, 2009

HENRY MOUNSON, PLAINTIFF,
v.
ROGER E. WALKER, JR., ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at Tamms Correctional Center, brings this action for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. 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). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are legally frivolous and thus subject to summary dismissal.

THE COMPLAINT

Plaintiff alleges that between 2005-2008 he made frequent complaints to medical staff that he was experiencing a sore throat, loss of voice, and occasional vomiting. Plaintiff asserts that the medical staff sometimes ignored his complaints and, at other times, gave him only a cold medicine. Plaintiff was ultimately examined by a throat specialist and, in 2008, Plaintiff was diagnosed with throat cancer. To treat his cancer, Plaintiff was scheduled to receive 37 radiation treatments between July 15, 2008 and September 11, 2008. Plaintiff contends, however, that he missed 10 of his radiation treatments because Caliper, Powers, and the mental health staff "harass[ed] and allow[ed] [him] to be harassed by security staff and falsified medical reports stating [Plaintiff] refused 10 radiation treatments." Plaintiff contends that between 2005 and 2008, he wrote to Defendants McCann, Merchant, Frey, Lambert, Jones, Pattison, and Bartley concerning the denial of medical care.

Additionally, Plaintiff alleges that he is being discriminated against because of his mental illness in violation of the Rehabilitation Act. Plaintiff contends that the discriminatory act is not allowing him to participate in group therapy sessions or individual activity therapy sessions at Tamms.

Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into two 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 Caliper, Powers, Unknown Nurses, McCann, Merchant, Pattison, Jones, Frey, Lambert, and Bartley for denying him adequate medical treatment for his throat cancer by preventing him from obtaining all of the prescribed radiation treatments in violation of Plaintiff's Eighth Amendment Rights.

COUNT 2: Against Defendants Walker, Frey, McCann, Merchant, Hammersley, Jones, Pattison, Powers, Caliper, Couch, Bartley, Lambert, Clover, Guetersloh, Evans, and Unknown Nurses for discriminating against Plaintiff in violation of the Rehabilitation ...


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