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McGowan v. Hulick

July 27, 2009

MICHAEL MCGOWAN, PLAINTIFF,
v.
DONALD HULICK, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Michael McGowan, an inmate at the Menard Correctional Center, brings this action for deprivations 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).

FACTS ALLEGED

McGowan began experiencing a toothache in November 2006. By January 2007, the pain had become so great that McGowan requested the care of a dentist. On January 30, 2007, McGowan was sent to Defendant Gardner, a dentist in the prison. McGowan requested a filling for the tooth, but was told by Gardner that the prison did not provide fillings, and that the tooth would have to be extracted. McGowan reluctantly agreed to allow Gardner to extract the tooth. While attempting to pull the tooth, it shattered so that Gardner had to use dental tools to remove the splinters from the gums. McGowan remained in pain throughout the procedure due to an inadequate amount of numbing medication, and the pain continued after the extraction was complete.

On February 28, 2007, the tissue surrounding the area where the tooth had been extracted had swollen to the point that the tissue broke through the stitches. McGowan was taken to Dr. Henderson, who performed emergency surgery by way of removing some of the infected tissue. McGowan began filing a long line of grievances detailing his pain and the inability to receive appropriate medication for treatment of that pain. Henderson saw McGowan on March 7 as a follow-up, and Henderson recommended that McGowan be seen by an oral surgeon.

By mid April an appointment with an oral surgeon was scheduled for McGowan by Chapman, but was later cancelled. McGowan filed two more grievances as a result of the cancellation, and made requests to see any available oral surgeon. On May 25, 2007, McGowan was taken to Dr. Gustave, a surgeon outside of the prison, who recommended that McGowan be taken to an Ear, Nose, and Throat specialist for treatment. McGowan was again denied pain medications.

On June 29, 2007, McGowan was taken to Dr. Thompson, an Ear, Nose, and Throat specialist outside of the prison. McGowan was informed that both surgery and a cat-scan would be necessary, both of which were approved by Defendant Feinerman. By August 3, Thompson had performed the surgery on McGowan, and on August 28, the prison brought McGowan back to have the packing from the surgery removed. McGowan was again taken to Thompson for another follow-up appointment on October 11, when it was determined that a second surgery would be necessary to close the wound which had not healed on its own. This surgery was performed November 2, 2007.

McGowan claims that by having his tooth extracted negligently by Gardner, he was placed in a serious medical situation, which was then ignored by Chapman, Feinerman, and Hulick. McGowan claims that Chapman specifically ignored Dr. Henderson's recommendations that McGowan be sent to an oral surgeon until the ...


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