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Brown v. Walker

September 15, 2009

OMMEN BROWN 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 in the Menard Correctional Facility, 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, 590 U.S. 544, 570 (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, 129 S.Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, No. 08-4286, 2009 WL 2535731, at *5 (7th Cir. Aug. 20, 2009).

Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Service, No. 06-4260, 2009 WL 2498580, at *2 (7th Cir. Aug. 18, 2009).

THE COMPLAINT

Liberally construing the complaint, Plaintiff asserts he submitted a medical service complaint on February 27, 2006, for a "clogged" ear.

On March 1, 2006, Plaintiff was taken to the Health Care Unit (HCU) at Menard Correctional Center after he was hit on the left side of his face with a basketball. Plaintiff was examined by Defendant Feinerman who gave Plaintiff an ice pack for the pain and swelling associated with the basketball injury. At the same time, Defendant Feinerman also examined Plaintiff's ear regarding Plaintiff's complaint of it being "clogged." It appears that Plaintiff was diagnosed with an ear infection and prescribed the antibiotic medication "Keflex."*fn1

When Plaintiff continued to experience pain and swelling on the left side of his face, he was scheduled to see an optometrist on April 12, 2006. In his complaint, Plaintiff states that the optometrist appointment "continued to be re-scheduled" for the next six months. Exhibits attached to the complaint indicate that the appointments were re-scheduled because Plaintiff failed to show-up for them. See Plaintiff's Exhibit E. In grievances attached to the complaint, Plaintiff contends that he was unable to make these appointments because (1) his ...


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