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French-Smith v. David

September 21, 2009

ALFRED FRENCH-SMITH, PLAINTIFF,
v.
DR. DAVID, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Shawnee Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks injunctiverelief and punitive and compensatory damages for deliberate indifference to his medical needs. 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

Plaintiff suffers from chronic sinus problems. Plaintiff claims that he has repeatedly gone to sick call for his condition, and the medical staff has prescribed chlorpheniramine. Plaintiff claims the chlorpheniramine has no effect on his chronic sinus problem and that he suffers as a result. In lieu of chlorpheiramine, Plaintiff wants a sinus spray, but he claims the medical staff will not prescribe him the spray because it costs too much and because prisoners are not allowed to have steroids. French-Smith also claims the medical staff told him they would no longer treat him unless he paid a $6.00 co-pay. Finally, Plaintiff alleges deliberate indifference on the part of the administrative staff in charge of grievance procedures for denying his grievances.

Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into three 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: Denial of adequate medical care for his chronic sinus condition by refusing to prescribe a sinus spray in violation of the Eighth Amendment.

COUNT 2: The imposition of the $6.00 co-pay violates Due Process.

COUNT 3: Prison staff who reviewed his grievances were deliberately indifferent to his need for adequate medical care in ...


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