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Conley v. Mathes

October 29, 2009

ANTHONY CONLEY, PLAINTIFF,
v.
LOIS MATHES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

MERIT REVIEW ORDER#2

This cause is before the court for merit review of the plaintiff's amended complaint. The court dismissed the plaintiff's original complaint as a violation of Rules 8, 18 and 20 of the Federal Rules of Civil Procedure. See September 21, 2009 Merit Review Order. The court gave the plaintiff an opportunity to file an amended complaint that clearly set out his claims against his intended defendants.

The plaintiff has now filed his amended complaint. The court is still required by 28 U.S.C. §1915A to "screen" the plaintiff's amended complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.

The pro se plaintiff has filed his amended complaint pursuant to 42 U.S.C.§1983 against 12 defendants including: Health Care Administrator Lois Mathes, Dr. Funk, Dietary Manager Marcia Keys, Warden Keith Anglin, Warden Joseph Loftus, Assistant Warden Victor Calloway, Food Service Manager Suzann Griswold, Nurse Tina, Terry Fueyo, Nurse Mary Miller, Health Care Director Dr. Ameji and Ricky Jones. The plaintiff's no longer lists Wexford Corporation, Sergeant Jacob, the Illinois Department of Corrections and two John Does as defendants. However, the court notes that while these defendants are not listed in the section identifying defendants, the plaintiff still makes reference to most of them in the body of his complaint.

The plaintiff has divided his amended complaint into six "claims." However, in the plaintiff's rambling account, he does state a new allegation for each claim, but also repeats some of his previous allegations in each claim.

The court also notes that the plaintiff was previously advised that he could not bring unrelated claims against unrelated defendants in the same complaint. See September 21, 2009 Merit Review Order; see also George v Smith, 507 F.3d 605, 607 (7th Cir. 2007). In addition, the plaintiff was admonished that if he if failed "to follow the court's direction, he may accumulate strikes pursuant to 28 U.S.C. § 1915(g) for any meritless claims within his lawsuit." September 21, 2009 Merit Review Order, p. 2, 3. The court will consider the claims in the order presented by the plaintiff:

COUNT ONE

The plaintiff says he has a long history of foot pain and he was approved for special shoes with arch supports. The plaintiff says he was transferred to Hill Correctional Center in August of 2006, and made requests for the shoes, but was denied. In May of 2007, the plaintiff says he was told Dr. Funk from Wexford came to Hill Correctional Center as a "collegial-review doctor" and reviewed the plaintiff's request for shoes. (Comp, p. 5) The plaintiff says without ever meeting him, Dr. Funk denied his request. The plaintiff says he was transferred to Danville Correctional Center at some point, and was again told by Nurse Mary Miller and others that his shoe request had been denied by Dr. Funk. Nurse Miller also informed the plaintiff that he could order shoes from the commissary as apparently he had done before at Stateville Correctional Center. In addition, Nurse Miller told the plaintiff that Wexford did not pay for arch supports, but the plaintiff could also purchase the supports on his own. In his complaint, the plaintiff says he was "approved" for the special shoes based on a receipt from a California "Bio-Orthopadeic Laboratory" dated May 22, 2003. (Comp., p. 5).

The court finds the plaintiff has failed to state a claim upon which relief can be granted. In order to state an Eighth Amendment claim, the plaintiff must pass both an objective and a subjective test. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Wilson v. Seiter, 501 U.S. 294, 297 (1991). The first prong of the test requires the plaintiff to demonstrate that the alleged deprivation was sufficiently serious. Id.

The second prong of the Eighth Amendment test requires the plaintiff to show that the defendants acted with deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 828 (1994). "[A] finding of deliberate indifference requires evidence that the official was aware of the risk and consciously disregarded it nonetheless." Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir. 1997)(citing Farmer at 840-42) Inmates are not entitled to a specific type of treatment, or even the best care, only reasonable measures to prevent a substantial risk of serious harm. Forbes v. Edgar,112 F.3d, 262, 267 (7th Cir. 1997).

It is doubtful that the plaintiff could demonstrate he suffered from a serious medical condition, but based on the facts alleged in the amended complaint, the plaintiff has not allege that the defendants were deliberately indifferent to his condition. The plaintiff says he was approved for shoes, but does not allege that the shoes were somehow prescribed by a doctor. The plaintiff also says he was told he could purchase the shoes and arch supports, but they would not be provided free of charge. The plaintiff does not allege that he could not afford these items.

COUNT TWO

The plaintiff's second allegation is somewhat difficult to decipher. However, he appears to be claiming that the diet served at Danville Correctional Center is high in soy and this has caused him various medical problems. The plaintiff says soy has been "recognized as safe as an Industrial Cardboard Binder, Not As Food." (Comp, p. 6). The plaintiff says eating soy has lead to "acid reflux bad bowel disease" and to the diagnosis of H. pylori on two occasions. (Comp, p.7)

The court notes that it is doubtful the plaintiff can demonstrate that the consumption of soy lead to the diagnosis of an H. pylori or Helicobacter plylor infection. H. pylori "is a bacterial infection that affects the stomach lining." Hardy v Aguinaldo, 2003 WL 21350070 at 4 (N.D. June 10, 2003). The bacteria "is most likely spread by fecal contamination of food and eating utensils or by contaminated water." Lozano v Corrections Corp. of America, 2001 WL 1355607 at 1 (6th Cir. Oct. 26, 2001). See also Woodard v Weberg, 2009 WL 310898 at 4 (W.D. Mich. Feb 6, 2009)("transmission of H. Pylori bacterium generally requires oral-oral or fecal-oral ...


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