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Wallace v. Powers

November 17, 2009

MAURICE WALLACE, PLAINTIFF,
v.
MARVIN POWERS, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Tamms 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, 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 usually 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). Furthermore, when dealing with pro se complaints filed by prisoners, the Court is not bound, as it usually is, to accept without question the truth of Plaintiff's factual allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Instead, the Court has the "unusual power to pierce the veil of the complaint's factual allegations," Neitzke 490 U.S. at 327, and determine whether the facts alleged are irrational or wholly incredible "whether or not there are judicially noticeable facts to rebut them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). 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 AMENDED COMPLAINT

In October 2006, while confined at the Stateville Correctional Center, Plaintiff was diagnosed with an open foot sore caused by an infected ingrown toenail on the large toe of his right foot. Plaintiff was told that he would be referred to an outside doctor for surgery to remove the source of the ingrown toenail. On December 1, 2006, Plaintiff was prevented from going to his scheduled appointment outside the prison due to a snow storm. On December 15, 2006, Plaintiff was transferred from Stateville Correctional Center to Tamms Correctional Center.

From the time he was transferred to Tamms until April 19, 2008, Plaintiff appears to have suffered from an infection of his right large toe due to the ingrown toenail. After his transfer to Tamms, Plaintiff was examined on several different occasions by Defendants Powers, Humble, Hart, and George. During these examinations, it was noted that Plaintiff's toe was tender to the touch and was frequently pus filled. Plaintiff received treatment as a result of these examinations, primarily in the form of cleaning the infection with hydrogen peroxide and the application of topical antiseptics and antibiotics (Betadine-brand antiseptic or bacitracin antibiotic ointment). In addition, Plaintiff was prescribed a "maximum strength oral antibiotic" in March 2007, and tetracycline (also an oral antibiotic) in June 2007. Plaintiff claims, however, that he was not provided any pain medication. On April 19, 2008, Plaintiff underwent surgery to remove the source of the ingrown toenail. After this surgery, Plaintiff was prescribed Keflex, an oral antibiotic, and pain medication. Plaintiff contends, however, that he is allergic to Keflex (and penicillin) and that his civil rights were violated by the Keflex prescription.

This relatively modest set of facts concerning the care and treatment of Plaintiff's infected ingrown toenail serves as a backdrop for a, more complicated set of facts. Specifically, Plaintiff asserts that the infection from his toe spread "into other, more vital, parts of [his] body (e.g. kidneys, lungs, heart valves, and urinary tract)." As evidence that the infection spread to these other places, Plaintiff claims that he suffered pain in his neck, lower back, and kidney area. Plaintiff also suffered from constipation which he attributes to dehydration due to his body attempting to flush the infection out of his system.

In response to these additional complaints, the prison medical staff conducted additional tests. Specifically, on November 29, 2007, Plaintiff had a "urine dipstick" test performed; on January 3, 2008, Plaintiff had a blood sample drawn; on January 16, 2008, both blood and urine testes were performed; and on May 7, 2008, Plaintiff had another urine test performed. It appears the results of these tests failed to confirm that the infection had spread. Anticipating that his medical records and test results do not support his claim that the infection had spread to other parts of his body, Plaintiff contends that there was a conspiracy to falsify ...


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