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Ellison v. Hulick

December 17, 2009

GARY ELLISON, PLAINTIFF,
v.
DONALD HULICK, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, 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, 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, 578 F.3d 574, 581 (7th Cir. 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, 577 F.3d 816, 821 (7th Cir. 2009).

THE COMPLAINT

Plaintiff asserts that sometime in 2007, he developed a "severe eye infection." Plaintiff was examined by an eye doctor in Menard's medical unit (presumably the unknown "John Doe" Defendant in this action) and prescribed "trifluridine ophthalmic solution." Plaintiff claims that trifluridine ophthalmic solution is specifically formulated to fight the viral infection known as herpes.*fn1 Plaintiff states that he informed the eye doctor that he did not have - and never before had -herpes. Plaintiff contends that he asked the eye doctor to prescribe a blood test to confirm his diagnosis and treatment, but it appears that this request was refused.

It appears that Plaintiff used the prescribed medication, but complained that he "saw no visible results." Furthermore, Plaintiff claims that when he used the medication it caused him blurred vision, extreme sensitivity of the eyes, and severe headaches.*fn2

Despite claiming that he "saw no visible improvement," it appears that the eye infection went away because Plaintiff goes on to allege that he "had a relapse of eye infection that occurred when he had no access to the prescribed medication." Plaintiff claims, however, that the prescribed medication had nothing to do with the first eye infection going away because his second eye infection subsided without use of the medication.

Plaintiff claims that he was denied adequate medical care in violation of the Eighth Amendment because (1) he was not given a blood or any other test to confirm the necessity of being given the prescribed medication; and (2) he was not given a blood or any other test to confirm the need for any other medication to fight a non-herpes infection that may be afflicting him. DISCUSSION

"Deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). However, "negligence alone, or simple malpractice, is insufficient to state a claim for relief," Kelly v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990), as is the provision of medical treatment other than that preferred by the inmate. Estelle, 429 U.S. at 107. See also Jones v. Simek, 193 F.3d 485, 489 (7th Cir. 1999); Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996), cert. denied, 519 U.S. 897 (1996). Specifically, mere disagreement with a physician's chosen course ...


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