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Phillips v. Walker

January 21, 2010


The opinion of the court was delivered by: Murphy, District Judge


This case was transferred to this Court by the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1406 (see Docs. 180 and 181). Plaintiff, an inmate currently confined at the Lawrence Correctional Center (LCC) filed his original complaint (Doc. 1) in the Northern District of Illinois seeking relief against Cook County officials. Plaintiff's second amended complaint (Doc. 105) sought relief against Cook County, Illinois; Roger E. Walker; Lee Ryker; Christine Boyd; Jeanne Campanella; Maggie Bryan; Julie Morris; Mary B. Loftin; Elaine Hardy; and Michael Smith. The second amended complaint supersedes and replaces the original complaint and prior amendments. See Flannery v. Recording Indus. Assoc. of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). Plaintiff voluntarily dismissed his claims against Cook County (Doc. 127), paving the way for this civil action to be transferred to this Court.

In his second amended complaint, Plaintiff asserts that he has been deprived of his constitutional rights pursuant to 42 U.S.C. § 1983 (Doc. 105). Plaintiff seeksinjunctive and monetary relief for alleged violations of his Eighth Amendment rights. 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).


Plaintiff's second amended complaint, filed by his appointed counsel, alleges that in 1993, while confined at the Cook County Jail, Plaintiff had a radical tympanomastoidectomy performed on his right ear to treat a cholesteatoma.

In May 2006, Plaintiff became confined at LCC and began to feel pain in his right ear. Plaintiff complained to officials at LCC about his pain. Defendants Hardin and Loftin examined Plaintiff and determined that the cause of Plaintiff's ear pain was an infection caused by gauze that had been left in Plaintiff's ear as a result of the 1993 surgery. Additionally, it was determined that Plaintiff's right ear had developed another cholesteatoma. Plaintiff claims that in July 2006, "medical personnel at Lawrence Correctional Center . including . Dr. Smith, approved a further tympanoplasty/mastoidectomy surgical procedure, including a procedure to insert an obliteration flap in [Plaintiff's] right ear." Plaintiff contends that the surgery is necessary to "remove the gauze packing and to treat cholesteatoma in Plaintiff's right ear."

Although surgery was recommended in 2006 to remove the gauze and to treat the cholesteatoma, Plaintiff asserts that, to date, "Defendants have taken virtually no actions to carry out the recommended and approved procedures in Plaintiff's medical file." In lieu of the recommended and approved surgery, Plaintiff contends that he has been provided only "minimal treatment" consisting of ear drops which have treated neither his symptoms nor the underlying cause of his ear pain. Plaintiff claims that ...

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