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Richardson v. Walker

May 7, 2010

CURTIS RICHARDSON, PLAINTIFF,
v.
ROGER WALKER, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Pinckneyville 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 on December 29, 2007, while confined at the Lawrence Correctional Center, he was given a tuberculosis test by Defendant Brooks. Plaintiff objected to this test because he had been administered a tuberculosis test 11 days earlier and because it was against his religious beliefs. Plaintiff alleges that the medical staff failed to read the earlier test within 72 hours after it had been administered which led to the second test. Plaintiff contends that the failure to read the earlier test within the required time period was both negligence and amounted to deliberate indifference in violation of his Eighth Amendment rights. Plaintiff states that after he objected to the second tuberculosis test he was threatened with a disciplinary ticket because an annual tuberculosis test is required by prison regulation. Liberally construing the complaint, it appears that Plaintiff had the second tuberculosis test administered after being threatened with the disciplinary ticket. After the second test was administered, Plaintiff pursued his administrative remedies through the grievance system, but Plaintiff contends that the Defendants failed to intervene or correct the "wrongful acts" of their subordinates and further failed to adequately supervise and train them.

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: Against all Defendants for subjecting him to two tuberculosis tests in violation of his Eighth Amendment rights to adequate medical care/

COUNT 2: Against all Defendants for negligence (i.e., medical malpractice) in subjecting him to two tuberculosis tests.

COUNT 3: Against all Defendants for subjecting him to tuberculosis tests in violation of his religious beliefs in ...


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