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Baker v. Parker

May 28, 2010

BRANDON BAKER, PLAINTIFF,
v.
LT. PARKER, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently an inmate at the Pontiac 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's complaint concerns three separate events that occurred while he was confined in the Shawnee Correctional Center. First, on June 5, 2009, Plaintiff suffered a grand mal seizure during which he began to choke on his own vomit. Plaintiff was taken to Marion Hospital where he was treated and, after seven days, released. Upon his release, Plaintiff states that "papers [were] given to Dr. David Alfon... which instructed [that Plaintiff receive a] follow up with an MRI in a week and... follow up with a neurologist in about a months time." Plaintiff states that Dr. Alfon has not scheduled either the MRI or an appointment with a neurologist even though Plaintiff has reminded Plaintiff of the need for post-hospitalization treatment. Plaintiff claims that the failure to provide proper follow up treatment violates his Eighth Amendment rights.

Second, on June 17, 2009, Nurse Perkins and Corrections Officer Alsip came to his cell to administer a medically prescribed "breathing treatment." Plaintiff objected because the treatment was not scheduled for that time and he believed that taking the treatment at the wrong time would cause him problems. During the confrontation with Perkins and Alsip, Plaintiff contends that he became dizzy "like a seizure was coming on" and he laid down on his bunk. Perkins and Alsip continued to demand to know whether Plaintiff was refusing his breathing treatment. Plaintiff claims that Defendants Perkins and Barker violated his Eighth Amendment right to adequate medical treatment by giving him his breathing treatment at the wrong time.

During this incident, feeling that he might vomit, Plaintiff states that he went over to the toilet, accidentally kicking a waste basket. As a result, Perkins and Alsip issued Plaintiff a disciplinary ticket for assaulting them with the waste basket. Plaintiff claims that the "false charges" were "the cause and reason" he was "brutally assaulted" when he was transferred to segregation. Liberally construing the complaint, it appears Plaintiff is attempting to assert a Due Process claim against Defendants Perkins and Alsip for issuing him a false disciplinary ticket.

Third, on July 18, 2009, Plaintiff states that Lt. Parker and 3 unknown Correctional Officers came to his cell and took him to segregation. Once inside the segregation cell, Plaintiff was told to step up to the chuck hole so his handcuffs could be removed. Plaintiff stated, however, that he "became dizzy and felt like a seizure was coming on" and, therefore, he remained sitting on the bed. Plaintiff states that the officers "rushed into [his] cell [and] one of the officers... pushed [him] right into the corner of a shelf" causing Plaintiff's head to bleed. After this, Plaintiff states that another unknown officer hit him and twisted the handcuffs while another twisted his shirt cutting off Plaintiff's circulation until Plaintiff passed out. Plaintiff states that Lt. Parker "looked on and did nothing to stop the unnecessary use of force." Liberally construing the complaint, it appears that Plaintiff is attempting to assert a claim that Lt. Parker and the 3 unknown Correctional Officers used excessive force against him in violation of his Eighth Amendment rights.

Plaintiff states that he awoke in the health care unit and that Defendant Barker started asking him questions. Plaintiff alleges that he tried to speak, but because of the blood coming from his head wound some blood came out of his mouth as he spoke. Plaintiff claims that Defendant Capel then asked Barker "did he spit on you?" Several unnamed officers then entered the health unit and grabbed Plaintiff while Barker strapped him down to a gurney. Plaintiff was given "staple or stitches" to close his head wound.

However, Plaintiff was given a disciplinary ticket for "a battery of false charges" including giving himself a "self-inflicted wound" and deliberating spitting blood on prison officials. Plaintiff's asserts that Defendants Favors, Chapel, and Parker "signed as reporting officer and witnesses" to the disciplinary ticket. Plaintiff further alleges that Lt. McCuan investigated the disciplinary charges, but "covered up what really happened." Liberally construing the complaint, it appears that Plaintiff is attempting to assert a claim that he was denied Due Process of law in connection with these disciplinary tickets.

Based on the allegations of the complaint, the Court finds it convenient to divide Plaintiff's pro se action into six 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 Defendant Alfon for denying Plaintiff adequate medical care for his seizures in violation of ...


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