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Brian Mcdaniel v. Mark (Head Carpenter At Vienna Correctional Center

April 19, 2011

BRIAN MCDANIEL,
PLAINTIFF,
v.
MARK (HEAD CARPENTER AT VIENNA CORRECTIONAL CENTER), DEFENDANT.



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

#N-70134,

MEMORANDUM AND ORDER

A. Introduction

Plaintiff Brian McDaniel, an inmate in Graham Correctional Center, brings this action under the Federal Tort Claims Act, 28 U.S.C. § 1346, based on an incident that occurred while he was housed at Vienna Correctional Center. Plaintiff is serving a 52 month sentence for misuse of a credit card, aggravated fleeing a police officer, and possession of a controlled substance. 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.

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, 550 U.S. 544, 570 (2007). Conversely, 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. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

In the instant case, upon careful review, the Court finds it appropriate to exercise its authority under § 1915A and dismiss the original complaint and the first amended complaint. However, Plaintiff shall be allowed an opportunity to amend his complaint by a certain deadline, should he so desire.

B. Summary of Key Facts

The following factual summary is drawn from Plaintiff's complaint (Doc. 1) and Motion to Exclude Exhaustion of Remedies (Doc. 3). While Plaintiff was confined in the Vienna Correctional Center, he worked as a carpenter under the supervision of Defendant Mark, the Head Carpenter at that institution. Plaintiff's job entailed tearing off and replacing shingles on the roofs of several buildings. Rather than have the inmate-workers wear safety harnesses, which Plaintiff claims should have been required under applicable safety standards, the only protection devised by Defendant Mark to prevent a fall from the roof was a hand rail. On November 3, 2009, Plaintiff slipped and fell from the roof, falling about 18 feet to the cement sidewalk below. He sustained no broken bones. But he injured his head, hip, left shoulder and left big toe, and he suffered chipped teeth and a broken dental partial. In addition, he now suffers from grand mal seizures due to head trauma from the fall. He continues to experience pain and restriction of movement due to his injuries, and he claims that the injuries and seizures will prevent him from returning to his prior employment as a tower technician or carpenter.

Plaintiff states that he was discharged from the Illinois Department of Corrections 35 days after he suffered the fall. However, he has since returned to custody, now serving time on new convictions. Plaintiff further alleges that he has been denied medical care for his ongoing symptoms stemming from the injuries.

Plaintiff's Motion to Exclude Exhaustion of Remedies (Doc. 3), which accompanied his complaint, mentions that he experienced retaliation for claiming he was injured in the fall. Plaintiff's First Amended Complaint (Doc. 9) was ...


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