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

June 10, 2011

BRIAN MCDANIEL,
PLAINTIFF,
v.
MARK (HEAD CARPENTER AT VIENNA CORRECTIONAL CENTER),
DR. BIRCH, AND UNKNOWN PARTY (CHIEF ENGINEER), DEFENDANTS.



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

#N-70134,

MEMORANDUM AND ORDER

A. Introduction

This matter comes before the Court for review of Plaintiff's Second Amended Complaint (Doc. 13), in which he seeks relief for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Preliminary review of the Second Amended Complaint must be conducted 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.

This Court previously found that Plaintiff's original complaint (Doc. 1) and his First Amended Complaint (Doc. 9) failed to state a claim on which relief may be granted. The Court dismissed Plaintiff's Federal Tort Claims Act (FTCA) claim without prejudice to him bringing a negligence claim in state court (Doc. 10). Plaintiff was given leave to file a Second Amended Complaint, if he wished to pursue his potential claims of deliberate indifference to medical needs and retaliation. Plaintiff included those allegations in the Second Amended Complaint. Also, despite this Court's clear direction that Plaintiff must file any tort claims in state court, Plaintiff also included in his Second Amended Complaint the dismissed negligence claim against Defendant Mark, along with a new negligence claim against Defendant Unknown Party/Chief Engineer.

Upon careful review of the Second Amended Complaint, the Court finds it appropriate to exercise its authority under § 1915A, which leads to the conclusion that portions of this action are subject to summary dismissal.

B. Factual Summary

The Second Amended Complaint alleges the following. While Plaintiff was incarcerated in the Vienna Correctional Center, he worked as a carpenter under the supervision of Defendant Mark. Plaintiff fell over 15 feet from a roof on November 3, 2009 and sustained injuries resulting in an ongoing seizure disorder. He complains that Defendant Mark and Defendant Unknown Party/Chief Engineer failed to follow proper safety measures, which could have prevented his fall. He seeks to hold them liable for negligently causing his injuries.

After his fall, Plaintiff was taken to the prison medical unit, then to an outside hospital for x-rays. He was returned to the medical unit, where he requested pain medication, for injuries to his back, right hip, shoulder, left big toe, and a broken tooth. He was given one Vicodin, which did not provide relief. A nurse left his next pain pill on a table 20 feet away from Plaintiff's bed, but he was unable to get up and get the pill due to the severity of his pain, so he did not get the medicine. The following day, Plaintiff was sent on crutches back to his cell, still in pain so severe he could not get to the bathroom or walk to the chow hall. He stayed in his cell for nine days without taking any meals in the chow hall.

On approximately November 13, 2009, Plaintiff saw Defendant Dr. Birch, and asked for medication for the pain he was still having from his various injuries. Defendant Birch refused to give Plaintiff any pain medication, including Tylenol. She also took away Plaintiff's crutches. Plaintiff further claims that Defendant Birch retaliated against him for verbally complaining about his care, by directing the nurses to make him get up and walk to get his pain medication, and by refusing treatment in an attempt to minimize his injuries. He states that Defendant Birch ignored ...


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