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Joseph Davis v. Nurse Wahl

July 26, 2011

JOSEPH DAVIS,
PLAINTIFF,
v.
NURSE WAHL, DR. RECTOR, FENTON, DR. SHEPARD, CHRISTINE BROWN, K. DEEN, T. KISRO, S. GODINEZ, WEXFORD HEALTH CARE SERVICES, AND ROD BLAGOJEVICH , DEFENDANTS.



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

#K-60509,

MEMORANDUM AND ORDER

Plaintiff Joseph Davis, an inmate in Pinckneyville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a twenty year sentence for aggravated kidnaping, along with a concurrent sentence of fifty years for attempted murder. In this Court's order of July 14, 2011 (Doc. 13), Plaintiff's First Amended Complaint (Doc. 7) was stricken and he was given 35 days to file a Second Amended Complaint. Plaintiff filed his Renewed Second Amended Complaint (Doc. 15) on July 19, 2011, and the case is now before the Court for a preliminary review 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, 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).

Upon careful review of the complaint and supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

The following summary of facts is taken from Plaintiff's Renewed Second Amended Complaint and the accompanying exhibits (Doc. 15). Plaintiff alleges that on April 20, 2010, he submitted a number of sick call requests, seeking medical attention for "continued, severe, chronic and excessive bleeding from his rectum during each bowel movement" (Doc. 15, p. 2). He informed Defendants Wahl, Rector, and Shepard of his condition, and was told that follow up would be done. Plaintiff claims he was not "thoroughly examined" at that time. Plaintiff's problems continued for some months "without any genuine treatment," and he continued to experience "chronic excruciating pain and blood streaming from his rectum" each time he attempted a bowel movement or passed gas (Doc. 1, p. 2). He filed a written grievance with Defendants Kisro and Deen, which was denied.

Plaintiff states he saw Defendant Wahl again on August 12, 2010,*fn1 and was told by her that he only had "gas" and did not need to see a doctor (Doc. 15, p. 3). Plaintiff then filed more grievances and wrote to Defendants Brown and Fenton, the Health Care Administrators, to no avail.

In an attempt to set forth Plaintiff's efforts to obtain medical attention for his rectal bleeding and pain in chronological order, a summary of Plaintiff's exhibits, to which he refers frequently in the complaint, may be helpful. Exhibit 1-A refers to a medical visit in May 2010 for rectal bleeding and stomach cramps, indicating that Plaintiff was seen by the Health Care Unit (HCU) some time before June 3, 2010, for these problems (Doc. 15, p. 9). Exhibit C indicates that Plaintiff filed a grievance on July 23, 2010, claiming that the HCU did not pick up his stool samples for a fecal blood test as ordered on July 6, 2010 (Doc. 15, p. 13).

Plaintiff's complaint describes several instances beginning on August 19, 2010, when he approached correctional officers Bassett, Gale, and Hoffena (whom Plaintiff has now voluntarily dismissed as Defendants) about his rectal bleeding problems and pain. The complaint does not indicate whether Plaintiff submitted any requests to see a nurse or doctor during this time period.

Returning to the exhibits, Plaintiff's Exhibit D indicates that he saw a doctor on January 24, 2011, and was told to use sitz baths to relieve his symptoms (Doc. 15, p. 15). Exhibit 3 indicates he was seen at the HCU on February 18, 2011, and filed a grievance over that visit complaining of sharp pain in the stomach and rectal area (Doc. 15, p. 10). The staff response to the grievance, however, stated that Plaintiff had not mentioned stomach or rectal pain during that visit. Id. Exhibit D-1 references a grievance filed after a March 3, 2011, HCU visit where Plaintiff complains over the hours-long wait he endured before seeing HCU staff (Doc. 15, p. 16). Plaintiff had complained of pain, but the grievance information did not specify further the nature of his medical issue.

In addition, Plaintiff contends that he has developed numerous other health problems as a result of long term consumption of soy food products in the prison meals. These problems include:

[C]ontinued, constant, chronic, and escruciating [sic] stomach, [sic] abdominal cramps, painful constipation, alternating with debilitating diarrhea, vomiting after eating, sharp pains in the tract [sic], especially after consuming Soy [sic], passing out, heart palpitations, rashes, acne, panic attacks, insomnia, depression and symtoms [sic] of hypothyroidism, low body temp, feeling cold all the time, brain fog, fatigue, wright [sic] gain, frequent infections and Hemmoroids [sic]. (Doc. 1, p. 3-4). An examination of the exhibits shows that Plaintiff had complained to Dietary Manager T. Bryant (whom Plaintiff has voluntarily dismissed as a Defendant) prior to June 9, 2010, about the consumption of soy products, and was referred to the HCU (Doc. 15, p. 17). Plaintiff filed a grievance on July 6, 2010, complaining of stomach issues due to the consumption of soy, which was denied because Plaintiff had been seen by a doctor regarding this issue (Doc. 15, p. 12).

Finally, Plaintiff's Second Amended Complaint adds three more Defendants. They include former Governor Rod Blagojevich, who Plaintiff claims implemented changes in prison diets in 2002, so that thereafter the diet was "largely based on processed soy protein" (Doc. 15, p.6). Plaintiff also adds Defendant S. Godinez, the director of the Illinois Department of Corrections, and Defendant Wexford Health Care Services, the employer of Defendants Wahl, Rector, ...


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