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Terry Wagner (#R-07282 v. Warden Terry Mccann

July 27, 2011

TERRY WAGNER (#R-07282), PLAINTIFF,
v.
WARDEN TERRY MCCANN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff, Terry Wagner (the "Plaintiff"), a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Plaintiff claims that the Defendants, correctional officials and health care providers at the Stateville Correctional Center, have violated the Plaintiff's constitutional rights by acting with deliberate indifference to his serious medical needs. More specifically, the Plaintiff claims that he has received inadequate care and treatment for his chronic rashes, resulting in unnecessary pain and suffering. This matter is before the court for ruling on Defendants Anthony Ramos' and Allen Karraker's Motions to Dismiss the Amended Complaint for failure to state a claim. For the reasons stated herein, Anthony Ramos' Motion to Dismiss is denied and Allen Karraker's Motion to Dismiss is granted.

I. LEGAL STANDARD

It is well established that pro se complaints are to be liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006). Pro se submissions are held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).

To satisfy the notice pleading requirements of FED. R. CIV. P. 8(a)(2), the plaintiff must only state his basic legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004). In addition, when considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court assumes all factual allegations in the complaint to be true, viewing all facts--as well as any inferences reasonably drawn therefrom -- in the light most favorable to the plaintiff. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010); Bell Atlantic Corp., 550 U.S. at 563 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). A well-pleaded complaint may proceed even if it appears "that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Bell Atlantic Corp., 550 U.S. at 556.

Nevertheless, the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp., 550 U.S. at 555. While a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). The court "need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). "The complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010)(citing Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009)). Furthermore, a plaintiff can plead himself or herself out of court by pleading facts that undermine the allegations set forth in the complaint. See, e.g., Whitlock v. Brown, 596 F.3d 406, 412 (7th Cir. 2010)(citations omitted): "A judicial admission trumps evidence. This is the basis of the principle that a plaintiff can plead himself out of court."

II. FACTS

The Plaintiff alleges the following facts relative to the movants and assumed true for purposes of the motions to dismiss:

The Plaintiff is an Illinois state prisoner, confined at the Stateville Correctional Center at all times relevant to this action. (Amended Complaint, p. 2, ¶ 5.) Defendant Anthony Ramos ("Ramos") was the facility's warden at the time of some of the events giving rise to this action. (Id., ¶ 7.) Defendant Alex Karraker ("Karraker") is a supervisor for Wexford Health Sources, Inc., which employs individuals to work at Stateville and other correctional facilities. (Id., ¶ 10.)

In April of 2006, the Plaintiff developed a rash on his body. (Amended Complaint, ¶ 23.) A staff physician (Defendant Tilden, who has not joined the motions to dismiss) prescribed the Plaintiff Tolnaftate ointment. According to www.wikipedia.org, Tolnaftate is an antifungal medication designed to control skin infections. (Id., ¶ 24.)

On June 5, 2006, the Plaintiff returned to the health care unit, reporting that the rash had spread to his face. (Id., ¶ 25.) Defendant Tilden prescribed additional medications. (Id., ¶ 26.)

The Plaintiff returned to the health care unit later that month and received additional medication. (Id., ¶ 26.)

On September 21, 2006, more medication was prescribed. (Id., ¶ 27.) Stateville physicians refused, however, to refer the plaintiff to an outside specialist. (Ibid.)

On December 20, 2006, the Plaintiff had a consultation with another physician, Defendant Ghosh ("Ghosh")(also a non-movant). (Id., ΒΆ 28.) Ghosh found that the skin rash was "chronic" and warm to the touch. (Ibid.) The Plaintiff was once again given Tolnaftate, even though it had ...


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