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Tony Shoemaker, Idoc # B-23560 v. Dr. Krieg

August 31, 2011

TONY SHOEMAKER, IDOC # B-23560, PLAINTIFF,
v.
DR. KRIEG, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Tony Shoemaker, an inmate in Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving two consecutive 30 year sentences for aggravated criminal sexual assault and home invasion. 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, 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 facts are gleaned from Plaintiff's complaint (Doc. 1) and copies of grievances included as exhibits (Doc. 1-1, p. 1-5). On August 11, 2009, while working at his prison job, Plaintiff was injured when a heavy cart loaded with bags of ice ran over his foot. Plaintiff was immediately taken to the Health Care Unit (HCU) and examined. His foot was swollen and he was in severe pain. Defendant Dr. Krieg ordered x-rays, which were taken by x-ray technician Defendant Ruppert.*fn1 After viewing the x-rays, Defendants Krieg and Ruppert informed Plaintiff that he had a bad sprain, but no broken bones. He was given Ibuprofen and allowed to stay off work for four days.

The day before he was to return to work, Plaintiff requested his gallery officer to take him to the HCU, because the pain and swelling were worse and the foot was black and blue. Plaintiff later sent a written request to be called to the HCU. Plaintiff was never seen by any HCU staff, but was informed by HCU that he would have an additional three days of "lay-in" time before he would have to return to work. Plaintiff returned to work on August 18, 2009, after his lay-in expired, and informed his boss of his continued severe pain and swelling, which was worsened by Plaintiff's need to be on his feet while working. Plaintiff continued to work until he was called to the HCU the next day.

At this HCU visit (on August 19, 2009), Plaintiff was seen by Dr. Platt (who is not named as a defendant). This doctor informed Plaintiff that his original x-ray had been sent to an outside specialist, who detected a fracture. A new x-ray was taken that day by Defendant Ruppert, on Dr. Platt's orders. Dr. Platt showed Plaintiff the two x-rays and stated that "[Defendant] Dr. Krieg had missed the fracture" (Doc. 1-1, p. 2). Dr. Platt placed Plaintiff's leg in a knee-high cast and kept him in the HCU overnight. Plaintiff received two Tylenol, and was given a sixty-day lay-in. After Plaintiff left the HCU, he was given no further pain medication, despite continuing to experience pain from the broken foot.

Plaintiff filed a grievance over these events on August 27, 2009, which was denied (Doc. 1-1, p. 3). He then filed a "supplemental update" to that grievance on October 5, 2009 (Doc. 1-1, p. 3-6). In it, he asserted, contrary to the earlier findings of the grievance officer, that he complained constantly of pain and requested medication during the 23 hours he spent in the HCU after getting his cast, but was given none (Doc. 1-1, p. 3). He further states that, other than one "card" of Motrin on August 11, 2009, and one dose of Tylenol on August 19, he was given no pain medication at all until September 25, 2009, when Dr. Platt gave him a 30 day prescription for Ibuprofen (Doc. 1-1, p. 4).

Prior to receiving the pain medication on September 25, 2009, Plaintiff had made several other visits to the HCU. He saw Defendant Krieg again on September 3, when, based on a new xray, Defendant Krieg informed Plaintiff there was no fracture, and removed his cast. Another x-ray was taken the following day. On September 11 (one month after the injury), the HCU informed Plaintiff that the x-rays showed no fracture and Plaintiff could come off his lay-in if he desired. Plaintiff then returned to work from September 14-17, but experienced worsening pain in the injured foot. Plaintiff went back to the HCU and saw Defendant Krieg on September 17. Defendant Krieg then informed Plaintiff, contrary to his earlier assessment, that Plaintiff did have a fracture. Defendant Krieg offered Plaintiff the option of another 30-day lay-in, or having another cast put on. Plaintiff chose Defendant Krieg's recommended treatment of the 30-day lay-in (Doc. 1-1, p. 4). Plaintiff's next HCU visit was on September 25, when Dr. Platt prescribed Ibuprofen in response to Plaintiff's complaint that he had been given no pain medication since the original fracture diagnosis.

Plaintiff asserts that Defendants Krieg and Ruppert tried to conceal his fracture and improperly treated the injury. Furthermore, he claims that Defendants Cowan (the grievance officer), Gaetz (the warden), Johnson (of the Administrative Review Board), and Randall (the former director of the Illinois Department of ...


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