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Anthony Allen, #B-43715 v. James Kreig

September 14, 2011


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


In an order entered March 29, 2011 (Doc. 1), the Court found that three of the seven claims presented in Plaintiff's amended complaint were unrelated to the other four claims. The Court advised Plaintiff of the Court's intention to sever those three claims into a new lawsuit. The Court also gave Plaintiff 45 days to voluntarily dismiss those claims, so as to avoid the imposition of an additional filing fee. The Court received no communication from Plaintiff, and the 45 day period to voluntarily dismiss his claims has now expired. The Court therefore severs the three claims into this new action. Because the Court was awaiting Plaintiff's decision on whether to dismiss these three claims, preliminary review of their merits was deferred. Now that the claims have been severed into the current case, the Court shall conduct review pursuant to 28 U.S.C. § 1915A.

Plaintiff has alleged that he was deprived of his constitutional rights, and this action has been raised pursuant to 42 U.S.C. § 1983. 28 U.S.C. § 1915A provides, in pertinent part:

(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). Upon careful review of the complaint the Court finds that some of the claimsin the complaint may be dismissed at this point in the litigation.


The following version of the facts of this case is gleaned from the relevant portions of Plaintiff's amended complaint (Doc. 10). On June 17, 2008, Plaintiff further irritated a pre-existing injury to his Achilles' tendon, and asked to be seen by medical personnel. Plaintiff was not immediately seen, so on June 24, 2008, he had another inmate contact his mother, who then called the prison and requested treatment for Plaintiff. Two days later, on June 26, 2008, Plaintiff was sent to the medical ward at Menard Correctional Center for treatment. Defendant Feinerman watched as Defendant Kreig placed Plaintiff's foot in a cast without first ordering an x-ray or MRI test. This treatment caused a limitation in Plaintiff's mobility.

After Plaintiff's foot was placed in the cast, he was transferred to a different cell in the medical ward which had no toilet nor running water, and Plaintiff was denied his personal property and delivery of his mail. On July 8, 2008, Plaintiff was moved to a new medical cell, but he complained to Defendant Conder about the conditions of his previous cell, as well as the denial of his property and mail. That same day, Plaintiff was transferred back to the previous cell about which he had complained. On August 27, 2009, more than a year following the original injury and the placement of the cast on Plaintiff's foot, Plaintiff complained to Defendant Kreig that he was still having pain. Defendant Kreig informed Plaintiff that there was nothing that he or an outside hospital could do concerning his foot.


Upon review of the merits of Plaintiff's claims that were severed from the original case, the Court finds that the claims can be expanded into six counts, instead of the original three counts the Court had envisioned. To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of FED. R. CIV. P. 8(e) and 10(b), the Court finds it appropriate to break the claims in Plaintiff's pro se complaint and other pleadings into numbered counts, as shown below. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

COUNT 1: Deliberate Indifference

Plaintiff claims that Defendant Kreig was deliberately indifferent to his medical needs when he denied Plaintiff's request for immediate treatment on June 17, 2008. Instead, Plaintiff was seen on June 26, nine days later. Defendant Kreig did not order x-rays or MRI tests to determine the best course of treatment.*fn1 Instead, Defendant Kreig proceeded to put Plaintiff's foot in a cast. Plaintiff was then rendered semi-immobile, and had to use crutches to walk. More than a year later, Defendant Kreig told Plaintiff that there was nothing further he or an outside hospital could do to further treat the injury.

The Supreme Court has recognized that "deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This encompasses a broader range of conduct than intentional denial of necessary medical treatment, but it stops short of "negligen[ce] in diagnosing or treating a medical condition." Estelle, 429 U.S. at 106; see also Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).

To prevail on an Eighth Amendment claim, a plaintiff must show that the responsible prison officials were deliberately indifferent to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference involves a two-part test. The plaintiff must show that (1) the medical condition was objectively serious, and (2) the state officials acted with deliberate indifference to his medical needs, which is a subjective standard.

Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000). However, the Supreme Court stressed that this test is not an insurmountable hurdle for ...

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