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Andrew Pinkston v. Scott Mckee

October 21, 2011

ANDREW PINKSTON, PLAINTIFF,
v.
SCOTT MCKEE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge

E-FILED

Friday, 21 October, 2011 12:06:50 PM

Clerk, U.S. District Court, ILCD

OPINION

The plaintiff, Andrew Pinkston, currently incarcerated in Western Correctional Center, filed his original complaint on June 29, 2011. He filed an amended complaint [13] on September 22, 2011. His amended complaint supersedes his original complaint. He sues Scott McKee, the warden of Western Illinois Correctional Center (hereinafter Western); Mr. Steve Ashcraft, a Lieutenant in Internal Affairs at Western; Robert Schenk and Bryan Evans, both correctional officers at Western; Jane Doe 1, Jane Doe 2, Jane Doe 3, nurses in the Medical Unit at Western; and John Doe, a physician in the Medical Unit at Western. A merit review of the plaintiff's complaint was held on October 3, 2011. The plaintiff appeared, via telephone.

Legal Standard

The Court is required by 28 U.S.C. § 1915A to review a Complaint filed by a prisoner against a governmental entity or officer, and through such process to identify cognizable claims, dismissing claims that are "frivolous, malicious, or fail to state a claim upon which relief may be granted." A hearing is held if necessary to assist the Court in this review.

The review standard under 28 U.S.C. § 1915A is the same as the notice pleading standard, under Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(other quoted cite omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level' . . . ." Id., quoting Bell Atlantic, 550 U.S. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).

Facts

The facts are gleaned from the plaintiff's amended complaint [13] and statements he made during the merit review conference. While detained at Western Correctional Center located in Mt. Sterling, Illinois, on September 18, 2009, Defendants Robert Schenk and Bryan Evans took the plaintiff on a court writ to Bloomington, Illinois. During the transport, Defendant Schenk smoked inside the transport vehicle. They stopped at a Shell gas station that included a McDonald's restaurant. Defendant Evans removed the "gun arms belt" and placed it inside the transport vehicle. Both defendants went inside McDonald's. Defendant Schenk bought some food that he consumed in the vehicle as they drove to the court in Bloomington, Illinois. Once they arrived at the courthouse, Defendant Schenk smoked inside the vehicle again.

Around 11:00 a.m., the plaintiff requested lunch. Defendant Schenk advised him they forgot to bring a lunch for him. Around 11:30 a.m., the plaintiff was transported back to Western. On the return trip, Defendant Schenk smoked in the vehicle. They stopped at Popeye's Chicken Restaurant at noon. Defendant Schenk went inside. Defendants did not buy Plaintiff any lunch. While en route to Western, Defendant Schenk smoked over and over. During the merit review conference, the plaintiff admitted that he did not tell Defendant Schenk that he was required to have a smoke-free environment, and he does not allege that Defendants Schenk and Evans were aware that exposing the plaintiff to second-hand smoke was a serious risk to his health. They arrived at Western around 5:00 p.m. The plaintiff requested that Defendant Schenk walk him to the dietary unit to get a sack lunch. Defendant Schenk refused.

The same day, the plaintiff filed an emergency grievance. Ten days later, the plaintiff received the grievance back. The grievance was marked "not an emergency," but the grievance was referred to Internal Affairs by Defendant Scott McGee. On September 30, 2009, the plaintiff resubmitted the grievance with additional information regarding threats and intimidation by Defendant Schenk. On October 23, 2009, the plaintiff was called to Internal Affairs by Defendant Ashcraft. Plaintiff told Defendant Ashcraft about Defendant Schenk's threats, intimidation, and harassment. Defendant Ashcraft advised the plaintiff that Defendant Schenk was harmless. On January 18, 2010, Defendant McKee received and signed off on the grievance. On February 2, 2010, the plaintiff appealed the grievance. On April 28, 2010, Defendant Schenk harassed the plaintiff. Defendant Schenk told the plaintiff that he was angry because Defendant Schenk did not buy chicken for the plaintiff and to watch what happens to him the next time he takes the plaintiff on a writ. Defendant Schenk also harassed the plaintiff on May 2, 2010 and June 27, 2010. The plaintiff believes that Defendant Schenk failed to feed the plaintiff on September 18, 2010 and harassed and intimidated him in retaliation for his filing a grievance regarding the exposure to second-hand smoke, the unauthorized stop to buy lunch, and the failure to feed him during the writ to Bloomington.

The plaintiff claims Defendant McKee's and Ashcraft's failure to take disciplinary action against Defendants Schenk and Evans for not feeding him while on a court writ and for Defendant Schenk exposing the plaintiff to second-hand smoke is a violation of the plaintiff's Eighth Amendment right against cruel and unusual punishment. Further, the plaintiff claims Defendants McKee and Ashcraft have demonstrated deliberate indifference by failing to act upon his grievance regarding Defendant Schenk's retaliation and harassment.

The plaintiff believes his exposure to second-hand smoke on September 18, 2009, caused him to cough up yellow mucous, to wake up in the middle of the night due to shortness of breath, and to have a sore throat. In January or February 2010, three to four months after being exposed to second-hand smoke, he told Defendant Jane Doe 1, a nurse, that he was experiencing problems due to being exposed to second-hand smoke. He also advised her that he was coughing yellow mucous, was having a sore throat, and was waking up in the middle of the night due to shortness of breath. The plaintiff was diagnosed as having allergies. Defendant Jane Doe 1 provided the plaintiff with what he describes as an allergy medication. He does not know what caused his allergies. When the plaintiff ran out of the medication, Defendants Jane Doe 2 and Jane Doe 3, also nurses, provided the plaintiff with additional allergy medication for the same symptoms. After making three requests, the plaintiff was treated by a physician in March 2010. Although the plaintiff was still complaining of shortness of breath, waking up in the night, continuous exposure to second-hand smoke by "other staff members," and Defendant Schenks' continuous harassment and threats, Defendant John Doe, the physician, told the plaintiff there was nothing wrong with him and did not refer him for psychiatric care. Defendant John Doe advised the plaintiff that ...


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