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Juan Mcgee v. Forrest Ashby

January 25, 2012

JUAN MCGEE, PLAINTIFFS,
v.
FORREST ASHBY, GREGG SCOTT, ) MICHAEL BEDNARZ, HUGHES ) LOCHARD, D. LOWE-WALKER, ) KRIS RHOADES, CURLESS SHULZ, ) MARIE DURANT, BRYANT D. MAYES, AND KATRINA PARKER, ) DEFENDANTS.



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

E-FILED Wednesday, 25 January, 2012 12:24:10 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se and currently detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis on his claim that his breakfast is served too long after his injection of insulin for his diabetes.

The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim. A hearing was scheduled to assist in this review, but the hearing will be cancelled as unnecessary.

LEGAL STANDARD

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)(add'l citation 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).

ALLEGATIONS

Plaintiff is diabetic. Diabetic residents at Rushville Treatment and Detention Center receive their morning insulin at 6:00 a.m. and do not receive their breakfast until 7:30 a.m. or later. Plaintiff receives 65 units of insulin around 6:00 a.m., along with a small package of graham crackers.

Plaintiff alleges that diabetics should eat no later than 10-15 minutes after receiving insulin, or, at the very latest, 30 minutes later. He further alleges that failure to eat within this time period could cause dangerous hypoglycemia, as well as "stomach cramps, migraine headaches, chest pains, body pain and very dry mouth, and other body complications." (Complaint, p. 6).

Plaintiff alleges that he must wait 1 1/2 hours after taking his insulin to receive breakfast, sometimes longer. This delay has allegedly caused him to suffer "shakiness, nervousness, sweating, chills, clamminess, rapid heartbeat, trouble concentrating, headache, dizziness, lightheadedness, moodiness, clumsiness, extreme hunger, and . . . irritability." (Complaint, p. 7). Plaintiff allegedly contacted Defendants Ashby, Scott, Bednarz, Lochard, and Lowe-Walker to fix this situation, to no avail.

In a separate incident, on one occasion Defendant Rhoades allegedly intentionally put Plaintiff's open syringe on a chair before administering Plaintiff's insulin to him. The chair had just been vacated by another resident who had passed gas while sitting on the chair.

Also separately, Defendant Shulz tried to give Plaintiff the wrong dose of insulin on three different occasions in August and September of 2011. Defendants Durant, Mayes, ...


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