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James E. Dunmore, Idoc # R64188 v. Magid Fahim

March 15, 2012

JAMES E. DUNMORE, IDOC # R64188, PLAINTIFF,
v.
MAGID FAHIM, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

A. Introduction

Plaintiff James E. Dunmore, a seventy-three year old inmate of the Menard Correctional Center ("Menard"), brings this action pro se pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. Dunmore is serving a thirty-year sentence for murder, imposed on November 9, 2004. This case is before the Court for screening of Dunmore's operative complaint (Doc. 22) 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[.]. 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 a court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. See 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. Nevertheless, 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).

B. The Complaint

In Dunmore's operative complaint in this case, he states that Defendants Dr. John Shepherd, Dr. Sam Nwaobasi, and Dr. Fuentes expedited what Dunmore describes as his "much needed" surgery for a lower back condition. On November 14, 2011, Dunmore was taken to Saint Louis University Hospital ("SLU Hospital") for surgery by his physician, Dr. Dirk H. Alander. Dunmore was returned to Menard on November 17, 2011. Dunmore states that, due to an inoperable elevator, he was not immediately taken to the hospital floor at the facility and was instead returned to his cell until November 21, 2011, at which time he was placed in the hospital floor of the Health Care Unit ("HCU") at Menard. Dunmore remained on the hospital unit until December 8, 2011, at which time he returned to his cell. Dunmore claims that Defendants have not followed orthopaedic trauma discharge orders, nor dispensed the pain medication that Dr. Alander ordered for him. Dunmore further alleges that he requires physical therapy and devices to assist with his ambulation.

Dunmore complains that from November 17, 2011, until November 21, 2011, he suffered pain while recovering from his back surgery in his cell. Dunmore requests a transfer to the Dixon Correctional Center and monetary damages. Dunmore names as Defendants, in addition to Shepherd, Nwaobasi, and Fuentes, S.A. Godinez, the director of the Illinois Department of Corrections ("IDOC"), but states no particular claim against any one of these Defendants in his pleadings. Dunmore asserts Eighth Amendment claims against Defendants generally, for deliberate indifference to his serious medical needs.

C. Discussion

A prisoner's mere dissatisfaction with the medical care he or she receives in prison does not amount to a violation of the prisoner's constitutional right, even if the quality of the care given the prisoner is substandard to the point of negligence or malpractice. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001. However, a constitutional claim under the Eighth Amendment may lie if a prison official's actions amount to deliberate indifference to a prisoner's serious medical needs:

To prevail on an Eighth Amendment claim, a plaintiff must show that the responsible prison officials were deliberately indifferent to his serious medical needs. 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) (citations omitted). The Supreme Court of the United States, however, has stressed that this test is not an insurmountable hurdle for inmates raising Eighth Amendment claims:

[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm . . . . Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a ...


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