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David Harper, No. N-72689 v. Derwin Lee Ryker

June 26, 2012

DAVID HARPER, NO. N-72689, PLAINTIFF,
v.
DERWIN LEE RYKER, J. HENTON, J. OCHS, LT. MIDDLETON, ELAINE HARDY, NURSE HAINES, DR. FINOGLIO, AND WEXFORD HEALTH SYSTEMS, INC., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan U.S. District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

Plaintiff David Harper, an inmate in Lawrence Correctional Center ("Lawrence"), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving concurrent twelve year sentences for residential burglary and attempted residential burglary. 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, 556 U.S. 662, 678 (2009). Although the 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. 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 any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

Plaintiff asserts that prison officials placed him with a dangerous cell mate in retaliation for his requests to be moved away from a previous cell mate, failed to protect him from assault by the new cell mate, and then were deliberately indifferent to his need for medical care for his serious injuries after he was attacked by his cell mate.

In March 2010, Plaintiff requested Defendant Warden Ryker to separate him from his cell mate, Rapp, because Rapp believed Plaintiff had been responsible for Rapp losing his prison job. Rapp had verbally threatened Plaintiff (Doc. 1, p. 7). Plaintiff‟s wife subsequently called her State Representative requesting help in influencing prison officials to move Plaintiff or Rapp to a different cell. This resulted in a communication from the representative‟s office to Lawrence regarding Plaintiff‟s need to be moved (Doc. 1, p. 8). On April 20, 2010, the day after Plaintiff‟s wife made that call, Plaintiff was moved to a cell where he was housed with Inmate Scott.

Plaintiff asserts that this new cell mate was "known on the wing for "whooping his cellies‟" and was "very aggressive." (Doc. 1, p. 7). The day after the move, Inmate Scott verbally threatened Plaintiff. The following day (April 22, 2010), Plaintiff reported the threat to Defendant Lt. Middleton and requested an emergency move. Defendant Middleton responded that there was nothing he could do, and any move would be "up to placement" (Doc. 1, p. 8).

The threats from Scott continued, and on April 24, 2010, Plaintiff approached Defendant Lt. Ochs for help. Defendant Ochs spoke to Plaintiff at his cell while Scott was absent. Plaintiff again asked to be moved, stating that "‟a fight is going to happen.‟" Id. Defendant Ochs told Plaintiff, "You either get along with him or you don‟t. You‟ll be alright," and walked away. Id.

At about 3:30 a.m. on April 26, 2010, Scott attacked Plaintiff without provocation, kicking and stomping him repeatedly. Plaintiff suffered a broken jaw, two black eyes, a concussion, a possible cracked rib and multiple contusions. Plaintiff was taken to the Health Care Unit, where Defendant Haines (a registered nurse) wiped the blood off his face. He was given no other treatment and was moved directly to segregation (Doc. 1, p. 9). Over the next four days, Plaintiff asked for medical attention from several nurses who made the rounds to his cell. Plaintiff also sought medical assistance from the officers on duty, specifically telling them he thought his jaw was broken. Each time, he was told to put in a written request for care. However, Plaintiff did not have a pen or paper. He continued to suffer severe headaches and pain, but got no medication or other treatment.

On April 28, 2010, Plaintiff was interviewed by Lt. Hodge (who is not named as a Defendant) about the incident. During this interview, Defendant Hardy (a nurse practitioner) passed by the room, and Plaintiff told her he was in a lot of pain. At the time, he had obvious injuries including the black eyes, contusions, and an "indented" right lower jaw (Doc. 1, p. 9) However, Defendant Hardy failed to respond with any medical treatment. After the interview with Lt. Hodge, Plaintiff was charged with fighting, and given 30 days in segregation and a 30-day demotion to C-grade. This ticket was later expunged due to a lack of evidence, but Plaintiff had already served the segregation time (Doc. 1, p. 10).

Plaintiff was finally taken to the Health Care Unit on April 29, 2010, where an x-ray revealed his jaw was broken. Plaintiff also asked Defendant Finoglio (the doctor) and Defendant Hardy to check him for a concussion and cracked rib. He claims that they refused to do so (Doc. 1, p. 9).

Despite Plaintiff‟s broken jaw, he was not put on a liquid diet and received the same food as the rest of the inmates, which he was unable to eat. He lost 26 pounds during the 3 1/2 weeks before he underwent corrective surgery on his jaw, on May 19, 2010. The only medication he received for his injuries was 500 mg of Tylenol.

Plaintiff asserts that Defendant Wexford Health Systems, Inc., the employer of Defendants Finoglio and Hardy, has a policy of denying or delaying necessary or emergency medical care in an effort to save money (Doc. 1, p. 6). This policy, as well as the failure of the other medical Defendants to give prompt treatment, prolonged his suffering and resulted in a permanent mouth deformity and increased scarring.

Plaintiff seeks compensatory and punitive damages. Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into four (4) counts, which do not correspond to the four counts Plaintiff has designated in his complaint. The parties and the Court will use the Court‟s 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 - Retaliation

Plaintiff identifies Defendant Henton as the responsible party for making cell assignments at the time this claim arose. Defendant Henton now holds the rank of Major but was acting as Operations Warden when Plaintiff requested a cell change. Plaintiff alleges that Defendant Henton deliberately put him in a cell with another inmate (Scott) who was known to be violent and aggressive, with the intent to "chastise and deter" Plaintiff for having his wife seek the intervention of an elected official on Plaintiff‟s behalf (Doc. 1, p. 11). Plaintiff states ...


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