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Edwin Herrera, #K73429 v. Lieutenant Walters

June 26, 2012

EDWIN HERRERA, #K73429, PLAINTIFF,
v.
LIEUTENANT WALTERS, C/O STOUT, AND NURSE HARDY, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Herrera, an inmate in Stateville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on an incident that occurred while Plaintiff was housed at the Lawrence Correctional Center. Plaintiff is serving a six year sentence for vehicle theft. 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

On February 28, 2010, Plaintiff was involved in an altercation with his cellmate, which drew Defendants Lt. Walters and C/O Stout to the cell. The prisoners ceased fighting when Defendant Walters threatened to use pepper spray. Plaintiff and his cellmate were handcuffed and Plaintiff was moved to segregation. Plaintiff alleges that as Defendants dragged him, unresisting, Defendant Walters slammed Plaintiff's head into a steel door. Plaintiff, close to fainting, asked for medical treatment, but Defendant Stout and an unknown officer each grabbed one of Plaintiff's legs with Defendant Walters holding Plaintiff's torso. The Defendants and the unknown officer slammed Plaintiff's legs against the ground and all three began pulling. Plaintiff felt something tear in his leg. In the medical unit, Defendants slammed Plaintiff on the ground and Defendant Walters knelt on Plaintiff's injured leg.

In the medical unit, Plaintiff explained the incident to Defendant Nurse Hardy, who performed diagnostics by ordering x-rays be taken of Plaintiff's leg. Plaintiff then went to segregation for a period of one week. During that week, Plaintiff complained of pain to the medical personnel, including Defendant Hardy, whom he saw passing his cell. None of them provided him with care or pain medication. After one week, Plaintiff returned to the medical unit to see Defendant Hardy a second time. She told him the x-rays were negative, showing nothing wrong. She suggested that he go to recreation, since movement and exercise might improve his leg. Plaintiff wrote a request to see a physician, which was denied. His request for a second opinion from alternate medical staff was ignored.

Later on, after being moved to another cell, an unknown nurse stopped at Plaintiff's cell and agreed to examine his leg. The leg appeared to be infected, and after the nurse reported the matter, Plaintiff traveled by ambulance to a hospital. Plaintiff received an operation several days later on a torn artery that had caused internal bleeding. The surgeon also cut out a lot of tissue due to the excessive build-up of blood from the artery. After the operation, the physician told Plaintiff that if the surgery had not occurred when it did, Plaintiff could have bled to death. Plaintiff's leg retains permanent damage.

Plaintiff requests relief in the form of both compensatory and ...


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