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Timothy Lee Moxey, Jr., #K99357 v. Nurse Unfried and Dr. Blankinship

July 9, 2012

TIMOTHY LEE MOXEY, JR., #K99357, PLAINTIFF,
v.
NURSE UNFRIED AND DR. BLANKINSHIP, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Timothy Lee Moxey Jr., an inmate in Graham 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 a pretrial detainee housed at Madison County Jail. Plaintiff is serving a five year sentence for 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; this action is subject to dismissal. The Complaint

Plaintiff saw Defendant Nurse Unfried on October 8, 2010, and told her he was HIV-positive. Defendant Dr. Blankinship told Plaintiff that he could go on medication for the HIV infection, to which Plaintiff agreed. Plaintiff did not receive any medication for a month and returned to the physician. Defendant Blankinship stated that Plaintiff had refused care during his prior visit (which Plaintiff denies), but that he would now attempt to get Plaintiff the medication. Plaintiff saw Defendant Unfried sometime later and again asked about the medication. She stated that the two infectious disease doctors in the area refused to see Plaintiff, that the medical staff at Madison County Jail could not help Plaintiff, and to get out. Plaintiff went for ten months without medication before filing suit. After filing this action, Plaintiff was convicted and in October 2011, was transferred to the custody of the Illinois Department of Corrections, where he remains.

Plaintiff requests compensatory damages and injunctive relief in the form of immediate medical care.

Discussion

Although pre-trial detainees are not covered by the Eighth Amendment, their claims for deliberate indifference to medical care are considered under the due process clause of the Fourteenth Amendment, and are entitled to the same sort of protection against deliberate indifference as convicted inmates, no less. See Williams v. Romana, 411 F. App'x 900, 901 n.1 (7th Cir. 2011); Miller v. Hertz, 420 F. App'x 629, 634 (7th Cir. 2011).

To prevail on an Eighth Amendment claim, a plaintiff must show that the responsible prison officials were deliberately indifferent to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference involves a two-part test. The plaintiff must show that (1) the medical condition was objectively serious, and (2) ...


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