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Jimmie L. Ford, #B18015 v. Wexford Health Source

July 24, 2012


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


Plaintiff Ford, an inmate in Menard Correctional Center ("Menard"), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a thirty year sentence for attempted murder, thirty years for possessing a weapon in prison, and two five-year sentences for aggravated battery. This case is now before the Court for a preliminary review of Plaintiff's first amended 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

In his first amended complaint, Plaintiff states that he arrived at Menard on May 12, 2003. His asthma could be triggered by the particles of dust present in his housing unit, the north one cell house. He thus required an albuterol inhaler.*fn1 For refills during the first eight years after arrival, he removed a sticker bearing his name and prescription from the previous, nearly empty inhaler and placed in on a request slip. He placed the request slip in a sick-call box. When the facility was on lockdown, he relied upon passing correctional officers or nurses to take the request slip and place it in the box.

Plaintiff visited the Health Care Unit every four months due to his asthma. In February 2011, Plaintiff saw Defendant Dr. Fahim. Defendant Fahim discontinued Plaintiff's prescription for his QVAR inhaler, citing budgetary cuts.*fn2 Plaintiff states that the QVAR inhaler acted to prevent his asthma attacks.

On or about April 20, 2011, Plaintiff placed the sticker from his albuterol inhaler upon a request slip and gave it to Officer Richard to place in the sick-call box. The refill, which normally arrived in less than a week, had not arrived after a week and a half. Plaintiff gave a second request slip to a nurse and explained that he had already submitted the first request. Plaintiff still did not receive a refill. On or about May 10, 2011, Plaintiff wrote a letter to the Health Care Unit regarding the unfilled prescription and gave it to a passing nurse for delivery. He filed a grievance and wrote a letter to the warden, Defendant Rednour, around May 15, 2011. Plaintiff's albuterol inhaler was at the time empty, and even these measures failed to bring his refill. Plaintiff also wrote a letter to the medical supervisor, Defendant Fahim, which brought no response.

On May 23, 2011, Plaintiff experienced an asthma attack. He did not possess a QVAR inhaler to prevent asthma attacks and his albuterol inhaler, meant to treat them, was empty. Plaintiff told his cell mate he could not breathe, and the cell mate called for help. Two officers arrived and called for a nurse. The nurse arrived and a rolling chair was found to transport Plaintiff, as he could not walk. They moved Plaintiff to the Institutional Hospital. He received treatment to open his airways. A nurse noted, per Plaintiff's medical file, that Plaintiff had not received a refill for his albuterol inhaler for some time and no longer had a prescription for the QVAR inhaler. An unnamed nurse told Plaintiff that he could have died within minutes without ...

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