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Matthew Kimmel, #B88117 v. Jackson County

August 9, 2012

MATTHEW KIMMEL, #B88117, PLAINTIFF,
v.
JACKSON COUNTY, IL, ROBERT BURNS, LIEUTENANT WHITBECK, OFFICER JOHN HOFFMAN, SERGEANT DARLENE BLUDWORTH, OFFICER MORBER, AND NURSE GAIL, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Kimmel, an inmate in Southwestern Illinois 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 he was a pretrial detainee housed at Jackson County Jail ("Jackson"). Plaintiff currently is serving a six-year sentence for residential battery. 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.

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 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, 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).

In the case at bar, having carefully reviewed the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A and summarily dismiss portions of Plaintiff's complaint.

The Complaint

The following allegations are taken from Plaintiff's pro se complaint (Doc. 1). While a pretrial detainee at Jackson in July 2011, Plaintiff became aware of a "possibility of bodily harm to [himself]" (Doc. 1, p. 5). Plaintiff informed prison staff but received no response. In a recorded conversation, Plaintiff informed his friend Theresa Shelton during a visit. She contacted Defendant Sergeant Bludworth regarding the threat. Defendant Bludworth told Shelton that due to overcrowding they could not move him, but that Plaintiff could write a letter to Defendant Lieutenant Whitbeck concerning the threat. Plaintiff pleaded on several occasions to be moved to another area.

In September 2011, detainees Matthew Hamilton and Samuel Williams fulfilled the threat. Hamilton held Plaintiff while Williams assaulted Plaintiff. The assailants threatened to harm Plaintiff if he told anyone of the incident and warned him "to not push the panic button because the second attack would be worse than the first" (Doc. 1, p. 5).

On September 25, 2011, Plaintiff requested a bag of ice from Defendant Officer Hoffman for his facial injuries. Plaintiff told Defendant Hoffman he believed his face was "broken" (Doc. 1, p. 5). Defendant Hoffman looked at Plaintiff's face and asked what had happened, but Plaintiff refused to respond. Defendant Hoffman mouthed "B.S." and refused to allow medical attention or bring ice. On September 26, 2011, Plaintiff repeatedly asked to see the nurse. Later that day, at approximately 2:00 P.M., Plaintiff was seen by unspecified medical staff. He was transported to St. Joseph Memorial Hospital. The attending physician, Dr. Thomas Kupferer, diagnosed Plaintiff with blunt force trauma to his face, a broken facial bone, and a fractured left jawbone. Dr. Kupferer put Plaintiff on a liquid diet and he returned to Jackson County Jail.

On September 27, 2011, Plaintiff visited Dr. Fredrick Gustave, who took x-rays and stated that Plaintiff might need a plate in his jaw. Plaintiff again returned to Jackson County Jail, where he did not receive the liquid diet prescribed by the doctor.

Teresa Shelton, a friend of Plaintiff, contacted Defendant Sheriff Robert Burns concerning Plaintiff's care, but he was "not concerned in the matter" (Doc. 1, p. 6). Defendant Bludworth and Defendant Whitbeck refused to grant Plaintiff a medical release form to have his condition evaluated by another doctor. Plaintiff acquired a different release form from a physician outside of the prison and signed it, but Jackson staff and Plaintiff's Public Defender Bruce Berry refused to release Plaintiff's medical information.

Plaintiff received surgery from Doctor Fredrick Gustave on September 30, 2011. The surgeon also wired Plaintiff's jaw shut. Staff at Jackson placed Plaintiff in lockdown when he returned. Plaintiff had limited communication with his mother, the cell had no working shower, and staff allowed Plaintiff no movement outside his cell. Defendant Officer Morber and other staff took no sanitary precautions when handling Plaintiff's medication and food. On October 9, 2011, Plaintiff overheard Defendant Bludworth tell another officer "not to allow [Plaintiff] any movement, his mother [may] call and complain if he gets bumped" (Doc. 1, p. 6).

Plaintiff filed a grievance to Defendant Whitbeck concerning the lockdown and restricted movement; Plaintiff received no response. His second grievance, filed on October 10, 2011, regarding his beating in September 2011, also received no response.

He filed a third grievance, also concerning the beating, on October 11, 2011, again receiving no response. Plaintiff alleges the failure to address his grievances constitutes retaliation for the medical help and subsequent care acquired for him by his mother.

On October 18, 2011, Plaintiff began to receive a normal diet, instead of the liquid diet prescribed by the physician. When Plaintiff tried to eat, he inadvertently pulled the wires from his jaw. Plaintiff gave the wires to Defendant Nurse Gail but did not see Doctor Gustave again during his stay at Jackson. Plaintiff remained on the regular diet until his transfer to Menard Correctional Center on October 28, 2011. Plaintiff still suffers from pain and severe soreness in his jaw. Plaintiff's teeth do not meet evenly and he has difficulty chewing.

Plaintiff seeks as relief monetary compensation for pain, suffering, physical defects from improper medical care, and future medical costs.

Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into five counts. The parties should use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The ...


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