Name of Assigned Judge Sitting Judge if Other or Magistrate Judge John Z. Lee than Assigned Judge
Defendant Hardy's motion to dismiss [#11] is denied. Defendant shall answer the complaint within thirty days of the date of this order. This matter is set for status on September 13, 2012 at 9:15 a.m.
O[ For further details see text below.] Docketing to mail notices.
Plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant Marcus Hardy, the warden of Stateville Correctional Center, violated Plaintiff's constitutional rights by acting with deliberate indifference to his medical needs. More specifically, Plaintiff alleges that due to a prior injury he requires a low gallery/low bunk permit and orthopedic shoes, and although he has filed grievances and personally complained to Defendant Hardy, he has been unable to obtain the necessary permits and shoes. Defendant Hardy has filed a motion to dismiss the complaint for failure to state a claim against him. For the reasons stated in this order, the motion is denied.
It is well established that pro se complaints are to be liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006). Pro se submissions are held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).
To satisfy the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), a plaintiff need only state his basic legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004). In addition, when considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court assumes all factual allegations in the complaint to be true, viewing all facts--as well as any inferences reasonably drawn therefrom--in the light most favorable to the plaintiff. Bell Atlantic Corp., 550 U.S. at 563 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)); Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). A well-pleaded complaint may proceed even if it appears "that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Bell Atlantic Corp., 550 U.S. at 556.
Plaintiff alleges that in 1997, he suffered a broken ankle requiring surgery for ligament repair, and since then he has suffered debilitating pain and numbness in three toes. He further alleges that he was prescribed low gallery/low bunk permits and orthopedic shoes as early as 2004. Plaintiff had problems getting the low gallery/low bunk permit honored and was unable to have his prescription for orthopedic shoes filled, so he filed a grievance in August of 2010. After he filed the grievance, he did see a physician on October 27, 2010, who prescribed him a low gallery/low bunk permit, and orthopedic shoes, however, his permit was only honored for seven months and he never received his orthopedic shoes. His low gallery/low bunk permit was honored from November 23, 2010 to June 30, 2011, but then he was moved to 8 gallery, causing him to have to climb four flights of stairs between four and eight times per day. Plaintiff alleges that he never received the prescribed orthopedic shoes.
Plaintiff continued the grievance process, appealing his August 2010 grievance, and ultimately his grievance appeal was denied by the Administrative Review Board in Springfield on April 21, 2011, because it found that the shoes had been ordered by the doctor on October 27, 2010.
On May 4, 2011, Plaintiff alleges he spoke to a counselor about his attempt to procure orthopedic shoes. On June 29, 2011, Plaintiff spoke to Defendant Hardy about his inability to procure the prescribed shoes, and Plaintiff alleges that Defendant Hardy told a correctional major to look into the problem. Plaintiff spoke to the major on July 6, 2011, and at least five times to other correctional officials, and was unable to obtain relief.
Defendant Hardy's motion to dismiss is denied. Defendant essentially argues that Plaintiff alleges only that Defendant Hardy signed off on the denial of his August 2010 grievance, and that Plaintiff never filed a ...