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Jose Luis Yanez, #08898-026 v. Warden Cross; Pollman

August 10, 2012

JOSE LUIS YANEZ, #08898-026 PLAINTIFF,
v.
WARDEN CROSS; POLLMAN, HEALTH SERVICES ADMINISTRATOR;
DR. KRUSE, CLINICAL DIRECTOR; GILIAN, PHYSICIAN'S ASSISTANT; ADESAYNA, PHYSICIAN'S ASSISTANT;
PAUL HARVEY, REGIONAL MEDICAL DIRECTOR, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Jose Luis Yanez, an inmate currently confined at FCI-Butner, filed this pro se civil rights action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Yanez challenges the conditions of his former confinement at FCI-Greenville, alleging that he suffered from multiple medical ailments for many years and received insufficient and delayed treatment. Yanez seeks monetary and prospective relief in the form of medical treatment.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. The Court applies the same standard under § 1915A as when deciding a motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Eighth Amendment protects prisoners from being subjected to cruel and unusual punishment, which includes a display of deliberate indifference to objectively severe medical conditions. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

Medical personnel may exhibit deliberate indifference by persistently resorting to an easy course of treatment known to be ineffective. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005). In some situations, delayed medical care may qualify as deliberate indifference. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). Accepting Yanez's allegations as true and drawing inferences in his favor, the Court finds that he has articulated a plausible federal claim for relief:

Count 1: That defendants Dr. Kruse and Paul Harvey violated the Eighth Amendment's proscription against cruel and unusual punishment by responding with deliberate indifference to Yanez's serious need for medical treatment of his spinal ailment by:

(a). persisting in forms of treatment known to be ineffective,

(b). failing to consult with a specialist,

(c). failing to provide treatment in the form of surgery, and/or

(d). delaying treatment in the form of wheelchair access

The Complaint does not include factual allegations describing specific acts or omissions by defendants Pollman, Adesayna, Cross, Gillian, or Harvey. General, vague conclusions about deficient care from "medical staff" do not plausibly suggest that these individual defendants could be liable for a deprivation of Constitutional proportion. Accordingly, claims against these defendants are DISMISSED without prejudice.

The Complaint shows that, in addition to his severe spinal ailment, Yanez has heart disease, rheumatoid arthritis, and gastroesophageal reflux disease. The allegations do not plausibly suggest both severity and indifference to needed care. While Yanez does say that he needs a pacemaker -- and this certainly suggests severity -- this is a recently diagnosed medical need. The allegations do not describe deliberate indifference to Yanez's new medical need for a procedure to install a pacemaker.

Yanez's allegations extend over a substantial period of time, giving the impression that he seeks to recover for events occurring many years ago. Bivens claims arising in Illinois are subject to a 2-year statute of limitations. Delgado-Brunet v. Clark, 93 F.3d 399, 342 (7th Cir. 1996). Considering the nature of Yanez' allegations, the scope of the claim identified as Count 1 will include the 2-year period prior to April 2, 2012, plus an additional period to reflect the amount of time used to determine whether Yanez was entitled to an administrative remedy. Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008).

The Complaint was not signed by plaintiff, which is a technical violation of Rule 11. Fed. R. Civ. P. 11(a). Plaintiff may correct the error within 30 days. The Complaint ...


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