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Kelvin Burton, # B-13162 v. Warden Alan Martin

May 13, 2013

KELVIN BURTON, # B-13162, PLAINTIFF,
v.
WARDEN ALAN MARTIN, DR. ALFONSO DAVID, AND DR. DIANE SCHWARZ, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Kelvin Burton, an inmate in Shawnee Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is asserting an Eighth Amendment claim against Warden Alan Martin, Dr. Alfonso David and Dr. Diane Schwarz, in their individual capacities, for deliberate indifference to his serious medical needs (Doc. 1).

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). The claim of entitlement to relief must cross "the line between possibility and plausibility. Id. at 557. 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).

The Complaint

Plaintiff contends that he has been diagnosed with hepatitis C, and that he has liver damage that is causing him pain, but Defendants Dr. Alfonso David and Dr. Diane Schwarz have refused to treat him, and Defendant Warden Alan Martin has denied Plaintiff's requests for intervention. Thus, the complaint asserts a claim that the defendants have been deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment.

The laboratory test results and treatment notes attached to the complaint indicate that a hepatitis C diagnosis is equivocal. Similarly, it is not clear that Plaintiff actually has liver damage or cirrhosis. In any event, Plaintiff sought medical treatment, complaining of pain and asking for a rectal exam.

Discussion

Based on the allegations of the complaint and supporting documentation, the Court finds that, at this stage, Plaintiff has stated a plausible Eighth Amendment claim against Dr. David and Dr. Schwarz for deliberate indifference to Plaintiff's serious medical needs. The Eighth Amendment claim against Dr. David and Dr. Schwarz shall proceed.

Relative to Warden Martin, even assuming he received the grievance and letter Plaintiff sent him explaining the denial of care and seeking assistance, an ...


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