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Edward Bryant, # B-50620 v. Dr. Samuel Nwaobasi

May 15, 2013

EDWARD BRYANT, # B-50620, PLAINTIFF,
v.
DR. SAMUEL NWAOBASI, DR. FE FUENTES, DR. JOHN SHEPHERD, AND DR. ROBERT SHEARING, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that physicians at Menard, Dr. Samuel Nwaobasi, Dr. Fe Fuentes, Dr. John Shepherd and Dr. Robert Shearing, violated the Eighth Amendment when they were deliberately indifferent to his serious medical condition-an allergy to oatmeal. More specifically, Plaintiff claims that before he arrived at Menard on November 2, 2011, he was diagnosed with an oatmeal allergy. The four defendant doctors have refused to document and treat Plaintiff's allergy, and they have denied him a special food permit that would require that he be served an alternative to oatmeal. If Plaintiff eats oatmeal, he will go into anaphylactic shock, and just the smell of oatmeal cause severe migraine headaches. When oatmeal is on Plaintiff's food tray, he cannot eat anything on the tray, thus depriving him of an entire meal and not satisfying FDA nutritional requirements. The complaint does not indicate how often oatmeal is served.

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).

Upon careful review of the complaint and any supporting exhibits, accepting the allegations as true, and in consideration of the liberal notice pleading standard, this Eighth Amendment will be permitted to proceed.

Pending Motion

Plaintiff's motion for leave to proceed as a pauper (Doc. 2) shall be addressed by separate order, upon receipt of Plaintiff's trust fund information (as requested on May 2, 2013). Disposition

IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff Bryant's Eight Amendment claim(s) against DR. SAMUEL NWAOBASI, DR. FE FUENTES, DR. JOHN SHEPHERD and DR. ROBERT SHEARING shall proceed.

The Clerk of Court shall prepare for Defendants DR. SAMUEL NWAOBASI, DR. FE FUENTES, DR. JOHN SHEPHERD and DR. ROBERT SHEARING: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to each Defendant's place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court will require that Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.

With respect to a Defendant who no longer can be found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant's current work address, or, if not known, the Defendant's last-known address. This information shall be used only for sending the forms as directed above or for formally effecting service. Any documentation of the address shall be retained only ...


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