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Barney v. Larson

United States District Court, Seventh Circuit

July 1, 2013

PAUL BARNEY, # N-73073, Plaintiff,
v.
DR. LARSON and GARY GERST, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff, currently incarcerated at Big Muddy River Correctional Center ("BMRCC"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving three 20-year sentences for separate robbery convictions. Plaintiff claims that Defendants were deliberately indifferent to his serious medical condition.

More specifically, Plaintiff claims that he suffers from a sciatic nerve condition that causes him constant, excruciating pain. Prior to his incarceration, he had been prescribed 500 mg of naproxen for pain relief, and the medical staff at the other prisons where he has been confined continued him on this pain regimen (Doc. 1, p. 5). However, Defendant Dr. Larson (the physician at BMRCC) has "absolutely refused" to give Plaintiff a prescription for naproxen, citing financial constraints. Id. Plaintiff has made repeated requests for help, and submitted grievances, to no avail.

In addition, Plaintiff asserts that on April 9, 2013, he saw Defendant Larson about his condition. During the examination, Defendant Larson had Plaintiff drop his pants, and then Defendant Larson started rubbing Plaintiff's thighs up to his private parts. Plaintiff told Defendant Larson this made him very uncomfortable, to which Defendant Larson responded, "No one will ever believe you[, ] Boy!" (Doc. 1, p. 6).

As to Defendant Gerst (physician's assistant), Plaintiff states he has been "very brutal, disrespectful, and very unprofessional" to Plaintiff (Doc. 1, p. 5).

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendant Larson for deliberate indifference to medical needs (Count 1). In addition, Plaintiff's allegations state an Eighth Amendment claim against Defendant Larson for the fondling incident (Count 2). See Washington v. Hively, 695 F.3d 641, 642-44 (7th Cir. 2012) ("An unwanted touching of a person's private parts, intended to humiliate the victim or gratify the assailant's sexual desires, can violate a prisoner's constitutional rights whether or not the force exerted by the assailant is significant."). These claims shall receive further review.

However, Plaintiff's allegations that Defendant Gerst behaved in a "brutal, disrespectful, and very unprofessional" manner fail to state a claim upon which relief may be granted. Plaintiff does not indicate that Defendant Gerst had any involvement in the denial of necessary pain medication. And while the Court does not condone the behavior generally described by Plaintiff, such unprofessional conduct does not violate the Constitution. See DeWalt v. Carter 224 F.3d 607, 612 (7th Cir. 2000) (verbal abuse or harassment does not amount to a constitutional violation). Defendant Gerst shall be dismissed from the action without prejudice.

Pending Motions

Plaintiff seeks leave to proceed in this action in forma pauperis ("IFP) (Doc. 2). He has submitted an affidavit stating that he earns $10.00 per month from his prison job, but has no other income, and has no assets or cash on hand. However, he has not tendered a complete certified copy of his inmate trust fund account statement. The Court has requested a trust fund statement for the full six-month period immediately preceding the filing of this case from BMRCC, but to date has not received information sufficient to determine the amount of Plaintiff's initial partial payment. Based on Plaintiff's affidavit of indigence, the Court concludes that he is unable to pay in full the $350.00 filing fee in this case at this time, and therefore it is appropriate to permit him to proceed IFP in this case without full prepayment of the fee. At such time as the Court receives from the institution's Trust Fund Officer the certified copy of Plaintiff's trust fund account statement as requested, the Court will enter an order authorizing the Trust Fund Officer to deduct from Plaintiff's trust fund account the initial partial filing fee, and to forward this payment to the Clerk of Court. The order shall also direct subsequent payments to be made pursuant to § 1915 until the filing fee is paid in full. To conclude, Plaintiff's motion to proceed IFP in this case (Doc. 2) is GRANTED. The Clerk of Court is directed to send a copy of this Order to Plaintiff and to the Trust Fund Officer at BMRCC.

Plaintiff's motion for recruitment of counsel (Doc. 3) shall be referred to United States Magistrate Judge Williams for further consideration.

The motion for service of process at government expense (Doc. 4) is GRANTED IN PART AND DENIED IN PART. Defendant Larson shall be served with the complaint, but no service ...


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