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Rezaq v. United States

United States District Court, Seventh Circuit

October 29, 2013

OMAR M. REZAQ, # XXXXX-XXX, Plaintiff,
v.
UNITED STATES OF AMERICA, FEDERAL BUREAU OF PRISONS, M. WINKLEMEIR, LESLEE DUNCAN, and DR. KING, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff Omar M. Rezaq, an inmate in the United States Penitentiary at Marion, Illinois, brings this action regarding the adequacy of his medical care, and a related conflict between his Muslim religious beliefs and prison policies during Ramadan that interfere with the administration of Plaintiff's medication. Plaintiff raises claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1; the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679; and the Administrative Procedure Act (APA), 5 U.S.C. § 702.

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

According to the complaint, since Plaintiff arrived at USP-Marion in October 2010, at the age of 52, he has been experiencing worsening knee pain, which in turn has affected is hip, leg and neck. According to doctors, the knee pain is caused by osteoarthritis- degenerative bone diseases attributable to advancing age. Plaintiff, however, suspects he also has a ligament problem.

Plaintiff describes being given ineffective medication due to policies limiting what medications may be dispensed to prisoners, and being repeatedly denied additional diagnostic tests, a referral to a specialist, therapy or pain management; and medical appointments are pushed back month after month. Plaintiff further asserts that there is a policy and practice of denying efficacious treatment for age-related medical conditions. Rather than prescribe a treatment or medication, the Health Care Unit, and Physician's Assistant Duncan in particular, abdicates responsibility for inmate care by directing Plaintiff and other inmates to purchase over-the-counter, ineffective medical items at the commissary, regardless of their financial status.

In addition, it is alleged that during the month-long observance of Ramadan each year, when Muslims abstain from drinking and eating between sunrise and sunset, Plaintiff and other Muslim inmates are not provided medications during the non-fasting hours. In Plaintiff's situation, he is not given his morning medications prior to sunrise, so he must choose between following his medication regimen and adhering to his religious beliefs.

Suit is brought against the United States, the Bureau of Prisons, Clinical Director Dr. King, Marion Health Services Administrator Winkelmeir and Physician's Assistant Leslee Duncan. Plaintiff prays for declaratory, injunctive and other equitable relief, as well as compensatory and punitive damages.

Based on the allegations in the complaint, the Court finds it convenient to divide the pro se action into four counts (mirroring the complaint). The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. ...


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