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Dunmore v. Atchison

United States District Court, Seventh Circuit

January 23, 2014

JAMES E. DUNMORE, No. R64188, Plaintiff,


MICHAEL J. REAGAN, District Judge.

Plaintiff James E. Dunmore, an inmate in Lawrence Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on the conditions of his confinement while Plaintiff was housed at Menard Correctional Center.

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). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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. At this juncture, the factual allegations of the 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, Plaintiff Dunmore is 74 years old and confined to a wheelchair. Between November 18, 2011, and August 3, 2012, Plaintiff was in cell 316 in the Menard Health Care Unit, along with three other inmates. Cell 316 had no sink, toilet or running water; instead, Plaintiff was given a portable urinal. Although guards were supposed to check on Plaintiff every hour to see if he needed to use a toilet, or to empty the urinal container, most often they failed to come by the cell. As a result, Plaintiff was forced to urinate and defecate upon himself-he also attributes pain to the denial of timely access to a restroom.

The complaint specifies that Officer Quan in particular would refuse Plaintiff's requests for assistance, instead "saying nasty things" and being "unprofessional." Defendant Quan also purportedly told Plaintiff to "stop whining, " and threatened that things could be worse.

According to the complaint, Plaintiff personally spoke to Warden Atchison, Assistant Warden Harrington, Assistant Warden Butler, Health Care Administrator Malley, Medical Director Shepherd, Dr. Nwaobasi, Dr. Fuente, and Major Brown when they each made rounds at one point or another during the time Plaintiff was in cell 316. None of these defendants took any action to aid Plaintiff. All of the named defendants are implicated, except for the unknown transfer bus operators, who are listed in the caption of the complaint, but not otherwise mentioned in the complaint.

Plaintiff contends that the Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment. It is also alleged that, because cell 316 is not handicap accessible, the defendant prison officials have violated the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C.A. § 12101 et seq. Furthermore, Plaintiff contends that Warden Atchison's failure to respond to his emergency grievance denied Plaintiff due process, in violation of the Fourteenth Amendment. Plaintiff seeks declaratory judgment, as well as monetary and punitive damages.

Based on the allegations in the complaint, the Court finds it convenient to divide the pro se action into three counts. 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. The ...

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