Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lavite v. Oakley

United States District Court, S.D. Illinois

February 18, 2014

GARY A. LAVITE, #N06246, Plaintiff,
v.
KATRINA OAKLEY, Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff, currently incarcerated at Centralia Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The original complaint (Doc. 1) pertained to events that occurred in 2012 while he was incarcerated at Menard Correctional Center; Wexford Health Systems and the Chief Administrative Officer of Menard were named as defendants. More specifically, it was alleged that the defendants administered a blood test without Plaintiff's consent, and violated the AIDS Confidentiality Act, 410 ILCS 305/9. That complaint was dismissed without prejudice, and Plaintiff was given an opportunity to file an amended complaint (Doc. 8).

Plaintiff has filed an amended complaint (Doc. 14), along with a second motion for recruitment of counsel (Doc. 15; see also Doc. 9). In addition, Plaintiff moved for a temporary restraining order relating to a filing fee issue (Doc. 16). The motion for temporary restraining order was denied (Doc. 17).

This matter is now before the Court pursuant to 28 U.S.C. § 1915A, which requires the Court to conduct a prompt threshold review of any civil complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. The amended complaint (Doc. 14) will be reviewed in conjunction with consideration of Plaintiff's two pending motions for counsel (Docs. 9, 15).

The Amended Complaint

In pertinent part, 28 U.S.C. § 1915A prescribes as follows:

(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.

28 U.S.C. § 1915A(b).

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 amended complaint names Nurse Katrina Oakley as the sole defendant. The amended pleading consists of only the first and sixth numbered pages of the six-page form civil rights complaint used in this district. No claims whatsoever are asserted. Amendment by interlineation is not permitted under Local Rule 15.1. Rather, consistent with Federal Rule of Civil Procedure 8, all claims a plaintiff desires to pursue must be contained in the pleading-the Court will not look back to Plaintiff's original complaint. In any event, the original complaint is not drafted in a manner that the Court can merely insert Nurse Oakley's name. A Section 1983 civil rights action must be premised upon personal involvement, so it is essential that the amended complaint describe what it is that Nurse Oakley supposedly did to violate Plaintiff's constitutional rights. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). For these reasons, the amended complaint (Doc. 14) will be dismissed, and Plaintiff will be afforded a final opportunity to file a viable amended complaint.

The Court's order dismissing the original complaint had construed the pleading as asserting four separate claims. The flaws in the complaint were discussed and guidance was offered. Thus, Plaintiff's submission of such an incomplete amended complaint brings Plaintiff's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.