United States District Court, S.D. Illinois
ISMAEL GOMEZ, Jr. No. 16668-040, Plaintiff,
UNITED STATES OF AMERICA, J.S. WALTON, M. WINKLMEIER, M. BAGWELL, LESLEY DUNCAN BROOKS, CASTILLO, DR. KING, and DR. HARVEY, Defendants.
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
Plaintiff Ismael Gomez, Jr. is an inmate at the United States Penitentiary in Marion, Illinois. He brings this action seeking redress for the denial of medical care and retaliation against him for his litigation activities. Before the Court is Plaintiff's third attempt to launch this action, his First Amended Complaint (Doc. 22).
The First Amended Complaint is now before the Court for a preliminary review 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 First Amended Complaint
Plaintiff brings suit against Warden J.S. Walton, Director of Health Services M. Winklmeier, Assistant Director of Health Services M. Bagwell, Physician's Assistant Lesley Duncan Brooks, Physician's Assistant Castillo, Dr. King, Dr. Harvey, and the United States.
Plaintiff Gomez suffers from, among other things, arthritis and a pinched nerve affecting his neck, shoulder and arms, a herniated disc, and neuropathy-all of which leave him in pain that he rates as between 6 and 8 on a 10-scale. His sick-call slips have been ignored, and on occasions when he was seen by the defendant medical personnel, he has only been given a superficial examination. Consequently, he has not received adequate treatment for his ailments. Personal requests and written grievances to each of the individual defendants have been to no avail.
Plaintiff notes that Bureau of Prisons Program Statement 6000.05 pertains to how inmate medical needs are to be addressed. From Plaintiff's perspective, the individual defendants have performed their duties negligently and/or with deliberate indifference. Also, their failure to treat him properly has been in retaliation for Plaintiff being a witness in Bakhtiari v. Walton, Case No. 13-cv-906-JPG (S.D. Ill. Feb. 10, 2014), and for his pursuit of this action. It is also alleged that the defendants were discriminating against Plaintiff because he is Latino, while other non-Latino prisoners similarly situated have received proper medical treatment. Plaintiff further asserts that all of the individual defendants-particularly Bagwell, Winklmeier, Brooks and Castillo-have acted in conspiracy, as evidenced by their huddling together each time he appears in the Health Services Unit. None of the defendants has ever attempted to put an end to the conspiracy to deny Plaintiff his civil rights.
Constitutional claims are asserted pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (" Bivens "), including liability for conspiracy under 42 U.S.C. §§ 1985(2) and (3), and failure to prevent such conspiracies under 42 U.S.C. § 1986. Also, negligence (medical malpractice) claims are asserted under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680. Compensatory and punitive damages are sought.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro se action into the following counts, which generally mirror the claims delineated in the First Amended Complaint. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of ...