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Petty v. Kemp

United States District Court, S.D. Illinois

February 25, 2015

MARSHALL PETTY, # B-13277, Plaintiff,
v.
C/O KEMP, C/O PATTERSON, C/O WELSH, C/O REID, WARDEN STEPHEN DUNCAN, BETH TREDWAY, and ILLINOIS DEPT. of CORRECTIONS, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, Chief District Judge.

Plaintiff is currently incarcerated at Lawrence Correctional Center ("Lawrence"). He brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, claiming that Defendants were deliberately indifferent to his medical needs. The complaint is now before the Court for a preliminary 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.

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. 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

Plaintiff's pleading consists of the following statement of claim, set forth here in its entirety:

C/O Welsh C/O Kemp C/O Patterson Warden S. Duncan Beth Tredway C/O Reid My 8th Amendment was violated [sic] I have a constitution right for medical care that is not so poor. Illinois Department of Correction should be held liable for there [sic] poor actions.

(Doc. 1, p. 4). In the section of the complaint where he lists the Defendants, Plaintiff states:

C/O Walsh refuse to answer the panic button, C/O Kemp also was there, C/O Patterson also 1st shift. My Attendant hit the panic button 2:15 p.m. until a Lt. came at 3:00 p.m. Day room C/O Reid was told the wing officer 3 hours later he said H.C.U. denied me.

(Doc. 1, p. 2).

He also attaches a one-page affidavit, which repeats the allegation that Defendants Reid, Welsh, Patterson, and Kemp did not answer the panic button (Doc. 1, p. 7). His attached emergency grievance contains the additional facts that on January 19, 2015, "I fell hit my head back, I was found on the floor, I been shot in the head"[1] (Doc. 1, p. 8). He continues, "my cellie hit the panic button, we were ignored, my cellie started hitting the panic button at 2:15 p.m." Id.

Defendant Warden Duncan responded to the grievance on January 26, 2015, with a determination that the grievance was not an emergency. Id. Plaintiff filed this suit on or about January 28, 2015, as evidenced by his signature on his affidavit and motion for recruitment of counsel (Doc. 1, p.7; Doc. 3, p. 2).

Along with his complaint, Plaintiff filed a "motion for neglect, violating my 8th Amendment" (Doc. 4). In it, he states that he "blacked out and was ignored by 1st shift and 2nd shift, I'm A.D.A." (Doc. 4, p. 1). The motion does not request any specific relief.

In the complaint, Plaintiff seeks damages and a "temporary restraining order of ...


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