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Cortez v. Apostol

United States District Court, S.D. Illinois

February 7, 2017

JOSE A. CORTEZ, Plaintiff,
v.
APOSTOL, JEANNE CAMPANELLA, PON, and PENNY GEORGE Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN, U.S. Chief District Judge

         Plaintiff Jose A. Cortez, an inmate in Lawrence Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks compensatory and punitive damages. 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 any reasonable person would find meritless. 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

         Plaintiff was transferred into Vienna Correctional Center on December 1, 2015. (Doc. 1, p. 5). He underwent a preliminary medical screening, at which time he requested a low bunk permit, a handicapped accessible toilet and shower, and a low gallery permit. Id. Plaintiff uses prosthetic heels and a walker, has limited range of motion in one knee, and suffers from impaired vision. Id. The nurse conducting the screening declined to consider Plaintiff's requests because only a doctor could approve those requests. Id. However, it took Plaintiff 23 days to get in to see Dr. Apostol. Id. Apostol denied Plaintiff's requests, despite the fact that Plaintiff complained of pain and suffering, and excessive risk of injury. Id. As a result of the denial, Plaintiff was forced to sleep on the concrete floor of his cell because it was painful to climb into the top bunk and he feared falling and suffering irreparable harm. Id. Plaintiff grieved this issue to Warden Campanella. Id. On March 11, 2016, Plaintiff fell trying to climb down from the top bunk, causing him serious injuries. (Doc. 1, p. 6). He was finally given a low bunk, low gallery permit 4 days later. Id.

         Plaintiff has also been previously diagnosed as needing surgery by Dr. Garapatti of the orthopedic department of Stroger hospital in Chicago, Illinois. (Doc. 1, p. 5). Specifically, Plaintiff had plates and pins placed in his leg due to a prior fracture and wants them removed. (Doc. 1-1, pp. 10-11). Plaintiff requested the surgery, only to be denied by Penny George, Apostol, and Dr. Pon. (Doc. 1, pp. 5-6). Plaintiff alleges that Vienna lacks handicapped accessible toilets and showers. (Doc. 1, p. 6).

         Discussion

         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into 3 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 following claims survive threshold review:

Count 1 - Apostol and Campanella were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment when they denied him low bunk, low gallery permits;
Count 2 - George, Apostol, and Pon were deliberately indifferent to Plaintiff's serious medical need when they denied him surgery that a prior medical ...

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