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Durr v. Gerst

United States District Court, S.D. Illinois

July 19, 2017

REGINALD DURR, #M-38216, Plaintiff,
v.
DAVID LARSON and GARY GERST, Defendants.

          MEMORANDUM AND ORDER

          Phil Gilbert District Judge, United States District Court

         Plaintiff Reginald Durr, an inmate who is currently incarcerated at Big Muddy River Correctional Center (“Big Muddy”), brings this civil rights action pro se pursuant to 42 U.S.C. § 1983. (Doc. 1). This case was originally filed in the United States District Court for the Northern District of Illinois. See Durr v. Larson, No. 17-cv-03206 (N.D. Ill. filed April 27, 2017). The Northern District transferred the case to this District on May 26, 2017. (Doc. 6).

         In the Complaint, Plaintiff claims that two medical providers at Big Muddy, named David Larson (doctor) and Gary Gerst (physician's assistant), failed to properly diagnose and treat his chronic neck pain. (Doc. 1, p. 4). As time passed, he also began to experience progressive loss of use of his left arm and hand. Id. An outside specialist recommended surgery in February 2017 but warned Plaintiff that he may not recover full use of his arm or hand. Id. Plaintiff now sues both defendants for medical negligence. (Doc. 1, p. 5). He requests monetary relief and “laser surgery.” (Doc. 1, p. 6).

         At the time he filed this action, Plaintiff did not pay a filing fee or seek leave to proceed in forma pauperis. When the case was transferred to this District on May 26, 2017, the Clerk of this Court sent Plaintiff a letter instructing him to pay the $400.00 filing fee or file a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) within thirty days. He missed this deadline, and the Court entered a Notice of Impending Dismissal granting him an additional twenty-one days to pay the filing fee or file an IFP Motion. (Doc. 8). Plaintiff paid his $400.00 filing fee on June 30, 2017.

         The Complaint is now subject to preliminary review under 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 does not survive screening under this standard and shall be dismissed.

         Complaint

          Sometime after Plaintiff arrived at Big Muddy in 2013, he met with a doctor and physician's assistant to discuss his neck pain. (Doc. 1, p. 4). Plaintiff was told to rotate his neck and wrap a hot towel around it to relieve the pain. Id. In 2015, Plaintiff again complained of neck pain and was told that x-rays showed “no issues” with his neck. Id. He asked whether an MRI would help identify the source of the pain. Id. It is not clear whether he received a response to this question. Id. Plaintiff attributed the pain to aging and did not file a grievance to complain about the denial of medical care at that time. Id.

         In September 2016, Plaintiff began having problems raising his left arm and holding items in his left hand. (Doc. 1, p. 4). He underwent an MRI in December 2016. Id. The MRI revealed “[m]arked degenerative change[s] in [Plaintiff's] cervical spine including areas of very severe central canal spinal stenosis and neural foraminal encroachment, ” along with “[c]ervical myelopathy . . . in [his] mid to lower cervical spine.” (Doc. 1, p. 8). In February 2017, a specialist recommended surgery to address Plaintiff's neck pain. (Doc. 1, p. 4). However, the specialist warned Plaintiff that he might not regain full use of his left arm or hand. Id.

         Plaintiff now claims that both defendants were negligent in their care and treatment of him. (Doc. 1, pp. 4-5). He seeks monetary relief against them. (Doc. 1, p. 6). ...


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