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Applewhite v. Blum

United States District Court, S.D. Illinois

November 15, 2017

SAMUEL APPLEWHITE, # R-01468, Plaintiff,
v.
BOBBY BLUM, and WEXFORD HEALTH SOURCES, INC., Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert, United States District Judge

         Plaintiff, currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants were deliberately indifferent to a serious medical condition. This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A.

         Under § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law 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). 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 Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Applying these standards, the Court finds that Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         Plaintiff has suffered from testicular cysts since at least 2015. (Doc. 1, p. 5). The cysts are painful, and he had been prescribed some pain medication prior to the events giving rise to this action. On August 30, 2017, Blum (nurse practitioner) examined Plaintiff and confirmed that he had 2 cysts on each testicle. At that time, Plaintiff had not received pain medication for 2 months, and he asked Blum to renew the pain prescription. Blum refused to renew the medication, however, because Blum “knew” Plaintiff was “not in pain.” Id.; (See also Doc. 1, pp. 10-12).

         Also on August 30, 2017, Blum told Plaintiff that he would seek approval for Plaintiff to have another ultrasound test for this problem. Plaintiff had previously undergone an ultrasound test related to the cysts on June 16, 2015. (Doc. 1, p. 5).

         Blum made the referral for the ultrasound, to evaluate whether the cysts had grown and to try to find out why Plaintiff was in pain. However, on September 21, 2017, Wexford Health Sources, Inc. (“Wexford”), refused to approve the ultrasound test. (Doc. 1, p. 6). Plaintiff asserts that Wexford has implemented a practice/custom of cutting costs by “denying or suspending prescription medication, expensive procedures, specialized diagnostic testing, [and] specialist referrals, ” and that this cost-cutting practice caused Blum to provide inadequate care for Plaintiff. Id.

         On October 5, 2017, Plaintiff was taken to the Health Care Unit because his pain was so bad he could barely walk. Blum saw Plaintiff and ordered a urine test for prostatitis. (Doc. 1, p. 6). Blum ordered 60 tablets of ibuprofen for Plaintiff to treat his pain, but Plaintiff did not receive the medication until the next day. Blum did not order any refills of the ibuprofen.

         As relief, Plaintiff asks to be given “proper treatment for testicular pain, ” and seeks monetary damages. (Doc. 1, p. 8). Plaintiff did not file a motion for injunctive relief when he filed this action.

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into the following 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 designation of these counts does not constitute an opinion as to their merit. Any other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice.

Count 1: Eighth Amendment deliberate indifference claim against Blum, for refusing to renew Plaintiff's pain medication on August 30, 2017, and for delaying Plaintiff's ...

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