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Lavite v. Lakin

United States District Court, S.D. Illinois

December 18, 2017

GARY A. LAVITE, Plaintiff,



         Plaintiff Gary A. Lavite, an inmate in Madison County Jail, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff requests injunctive relief and 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 submitted a motion for a preliminary injunction to the Court on November 22, 2017. (Doc. 1). On November 28, 2017, the Court instructed Plaintiff that it was inappropriate to initiate an action without a complaint, and directed Plaintiff to file a complaint no later than December 27, 2017. (Doc. 3). Plaintiff submitted the Complaint on December 5, 2017.

         The motion for preliminary injunction stated that Plaintiff suffered a skull fracture prior to his incarceration on April 24, 2017, for which he was transferred to Barnes Jewish Hospital. (Doc. 1, p. 1). Plaintiff entered Madison County Jail on September 22, 2017, and told the staff that he had a skull fracture. (Doc. 5, p. 5). He alleges that an unknown nurse called him a liar, and charged him $10 to order his medical records. Id.

         Plaintiff filed a grievance over the medical care, and in response, Randy Young sent him to segregation. Id. Plaintiff was in segregation from September 28, 2017 until November 8, 2017. Id. Plaintiff alleges that the cell lacked running water or hot water, and that “they” took his toothbrush and toilet paper. Id. Plaintiff was also deprived of warm food in favor of chips and cookies. Id. Sardage threatened Plaintiff that he would “choke the life out of him, ” and served Plaintiff spoiled food. Id. Sandidge consistently threw Plaintiff's trays on the ground and/or denied Plaintiff food. (Doc. 5, pp. 5-6). Patterson taunted Plaintiff and “played games” with his food and drinking water. (Doc. 5, p. 6). Blakey and Craig denied Plaintiff water and threw food across the cell Id. Plaintiff was also deprived of a shower for over a month. Id. As a result of the food deprivations, Plaintiff felt weak and sick, and believes that his ribs became more prominent. Id.

         Plaintiff attached a copy of a grievance and the relevant responses to the Complaint, alleging that he has not received his medication for his skull fracture or his asthma, and that he needs an outside referral for further hospital tests and surgery as a result of his skull fracture because he is dizzy all the time, drools, and has vision problems with his left eye. (Doc. 8, p. 12). Young's response indicates that Plaintiff had been given Elavil and Albuterol to treat his symptoms from his skull fracture and his asthma, and that no medical provider had determined that Plaintiff needed additional follow up care from Barnes for his skull fracture. (Doc. 5, pp. 9-10).


         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into 4 counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a ...

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