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Bentz v. McGlorn

United States District Court, S.D. Illinois

January 16, 2018

DAVID ROBERT BENTZ, # S-03210, Plaintiff,


          J. Phil Gilbert, United States District Judge

         In Bentz v. Maue, Case No. 16-cv-854-NJR (S.D. Ill. Jan. 4, 2018), Plaintiff David Bentz, an inmate in Menard Correctional Center, brought suit for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007), three claims against Defendants McGlorn, Kulis, Trost, and Jane Doe were severed from that initial action to form the basis for this action, Case No. 18-cv-18-JPG.

         This case is now before the Court for a preliminary review of those claims 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).

         After fully considering the relevant allegations in Plaintiff's Complaint, the Court concludes that this action is subject to summary dismissal.

         The Complaint

         The allegations in Plaintiff's Complaint (Doc. 2) relevant to this severed action are as follows: on August 31, 2015, McGlorn and Nurse Jane Doe met with Plaintiff. (Doc. 2, pp. 19-20). At the appointment, Plaintiff addressed miscellaneous complaints, including his denial of a physical and dental care. Id. He also complained of problems with an ingrown toenail, his vision, neck pain, and jaw pain. Id. However, Plaintiff alleges that nothing was done. Id. Plaintiff submitted a request for treatment of a spider bite, ingrown hair, dental care, and neck pain on September 24, 2015. (Doc. 2, p. 21). Nurse Jane Doe met with Plaintiff to address his spider bite, and nothing else, the following day. Id. Plaintiff's doctor call pass was cancelled on October 26, 2015. Id.

         On December 20, 2015, Nurse Jane Doe saw Plaintiff for a second spider bite or ingrown hair. (Doc. 2, p. 23). Doctor Trost examined the spider bite on January 21, 2016. (Doc. 2, p. 25). At the appointment, the doctor also prescribed naproxen twice daily for pain, ordered a second x-ray of his spine, and recommended a follow up in four months. Id. Although Plaintiff received a second set of x-rays on January 25, 2016, and naproxen from January through April 21, 2016, he did not attend a follow up appointment with Doctor Trost to discuss the x-rays of his spine. (Doc. 2, pp. 25-26, 29). However, on February 18, 2016, Plaintiff met with Doctor Trost about his spider bite and complained of ongoing neck pain, prompting the doctor to increase his naproxen from 575 mg to 800 mg. (Doc. 2, p. 26). Plaintiff actually received 750 mg tablets, instead of 800 mg tablets. Id. He complained of the error in his dosage to Nurse Jane Doe during her rounds on February 23, 2016. Id. She agreed to issue him new tablets in the correct dosage but failed to do so. Id. Despite this, Plaintiff received regular refills of naproxen between February and May 2016. Id.

         On March 16, 2016, Plaintiff asked Officer Cross[1] to take him to the HCU for treatment of neck pain and swelling, pressure in his head, right leg pain, and difficulty eating. (Doc. 2, p. 27). Cross declined to do so unless Plaintiff was “dying or dead, ” instead instructing Plaintiff to put in a sick call slip. Id. Plaintiff gave Officer Cross two sick call slips. Id. Although Cross gave at least one of them to Nurse Susan Kulis, she refused to see Plaintiff. Id. Plaintiff submitted a third slip and was finally called to the HCU on March 19, 2016. Id. Without reviewing his medical records, Nurse Kulis told Plaintiff that his cervical spine issues were not serious. Id. She nevertheless agreed to refer Plaintiff to a doctor, if he paid the additional $5.00 copay. Id. Plaintiff was again seen by Nurse Jane Doe on April 19 and 20, 2016. (Doc. 2, p. 28). He filed a grievance to complain about the “above issues” and about being charged “double co-pays” on April 30, 2016. Id.

         On June 9, 2016, McGlorn met with Plaintiff and told him that he had arthritis. (Doc. 2, p. 28). For the first time, McGlorn increased Plaintiff's naproxen to 875 mg. Id. After Plaintiff filed a grievance on June 15, 2016, to complain about Nurse Jane Doe's failure to prescribe him the correct dosage of naproxen four months ...

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