United States District Court, S.D. Illinois
WINDSOR W. KESSLER, III, #53740-037, Plaintiff,
RANDALL PASS and LESLEE BROOKS, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT UNITED STATES DISTRICT JUDGE
Windsor Kessler, III, an inmate who is currently incarcerated
at the United States Penitentiary located in Marion, Illinois
(“USP-Marion”), brings this action for alleged
deprivations of his constitutional rights by persons acting
under color of federal authority pursuant to Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971). In the
Complaint (Doc. 1), Plaintiff claims that he has been denied
medical care for liver and shoulder problems at USP-Marion.
(Doc. 1, pp. 7-8). Randall Pass (doctor) and Leslee Brooks
(physician's assistant) have allegedly refused to
diagnose and treat both conditions. Id. Plaintiff
now asserts claims against them for deliberate indifference
and intentional infliction of emotional distress.
Id. He seeks monetary damages and injunctive relief.
(Doc. 1, p. 6).
case is before the Court for 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
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.
Complaint,  Plaintiff alleges that Doctor Pass and
Nurse Practitioner Brooks failed to diagnose and treat his
liver and shoulder conditions at USP-Marion. (Doc. 1, pp.
7-8). He characterizes their refusal to treat him as
deliberate indifference and intentional infliction of
emotional distress. Id. Plaintiff seeks monetary
damages against both defendants, as well as an order
requiring them to properly diagnose and treat him. (Doc. 1,
Possible Liver Damage
alleges that he has high levels of bilirubin and other liver
enzymes. (Doc. 1, p. 7). These levels have remained elevated
at all times since he arrived at the prison. Id. He
believes that “something is going on” with his
liver, but he does not know what is wrong. Id.
Pass and Nurse Practitioner Brooks are “well
aware” of this issue. (Doc. 1, p. 7). However, they
have denied Plaintiff's requests for further testing and
treatment. Id. Plaintiff has conducted his own
research and suspects that he may be suffering from a
“potentially serious medical need.” Id.
After reviewing a book written by James L. Dickerson and
Fredruck Regenstein, M.D., Plaintiff believes that his
symptoms are consistent with cirrhosis. Id. He
admittedly has no idea whether this diagnosis is correct, but
he maintains that further evaluation is necessary given the
elevated levels of bilirubin in his blood. Id.
Plaintiff has unsuccessfully challenged the defendants'
denial of his request for further testing and treatment
through the prison's grievance process. Id.
has also been denied treatment for persistent shoulder pain.
(Doc. 1, p. 8). He has suffered from pain in his shoulder for
more than 3 years, and it has increased in severity over
time. Id. Plaintiff states that his shoulder
“slip[s] partially out of joint” at times.
Id. A shoulder x-ray showed no “bone
issues.” Id. Doctor Pass and Nurse