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Kessler v. Pass

United States District Court, S.D. Illinois

April 4, 2018

WINDSOR W. KESSLER, III, #53740-037, Plaintiff,
v.
RANDALL PASS and LESLEE BROOKS, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT UNITED STATES DISTRICT JUDGE

         Plaintiff 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).

         This 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 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

         In the Complaint, [1] 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, p. 6).

         1. Possible Liver Damage

         Plaintiff alleges that he has high levels of bilirubin[2] 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.

         Doctor 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.

         2. Shoulder Pain

         Plaintiff 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 ...


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