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Conwell v. Dunning

United States District Court, S.D. Illinois

June 13, 2018

LUKE CONWELL, #Y12902, Plaintiff,
v.
MICHAEL P. DUNNING, and ALFONSO DAVID, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN CHIEF JUDGE.

         This case was severed on May 7, 2018, from Conwell v. Marvin, et al., No. 18-cv-131-DRH-SCW (S.D. Ill.). (Doc. 1). It contains the claims designated as Counts 7 through 9 in the original case, described as follows:

Count 7 - Dunning used excessive force against Plaintiff on August 17, 2017 in violation of the Eighth Amendment.
Count 8 - Dunning committed an assault and/or battery against Plaintiff on August 17, 2017 in violation of Illinois state law.
Count 9 - David[1] was deliberately indifferent to Plaintiff's increased back pain after the August 17, 2017 excessive force incident in violation of the Eighth Amendment.

         Plaintiff's claims, which pertain to his incarceration at Shawnee Correctional Center (“Shawnee”) are now before the Court for a preliminary review 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). Any portion of the Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant who by law is immune from such relief, must be dismissed. 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). Courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. 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).

         The Complaint

         Plaintiff's factual allegations relating to Counts 7 through 9 are summarized below.

         On August 17, 2017, Orange Crush conducted a shakedown of Plaintiff's housing unit. (Doc. 2, p. 18). Dunning shook down Plaintiff's cell. Id. Plaintiff complied with all of his orders. (Doc. 2, pp. 18-19). As Plaintiff exited the cell, Dunning pushed his head down in a violent manner. (Doc. 2, p. 19). Plaintiff told Dunning that he had “decentagrading” disc disease, but Dunning didn't listen and threw Plaintiff into the wall outside of Plaintiff's cell. Id. Dunning then pushed Plaintiff's head down again as he was walking. Id. Plaintiff told Dunning not to put his hands on him. Id. Dunning pushed Plaintiff's head down again. (Doc. 2, p. 20). Plaintiff told Dunning to “relax, it's not that serious.” Id. Dunning then pulled Plaintiff out of line, and slammed him into the concrete. Id. Plaintiff again tried to tell Dunning about his back condition, but Dunning began punching him in the head. Id. Dunning continued to assault Plaintiff while escorting him to segregation. Id. Dunning wrote Plaintiff a false disciplinary report. (Doc. 1, p. 22).

         Plaintiff wrote multiple grievances and letters to David, a physician, requesting medical care for his injuries after the August 17th incident, but David never responded. (Doc. 2, p. 23). The assault aggravated Plaintiff's back condition, but David never renewed Plaintiff's pain medication. Id. Plaintiff apparently saw David at some point after he was released from segregation. (Doc. 2, p. 24). Plaintiff requested an MRI and referral to a specialist. I ...


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