United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN CHIEF JUDGE.
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
Count 8 - Dunning committed an assault
and/or battery against Plaintiff on August 17, 2017 in
violation of Illinois state law.
Count 9 - David was deliberately indifferent
to Plaintiff's increased back pain after the August 17,
2017 excessive force incident in violation of the Eighth
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, 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).
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.
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).
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).
factual allegations relating to Counts 7 through 9 are
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,
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.