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Darvosh v. Baldwin

United States District Court, S.D. Illinois

July 30, 2018

EBRAHIMI DARVOSH, # M-34108, Plaintiff,


          MICHAEL J. REAGAN Chief Judge.

         Plaintiff Ebrahimi Darvosh, [1] who is serving a life sentence at Menard Correctional Center (“Menard”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants have been deliberately indifferent to his serious medical conditions, and have denied him accommodations that he should receive pursuant to the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). This case is now before the Court for a preliminary review of the Complaint 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). The Court must dismiss any portion of the Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 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). Additionally, Courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same time, 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).

         Applying these standards, the Court finds that some of Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         Before coming to Menard, Plaintiff was incarcerated at the Cook County Department of Corrections, where he was issued a cane and orthopedic footwear, as well as a lower bunk permit and extra mattress. (Doc. 1, p. 2). He has heart problems, chronic pain, and impaired balance and mobility. Id. At Stateville Correctional Center, Plaintiff's permits were continued, and he was issued a crutch.

         When Plaintiff arrived at Menard, he was issued a permit to accommodate his medical/mobility needs, but was not allowed to have an assistive walking device. (Doc. 1, pp. 3, 12). After about 6 months, he was “stripped” of his previously-issued permits, which were replaced by a permit confining him to be fed in his cell. (Doc. 1, pp. 3, 13). Plaintiff asserts that this action was taken in retaliation for a grievance he filed 2 months after his arrival at Menard. (Doc. 1, pp. 3, 29[2]-30).

         Plaintiff requested to have his cane or crutches returned, but Angela Crain (Menard ADA Coordinator) has refused this accommodation. (Doc. 1, pp. 3, 14-15). However, one of Plaintiff's attached documents (a permit dated June 18, 2018) indicates that he was recently given permission to have a crutch in his cell. (Doc. 1, p. 16).

         Plaintiff sought help from Dr. Siddiqui (Menard Medical Director), who sent him to an outside specialist at Prairie Cardiovascular. This doctor “confirmed” that Plaintiff needs mobility accommodations and that he “has serious medical and heart problems.” (Doc. 1, p. 3). Plaintiff attaches the specialist's preliminary report, dated May 18, 2018, which notes that Plaintiff has ongoing angina, and recommends he start taking Imdur. (Doc. 1, p. 17). Further, he “absolutely needs to continue aspirin and Plavix uninterrupted until September 2018 . . . . He has high risk factors for reocclusion of stents.” (Doc. 1, p. 18). Due to Plaintiff's age (66) and “recurrent heart disease, ” the specialist recommends switching to a “high intensity statin” or increasing Plaintiff's dosage of Zocor. Id. He notes that Plaintiff needs 30 minutes of exercise per day, and requests he be given a cane for support since he has difficulty walking. Id.

         Plaintiff asserts that Dr. Siddiqui denied and delayed his access to proper medical care, and that Wexford Health Care Sources (“Wexford”) “recommended other alternative care.” (Doc. 1, p. 3). Long before Plaintiff's 2018 visit to Prairie Cardiovascular, he wrote a grievance (dated February 28, 2017) asking to see a heart specialist and to be put back on clopidogrel[3](Plavix), because when he was taken off that medication, his chest pain increased and was “severe at times.” (Doc. 1, p. 23). The counselor's response to this grievance states that the matter was previously addressed in grievances dated in May and December 2016. Id.; (Doc. 1, pp. 29-32). Plaintiff also references a March 23, 2017, medical referral, which indicates that a cardiology consultation was considered, but denied by Dr. Ritz of Wexford. Dr. Ritz recommended alternative care, consisting of an EKG and chest x-ray. (Doc. 1, p. 26).

         On April 9, 2018, Plaintiff wrote a letter (“Exhibit P”) to Medical Director Siddiqui stating that the outside specialist (Dr. Vinch) had recommended Plavix to prevent his heart condition from deteriorating, but this recommendation had been ignored. (Doc. 1, pp. 4, 27). Plaintiff added that his pain is unbearable, and he “constantly pass[es] out, ” which sometimes causes injury. (Doc. 1, p. 28). Dr. Siddiqui, however, has refused to listen to the specialist, and Wexford refuses to fill the recommended prescription even though Plaintiff's other medications are not working. (Doc. 1, p. 4).

         On May 26, 2018, Crain had Plaintiff's crutch confiscated and destroyed. (Doc. 1, pp. 4, 15, 19). Plaintiff had told Crain that he had problems with his shoulder and elbow when using the crutch, and he requested a cane. (Doc. 1, pp. 4, 15). However, Crain and Siddiqui refuse to issue Plaintiff a cane, leaving him susceptible to falls because he has no means to support himself. Plaintiff notes that other handicapped individuals at Menard have canes which allow them to access all areas of the prison. (Doc. 1, p. 4).

         Without a cane or other assistive device, Plaintiff is unable to access the cafeteria or any areas of the prison requiring long walks on unsteady surfaces. He also is in danger of falls and injury in the shower or other non-handicapped-accessible areas of the prison. (Doc. 1, p. 4). Plaintiff asserts that Baldwin (IDOC Director) and Lashbrook (Menard Warden) are in violation of the ADA for failing to either modify the physical barriers in the prison or provide him with mobility assistance. Id. Further, Plaintiff has no access to rehabilitation or cardiovascular machines or assistance to maintain physical fitness.

         Plaintiff requests declaratory relief, a preliminary and permanent injunction ordering Defendants to provide him with an assistive walking device and medications for his heart condition, and a transfer to a facility that can provide for those needs. (Doc. 1, p. 5). He also seeks compensatory and punitive damages. Id.

         Along with the Complaint, Plaintiff filed a “Memorandum of Law in Support of Preliminary Injunction.” (Doc. 1-1). However, Plaintiff has not filed a separate motion for a preliminary injunction.

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit. Any other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice.

Count 1: Eighth Amendment deliberate indifference claim against Dr. Siddiqui and Crain, for refusing to provide Plaintiff with a cane or other ...

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