United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
Mario Diaz, an inmate of the Illinois Department of
Corrections (“IDOC”) who is currently
incarcerated at Lawrence Correctional Center, brings this
action for deprivations of his constitutional rights pursuant
to 42 U.S.C. § 1983. Plaintiff's original Complaint
alleged a single count against Dr. Shah for deliberate
indifference to Plaintiff's shoulder pain. The Court
dismissed the original Complaint for failure to state a claim
and Plaintiff was given leave to amend (Doc. 8). In his First
Amended Complaint, Plaintiff alleges Defendants were
deliberately indifferent to his medical needs in violation of
the Eighth Amendment. Plaintiff seeks declaratory judgment,
monetary damages, and injunctive relief.
case is now before the Court for preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A. Under Section
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 a 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 must be
dismissed. 28 U.S.C. § 1915A(b).
First Amended Complaint
Plaintiff's original Complaint alleged that he suffered
from Parkinson's Disease and right shoulder pain,
Plaintiff's First Amended Complaint provides even less
details about his condition. His First Amended Complaint
alleges that the defendants have denied him medical care for
a “very painful and serious medical condition”
for two years. (Doc. 21, p. 1). This condition appears to be
the right shoulder he identified in his original Complaint.
(Id. at p. 4). Defendants have provided him with
capsaicin cream and Ibuprofen but he is still in pain.
(Id. at p. 3).
on the allegations in the Complaint, the Court finds it
convenient to designate a single count in this pro
Count 1: Defendants were deliberately
indifferent in the treatment of Plaintiff's right
shoulder in violation of the Eighth Amendment.
parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a
judicial officer of this Court. Any other claim that is
mentioned in the Complaint but not addressed in this Order
should be considered dismissed without prejudice as
inadequately pled under the Twombly pleading
First Amended Complaint again fails to state a claim. He
alleges that he has right shoulder pain and that the
defendants provided him with cream and Ibuprofen but he has
informed the defendants that the medications do not help the
pain. He fails, however, to identify which of the defendants
provided him with this care or whether certain individuals
refused to provide him with additional care after he informed
them that the medications were not working. (Doc. 21, p. 3).
He also fails to identify which defendants he spoke to about
his continued pain. Plaintiff offers only conclusory
statements that the defendants were deliberately indifferent
and denied him medical care without identifying how any of
the individual defendants denied him such care. See
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Although the Court must construe his pro se
Complaint liberally, Plaintiff's allegations fail to
provide enough information to put an individual defendant on
notice as to what he or she did to violate his constitutional
rights. Stanard v. Nygren, 658 F.3d 792, 797 (7th
Cir. 2011). Further, he cannot maintain a claim against IDOC
because it is not a “person” under Section 1983.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989). See also Billman v. Ind. Dep't of
Corr., 56 F.3d 785, 788 (7th Cir.1995) (state Department
of Corrections is immune from suit by virtue of Eleventh
Plaintiff's second attempt to provide the Court with
factual allegations that would state a claim. He fails to
offer any facts that would raise his claim to a viable
constitutional violation. The Court finds that any additional
amendment would be futile. Accordingly, the First Amended
Complaint, along with this action, will be DISMISSED
with prejudice. See Agnew v. NCAA, 683 F.3d
328, 347 (7th Cir. 2012); McCree v.
Grissom, 657 F.3d 623, 624 (7th Cir. 2011);
Garcia v. City of Chicago, Ill., 24 F.3d 966, 970
(7th Cir. 1994).
Plaintiff's First Amended Complaint is DISMISSED
with prejudice for failure to state a claim upon
which relief may be granted. This shall
count as a “strike” for purposes of 28 U.S.C.
Plaintiff wishes to appeal this Order, he must file a notice
of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. P. 4(a)(1)(A). If Plaintiff does
choose to appeal, he will be liable for the $505.00 appellate
filing fee irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger,547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. He must list each of the issues he intends to appeal in
the notice of appeal and his motion for leave to appeal
in forma pauperis. See Fed. R. App. P. 24(a)(1)(C).
A proper and timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may ...