United States District Court, S.D. Indiana, Terre Haute Division
ENTRY SCREENING COMPLAINT, DISMISSING INSUFFICIENT
CLAIMS AND DIRECTING FURTHER PROCEEDINGS
William T. Lawrence, Judge
plaintiff's motion to proceed in forma pauperis,
Dkt. No. 3, is granted. He is assessed an
initial partial filing fee of Ten Dollars and Eighty Three
Cents. He shall have through May 3,
2018, to pay this sum to the clerk.
who is incarcerated at the Wabash Valley Correctional
Facility, filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. The Court
is required to screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. § 1915A(b).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts, and his
statement need only “give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); see Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. The complaint allegations “must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555;
Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must then “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980). The Court is obliged to give the plaintiff's pro
se allegations, “however inartfully pleaded, ” a
liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
the plaintiff names as defendants Wexford Medical Services,
Dr. Kuenzli, Dr. Samual Byrd, Dr. Mary Chavez, Dr. Jackie
Denning, Nurse Kim Hobson, and Grievance Specialist Thomas
Willington. He alleges the defendants violated his rights
under the Eighth Amendment when they refused to or failed to
properly treat his broken hand and as a result he is in
specifically, he alleges that he broke his hand on April 1,
2016, and Dr. Mary Chavez failed to treat it. He was then
assisted by attorney Ken Faulk from the ACLU who reached an
agreement with Wexford Medical Services to treat his hand
with either surgery or pain medication. The plaintiff was
then prescribed the pain medication Neurotin. In November of
2017, the plaintiff alleges that Wexford discontinued all
prescriptions for Neurotin and did not prescribe him an
alternative pain medication.
January 4, 2018, the plaintiff was seen by Dr. Jackie
Dennings for his pain. He alleges when Dr. Dennings saw his
tattoos and realized he was an Aryan, she kicked him out of
her office and refused to treat him because he was a racist.
He was in pain.
plaintiff submitted several health care request forms. While
he was not seen by a medical provider, the plaintiff was
prescribed prednisone for pain. He submitted a grievance that
he alleges ...