Southard v. ACH Medical et al

Filing 13

MERIT REVIEW OPINION: Plaintiff's complaint is dismissed without prejudice for failure to state a federal claim. Plaintiff may file an amended complaint by April 30, 2018. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 4/4/2018. (GL, ilcd)

E-FILED

Wednesday, 04 April, 2018 11:02:09 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
BENNY T. SOUTHARD,
Plaintiff,
v.
ACH MEDICAL, et al.,
et al.
Defendants.

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17-CV-3296

MERIT REVIEW OPINION
Plaintiff filed this case pro se from his detention in the
Sangamon County Jail. He is now incarcerated in Graham
Correctional Center.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A.1 This statute requires the Court to review a
complaint filed by a prisoner to identify the cognizable claims and to
dismiss part or all of the complaint if no claim is stated.

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis (without prepaying the filing fee in full) unless the prisoner is under 
“imminent danger of serious physical injury.”  28 U.S.C. § 1915(g). 

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In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
Plaintiff alleges that he had nasal surgery in 2016 and that he
needs one or more follow-up surgeries to enable him to breathe
properly. He alleges that Defendants have refused to authorize the
surgery.
To the extent Plaintiff seeks nasal surgery, he can no longer
pursue that relief from Defendants because Plaintiff is no longer
incarcerated in the Sangamon County Jail. To the extent Plaintiff
seeks money damages, his factual allegations must allow a
plausible inference of deliberate indifference to a serious medical
need. Deliberate indifference is the conscious disregard of a
substantial risk of harm. Farmer v. Brennan, 511 U.S. 825, 837
(1994). Malpractice or a difference of opinion is not enough. See
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016)(“evidence that
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some medical professionals would have chosen a different course of
treatment is insufficient to make out a constitutional claim.”).
The facts currently alleged do not allow an inference of
deliberate indifference to a serious medical need. Plaintiff does not
adequately describe his current condition or say what kind of
surgery he had, how he knew that he needed more surgeries, what
kind of surgeries he needed, how he communicated his symptoms
and medical needs to each defendant, and how each defendant
responded. Plaintiff also does not say how long he was in the
Sangamon County Jail. The Court is aware from Plaintiff’s other
pending cases and from Plaintiff’s trust fund ledgers in this case
that he has moved back and forth from the Jail to the IDOC. A
short-term, temporary stint in the Jail would arguably not allow the
medical work-up required to evaluate Plaintiff’s need for surgery or
to schedule that surgery.
IT IS ORDERED:
1)

Plaintiff's complaint is dismissed without prejudice for

failure to state a federal claim.

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2) Plaintiff may file an amended complaint by April 30, 2018.
If Plaintiff does not file an amended complaint or Plaintiff’s
amended complaint still fails to state a claim, then this action will
be dismissed for failure to state a claim and a strike will be
assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If Plaintiff
files an amended complaint, the amended complaint will replace the
original complaint. Piecemeal amendments are not permitted.
ENTERED: April 4, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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