Borkowicz v. Blaesing et al

Filing 8

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 4/10/2018. The plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C. Section 1915A. This case is closed. If the plaint iff wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis MUST set forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal. (LN, ilcd)

E-FILED

Tuesday, 10 April, 2018 12:44:48 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
RAYMOND BORKOWICZ,
Plaintiff,
v.
JENNIFER BLAESING, et al.,
Defendants.

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18-CV-4033

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, a civil detainee at the
Rushville Treatment and Detention Facility (“Rushville”) is
requesting leave to proceed under a reduced payment procedure for
indigent plaintiffs who are institutionalized but are not prisoners as
defined in 28 U.S.C. Section 1915(h).
The “privilege to proceed without posting security for costs and
fees is reserved to the many truly impoverished litigants who,
within the District Court’s sound discretion, would remain without
legal remedy if such privilege were not afforded to them.” Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Circ. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis “at any time” if the action is frivolous, malicious, or fails to
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
§ 1915(d)(2). Accordingly, this court grants leave to proceed in
forma pauperis only if the complaint states a federal action.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in the 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)(citation

omitted). The court has also held a merit review hearing to give the
plaintiff a chance to personally explain his claims to the court.
The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging that he was issued a low-bunk permit in 2014, but that it
either expired or terminated in April 2017. Plaintiff alleges that he
was reassigned to a room in December 2017 where he was forced to
sleep in the top bunk because his roommate had a low-bunk
permit. Plaintiff alleges that security and medical staff were unable
to determine whether he had a valid low-bunk permit because the
doctor’s notation in Plaintiff’s medical records was not clear, and
the doctor had since left employment at the TDF. Plaintiff alleges
he subsequently fell at least twice in early 2018 as a result of
climbing down from the top bunk, that STAs called for medical
assistance, and that all the nurses did was sit him in a chair.
Plaintiff alleges that his grievances on the issue were denied, and
that Rushville’s new doctor refused to issue him a permit.
Plaintiff cannot hold TDF security personnel liable for failure
to provide a low bunk when he did not have a medically issued lowbunk permit issued to him at the time in question. In addition, the
doctor’s mere refusal to issue him a permit does not suggest that
the decision lacked the requisite degree of medical judgment. See
Petties v. Carter, 836 F.3d 722, 729-30 (7th Cir. 2016) (en banc).
IT IS THEREFORE ORDERED:
1.

The plaintiff;s complaint is dismissed for failure to state a
claim pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28
U.S.C. Section 1915A. This case is closed.

2.

If the plaintiff wishes to appeal this dismissal, he may file
a notice of appeal with this court within 30 days of the
entry of judgment. Fed. R. App. P. 4(a). A motion for
leave to appeal in forma pauperis MUST set forth the
issues the plaintiff plans to present on appeal. See Fed.
R. App. P. 24(a)(1)(C). If the plaintiff does choose to
appeal, he will be liable for the $505 appellate filing fee
irrespective of the outcome of the appeal.

Entered this 10th day of April, 2018
/s/Harold A. Baker
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HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE