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Robert Paul v. Kathleen Allison

October 6, 2011

ROBERT PAUL,
PLAINTIFF,
v.
KATHLEEN ALLISON, ET AL., DEFENDANTS.



ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Robert Paul ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 12, 2011 and consented to Magistrate Judge jurisdiction on May 20, 2011. (ECF No. 1 & 7.) Plaintiff's Complaint is now before the Court for screening.

For the reasons set forth below, the Court finds that Plaintiff's Complaint fails to state a claim upon which relief may be granted.

II. SCREENING REQUIREMENTS

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

III. SUMMARY OF COMPLAINT

Plaintiff brings this action for violations of his rights under the Americans with Disabilities Act*fn1 and the Eighth Amendment. Plaintiff names the following individuals as Defendants: Kathleen Allison, Dr. O. Onyeje, Mora, and Naverette.

Plaintiff alleges as follows: On August 16, 2010, Plaintiff tripped and/or slipped on a broken or chipped wet tile floor, fell, and injured his left shoulder. Plaintiff was taken to the clinic and diagnosed with a dislocated shoulder. A nurse applied a bandage, a doctor ordered an x-ray, and Plaintiff was given pain medication. Plaintiff submitted a request for additional pain medication, but he did not receive more until August 26, 2010 when he was seen by Defendant Onyeje for an unrelated reason.

On October 8, 2010, Defendant Onyeje saw Plaintiff again, but failed to examine Plaintiff thoroughly and refused to recommend that Plaintiff see a bone specialist for his protruding shoulder bone. Plaintiff filed a grievance complaining about the injury and resulting pain, which was denied at all levels.

Plaintiff repeatedly informed medical staff of his pain and suffering, but no response was received.

Plaintiff seeks declaratory relief, and monetary, compensatory, and punitive damages.

IV. ANALYSIS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. ยง 1983. "Section 1983 . . . creates a cause of action for violations of the federal ...


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