Merritt v. Ojelade et al
Filing
8
MERIT REVIEW ORDER entered by Chief Judge James E. Shadid on 8/4/2015: IT IS ORDERED that the clerk is directed to enter the standard order granting plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not alrea dy done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to terminate Defendants Sherry Benton, Kimberly Butler, and John Doe. (SEE FULL WRITTEN ORDER.)(JRK, ilcd)
E-FILED
Tuesday, 04 August, 2015 04:47:14 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KELVIN MERRITT,
Plaintiff,
v.
DR. OJELADE, et al.,
Defendants.
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15-CV-1159
MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Pontiac
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). However, conclusory statements and labels are insufficient.
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 unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). This is called the “three strikes” rule.
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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).
ALLEGATIONS
In April of 2013, Plaintiff fell backwards in a chair while in his
cell in the Pontiac Correctional Center. Plaintiff’s hand was
allegedly severely swollen and painful, but Dr. Ojelade refused to
examine the hand, instead prescribing some pain pills. After
repeated requests for medical attention, Dr. Ojelade ordered x-rays
about three weeks after the injury. The x-rays allegedly showed
that the bones in Plaintiff’s hand were shattered in several places.
Plaintiff was taken to a bone specialist, who put a cast on the hand
and prescribed Tylenol 3 to Plaintiff. The specialist advised Plaintiff
that Plaintiff would later need a specialized splint and would need
to be closely followed by the specialist for months to ensure proper
healing.
Defendants at Pontiac and at Menard (where Plaintiff was
transferred for a time) allegedly refused to follow or significantly
delayed the specialist’s orders with regard to Plaintiff’s cast, splint,
ace bandage, Tylenol 3, and follow-up visits with the specialist. As
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a result, Plaintiff’s hand allegedly did not heal properly and is
deformed, weak, and painful. Plaintiff alleges that Wexford Health
Sources, Inc., has an unwritten practice of failing to properly train
its staff and encouraging staff to fabricate medical records and
delay or deny necessary medical care in order to save money.
Plaintiff also alleges that his lack of care was in retaliation for his
prior grievances and lawsuits.
ANALYSIS
Deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment. Perez v. Fenoglio, 2015 WL
4092294 * 3 (7th Cir. 2015)(reversing dismissal of claim where
prisoner alleged delay in meaningful treatment for his hand injury,
even though inmate did receive medical attention). Plaintiff’s
description of his fractured hand allows an inference of a serious
medical need, and an inference of deliberate indifference arguably
arises against the Defendants with medical training. This claim will
proceed against the medical Defendants and also against the health
care unit administrator at Pontiac, Defendant Arroyo, who allegedly
controlled access to the medical staff. Plaintiff also states a
possible Eighth Amendment claim against Wexford Health Sources,
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Inc., for allegedly maintaining a tacit policy to encourage deliberate
indifference to inmates’ serious medical needs.
However, Plaintiff states no plausible claim on the present
allegations against the nonmedical defendants (besides the health
care unit administrator). There is a “presumption that non-medical
officials are entitled to defer to the professional judgment of the
facility’s medical officials . . . .” Hayes v. Snyder, 546 F.3d 516, 527
(7th Cir. 2008)(summary judgment appropriate where nonmedical
defendants promptly investigated complaints and relied on
physicians). “‘The only exception to this rule is that nonmedical
officers may be found deliberately indifferent if “they have a reason
to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.”’” McGee v.
Adams, 721 F.3d 474, 482 (7th Cir. 2013)(quoted cites omitted). No
plausible claim is stated on these allegations against Warden Butler
or the other Defendants who processed Plaintiff’s grievances. Sherry
Benton and “John Doe.”
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states a claim for
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deliberate indifference to his serious medical needs against all
Defendants except Defendants Sherry Benton, Kimberly Butler, and
“John Doe.”
This case proceeds solely on the claims identified in
this paragraph. Any additional claims shall not be included in the
case, except at the Court’s discretion on motion by a party for good
cause shown or pursuant to Federal Rule of Civil Procedure 15.
2)
Defendants Benton, Butler, and John Doe are dismissed,
without prejudice.
3)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
4)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
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of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
5)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
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7)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
8)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
9)
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
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or phone number will result in dismissal of this lawsuit, with
prejudice.
10)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
11)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
12)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
13)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
14)
The clerk is directed to terminate Defendants Sherry
Benton, Kimberly Butler, and John Doe.
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ENTERED: 8/4/2015
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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