Pledger v. Wexford Health Sources Inc et al
Filing
10
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 10/20/2015. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that the Plaintiff states the following claim: Eighth Amendment claim for deliberate indifference to a serious medical need against all Defendants. Plaintiff's motion, d/e 4 is DENIED with leave to renew. This case is now in the process of service. (MAS, ilcd)
E-FILED
Thursday, 22 October, 2015 01:43:46 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
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Plaintiff,
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v.
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WEXFORD HEALTH SOURCES, )
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et al.
Defendants )
MAURICE PLEDGER,
15-1251
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at Hill
Correctional Center, brings the present lawsuit pursuant to 42
U.S.C. § 1983 alleging deliberate indifference to a serious medical
need for events that occurred while he was incarcerated at Pontiac
Correctional Center. The matter comes before this Court for merit
review under 28 U.S.C. §1915A. In reviewing the complaint, the
Court takes all 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
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plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir.
2013) (internal citation omitted).
ALLEGATIONS
Plaintiff was diagnosed with a brain tumor in 2011 while
incarcerated at Pontiac Correctional Center (“Center”), and had
surgery to remove the tumor shortly thereafter. Since the surgery,
Plaintiff alleges that he suffers from permanent loss of hearing in
his left ear, permanent partial paralysis on the left side of his face,
and a loss of vision in his left eye.
Plaintiff alleges that the defendants were deliberately
indifferent to his serious medical needs with respect to the alleged
failure of Pontiac officials to diagnose of his medical condition for
two-and-a-half years, and the alleged failure of the defendants to
provide the post-surgery medical treatment ordered by the
physicians who performed his surgery.
ANALYSIS
To state a claim for inadequate medical care, the Plaintiff must
allege that the prison official acted with deliberate indifference to a
serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976).
Deliberate indifference is more than negligence, but does not
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require the plaintiff to show that the defendants intended to cause
harm. Mayoral v. Sheehan, 245 F.3d 934, 938 (7th Cir. 2001).
Liability attaches under the Eighth Amendment when “the official
knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994).
Plaintiff alleges a medical condition and symptoms that
constitute a serious medical need. See King v. Kramer, 680 F.3d
1013, 1018 (7th Cir. 2012) (“An objectively serious medical need is
one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor's attention.” (internal
quotations omitted)).
Plaintiff’s medical treatment is a matter of professional
discretion with which the courts will not interfere unless the
evidence suggests that “‘no minimally competent professional would
have so responded under those circumstances.’” Sain v. Wood, 512
F.3d 886, 894-95 (7th Cir. 2008) (quoting Collignon v. Milwaukee
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Cnty., 163 F.3d 982, 988 (7th Cir. 1998)). A medical professional is
deliberately indifferent only if “the decision by the professional is
such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such a judgment.”
Id. (quoting same). Within these bounds, a prison medical
professional “is free to make his own, independent medical
determination as to the necessity of certain treatments or
medications,” and deference to a prior doctor’s diagnosis is not
required to satisfy the requirements of the Eighth Amendment.
Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1074 (7th Cir.
2012).
Plaintiff alleges that the Defendants failed to take appropriate
steps to diagnose his brain tumor and failed to follow the aftercare
instructions post-surgery. Thus, a claim that the Defendants failed
to exercise appropriate medical judgment is plausible at this stage.
In addition, Plaintiff’s allegations also support a claim against
Wexford Health Services if the Defendants failed to exercise
professional judgment as a result of a Wexford policy.
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Some or all of Plaintiff’s claims may ultimately be barred by
the statute of limitations, but the Court cannot make that
determination on the record currently presented. Therefore, the
Court finds that Plaintiff states a claim for deliberate indifference to
a serious medical need.
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 the
following claim: Eighth Amendment claim for deliberate
indifference to a serious medical need against all Defendants.
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)
Plaintiff filed a Motion to Request Counsel [4].
Plaintiff has no constitutional or statutory right to counsel in
this case. In considering the Plaintiff’s motion, the Court asks:
(1) has the indigent Plaintiff made a reasonable attempt to
obtain counsel or been effectively precluded from doing so; and
if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself? Pruitt v. Mote, 503
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F.3d 647, 654-55 (7th Cir. 2007) (citing Farmer v. Haas, 990
F.2d 319, 322 (7th Cir.1993)). Plaintiff has not shown that he
made reasonable efforts to obtain counsel on his own. A
plaintiff normally does this by attaching copies of letters sent
to attorneys requesting representation and copies of any
responses received. Because Plaintiff has not satisfied the first
prong, the Court does not address the second. Plaintiff’s
Motion [4] is DENIED with leave to renew.
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
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within 90 days of the entry of this order, Plaintiff may file a
motion requesting the status 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
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a motion is filed by Defendants. Therefore, no response to the
answer is necessary or will be considered.
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.
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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 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.
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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.
ENTERED:
October 20, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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