Lyons v. Director of IDOC et al
Filing
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MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 2/22/2016 (Rule 16 Deadline 4/22/2016). Plaintiff has now complied and his motion for leave to amend is granted pursuant to Federal Rule of Civil Procedure 15. 8 The Clerk of the Court i s to dismiss all Defendants except Greby and Sword for failure to state a claim upon which relief can be granted pursuant to §1915A. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures and set an internal R ule 16 deadline in sixty days. The Clerk is also directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Plaintiff's motion for appointment of counsel is denied. 9 (LN, ilcd)
E-FILED
Monday, 22 February, 2016 09:49:22 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
CURTIS LYONS,
Plaintiff,
vs.
IDOC DIRECTOR, et. al.,
Defendants.
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No. 15-1376
MERIT REVIEW OPINION
This cause is before the Court for consideration of Plaintiff’s motion for leave to file an
amended complaint [8] and motion for appointment of counsel. [9] The pro se Plaintiff’s original
complaint was dismissed pursuant to Rule 8 of the Federal Rules of Civil procedure. See
November 17, 2015 Merit Review Opinion. Plaintiff had failed to state the involvement of any
of the named Defendants, nor to provide any specific time frames for his allegations. Therefore,
Plaintiff has given time to file an amended complaint clarifying his claims. Plaintiff has now
complied and his motion for leave to amend is granted pursuant to Federal Rule of Civil
Procedure 15. [8]
The Court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s amended
complaint, and through such process to identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails
to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who is immune from such relief.” 28 U.S.C. §1915A.
The Plaintiff claims his constitutional rights were violated at Illinois River Correctional
Center by Defendants Warden Nicholson, Assistant Warden Justin Hammers, Dr. Carla Greby
and Physician’s Assistant Connie Sword. Plaintiff again says he has suffered with chronic
abdominal pain since 2011. On September 26, 2013, an outside medical provider diagnosed
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Plaintiff with H. pylori. The Court notes this is “a bacterial infection that affects the stomach
lining.” Hardy v. Aguinaldo, 2003 WL 21350070, at *4 (N.D.Ill. June 10, 2003). Typically the
condition is treated with “a regimen of daily antibiotics for a two-week period.” Id.; see also
Johnson v. Shah, 2015 WL 2105847, at *3 (S.D.Ill. May 4, 2015)(“the presence of H. pylori,
without more, may not rise to the level of a serious medical need” but Plaintiff complained of
symptoms of an infection).
Plaintiff says he is “currently experiencing chronic pain” and complained to Defendant
Physician’s Assistant (PA) Sword, but she took no action. (Amd. Comp., p. 5). Again, the
Plaintiff does not provide a specific date for his interaction with Defendant Sword. Plaintiff also
says he saw Dr. Greby from September 2013 to 2014 concerning his H. pylori diagnosis.
Plaintiff complained about the pain he was suffering, and the doctor prescribed pain medication
and an antibiotic. Nonetheless, Plaintiff says the medication did not help his condition, but
when he returned to see Dr. Greby, the doctor took no further action even though Plaintiff still
tested positive for the bacteria.
For the purposes of notice pleading, the Court finds the Plaintiff has articulated a claim
alleging Dr. Greby and PA Sword were deliberately indifferent to his serious medical condition
when they failed to provide care for his stomach pain. The Plaintiff must be prepared to provide
more exact time frames for his allegations during the discovery process.
Plaintiff also claims Defendants Warden Gossett, Assistant Warden Hammers and
Grievance Officer Robbie Johnson denied his grievances and failed to approve further
examination or treatment by an outside medical provider. (Amd. Comp., p. 6-8). Plaintiff has
failed to state a claim against these three individuals. The Seventh Circuit has “previously
stated that if a prisoner is under the care of medical experts, a non-medical prison official will
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generally be justified in believing that the prisoner is in capable hands.” Greeno v. Daley, 414
F.3d 645, 656 (7th Cir. 2005); see also Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011).
Based on the documentation provided by the Plaintiff, the non-medical staff referred his
complaints to the medical staff. [d/e 9, p. 2]. In addition, Plaintiff admits he was regularly seen
by Dr. Greby and was tested by an outside medical provider. Finally, a Defendant’s failure to
rule favorably on a prison grievance is not actionable under §1983. Young v. Wexford Health
Services, 2012 WL 621358 at 4 (N.D. Ill. Feb. 14, 2012). Therefore, the Court will dismiss the
non-medical Defendants based on the allegations in the amended complaint.
The Plaintiff has also renewed his motion for appointment of counsel.[9] 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 F.3d
647, 654-55 (7th Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). The
Plaintiff has now provided at least some evidence of his attempt to find counsel on his own.
However, Plaintiff has provided no other argument in favor of his motion beyond his indecency.
Although the case involves his medical condition, Plaintiff should also be able to testify
personally to the pain he experienced, his attempts to obtain help, and the responses he received,
which can be used to show evidence of deliberate indifference. See Ledford v. Sullivan, 105
F.3d 354, 358 (7th Cir. 1997)(expert testimony not necessarily required to establish deliberate
indifference). Through simple discovery requests Plaintiff should also be able obtain his medical
records to corroborate his medical problems. In addition, once the Defendants are in the case,
the Court will enter a scheduling order requiring the parties to provide relevant discovery and
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providing assistance for the pro se litigant. Based on the record before the Court, Plaintiff’s
motion is denied. [9]
IT IS THEREFORE ORDERED that:
1) Plaintiff’s motion for leave to file an amended complaint is granted. [8]
2) Pursuant to its merit review of the amended complaint under 28 U.S.C. § 1915A, the
court finds the Plaintiff alleges Defendants Dr. Greby and P.A. Sword were
deliberately indifferent to his serious medical condition as outlined in this order.
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.
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 of service.
After Defendants have been served, the Court will enter an order setting discovery
and dispositive motion deadlines.
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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.
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
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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 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) The Clerk of the Court is to dismiss all Defendants except Greby and Sword for
failure to state a claim upon which relief can be granted pursuant to §1915A.
12) The Clerk is directed to attempt service on Defendants pursuant to the
standard procedures and set an internal Rule 16 deadline in sixty days.
13) The Clerk is also directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
14) Plaintiff’s motion for appointment of counsel is denied. [9]
ENTERED this 22nd day of February, 2016.
/s/ Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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