Boykin v. Moorehouse
Filing
6
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 8/30/2016. Plaintiff's Motion to Request Counsel 5 is DENIED with leave to renew. Pursuant to its merit review of the complaint, the Court finds the Plaintiff states an Eighth Amendment claim for deliberate indifference to a serious medical need against Defendant Moorehouse. This case is now in the process of service. HIPAA Order to enter. (MAS, ilcd)
E-FILED
Wednesday, 31 August, 2016 10:41:05 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DAVID BOYKIN,
Plaintiff,
v.
AMY MOOREHOUSE,
Defendant.
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16-1273
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at
Pontiac Correctional Center, brings the present lawsuit pursuant to
42 U.S.C. § 1983 alleging deliberate indifference to a serious
medical need. 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
plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir.
2013) (internal citation omitted).
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ALLEGATIONS
Plaintiff is currently incarcerated at Pontiac Correctional
Center (“Pontiac”). Defendant is a medical technician at Pontiac.
Plaintiff alleges that he suffers from an unspecified medical
condition that causes excruciating pain in his kidneys, back, and
head. Plaintiff also alleges that blood has been present in his urine
for the past two (2) years, and the pain prevents him from sitting
up.
Plaintiff alleges that, in July 2015, Defendant refused to
accept Plaintiff’s requests for medical treatment and money
vouchers. Plaintiff alleges that Defendant stated that she does not
care about Plaintiff’s medical conditions and that the pain pills were
the only medical treatment she would offer him.
ANALYSIS
Inmates are entitled to adequate medical care under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
To prevail, a plaintiff must show that the prison official acted with
deliberate indifference to a serious medical need. Id. at 105.
Claims of negligence, medical malpractice, or disagreement with a
prescribed course of treatment are not sufficient. McDonald v.
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Hardy, 821 F.3d 882, 888 (7th Cir. 2016) (citing Pyles v. Fahim, 771
F.3d 403, 408 (7th Cir. 2014), and Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008)). Rather, liability attaches 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 allegations of excruciating pain and blood in his urine
are sufficient to allege that he suffers from an objectively 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)).
Liberally construed, Plaintiff’s allegations suggest that
although Defendant has knowledge of Plaintiff’s medical condition,
Defendant is refusing to provide, or restricting access to, medical
care. Plaintiff’s allegations leave open the possibility that Plaintiff is
receiving alternative treatment for his medical conditions. If
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Plaintiff is receiving alternative treatment, and his requests stem
from a disagreement with the course of treatment provided, or a
demand for specific medical treatment, then Plaintiff’s claims may
ultimately fail. See Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.
1996) (The Constitution does not require specific medical treatment
and mere disagreements with the course of treatment are not
sufficient to impose constitutional liability). However, at this point,
the Court cannot rule out a constitutional claim.
Plaintiff’s Motion to Request Counsel
Plaintiff filed a Motion to Request Counsel. (Doc. 5). 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 F.3d 647, 654-55 (7th Cir. 2007)
(citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)).
Plaintiff alleges he sent a letter to the DePaul Legal Clinic and
has not yet heard back. Plaintiff did not attach a copy of the letter
he sent and did not provide details regarding when he sent it.
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Therefore, the Court finds that Plaintiff has not shown he made a
reasonable attempt to secure counsel on his own. If Plaintiff
intends to renew his motion, he should write to multiple attorneys,
attach copies of the letters sent, and attach copies of any responses
received. Because Plaintiff has not satisfied the first prong, the
Court does not address the second. Plaintiff’s motion is denied with
leave to renew.
IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion to Request Counsel [5] is DENIED with
leave to renew.
2) Pursuant to its merit review of the complaint under 28
U.S.C. § 1915A, the Court finds the Plaintiff states an
Eighth Amendment claim for deliberate indifference to a
serious medical need against Defendant Moorehouse. 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.
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4) The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60
days from service 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.
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 Order. 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) Once counsel has appeared for a Defendant, Plaintiff need
not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send a notice of electronic
filing to defense counsel. The notice of electronic filing
shall constitute service on Defendants pursuant to Local
Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed
accordingly.
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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)
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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Attempt service on Defendants pursuant to the standard
procedures;
2) Set an internal court deadline 60 days from the entry of
this order for the court to check on the status of service
and enter scheduling deadlines; and,
3) Enter the Court's standard qualified protective order
pursuant to the Health Insurance Portability and
Accountability Act.
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Lastly, it is ordered that if a Defendant fails to sign and
return a waiver of service for 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).
ENTERED:
August 30, 2016.
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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