Wheeler v. Childress et al

Filing 8

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 1/13/2017. (Rule 16 Deadline 3/14/2017.) The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The cler k is directed to terminate the Livingston County Jail as a defendant. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures.According to the Bureau of Prisons' website, plaintiff is now located at the Petersburg Medium FCI. (LN, ilcd)

E-FILED

Friday, 13 January, 2017 04:26:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ARTHUR D. WHEELER,
Plaintiff,
vs.
TONY CHILDRESS, et al.,
Defendants.

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16-CV-1368

MERIT REVIEW ORDER
The plaintiff, proceeding pro se, filed this lawsuit pursuant to 42 U.S.C. § 1983
and was granted leave to proceed in forma pauperis. The case is now before the court for
a merit review of the plaintiff's claims. The court is required by 28 U.S.C. §1915A to
“screen” the plaintiff’s 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.”
In reviewing the complaint, the Court accepts the factual allegations as true,
liberally construing them in the 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)(citation omitted). The Court set a merit hearing in
this matter; however, plaintiff was in transit and the court was unable to hold the
hearing.
Plaintiff alleges that he arrived at Livingston County Jail with a knot and bruise
on his head. Plaintiff alleges that the bruise healed, but the knot remained, along with
pain in his neck, shoulders, and head. Plaintiff also alleges that he passed out because
of dizziness on two occasions. Upon reporting this to medical staff, plaintiff alleges he
was only given ibuprofen and Tylenol. Plaintiff also alleges that unspecified
individuals scald him for sitting in a slouched position to relief back pain.
Plaintiff is entitled to adequate health care. To state a claim, he must allege that
jail officials were deliberately indifferent to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 104-05 (1976). Negligence is not enough to impose constitutional liability.
See McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Even gross negligence is
insufficient to impose constitutional liability.”).
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If jail officials ignored Plaintiff’s complaints of constant pain, or otherwise
persisted in treatment known to be ineffective, then Plaintiff could plausibly show that
jail officials acted with deliberate indifference to a serious medical need. See Petties v.
Carter, 836 F.3d 722, 730 (7th Cir. 2016). Plaintiff, however, does not state a claim for
medical malpractice under Illinois law as he has failed to provide the affidavit required
by 735 ILCS 5/2-622.
The Livingston County Jail will be dismissed as a defendant because it is not a
“person” that may be sued under § 1983. Wright v. Porter County, 2013 WL 1176199, *2
(N.D. Inc. Mar. 19, 2013)(“Wright also sues the jail itself, but this is a building, not a
“person” or even a policy-making body that can be sued for constitutional violations.”)
IT IS THEREFORE ORDERED that:
1.
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
court finds that the plaintiff states an Eighth Amendment claim for deliberate
indifference to a serious medical need against defendants Childress, Cox, Inman,
Rakestraw, and Pulliam. 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.
This case is now in the process of service. The plaintiff is advised to wait
until counsel has appeared for the defendants before filing any motions, in order to give
the 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. The plaintiff need not submit any evidence to the court at this time, unless
otherwise directed by the court.
3.
The court will attempt service on the defendants by mailing each
defendant a waiver of service. The defendants have 60 days from the date the waiver is
sent to file an answer. If the defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff may file a motion
requesting the status of service. After the defendants have been served, the court will
enter an order setting discovery and dispositive motion deadlines.
4.
With respect to a defendant who no longer works at the address provided
by the 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.

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5.
The 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 the defendants' positions. The court does not rule on the merits of those
positions unless and until a motion is filed by the defendants. Therefore, no response to
the answer is necessary or will be considered.
6.
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 the plaintiff with the clerk. The plaintiff does not
need to mail to defense counsel copies of motions and other papers that the 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. The 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.
7.
Counsel for the defendants is hereby granted leave to depose the plaintiff
at his place of confinement. Counsel for the defendants shall arrange the time for the
deposition.
8.
If a defendant 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. Marshals 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).
9.
The clerk is directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
10.
defendant.

The clerk is directed to terminate the Livingston County Jail as a

11.
The clerk is directed to attempt service on the remaining defendants
pursuant to the standard procedures.
12.
According to the Bureau of Prisons’ website, plaintiff is now located at the
Petersburg Medium FCI. As a courtesy, the clerk is directed to send a copy of this order
to plaintiff at that facility. Plaintiff is reminded that he is under a continuing obligation
to keep the Clerk and each opposing party informed of any change in his location.
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Pursuant to Central District of Illinois Local Rule 16.3(K), every pro se plaintiff must
notify the Clerk of this court in writing of any change of address during the entire
pendency of his case. It is not the Court's responsibility to independently maintain
current addresses on all parties to pending actions. Plaintiff shall, no later than fourteen
(14) days from the date of this Notice, file a notice of change of address with the Clerk.
Failure to do so will result in dismissal of this action.
Entered this 13th day of January, 2017
/s/ Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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