Sheley v. Bernard et al
Filing
15
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 1/13/2017. 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 his serious medical needs. This case is now in the process of service. Standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act to be entered. Plaintiff is directed to file his current address in writing by 1/27/2017. (MAS, ilcd)
E-FILED
Friday, 13 January, 2017 01:11:55 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JOSHUA SHELEY,
Plaintiff,
v.
DR. DWANE BERNARD, et al.,
Defendants.
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16-CV-1429
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff filed this case in the Southern District of Illinois while
he was incarcerated in the Dixon Correctional Center. The case
was transferred to the Central District of Illinois because Plaintiff’s
claims arise from occurrences at the Illinois River Correctional
Center. The IDOC website shows that Plaintiff was released on
parole on January 6, 2017, and the Court’s docket shows that
Plaintiff has contacted the clerk with his current address and
represented that he is mailing in his current address.
Even though Plaintiff is no longer incarcerated, a merit review
must still be conducted because Plaintiff brought this action while
incarcerated. 28 U.S.C. § 1915A. Section 1915A requires the Court
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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.
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).
Plaintiff alleges that, in September 2015, while incarcerated in
the Illinois River Correctional Center, Plaintiff experienced a crisis—
he believed that something very bad had happened to his family.
He was afraid that his family may have been murdered or badly
hurt. Plaintiff asked for help and refused orders to lock up. After
an evaluation by a social worker, Plaintiff was placed in segregation.
On Plaintiff’s second day in segregation, Plaintiff allegedly
intentionally broke his eyeglasses and used the sharp edge of the
glass to cut out his testicles, in an attempt to get attention and
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).
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obtain help for his crisis. The Defendants, all medical
professionals, allegedly delayed or denied medical treatment for
Plaintiff, at first not believing that Plaintiff had actually cut out his
testicles. Later tests confirmed that Plaintiff had in fact cut out his
testicles.
At this point, the Court cannot rule out an Eighth Amendment
claim for deliberate indifference to Plaintiff’s serious medical needs.
The case will therefore proceed pursuant to the standard
procedures.
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 an Eighth
Amendment claim for deliberate indifference to his serious medical
needs.
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)
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
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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.
3)
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.
4)
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.
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5)
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.
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 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
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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 Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
8)
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.
9)
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).
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.
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11)
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.
12)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
13)
Plaintiff is directed to file his current address in
writing by January 27, 2017.
14)
The clerk is directed to send this order to the
address Plaintiff provided to the clerk over the phone.
ENTERED: January 13, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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