Villavicencio Serna v. Tilden et al

Filing 7

MERIT REVIEW ORDER( Rule 16 Deadline 8/21/2017 entered by Judge Michael M. Mihm on 6/22/2017. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD PROCEDURES; AND, 2) SET AN INTERNAL COURT DE ADLINE 60 DAYS FROM THE ENTRY OF THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER SCHEDULING DEADLINES. LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS TO SIGN AND RETURN A WAIVER OF SERVICE TO THE CLERK WITHIN 30 DAYS AFTER THE W AIVER 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). See full written Order.(VH, ilcd)

E-FILED

Thursday, 22 June, 2017 10:29:13 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
LUIS VILLAVICENCO SERNA,

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Plaintiff,
v.
DR. TILDEN, et al.,
Defendants.

No.: 17-cv-1038-MMM

MERIT REVIEW ORDER
Plaintiff, proceeding pro se, pursues a § 1983 action for deliberate indifference to his
serious medical needs while he was incarcerated at the Pontiac Correctional Center (“Pontiac”).
The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the
Complaint, the Court accepts the factual allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (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. United States, 721 F.3d 418, 422 (7th Cir.
2013)(citation and internal quotation marks omitted). While the pleading standard does not
require “detailed factual allegations”, it requires “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011)
quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff claims that he has been subjected to deliberate indifference to his hip pain on a
continuing basis from March or April 2013, to the present. Plaintiff apparently suffered a
gunshot wound to the hip and leg, prior to his incarceration. He underwent surgery on an
undisclosed date and had a metal rod placed in his leg. In March or April 2013, Plaintiff began

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experiencing pain at the surgical site. He describes the pain as “excruciating” and indicates that
it has restricted his activities of daily living.
Plaintiff alleges that he has complained to medical director Dr. Tilden, Dr. Ojelade and
Nurse Hansen since 2013. He claims that he has only been prescribed pain medication which has
been ineffective and which has caused him stomach problems. On March 10, 2016, Plaintiff’s
leg was x-rayed and a fracture in the implanted metal rod was found. He attaches a copy of the xray report which notes “… possibility of infection cannot be excluded. A follow-up study is
recommended.” [ECF 1-1 p. 1]. Plaintiff alleges that despite this recommendation, he has
received no follow-up care.
Plaintiff alleges all three Defendants have been deliberately indifferent in not adequately
treating his pain, failing to discover the source of the pain and failing to provide a referral to a
specialist. He claims compensatory and punitive damages and requests injunctive relief, that he
undergo corrective surgery.
It is well established that deliberate indifference to a serious medical need is actionable as
a violation of the Eighth Amendment. Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A
deliberate indifference must establish “(1) an objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011). Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and “either acts or fails to act in disregard of that risk.” Id.
at 751. Plaintiff states enough at this juncture to proceed on claims of deliberate indifference
against Defendants Tilden, Ojelade and Hansen. Is unclear at this point, however, whether Nurse
Hansen would have had the authority to refer Plaintiff to a specialist. This can be more
particularly determined as the case proceeds.

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IT IS THEREFORE ORDERED:
1.

This case shall proceed solely on the deliberate indifference claims against Dr.

Tilden, Dr. Ojelade and Nurse Hansen, identified herein. Any claims not identified will not be
included in the case, except in the Court's discretion upon motion by a party for good cause
shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15.
2.

Plaintiff files [4] a motion for recruitment of pro bono counsel but does not

indicate that he attempted to secure counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55
(7th Cir. 2007) more. [4] is DENIED at this time. In the event that Plaintiff renews his motion
for appointment of counsel, he is to provide copies of the letters sent to, and received from,
prospective counsel.
3.

The Clerk is directed to send to each Defendant pursuant to this District's internal

procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
4.

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 on that
Defendant and will require that Defendant pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided
by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall
provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained 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 the prescribed by Local Rule. A Motion to

Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the issues and claims identified in
this Order.
6.

Plaintiff shall serve upon any Defendant who has been served, but who is not

represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the
Court, and shall also file a certificate of service stating the date on which the copy was mailed.
Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by the Court.
7.

Once counsel has appeared for a Defendant, Plaintiff need not send copies of

filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send notice of electronic filing to defense counsel. The notice of
electronic filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and instructed accordingly.
8.

Counsel for Defendants is hereby granted leave to depose Plaintiff at Plaintiff's

place of confinement. Counsel for Defendants shall arrange the time for the depositions.
9.

Plaintiff shall immediately notice the Court of any change in mailing address or

phone number. The Clerk is directed to 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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD
PROCEDURES; AND,

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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.
LASTLY, IT IS ORDERED THAT 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. 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: 6/22/2017
_________s/Michael M. Mihm__________
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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