Carter v. Melvin et al
MERIT REVIEW OPINION (Rule 16 Deadline 11/14/2017) - Entered by Judge Harold A. Baker on 9/15/2017. Plaintiff's motion to amend complaint 15 is granted. Clerk is directed to docket the amended complaint attached to plaintiff's motion. T he clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to terminate Defendants Melvin, Punke, Prentice, Clice, Klellesuik, Caldwell, Eshelemen, Cirttia W., Moss, and Haag. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures. Plaintiff's motion 4 is denied with leave to renew. Plaintiff's motion 18 is denied. Plaintiff's motions for status 17 20 are granted. Plaintiff's motions to compel 19 21 are denied.(LN, ilcd)
Friday, 15 September, 2017 12:30:01 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHAEL MELVIN, et al.
MERIT REVIEW ORDER
This case is before the court for a merit review of the plaintiff's
amended complaint. 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.” 28 U.S.C. §1915A.
In reviewing the amended 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).
Plaintiff is incarcerated at Pontiac Correctional Center
(“Pontiac”). He alleges in his amended complaint that Defendants
Tilden, Hansen, and Ojelade, all physicians or physician’s
assistants, prescribed him medication that was not effective and
refused additional diagnostic testing for a stomach infection.
Plaintiff also alleges that Defendants Chicke, Klellesuik, Caldwell,
and Cynthia W., all nurses, denied him medical treatment in some
way, but he provides little detail concerning these events. Finally,
plaintiff alleges generally that several correctional officers housed
him in unconstitutional conditions.
Plaintiff states a claim for deliberate indifference to a serious
medical need against Defendants Tilden, Hansen, and Ojelaide. See
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016). Plaintiff’s
allegations against the defendant nurses and other medical
professionals do not provide enough information for the Court to
determine if plaintiff states a constitutional claim. The defendant
nurses will be dismissed without prejudice to amendment.
Plaintiff’s allegations against the correctional officers are also
too conclusory for the Court to find that plaintiff states a
constitutional claim. In addition, these claims must be brought in
a separate lawsuit. George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007) (“Unrelated claims against different defendants belong in
different suits.”); Owens v. Godinez, 860 F.3d 434, 436 (7th Cir.
2017) (“[D]istrict courts should not allow inmates to flout the rules
for joining claims and defendants…or to circumvent the Prison
Litigation Reform Act’s fee requirements by combining multiple
lawsuits into a single complaint.”). Therefore, these claims will be
IT IS THEREFORE ORDERED:
1) Plaintiff’s motion to amend complaint (#15) is granted. Clerk
is directed to docket the amended complaint attached to
2) Pursuant to its merit review of the amended 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 Tilden, Hansen, and
Ojelaide. All remaining Defendants are dismissed. 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. 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.
4) 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.
5) 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
6) 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
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 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
8) 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.
9) The plaintiff shall immediately notify the court, in writing, of
any change in his mailing address and telephone number.
The 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 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).
11) The clerk is directed to enter the standard qualified protective
order pursuant to the Health Insurance Portability and
12) The clerk is directed to terminate Defendants Melvin, Punke,
Prentice, Clice, Klellesuik, Caldwell, Eshelemen, Cirttia W.,
Moss, and Haag.
13) The clerk is directed to attempt service on the remaining
defendants pursuant to the standard procedures.
14) Plaintiff filed a Motion to Request Counsel (#4). 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). Plaintiff has shown that he made a reasonable
attempt to secure counsel on his own. Plaintiff, however, has
personal knowledge of the facts, has been able to adequately
convey them to the Court, should be able to obtain his medical
records through the discovery process, and his claims do not
appear overly complex at this stage. Plaintiff’s motion (#4) is
therefore denied with leave to renew.
15) Plaintiff filed a Motion to Obtain Expert and Physical and
Mental Examination by Professional (#18). Rule 706 of the
Federal Rules of Civil Procedure permits a court to appoint an
expert, but the record at this point is insufficient for the Court
to make a finding that expert testimony is necessary to assist
the trier of fact in making factual determinations. Plaintiff’s
motion (#18) is therefore denied.
16) Plaintiff’s motions for status (#17)(#20) are granted. This
order resolves all pending motions in this case, and, as
described above, the Court will attempt service on the
defendants. Plaintiff is advised to wait until defendants have
appeared before filing any additional motions for status.
17) Plaintiff’s motions to compel (#19)(#21) are denied.
Defendants have not yet appeared in this case. Motions under
Rule 37 of the Federal Rules of Civil Procedure are premature
at this point.
Entered this 15th day of September, 2017.
/s/Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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