Tate v. Prentice et al

Filing 8

MERIT REVIEW ORDER entered by Chief Judge James E. Shadid on 9/21/2017. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Deny Plaintiff's motion for appointment of counsel, 5 ; 2) attempt service on Defendants pursuant to the standard pr ocedures; 3) 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 4) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. See full written Order. (VH, ilcd)

E-FILED

Thursday, 21 September, 2017 02:37:40 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ERICK TATE,
Plaintiff,
vs.
SUSAN PRENTICE, et. al.,
Defendants

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No. 17-1168

MERIT REVIEW ORDER
This cause is before the Court for merit review of the Plaintiff’s 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.
Plaintiff, a pro se prisoner, claims Defendants Major Susan Prentice, Dr. Andrew
Tilden, and Nurses Michelle, Becky, Sabrina and Jodie violated his constitutional rights
at Pontiac Correctional Center. Plaintiff suffers from “neurogenic bladder disorder”
which requires self-catheterization. (Comp., p. 24). Plaintiff claims each Defendant is
well aware of his medical needs, but they have continually denied him the supplies he
needs for catheterization leaving him to suffer in pain. Plaintiff’s complaint outlines the
specific dates each nurse has refused his requests from October of 2016 through January
of 2017. Plaintiff says Defendant Prentice has refused to notify medical personnel when
he needs help, and Plaintiff has also discussed the problem with Dr. Tilden, but the
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doctor has refused to take any action. Plaintiff has adequately alleged each of the
named Defendants was deliberately indifferent to his serious medical condition.
Plaintiff claims he has repeatedly filed grievances which were ignored. Plaintiff
makes reference to his due process rights, but the failure to respond to grievances is not
a separate constitutional violation against the named Defendants. (Comp., p. 26 ); see
Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). In addition, Plaintiff claims the failure
to respond to his grievances is a “form of retaliation,” but he provides no further
information in support of this allegation. (Comp., p. 27). To state a retaliation claim, a
plaintiff must specifically allege: “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment
activity in the future; and (3) the First Amendment activity was at least a motivating
factor in the [d]efendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir.2009). Plaintiff has provided no information to support a
retaliation claim. In addition, Plaintiff has not identified any Defendants responsible for
a due process or retaliation claim.
Finally, Plaintiff has filed a motion for appointment of counsel. [5]. Plaintiff has
no constitutional right to the appointment of counsel in his case and the Court cannot
require an attorney to accept pro bono appointment in a civil case. The most the Court
can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071
(7th Cir. 1992).
In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the
indigent plaintiff made a reasonable attempt to obtain counsel or been effectively
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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 (7th Cir. 2007),
citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).
Plaintiff says he has written to three different attorneys to seek representation.
Even if the Court found this were a reasonable attempt to find counsel, Plaintiff appears
competent to represent himself based on the current record. Plaintiff’s complaint
clearly and coherently sets forth the basis for his claims and the involvement of each
Defendant. Although Plaintiff’s claim involves his medical condition, he will be able to
obtain medical records during discovery. Plaintiff should also be able to testify
personally to the pain he experienced, his attempts to obtain help, and the responses he
received, which can be used to show evidence of deliberate indifference. See Ledford v.
Sullivan, 105 F.3d 354, 358 (7th Cir. 1997)(expert testimony not necessarily required to
establish deliberate indifference). The Court also notes Plaintiff has some litigation
experience. See Tate v. Gaetz, Case No. 13-1001 in the Southern District of Illinois, and
Tate v. Velasco, Case No. 03-3355 in the Northern District of Illinois.
Once Defendants have been served, the Court will set this matter for a telephone
hearing pursuant to Federal Rule of Civil Procedure 16 to review the case and set a
discovery schedule. In addition, the Court will enter a Scheduling Order which
provides important information to assist a pro se Plaintiff. Based on the record before
the Court, Plaintiff’s motion is denied. [5]
IT IS THEREFORE ORDERED that:

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1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges the named Defendants violated his Eighth
Amendment rights when they were deliberately indifferent to his serious
medical condition. The claim is stated against the Defendants in their individual
capacities only. 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 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 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.
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
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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.
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 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.
6) 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.
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

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change in mailing address or phone number will result in dismissal of this lawsuit,
with prejudice.
9) 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) Deny Plaintiff’s motion for appointment of counsel, [5]; 2) attempt service
on Defendants pursuant to the standard procedures; 3) 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 4 ) enter the Court's
standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED this 21st day of September, 2017.

s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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