Harris v. Wexford Health Sources, Inc. et al
Filing
7
MERIT REVIEW OPINION: Plaintiff's motion for the Court to appoint counsel is denied (5). Plaintiff's motion for status is denied as moot. (d/e 6.) The clerk is directed to enter the standard order granting Plaintiff's in forma pauper is petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Rule 16 Deadline 11/20/2017. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 9/21/2017. (GL, ilcd)
E-FILED
Thursday, 21 September, 2017 03:32:01 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
FREDERICK S. HARRIS,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC.,
Defendants.
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17-CV-1288
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Pontiac
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court 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.
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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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 Defendants have failed or refused to
provide him adequate treatment for his serious mental health
needs. He allegedly suffers from nightmares, post-traumatic stress
disorder, an inability to sleep, obsessive/compulsive behaviors, lack
of emotional/behavior control, audio/visual hallucinations, panic
attacks, and suicidal thoughts. He has allegedly been placed in
punitive segregation, which exacerbates his mental illness.
Defendants have allegedly refused to designate Plaintiff as
“seriously mentally ill” so that he can obtain the mental health
treatment promised in the settlement in Rasho v. Walker, 07-cv1298 (C.D. Ill.). Defendants have refused to provide Plaintiff oneon-one therapy, instead requiring Plaintiff to attend group therapy
which is ineffective because Plaintiff does not feel comfortable
discussing his problems in a group setting. Additionally, Plaintiff’s
mental health medications allegedly do not help. These are just
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some examples that Plaintiff includes in his complaint to support
his claim.
There is no constitutional violation if Defendants are
exercising their professional judgment within acceptable bounds
when they decide what treatment Plaintiff needs or does not need.
Additionally, questions about the implementation of the Rasho
settlement belong in the Rasho case. However, addressing these
issues would be premature. Parsing out which Defendants might
be personally responsible would also be premature. At this point,
the Court cannot rule out an Eighth Amendment claim for
deliberate indifference to Plaintiff’s serious mental health needs
against all Defendants.
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.
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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
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
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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 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
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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 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).
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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.
11)
Plaintiff’s motion for the Court to appoint counsel is
denied (5), with leave to renew on a more developed record. The
Court does not have the authority to order an attorney to accept pro
bono appointment on a civil case such as this. Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007). The most the Court can do is ask for
volunteer counsel. In determining whether the Court should
attempt to find an attorney to voluntarily take the case, the
question is “given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?" Pruitt, 503 F.3d at 654-55 (7th
Cir. 2007). On this record, Plaintiff appears competent to proceed
pro se. His pleadings are thorough and relatively well written, and
he has some federal litigation experience. He should have personal
knowledge of many of the relevant facts underlying his claims, such
as the symptoms he has been experiencing, his attempts to obtain
help, and the responses he received. Plaintiff may renew his motion
on a more developed factual record, setting forth his educational
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level, any jobs he has had inside or outside of prison, and any
classes he has taken in prison.
12)
Plaintiff’s motion for status is denied as moot. (d/e
13)
The clerk is directed to enter the standard order
6.)
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.
14)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: September 21, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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