Taylor v. Rebecca et al
Filing
8
MERIT REVIEW OPINION (Rule 16 Deadline 10/24/2017.). This case is now in the process of service. Plaintiff's motion for the Court to appoint counsel isdenied 5 . The clerk is directed to enter the standard order granting Plaintiff's in fo rma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures, with paragraph 14 of this order highlighted. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Defendants are directed to file a response to Plaintiff's motion for a temporary restraining order/preliminary injunction when Defendants file thei r Answer. The clerk is directed to send a copy of this order toAttorney Doug Bitner. By September 5, 2017, Plaintiff is directed to informthe Court whether he has paid the costs assessed in 11-cv-2174 and 11-cv-2175. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 8/25/2017. (ME, ilcd)
E-FILED
Friday, 25 August, 2017 02:05:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KENNADO K. TAYLOR,
Plaintiff,
v.
REBECCA, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
17-CV-1377
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.
2013). However, conclusory statements and labels are insufficient.
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).
Page 1 of 9
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 he is being denied necessary breathing
treatments and medication for his asthma. Plaintiff also moves for
a preliminary injunction/temporary restraining order, asking the
Court to order that Defendants provide Plaintiff his asthma
medication and treatment. His allegations, taken as true, state a
plausible Eighth Amendment claim for deliberate indifference to his
serious medical needs.
However, based on Plaintiff’s litigation history, the Court is
concerned that Plaintiff may be abusing the judicial process, filing
cases that are factually frivolous or malicious. Plaintiff has
pursued at least 37 federal cases in the Seventh Circuit according
to computerized records. www.pacer.gov (last visited 8/23/17).
Eighteen of those cases have been pursued in the Central District,
four filed just this month. In half of the 18 cases filed in the
Central District, Plaintiff filed motions for temporary restraining
orders/preliminary injunctions. These motions require significant
time and a prompt response, putting Plaintiff’s cases ahead of the
Page 2 of 9
many other prisoner cases that also deserve attention. Plaintiff
voluntarily dismissed half of the cases he filed in this District after
significant time was spent by the Clerk and Court processing the
case. Additionally, Plaintiff makes what appear to be somewhat
duplicative allegations about his asthma medicine in another
recently filed case, Taylor v. Thorson, 17-cv-1365 (C.D. Ill.), and
also made similar allegations in a preliminary injunction motion
filed in Taylor v. Clauss, 17-cv-1271 (C.D. Ill.).
Plaintiff had costs assessed against him in two cases when he
had over $11,000.00 in his prison trust fund account from a
settlement. Taylor v. Godinez, 14-cv-1123 (C.D. Ill.). In Taylor v.
Bukowski, 11-cv-2174 (C.D. Ill.)(8/21/13 Order), Plaintiff was
directed to pay $958.65 in costs. In Taylor v. Sangster, 11-cv-2175
(C.D. Ill.)(8/29/13 Order), Plaintiff was ordered to pay $511.90 in
costs. Whether Plaintiff paid these costs is relevant to whether he
should be permitted to proceed in forma pauperis, and there is no
information regarding whether payment was made.
Plaintiff has been permitted to proceed in forma pauperis in this
case given the seriousness of his allegations. However, if the Court
later finds that Plaintiff’s factual allegations have no evidentiary
Page 3 of 9
support, this case may be dismissed as frivolous and malicious,
and a strike will be assessed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). Other sanctions may also be assessed, such as
barring Plaintiff from proceeding in forma pauperis until he pays all
costs and filing fees owed. Additionally, this Court will no longer
waive collection of the filing fee if Plaintiff dismisses a case
voluntarily. The filing fee will continue to be collected pursuant to
28 U.S.C. § 1915(b)(1) even if the case is voluntarily dismissed.
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 based on the alleged refusal to provide Plaintiff
his necessary asthma medicine and treatments.
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
Page 4 of 9
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.
Page 5 of 9
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
Page 6 of 9
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.
Page 7 of 9
11)
Plaintiff’s motion for the Court to appoint counsel is
denied (5). On this record, Plaintiff appears competent to proceed
pro se. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). He has
extensive litigation experience and personal knowledge of his
prescribed treatment, symptoms, efforts to obtain his prescribed
treatment, and the responses he received. If Plaintiff renews his
motion upon a more developed record, he should set forth how far
he has gone in school, any jobs he has held inside and outside of
prison, any classes he has taken in prison, and any prior litigation
experience he has.
12)
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,
with paragraph 14 of this order highlighted.
13)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
14)
Defendants are directed to file a response to
Plaintiff’s motion for a temporary restraining
Page 8 of 9
order/preliminary injunction when Defendants file their
Answer.
15)
The clerk is directed to send a copy of this order to
Attorney Doug Bitner.
16)
By September 5, 2017, Plaintiff is directed to inform
the Court whether he has paid the costs assessed in 11-cv-2174
and 11-cv-2175.
ENTERED: 8/25/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?