Taylor v. Tilden et al
Filing
9
MERIT REVIEW OPINION: Case proceeds. Clerk is to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done (see Text Order entered on 9/25/17), and to attempt serv ice on Defendants pursuant to the standard procedures. The Clerk is directed to enter a HIPAA order. Motion to Request Counsel 3 is denied. Rule 16 Deadline 11/27/2017. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 09/26/2017. (SKN, ilcd)
E-FILED
Tuesday, 26 September, 2017 01:32:24 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JAMAL TAYLOR,
Plaintiff,
v.
DR. ANDREW TILDEN, et al.,
Defendants.
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17-CV-1385
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Menard
Correctional Center about alleged contaminated water during his
stay 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
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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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. 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 from October 2015 to April 2017, the
drinking water in Plaintiff’s cell at Pontiac Correctional Center was
contaminated with black soot, smelled bad, and stained Plaintiff’s
clothes. Drinking the water allegedly caused Plaintiff stomach
aches, diarrhea, shortness of breath, chest pain, and fatigue.
Defendants’ ignored Plaintiff’s complaints, advising Plaintiff not to
drink the water if Plaintiff believed the water was contaminated, but
the only water accessible to Plaintiff for drinking was in his cell. Dr.
Tilden ordered blood tests, which revealed abnormalities, but Dr.
Tilden did nothing but order more blood tests, which again revealed
abnormalities. On August 14, 2016, Plaintiff passed out in his cell.
X-rays of Plaintiff’s chest showed possible atelectasis or infiltrate
and suggested consideration of a follow-up study, but Dr. Tilden
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took no action. 2 Plaintiff alleges that Dr. Tilden’s employer,
Wexford Health Sources, Inc., has a policy of preventing their
doctors from ordering medically necessary consults or tests.
Plaintiff’s allegations state arguable Eighth Amendment claims
for inhumane conditions of confinement and deliberate indifference
to Plaintiff’s serious medical needs. The case will proceed for
service on these claims pursuant to the standard procedures.
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 Eighth
Amendment claims for inhumane conditions of confinement and
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.
2)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
2
Atelectasis is “a complete or partial collapse of a lung or lobe of a lung” which “can make breathing difficult.”
www.mayoclinic.org (last visited 9/20/17). A pulmonary infiltrate means that the some of the air spaces in the
lung are filled with something besides air, such as fluid.
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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
addresses shall be retained 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 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
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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.
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11)
Plaintiff’s motion for the Court to appoint counsel is
denied (3). 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). 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 adequately
convey the factual basis for his claims, and he should have
personal knowledge of many of the relevant facts underlying his
claims. Plaintiff personally saw the drinking water and experienced
the symptoms after drinking the water. Additionally, Plaintiff has
significant federal litigation experience. Plaintiff may renew his
motion on a more developed factual record, setting forth his
educational level, any jobs he has had inside or outside of prison,
any classes he has taken in prison, and his litigation experience in
state and federal court.
12)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
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initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
13)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 09/26/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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