Murphy v. Osmundson et al

Filing 11

MERIT REVIEW AND CASE MANAGEMENT ORDER - Entered by Judge Harold A. Baker on 9/21/2017. Rule 16 Deadline 11/20/2017. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountabil ity Act. The clerk is directed to terminate Defendants Hubbard and Hammers. The clerk is directed to attempt service on Defendant Dr. Osmundson pursuant to the standard procedures. Plaintiff's motion for counsel 4 is denied, with leave to renew upon demonstrating that he made attempts to hire his own counsel. (LN, ilcd)

E-FILED

Thursday, 21 September, 2017 02:03:02 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ALBERT MURPHY,
Plaintiff,
v.
DR. OSMUNDSON, et al.,
Defendants.

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17-CV-1398

MERIT REVIEW AND CASE MANAGEMENT ORDER
This case was originally filed in the Northern District of Illinois
and was transferred to this District since the alleged deprivation
occurred at Illinois River Correctional Center. The case is now
before the court for a merit review of plaintiff’s claims. 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 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). The court has reviewed the complaint and has also held a
merit review hearing in order to give the plaintiff a chance to
personally explain his claims to the court.
Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 and
was granted leave to proceed in forma pauperis. Plaintiff alleges he
fell while climbing down from the top bunk bed because there are
no ladders in the cell. Plaintiff alleges he was provided immediate
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medical attention, including x-rays and 24-hour observation.
Plaintiff alleges he did not receive an MRI because Defendant
Osmundson, the physician, said it cost too much. Plaintiff stated in
Court that he is in constant pain and is not being treated for his
back and leg injury.
Plaintiff does not explain how prison officials knew that the
lack of a ladder in his cell created a substantial risk of harm, and,
without allegations to this effect, plaintiff does not state a claim
against Defendant Hubbard. See Farmer v. Brennan, 511 U.S. 825,
837 (1994) (Eighth Amendment claims require a showing that a
prison official consciously disregarded a known risk of harm).
Plaintiff does state a claim for deliberate indifference against Dr.
Osmundson for not being treated for his injury. See Petties v.
Carter, 836 F.3d 722, 729 (7th Cir. 2016).
Plaintiff names Warden Hammers as a defendant but makes
no allegations against him in his complaint, so he will be dismissed.
See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998)(merely
naming a defendant in the caption is insufficient to state a claim).
Additionally, even if defendant knew of plaintiff’s alleged medical
situation, nonmedical prison officials “are entitled to defer to the
judgment of jail health professionals” so long as the inmate
complaints are not ignored. Berry v. Peterman, 604 F.3D 435, 440
(7th Cir. 2010).
IT IS THEREFORE ORDERED:
1.
Pursuant to its merit review of the 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 Defendant Dr. Osmundson. 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. 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
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as premature. The 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 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.
4.
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 the clerk.
5.
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 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 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
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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 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.
8.
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.
9.
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).
10. The clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
11. The clerk is directed to terminate Defendants Hubbard
and Hammers.
12. The clerk is directed to attempt service on Defendant Dr.
Osmundson pursuant to the standard procedures.

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13. Plaintiff’s motion for counsel (#4) is denied, with leave to
renew upon demonstrating that he made attempts to hire his own
counsel. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This
typically requires writing to several lawyers and attaching the
responses. If Plaintiff renews his motion, 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.
Entered this 21st day of September, 2017
/s/ Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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