Mendoza v. Wexford for Profit Corp Source et al

Filing 6

MERIT REVIEW OPINION: Case to proceed. The Clerk is directed to terminate Defendant Kent. 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 al ready 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. Plaintiff's motion for the Court to appoint counsel is denied 5 . SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 04/03/2018. (SKN, ilcd)

E-FILED

Tuesday, 03 April, 2018 08:55:45 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL MENDOZA,
Plaintiff,
v.
WEXFORD, et al.,
Defendants.

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18-CV-1044

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the Illinois
River 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 he was diagnosed with a hernia in 2014
but Defendants refused to fix the hernia, causing Plaintiff to suffer
severe pain and difficulties eating, sleeping, moving, and having
bowel movements or urinating. Eventually one hernia turned into
three hernias, and Plaintiff received surgery in 2017.
Unfortunately, Plaintiff developed a severe infection after the
surgery, Plaintiff believes caused by the surgeon’s unspecified
negligence.
Plaintiff states an arguably Eighth Amendment claim for
deliberate indifference to his serious medical need for adequate
treatment for his hernia. However, this claim may proceed only
against the Defendants who are state actors, essentially the
Defendants working in the prison: Greenhagen, Osmunson, and
Beard. Wexford Health Sources, Inc., will also remain as a
Defendant in the event a policy or practice of Wexford caused the
lack of medical care.
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Plaintiff’s claim against the surgeon—Dr. Kent—would be a
state law claim for malpractice. Dr. Kent is not a state actor and
therefore cannot be sued on the Eighth Amendment claim. To
pursue a state law claim for malpractice against Dr. Kent, state law
requires Plaintiff to file a physician's report finding some merit to a
malpractice claim, which Plaintiff has not done. 735 ILCS 5/2-622.
Dr. Kent will be dismissed without prejudice to reinstating Dr. Kent
with the report and affidavit required by 735 ILCS 5/2-622.
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
need for adequate treatment for his hernia.

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)

Dr. Kent is dismissed without prejudice to reinstating

Dr. Kent with the report and affidavit required by 735 ILCS 5/2622.
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3)

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.
4)

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.
5)

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.
6)

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.
7)

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.
8)

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.
9)

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.
10)

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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11)

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.
12)

Plaintiff’s motion for the Court to appoint counsel is

denied (5), with leave to renew after Plaintiff demonstrates that he
has made reasonable efforts to find counsel on his own. 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.
13)

The clerk is directed to terminate Defendant Kent.

14)

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.
15)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
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ENTERED: April 3, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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