Wheeler v. Talbot et al
Filing
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OPINION Entered by Judge Michael P. McCuskey on 1/25/13. IT IS THEREFORE ORDERED THAT (1) Plaintiff's Motion for Leave to File his Third Amended Complaint 15 is DENIED. (2) Plaintiff's Motion for Leave to Amend his Complaint 18 is GR ANTED. (3) Plaintiff's Motions for Partial Declaratory Judgment 12 , 16 , 26 are DENIED as premature. (4) Plaintiff's Motions for Appointment of an Expert Medical Witness 13 , 23 are DENIED as premature. (5) Plaintiff's Motio ns for Appointment of a Health Care Monitor 14 , 22 are DENIED. (6) Plaintiff's Motions for Appointment of Counsel 17 , 21 are DENIED at this time. (7) Plaintiff's Emergency Motion for Leave to File Motion for Temporary Restraining O rder and Preliminary Injunction 9 remains pending. (8) Plaintiff's Motion for Leave to File Interlocutory Appeal 19 is DENIED as this court has not yet ruled on his request for Temporary Restraining Order and Preliminary Injunction so there is no order to appeal from. (9) This case is remains scheduled for a merit review hearing on January 28, 2013, at 10:00 a.m. SEE OPINION. (SKD, ilcd) (copy to plaintiff via Danville efiling project)
E-FILED
Friday, 25 January, 2013 11:48:43 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
ANTHONY WHEELER,
Plaintiff,
v.
DR. PAUL TALBOT, et al,
Defendants.
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Case No. 12-CV-2281
OPINION
This case is before the court for ruling on various pro se Motions filed by Plaintiff,
Anthony Wheeler. This case is currently set for a merit review hearing on January 28, 2013,
at 10:00 a.m. Following a careful review of Plaintiff’s Motions, this court rules as follows:
(1) Plaintiff’s Motion for Leave to File his Third Amended Complaint (#15) is DENIED; (2)
Plaintiff’s Motion for Leave to Amend his Complaint (#18) is GRANTED; (3) Plaintiff’s
Motions for Partial Declaratory Judgment (#12, #16, #26) are DENIED as premature; (4)
Plaintiff’s Motions for Appointment of an Expert Medical Witness (#13, #23) are DENIED
as premature; (5) Plaintiff’s Motions for Appointment of a Health Care Monitor (#14, #22)
are DENIED; (6) Plaintiff’s Motions for Appointment of Counsel (#17, #21) are DENIED
at this time; (7) Plaintiff’s Emergency Motion for Leave to File Motion for Temporary
Restraining Order and Preliminary Injunction (#9) remains pending; and (8) Plaintiff’s
Motion for Leave to File Interlocutory Appeal (#19) is DENIED as this court has not yet
ruled on his request for Temporary Restraining Order and Preliminary Injunction so there is
no order to appeal from.
BACKGROUND
On October 23, 2012, Plaintiff filed a pro se Complaint (#1) against Defendants, Dr.
Paul Talbot, Keith Anglin, S.A. Godinez, Louis Shicker, Yolande Johnson, Kevin Gilson,
Susann Griswold-Bailey, Marcia Keys, Jaclyn O’Day, D. Laker, Sherry Benton and Jackie
Miller. In Count 1, Plaintiff alleged that double bunking and double celling at the Danville
Correctional Center amounted to cruel and unusual punishment. In Count 2, Plaintiff alleged
that the soy-based diet provided by the Danville Correctional Center resulted in a serious
medical condition and that he has been denied a non-soy diet. In Count 3, Plaintiff alleged
that Defendant Dr. Talbot has refused to provide medical treatment for two large, protruding
keloid scars on his chest and groin area. In Count 4, Plaintiff alleged that the Danville
Correctional Center was engaging in a longstanding, widespread and systematic practice of
illegal profiteering and price gouging. In Count 5, Plaintiff alleged that Defendants Shicker
and Talbot have been deliberately indifferent to his serious medical needs by refusing to
provide treatment for an H. pylori bacterial infection. In Count 6, Plaintiff alleged that he
was verbally assaulted for filing grievances and writing letters regarding his complaints.
Plaintiff attached various exhibits to his pro se Complaint including a “State Law
Complaint,” copies of responses to his grievances, medical records and newspaper articles.
This court notes that lab results Plaintiff provided show that he tested negative for H. pylori
on April 29, 2011.
On November 15, 2012, this court held a merit review hearing. After discussing the
case with Plaintiff, who appeared by video, this court stated that Plaintiff was allowed to
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proceed on Counts 1, 3, 5 and 6 of his Complaint. Plaintiff was not allowed to proceed on
Count 4. This court stated that Count 2 was stayed until the conclusion of a class action
claim regarding soy diets that was being handled by Senior United States District Judge
Harold A. Baker. This court further stated that Plaintiff was allowed until December 31,
2012, to amend his complaint to include specific allegations related to the Defendants named
in the complaint.
On December 11, 2012, Plaintiff filed his Second Amended Complaint (#11) per order
of this court. Plaintiff stated that Defendants Laker, Godinez, Benton, Gilson, Miller and
O’Day systematically denied his grievances in violation of his constitutional rights.
PENDING MOTIONS
I. MOTIONS TO AMEND
On December 17, 2012, Plaintiff filed a Motion for Leave to File Third Amended
Complaint (#15). Plaintiff asked to add Count 7 to his Complaint alleging that Defendants
Lake, Godinez, Benton, Gilson, Miller and O’Day are liable for their failure to act in the face
of known constitutional violations. Plaintiff’s Motion (#15) is DENIED. This court
concludes that these allegations should not be a separate count, but instead provide a basis
for liability for the constitutional violations Plaintiff has alleged in his Complaint.
On January 3, 2013, Plaintiff filed a Motion for Leave to Amend State Law
Supplemental Jurisdiction Claims (#18). Plaintiff asked to add a state law claim for medical
malpractice against Dr. Talbot. Plaintiff’s Motion for Leave to Amend (#18) is GRANTED.
This court will exercise supplemental jurisdiction over Plaintiff’s medical malpractice claims
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against Dr. Talbot. This court declines to exercise supplemental jurisdiction over the State
Law Complaint attached to Plaintiff’s original pro se Complaint (#1).
II. MOTIONS FOR DECLARATORY JUDGMENT
On December 11, 2012, Plaintiff filed a Motion for Partial Declaratory Judgment
(#12). This court is not entirely clear regarding the relief Plaintiff is seeking, but it appears
that Plaintiff is asking for judgment on Count 7 of his Complaint. First of all, this court has
denied Plaintiff leave to amend his Complaint to add Count 7. Most importantly, Plaintiff
seems to be asking this court to make factual findings that various Defendants violated his
constitutional rights by failing to act on his grievances. This court cannot make these factual
findings at this stage of the proceedings.
On December 18, 2012, Plaintiff filed a Second Motion for Partial Summary
Judgment (#16). Plaintiff asked for a declaratory judgment against Defendant Godinez,
stating that Godinez failed to correct the actions and inactions of his subordinates. Again,
Plaintiff cannot make this factual finding at this stage of the proceedings.
On January 17, 2013, Plaintiff filed his Third Motion for Partial Declaratory Judgment
(#26). Plaintiff stated that his First and Second Motions for Partial Declaratory Judgment
should be granted because no response was filed by the response date stated on the docket
sheet. The response date is automatically set by the electronic filing system utilized by this
court. In this case, however, the response dates are meaningless because this case is still in
the merit review stage of proceedings and no Defendants have yet been served with summons
and a copy of Plaintiff’s Complaint. Therefore, no Defendants have appeared in this action
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and there is no one to respond to Plaintiff’s numerous motions. Because this court has
concluded that Plaintiff is not entitled to a declaratory judgment at this stage of the
proceedings, his Third Motion (#26) must also be denied.
For all of the reasons stated, Plaintiff’s Motions for Partial Declaratory Judgment
(#12, #16, #26) are DENIED as premature. This court will not consider any such motions
until discovery is completed and a full factual record can be provided to the court.
III. MOTIONS FOR APPOINTMENT OF EXPERT MEDICAL WITNESS
On December 11, 2012, Plaintiff filed his First Motion for Appointment of an Expert
Medical Witness for Limited Purposes (#13). Plaintiff stated that he needs a medical expert
to show the seriousness of his medical condition. Plaintiff again attached copies of responses
to his grievances and medical records (which again show that he tested negative for H.
pylori). On January 15, 2013, Plaintiff filed a Second Motion for Appointment of an Expert
Medical Witness (#23), noting that this court had not yet responded to his First Motion.
Plaintiff attached his affidavit and stated that Defendants have refused to treat him for his
painful keloid scars and the H. pylori bacterial infection.
This court concludes that appointment of an expert medical witness would be
premature at this very early stage of the proceedings. Accordingly, Plaintiff’s Motions for
Appointment of an Expert Medical Witness (#13, #23) are DENIED as premature.
IV. MOTIONS FOR APPOINTMENT OF HEALTH CARE MONITOR
On December 13, 2012, Plaintiff filed his First Motion for Appointment of a Health
Care Monitor (#14). Plaintiff did not explain why a health care monitor is necessary in this
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case and instead argued only that a health care monitor is not a special master and may be
appointed in a prisoner case under the PLRA. On January 15, 2013, Plaintiff filed a Second
Motion for Appointment of a Health Care Monitor (#22), stating that this court had not yet
responded to his First Motion.
This court concludes that there is no need for the extraordinary and unprecedented
step of appointing a health care monitor in this case. Therefore, Plaintiff’s Motions for
Appointment of a Health Care Monitor (#14, #22) are DENIED.
V. MOTIONS FOR APPOINTMENT OF COUNSEL
On December 4, 2012, this court entered a text order and denied Plaintiff’s Motion
to Appoint Counsel at this stage of the proceedings. This court noted that Plaintiff had
shown that he had made attempts to retain counsel on his own. This court stated:
It is too early in the case to make a determination whether
Plaintiff’s claims are sufficiently meritorious such that
appointing counsel would make a difference in the case.
Lawyers who accept appointments to represent pro se plaintiffs
in civil cases are not guaranteed any compensation. Thus,
before this court takes the significant step of seeking out a
lawyer willing to take the case, the court has an obligation to
insure that the issues raised in a particular case are both
substantial and meritorious. Further, the number of lawyers able
to take court appointments is very limited. Therefore, it is
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simply impossible to accommodate all of the requests of pro se
plaintiffs, mostly prisoners, who request a lawyer.
Since that text order was entered, Plaintiff has filed two more motions asking this
court to appoint counsel (#17, #21). However, nothing has changed in the short amount of
time since the order was entered. Therefore, Plaintiff’s Motions to Appoint Counsel (#17,
#21) are DENIED.
VI. EMERGENCY MOTION
On December 4, 2012, Plaintiff filed an Emergency Motion for Leave to File
Temporary Restraining Order and Preliminary Injunction (#9). Plaintiff argued that he is
entitled to injunctive relief because he has been repeatedly and systematically denied much
needed medical care for his serious medical needs.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Wheeler v. Wexford Health Sources, Inc., 2012 WL 4952258, at *1 (S.D. Ill. 2012), quoting
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The Seventh
Circuit recently recognized, in a case involving a very similar claim made by Plaintiff, that
a “prisoner’s view of optimal medical treatment can be a weak ground for superseding the
views of competent physicians.” Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680,
682 (7th Cir. 2012).
The Seventh Circuit then stated that, “[u]ntil evidence has been
submitted, it is not possible to know whether Wheeler really is suffering irreparable harm and
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otherwise has a good claim for relief.” Wheeler, 689 F.3d at 682.
At this stage of the proceedings, no Defendants have been served and no Defendants
have appeared in this action. Therefore, before this court takes the extraordinary step of
awarding injunctive relief, it needs to be advised of Defendants’ response to Plaintiff’s
request and receive evidence on the issue. Therefore, this court takes this motion under
advisement and it remains pending at this time. This court notes that, when evidence was
submitted to the district court in the Southern District of Illinois, the court concluded that
Plaintiff did not show that he was suffering irreparable harm and was not entitled to
injunctive relief. Wheeler, 2012 WL 4952258, at *2. In fact, the court stated that the
evidence showed that Plaintiff “has been receiving regular medical care since his transfer to
Danville Correctional Center.” Wheeler, 2012 WL 4952258, at *2. The court also found
that Plaintiff has exaggerated his medical condition. These findings provide strong support
for this court’s conclusion that the issue of injunctive relief in this case must be taken under
advisement and decided only after additional information is provided to the court.
VII. MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL
On January 8, 2013, Plaintiff filed a Motion to File an Interlocutory Appeal as of
Right Instanter (#19). Plaintiff stated that this court denied his Motion seeking injunctive
relief and he wanted to file an appeal from that order. In fact, however, this court has not
ruled on the motion seeking injunctive relief and it remains pending. Therefore, Plaintiff’s
Motion to File an Interlocutory Appeal (#19) is DENIED.
IT IS THEREFORE ORDERED THAT:
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(1) Plaintiff’s Motion for Leave to File his Third Amended Complaint (#15) is
DENIED
(2) Plaintiff’s Motion for Leave to Amend his Complaint (#18) is GRANTED.
(3) Plaintiff’s Motions for Partial Declaratory Judgment (#12, #16, #26) are DENIED
as premature.
(4) Plaintiff’s Motions for Appointment of an Expert Medical Witness (#13, #23) are
DENIED as premature.
(5) Plaintiff’s Motions for Appointment of a Health Care Monitor (#14, #22) are
DENIED.
(6) Plaintiff’s Motions for Appointment of Counsel (#17, #21) are DENIED at this
time.
(7)
Plaintiff’s Emergency Motion for Leave to File Motion for Temporary
Restraining Order and Preliminary Injunction (#9) remains pending.
(8) Plaintiff’s Motion for Leave to File Interlocutory Appeal (#19) is DENIED as this
court has not yet ruled on his request for Temporary Restraining Order and Preliminary
Injunction so there is no order to appeal from.
(9) This case is remains scheduled for a merit review hearing on January 28, 2013,
at 10:00 a.m.
ENTERED this 25th day of January, 2013
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE
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