Wheeler v. Talbot et al
Filing
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OPINION Entered by Judge Colin Stirling Bruce on 12/12/13. IT IS THEREFORE ORDERED THAT: (1) Defendant's Motion for Leave to File Motion to Dismiss 58 is GRANTED. The clerk is directed to file the Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss attached to Defendant's Motion 58 . (2) Plaintiff's Motion for Leave to Appeal in forma pauperis 60 is GRANTED. However, Plaintiff is still responsible for payment of the filing fee. At this time, no parti al filing prepayment is due. The agency having custody of Plaintiff shall begin forwarding monthly payments from Plaintiffs trust fund account to the clerk of court each time Plaintiffs amount exceeds $10.00 until the statutory appeal fee of 036;455.00 is paid in its entirety. The clerk is directed to provide the United States Court of Appeals for the Seventh Circuit with a copy of this Order. (3) Plaintiff's Motion to Stay Proceedings Pending Appeal 62 is DENIED. SEE WRITTEN OPINION. (copy mailed to Anthony Wheeler A81100, Danville Correctional Center, Inmate Mail/Parcels, 3820 E Main St, Danville, IL 61834 and emailed to US Court of Appeals) (SKD, ilcd)
E-FILED
Thursday, 12 December, 2013 04:12:17 PM
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 the Motion for Leave to File Motion to
Dismiss (#58) filed by Defendant, Dr. Paul Talbot, and the Motion for Leave to Appeal in
forma pauperis (#60) and Motion to Stay Proceedings (#62) filed by Plaintiff, Anthony
Wheeler. Following careful review, this court rules as follows: (1) Defendant’s Motion to
Leave to File Motion to Dismiss (#58) is GRANTED; (2) Plaintiff’s Motion for Leave to
Appeal in forma pauperis (#60) is GRANTED; and (3) Plaintiff’s Motion to Stay
Proceedings (#62) is DENIED.
MOTION FOR LEAVE TO FILE
On October 28, 2013, Defendant filed a Motion for Leave to File Motion to Dismiss
(#58). Defendant noted that this court allowed Plaintiff to proceed with his state law claim
of medical malpractice and stated that it would exercise supplemental jurisdiction over the
claim. Defendant stated that Plaintiff failed to include an affidavit certifying the merit of his
malpractice claim as required by 735 Ill. Comp. Stat. 5/2-622 (West 2010). Defendant stated
that he believed good cause existed for the filing of a Motion to Dismiss based upon the
failure to provide the affidavit. Defendant attached a proposed Motion to Dismiss and
Memorandum of Law in Support of Motion to Dismiss. This court concludes that Defendant
has adequately shown that he should be allowed to file a Motion to Dismiss challenging
Plaintiff’s state law claim of medical malpractice. Accordingly, Defendant’s Motion for
Leave to File Motion to Dismiss (#58) is GRANTED. The clerk is directed to file the
Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss attached to
Defendant’s Motion (#58).
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
On October 31, 2013, Plaintiff filed a Motion for Leave to Appeal in forma pauperis
(#60). Plaintiff also filed his prisoner trust fund ledger (#61) which shows that he has no
available funds. Defendant did not file a Response to this Motion. This court concludes that
Plaintiff’s appeal from this court’s denial of his request for an injunction requiring Defendant
to provide treatment for his painful keloid scars has not been brought in bad faith.
Accordingly, Plaintiff’s Motion for Leave to Appeal in forma pauperis (#60) is GRANTED.
MOTION TO STAY
On November 5, 2013, Plaintiff filed a Motion to Stay Proceedings Pending Appeal
(#62). Plaintiff asked this court to stay proceedings on his case while his appeal from this
court’s denial of his request for an injunction proceeds before the Seventh Circuit Court of
Appeals.
On November13, 2013, Defendant filed a Response to Motion for a Stay Pending
Appeal (#63). Defendant argued that the issue Plaintiff has appealed is largely collateral to
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the issues to be litigated in this court so that staying this proceeding would serve no purpose.
Defendant pointed out that Plaintiff has claims for deliberate indifference to his keloids,
retaliation claims against Defendant’s co-defendants, and medical malpractice related to
Defendant’s treatment for Plaintiff’s keloids. Defendant further stated that, in his motion for
preliminary injunction, Plaintiff sought treatment for keloid scars and H. pylori. Defendant
noted that there is no claim for H. pylori in this case. Defendant argued that allowing the
record to develop on Plaintiff’s claims for damages for past events will not interfere with any
aspect of the appeal. Defendant argued that, whether or not Plaintiff prevails in obtaining
injunctive relief will not affect the parties’ ability to prevail on the underlying claims.
Defendant contended that Plaintiff’s Motion to Stay is unnecessary and should be denied.
This court agrees with Defendant’s arguments and concludes that there is no basis for
a stay in this case while the issue of injunctive relief proceeds in the Seventh Circuit.
IT IS THEREFORE ORDERED THAT:
(1) Defendant’s Motion for Leave to File Motion to Dismiss (#58) is GRANTED.
The clerk is directed to file the Motion to Dismiss and Memorandum of Law in Support of
Motion to Dismiss attached to Defendant’s Motion (#58).
(2) Plaintiff’s Motion for Leave to Appeal in forma pauperis (#60) is GRANTED.
However, Plaintiff is still responsible for payment of the filing fee. At this time, no partial
filing prepayment is due. The agency having custody of Plaintiff shall begin forwarding
monthly payments from Plaintiff’s trust fund account to the clerk of court each time
Plaintiff’s amount exceeds $10.00 until the statutory appeal fee of $455.00 is paid in its
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entirety. The clerk is directed to provide the United States Court of Appeals for the Seventh
Circuit with a copy of this Order.
(3) Plaintiff’s Motion to Stay Proceedings Pending Appeal (#62) is DENIED.
ENTERED this 12th day of December, 2013.
s/COLIN S. BRUCE
U.S. DISTRICT JUDGE
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