Laureano v. Doe et al
Filing
6
MERIT REVIEW OPINION Rule 16 Deadline 10/24/2014.. Entered by Chief Judge James E. Shadid on 8/25/14. (FDT, ilcd)
E-FILED
Monday, 25 August, 2014 03:34:34 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
GILBERTO LAUREANO,
Plaintiff,
v.
OFFICER LARRY DOE, et al.,
Defendants.
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14-CV-2144
MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff proceeds pro se from his detention as a federal
pretrial detainee in the Jerome Coombs Detention Center. This
case is before the Court for a merit review pursuant to 28 U.S.C. §
1915A. In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
Plaintiff alleges that, on January 4, 2011, he fell out of a
prisoner transport van while exiting the van, suffering severe
injuries which required, or still require, "an impressive amount of
surgical and corrective operation procedures." (Complaint para. 5.)
He had no way to break his fall, since he was handcuffed and in leg
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irons. Plaintiff alleges that the medical staff at the Jail kept telling
him that he was fine, but he learned in July 2011 that he needed
two surgeries, one for his throat and one for his back. He alleges
that ever since the accident to the present time the medical staff at
the Jail have not provided him with needed diagnosis, treatment,
and pain medicine. Whether Plaintiff has received the surgeries is
unclear, as is his current condition.
Because Plaintiff is a detainee, the Fourteenth Amendment
governs his claim, not the Eighth Amendment, but there is no
practical difference between the legal standards on a claim for lack
of medical care. Thomas v. Cook County Sheriff’s Dept., 604 F.3d
293, 301 n.2 (7th Cir. 2010); Chapman v. Keltner, 241 F.3d 842,
845 (7th Cir. 2001). Plaintiff must show "(1) an objectively serious
injury or medical need was deprived; and (2) the official knew that
the risk of injury was substantial but nevertheless failed to take
reasonable measures to prevent it." Chapman, 241 F.3d at 845.
At this point a constitutional claim for lack of medical care
against the medical staff at the Jail cannot be ruled out. The
Defendants who are alleged to be part of the medical staff at the Jail
are Nurses Heather, Sharee, Nicole, Tom, Matt, and Dawn. Serving
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these people without last names may be difficult, but the Clerk will
try. Plaintiff is advised that often the nurses cannot be held liable if
they were required to follow the doctor's orders, but no Jail doctors
are named as Defendants. If Plaintiff wants to add Jail doctors as
Defendants, then he should file a motion to amend listing the
doctors' names.
No constitutional claim is stated against the hospitals or
private doctors. The Constitution generally applies to government
employees, not to employees working for private businesses. Wilson
v. Price, 624 F.3d 389, 392 (7th Cir. 2010)(Section1983 applies to
constitutional violations by a person acting "under color of state
law."). Private actors might be treated as government actors under
certain circumstances, such as when the private actors voluntarily
assume the government's duty to provide care, but no plausible
inference arises of that at this point. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 827 (7th Cir. 2009)(voluntary
assumption by private party of state’s responsibility to provide
medical care to inmates renders private party a state actor). The
following private actors will be dismissed without prejudice:
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Riverside Hospital, St. Mary's Hospital, Dr. Charles Harvey, Oak
Orthopedic Clinic, and Dr. Eddie Jones.
As to the malpractice claim Plaintiff pursues, this claim is
based on state law, which means that Plaintiff must attach a
physician's report finding that his malpractice claim has arguable
merit. Since Plaintiff has not yet attached the required report, his
malpractice claim will be dismissed without prejudice. 735 ILCS
5/2-622(a); Hahn v. Walsh, --- F.3d ---, 2014 WL 3906501 (7th Cir.
2014).
The claim against the unidentified officers who transported
Plaintiff will also be dismissed. Whether the transporting officers
were federal or state employees is not clear, but either way no
plausible inference arises that the officers were aware of any
substantial risk of serious harm to Plaintiff by keeping him
shackled as he exited the van. See Smith v. Sangamon County
Sheriff's Dep't., 715 F.3d 188 (7th Cir. 2013)( "'A finding of deliberate
indifference requires a showing that the [defendant] was aware of a
substantial risk of serious injury to [the plaintiff] but nevertheless
failed to take appropriate steps to protect him from a known
danger.'")(quoted cite omitted)(bracketed material in original).
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Negligence is not actionable under the U.S. Constitution.1 Id.
Additionally, these officers' conduct occurred more than three years
ago, so any claim would clearly be barred by the two-year statute of
limitations. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th
Cir. 2002)(“[W]hen the existence of a valid affirmative defense is so
plain from the face of the complaint that the suit can be regarded as
frivolous, the district judge need not wait for an answer before
dismissing the suit.”).
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 a claim for
deliberate indifference to his serious medical needs against the
following Defendants: Nurses Heather, Sharee, Nicole, Tom, Matt,
and Dawn.
2)
Plaintiff's malpractice claims are dismissed, without
prejudice to refiling with the documents required by 735 ILCS 5/2622(a).
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If the transporting officers were federal employees, Plaintiff might be able to pursue a negligence claim against
them under the Federal Tort Claims Act, but Plaintiff would first have to exhaust his administrative remedies under
that Act.
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3)
The following Defendants are dismissed without
prejudice: Larry Doe and John Doe (transporting officers); Riverside
and St. Mary's Hospital; Dr. Charles Harvey; Oak Orthopedic Clinic;
and Dr. Eddie Jones.
4)
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.
5)
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.
6)
With respect to a Defendant who no longer works at the
address provided by Plaintiffs, the entity for whom that Defendant
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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.
7)
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.
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)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
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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 he 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
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.
10)
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 case, with
prejudice.
11)
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.
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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).
12)
The clerk is directed to attempt service on the
remaining 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:
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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