Boone v. Witherspoon et al

Filing 5

MERIT REVIEW OPINION: 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 serious medical needs. The Clerk is directed to attemp t 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. Rule 16 Deadline 2/14/2015. (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 12/16/2014. (GL, ilcd)

E-FILED

Tuesday, 16 December, 2014 09:28:05 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL BOONE,
Plaintiff,
v.
FABIENNE WITHERSPOON and
PAUL TALBOT,
Defendants.

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14-CV-2296

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated in Shawnee
Correctional Center, seeks leave to proceed in forma pauperis.
The 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).
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).
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Plaintiff has type II diabetes. He alleges that, in the Fall of
2012 while he was incarcerated in the Danville Correctional Center,
the Defendants knew that his diabetes was not well controlled but
failed to take action. Additionally, Defendant Witherspoon
inexplicably reduced by half the dosage of Plaintiff’s diabetes
medicine, which caused Plaintiff’s hemoglobin A1C level to become
dangerously high for months. Plaintiff also experienced pain in his
feet and numbness in his hands which was not addressed by
Defendants.
At this point, an Eighth Amendment claim for deliberate
indifference to a serious medical need cannot be ruled out, though
a more developed record may show that Plaintiff’s claim is really
one for negligence or gross negligence, neither of which is a
constitutional violation. Negligence is not actionable as a federal
claim, and to pursue a state law claim for negligence Plaintiff would
need to attach to his complaint the certificate required by 735 ILCS
5/2-622. Walker v. Peters, 233 F.3d 494, 499 (7th Cir. 2000)(“[I]t is
not enough [for a constitutional claim] to show that a reasonable
doctor would have made the correct diagnosis and treatment.”). To
succeed on a constitutional claim, Plaintiff will have to show that
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Defendants consciously disregarded a substantial risk of serious
harm to Plaintiff’s current health or consciously put Plaintiff at an
“unreasonable risk of serious damage to his future health.” Helling
v. McKinney, 509 U.S. 25, 35 (1993); Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011).
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 serious medical
needs.

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)

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.
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3)

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.
4)

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
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
5)

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
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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.
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 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
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.

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7)

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.
8)

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.
9)

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).
10)

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.
11)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an

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initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
12)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: December 16, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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