Brooks v. Koliwenzew et al

Filing 10

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 2/13/2015 Rule 16 Deadline 4/14/2015. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the court finds that the plaintiff states a claim for deliberate indifferenc e to a serious edical condition against defendant Koliwenzew. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to terminate Charee Sangster as a defendant. The clerk is directed to attempt service on the remaining defendant pursuant to the standard procedures.(LN, ilcd)

E-FILED

Friday, 13 February, 2015 02:46:34 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JERMAINE BROOKS,
Plaintiff,
v.
CHAD KOLIWENZEW, et al.,
Defendants.

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No. 14-CV-2313

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, a pretrial detainee at the Cook County Jail, was
granted leave to proceed in forma pauperis. The case is now before the court for a merit
review of the plaintiff’s claims. In reviewing the Complaint, the court accepts the
factual allegations as true, liberally construing them in the plaintiff's favor. Turley v.
Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
The court has reviewed the Complaint and has also held a merit review hearing
by telephone in order to give the plaintiff a chance to personally explain his claims to
the court.
The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that in
November 2013, he was diagnosed with a soy allergy and prescribed a no-soy diet by
the doctor at the Cook County jail. After being transferred to Jerome Combs Detention
Center in Kankakee, plaintiff alleges that he informed defendant Charee Sangster (a
nurse) and defendant Chad Koliwenzew (Chief of Corrections) of the prescribed meal
plan and provided the doctor’s order. Nonetheless, the defendants denied plaintiff the
prescribed meal plan, and plaintiff alleges that defendants have made no attempt to
comply with the doctor’s order. Plaintiff alleges he has suffered from skin conditions
(facial scarring, break outs, dark spots) from the soy allergy.
Plaintiff has alleged that defendant Koliwenzew has personal knowledge of his
condition but fails to take any steps to remedy the alleged violation. Thus, a claim for
deliberate indifference to a serious medical need can be pursued against Koliwenzew.
See T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (To be held liable, a supervisor “must
know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see.”). As to defendant Sangster, Plaintiff has failed to allege
how, in defendant’s position as a nurse, she was responsible for the meals that Plaintiff
received.
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IT IS THEREFORE ORDERED:
1.
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
court finds that the plaintiff states a claim for deliberate indifference to a serious edical
condition against defendant Koliwenzew. 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. The plaintiff is advised to wait
until counsel has appeared for the defendants before filing any motions, in order to give
the 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. The plaintiff need not submit any evidence to the court at this time, unless
otherwise directed by the court.
3.
The court will attempt service on the defendants by mailing each
defendant a waiver of service. The defendants have 60 days from the date the waiver is
sent to file an answer. If the defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff may file a motion
requesting the status of service. After the 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 the 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.
The 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 the defendants' positions. The court does not rule on the merits of those
positions unless and until a motion is filed by the 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 the plaintiff with the clerk. The plaintiff does not
need to mail to defense counsel copies of motions and other papers that the 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. The plaintiff must mail
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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.
7.
Counsel for the defendants is hereby granted leave to depose the plaintiff
at his place of confinement. Counsel for the defendants shall arrange the time for the
deposition.
8.
The plaintiff shall immediately notify the court, in writing, of any change
in his mailing address and telephone number. The 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 defendant 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. Marshals 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.
The clerk is directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
11.

The clerk is directed to terminate Charee Sangster as a defendant.

12.
The clerk is directed to attempt service on the remaining defendant
pursuant to the standard procedures.
Entered this 13th day of February, 2015.
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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