Longstreet v. Bukowski et al
Filing
6
MERIT REVIEW OPINION: IT IS ORDERED THAT THE CLERK IS DIRECTED TO: Dismiss Defendants Sheriff Timothy Bukowski, Jail Administrator Chad Kolitwenzew, Nurse Michael Downey, and Nurse Angie Kemps for failure to state a claim upon which relief can be gr anted; Deny Plaintiff's motion for appointment of counsel with leave to renew 4 ; Attempt service on Defendants pursuant to the standard procedures; set an internal court deadline 60 days from the entry of this order for the court to check on t he status of service and enter scheduling deadlines; and enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 11/1/2016. (MJC, ilcd)
E-FILED
Tuesday, 01 November, 2016 03:13:55 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MARCUS LONGSTREET,
Plaintiff,
v.
TIMOTHY BUKOWSKI, et. al.,
Defendants.
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CASE NO. 16-CV-2215
MERIT REVIEW OPINION
Sue E. Myerscough, U.S. District Judge.
This cause is before the Court for merit review of the pro se
Plaintiff’s complaint 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. 2103). 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).
Page 1 of 10
ALLEGATIONS
The Plaintiff alleges his constitutional rights were violated in
Kankakee County by Sheriff Timothy Bukowski, Jail Administrator
Chad Kolitwenzew, Nurse Michael Downey, Nurse Brent Huffines,
Nurse Heather Pasel, and Nurse Angie Kemps. Plaintiff says he
entered the Jerome Combs Detention Center (JCDC) on August 7,
2014. After a physical examination, he was transferred to the
Kankakee County jail where he remained form August to December
of 2014.
In December, Plaintiff returned to JCDC where he again
received a physical examination. Defendant Nurse Huffines
diagnosed Plaintiff with hypertension, hyperlipidemia,
gastroesophageal reflux disease, and an ulcer. Nurse Huffines
prescribed several medications which Plaintiff said made him very
ill. Nonetheless, Plaintiff continued to take the medications until he
was transferred to another facility in December of 2016.
Plaintiff received an intake examination at his new facility and
was told he was in good health and never needed any of the
prescribed medications. In addition, Plaintiff learned he had
untreated Methicillin-Resistant Staphylococcus Aureus (MRSA).
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While not clearly alleged, Plaintiff appears to claim he reported his
symptoms to Defendant Huffines and Pasel, but they provided no
medical treatment.
ANALYSIS
Plaintiff has adequately alleged Defendants Huffines and Pasel
violated his Eighth Amendment rights when they were deliberately
indifferent to his serious medical condition, MRSA. However,
Plaintiff claims he did not have any serious medical conditions
when Defendant Huffines prescribed various, unneeded
medications. Therefore, it is possible Plaintiff may be able to
demonstrate Defendant Huffines violated his Eighth Amendment
rights when he was deliberately indifferent to a substantial risk of
serious harm when he prescribed the medications. See Robbins v
Waupun Correctional Institution, 2016 WL 5921822, at *3 (E.D.Wis.
Oct. 11, 2016)(“[a]dministering the wrong medication may well pose
a substantial risk of harm, depending on the circumstance.”)
Plaintiff lists Defendants Nurse Angie Kemps and Nurse
Downey in the caption of his complaint, but he makes no reference
to either Defendant in the body of his complaint. See Potter v Clark,
497 F.2d 1206, 1207 (7th Cir. 1974)(“Where a complaint alleges no
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specific act or conduct on the part of the defendant and the
complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed, even
under the liberal construction to be given pro se complaints.”)
Plaintiff has also failed to clearly indicate how Sheriff Bukowski and
Administrator Kolitwenzew were responsible for his claims. The
mere fact that these Defendants were supervisors is not a sufficient
basis for liability.See Sanville v McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001)(it is well established that the doctrine of respondeat
superior or supervisor liability does not apply to §1983 actions).
Therefore, the Court will dismiss Defendants Kemps, Downey,
Bukowski, and Kolitwenzew.
Finally, Plaintiff makes vague reference to negligence and
medical malpractice. First, “a defendant can never be held liable
under §1983 for negligence.” Williams v Shaw, 2010 WL 3835852 at
3 (S.D. Ill. Sept. 24, 2010). Second, if Plaintiff was attempting to
claim the state law tort of medical malpractice, his complaint is not
sufficient. Illinois law requires any Plaintiff who is seeking damages
for medical malpractice to file an affidavit with the complaint
providing required information. See 735 Ill. Comp. Stat. § 5/2Page 4 of 10
622(a). Failure to file the required affidavit is grounds for dismissal
of the claim. See 735 Ill. Comp. Stat. § 5/2-622(g).
Therefore, Plaintiff may proceed with his claims alleging
Defendants Huffines and Pasel were deliberately indifferent to his
serious medical condition and Defendant Huffines was deliberately
indifferent to a substantial risk of harm.
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has no constitutional or statutory right to the
appointment of counsel in this case. Therefore, to consider
Plaintiff’s motion, the Court must ask “(1) has the indigent Plaintiff
made a reasonable attempt to obtain counsel or been effectively
precluded from doing so; and if so, (2) given the difficulty of the
case, does the plaintiff appear competent to litigate it himself?”
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007), citing Farmer v.
Haas, 990 F.2d 319, 322 (7th Cir.1993). The Plaintiff has not
provided any evidence demonstrating he has attempted to find
counsel on his own such as a list of attorneys contacted or copies of
letters sent or received. Therefore, the motion is denied with leave
to renew. [4]
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IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28
U.S.C. § 1915A, the Court finds the Plaintiff alleges: 1)
Defendants Huffines and Pasel violated Plaintiff’s Eighth
Amendment rights when they were deliberately indifferent to
his serious medical condition, MRSA; and 2) Defendant
Huffines was deliberately indifferent to a substantial risk of
harm when he prescribed unneeded medications. The claims
are stated against the Defendants in their individual capacities
only. 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
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to the Court at this time, unless otherwise directed by the
Court.
3) The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days
from service 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.
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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
Order. 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.
6) Once counsel has appeared for a Defendant, Plaintiff need
not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send a notice of electronic filing
to defense counsel. The notice of electronic filing shall
constitute service on Defendants pursuant to Local Rule 5.3.
If electronic service on Defendants is not available, Plaintiff
will be notified and instructed accordingly.
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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) 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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Sheriff Timothy Bukowski, Jail
Administrator Chad Kolitwenzew, Nurse Michael Downey,
and Nurse Angie Kemps for failure to state a claim upon
which relief can be granted; 2) Deny Plaintiff’s motion for
appointment of counsel with leave to renew [4]; 3) Attempt
service on Defendants pursuant to the standard
procedures; 4) set an internal court deadline 60 days from
the entry of this order for the court to check on the status
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of service and enter scheduling deadlines; and 5) enter the
Court's standard qualified protective order pursuant to the
Health Insurance Portability and Accountability Act.
ENTERED: November 1, 2016
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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