Adams v. Barcco et al
Filing
9
MERIT REVIEW OPINION: The clerk is directed to terminate Defendant West. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt 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. The clerk is directed to send this orde r to Plaintiff at Macon County Jail and to Graham Correctional Center. The IDOC website indicates that Plaintiff is currently in Graham Correctional Center, but Plaintiff has not filed a change of address. By September 23, 2016, Plaintiff is direct ed to file a change of address or this case will be dismissed without prejudice. Plaintiff's motion for the Court to try to find pro bono counsel to represent him is denied 5 . Rule 16 Deadline 11/14/2016.(SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 9/14/2016. (GL, ilcd)
E-FILED
Wednesday, 14 September, 2016 09:33:58 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
OMARI ADAMS,
Plaintiff,
v.
ROBERT BARCCO, et al.
Defendants.
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16-CV-2268
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff filed this case pro se from Macon County Jail. His
Complaint is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. This section requires the Court to identify
cognizable claims stated by the Complaint or dismiss claims that
are not cognizable.1 In reviewing the complaint, the Court accepts
the factual allegations as true, liberally construing them in
Plaintiff's favor and taking Plaintiff’s pro se status into account.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
1
A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
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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).
Plaintiff alleges that he is in the Macon County Jail and has
been vomiting blood and losing weight since April 2016. The
medical staff has allegedly refused to attempt to determine the
cause or provide adequate treatment. Plaintiff also alleges that
$240.00 was wrongly deducted from his account because Plaintiff
shares the same name as another detainee.
Plaintiff states a Fourteenth Amendment due process claim for
deliberate indifference to his serious medical needs against the
medical professionals. His claim against Defendant West about the
improper account deductions is not properly joined in this action
because the deductions regard an occurrence unrelated to Plaintiff’s
medical care. George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007)(“Unrelated claims against different defendants belong in
different suits . . .”). Further, no federal claim would be stated
arising from the deductions if Plaintiff has adequate state law
remedies to recover the money. Parratt v. Taylor, 451 U.S. 527, 541
(1981).
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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 Plaintiff states constitutional
claim for deliberate indifferent to his serious medical needs against
the following Defendants: Dr. Robert Barcco, Nurse Phyliss, Nurse
Kendra, and Nurse Edna. 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)
Plaintiff’s claim against Defendant West is dismissed
without prejudice.
3)
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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4)
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.
5)
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.
6)
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.
7)
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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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)
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.
10)
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).
11)
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.
12)
The clerk is directed to terminate Defendant West.
13)
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.
14)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
15)
The clerk is directed to send this order to Plaintiff at
Macon County Jail and to Graham Correctional Center. The
IDOC website indicates that Plaintiff is currently in Graham
Correctional Center, but Plaintiff has not filed a change of
address. By September 23, 2016, Plaintiff is directed to file a
change of address or this case will be dismissed without
prejudice.
16)
Plaintiff’s motion for the Court to try to find pro
bono counsel to represent him is denied (5), with leave to renew
after Plaintiff demonstrates that he has made reasonable efforts to
find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). This typically requires writing to several lawyers and
attaching the responses. If Plaintiff renews his motion, he should
set forth how far he has gone in school, any jobs he has held inside
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and outside of prison, any classes he has taken in prison, and his
prior litigation experience.
ENTERED: September 14, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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