White v. Downy et al

Filing 9

MERIT REVIEW OPINION (Rule 16 Deadline 7/5/2017); granting 8 Motion for Leave to File. Case proceeds. Clerk to reopen this case and docket the amended complaint. Clerk directed to add Physician Assistant Huffines as a Defendant. Clerk directed to enter standard order granting Plaintiff's IFP petition and assess initial partial filing fee and to attempt service on Defendants. Clerk to enter standard order pursuant to HIPAA. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 05/05/2017. (SKN, ilcd)

E-FILED

Friday, 05 May, 2017 11:20:38 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
LEWIS E. WHITE, JR.,
Plaintiff,
v.
SHERIFF DOWNEY, et al.,
Defendants.

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16-CV-2371

SECOND MERIT REVIEW OPINION
On February 17, 2017, the Court dismissed Plaintiff’s
complaint with leave to replead by March 17, 2017. Plaintiff has
filed an amended complaint, which is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A.
Plaintiff’s amended complaint gives some more detail about
what happened when he fell out of his top bunk at the Jerome
Combs Detention Center on September 15, 2016. He alleges that
Officer Memenga and “Nurse Becky” picked Plaintiff up off the floor
to make him stand even though Plaintiff was experiencing extreme
pain in his back, hip, and right arm. He alleges that Nurse Becky
shoved a chair under Plaintiff, which made Plaintiff fall into the
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chair, and refused to contact a doctor. Plaintiff believes that these
actions were outside the standard of care because Plaintiff could
have had a cranial or spinal injury. The next day, Plaintiff’s elbow
had “swollen to the size of a grapefruit.” Physician Assistant
ordered x-rays and prescribed muscle relaxants, but Plaintiff still
has not been informed of the results of the x-rays. Plaintiff does not
say whether he has recovered from his injuries.
Drawing an inference of deliberate indifference remains
difficult. Nurse Becky and Officer Memenga cannot be liable simply
because Plaintiff believes they should have done something
differently, particularly if their actions caused no injury to Plaintiff.
However, this determination would be premature. The case will
proceed per the standard procedures.
IT IS ORDERED:
1)

Plaintiff’s motion for leave to file an amended complaint is
granted (8).

2)

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

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needs regarding injuries he suffered after falling from the
top bunk on September 15, 2016. 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.
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.

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
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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 answer sets forth
Defendants' positions. The Court does not rule on the
merits of those positions unless and until a motion is filed
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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 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. 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.

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12) The clerk is directed to reopen this case1 and to
docket the amended complaint.
13) The clerk is directed to add Physician Assistant
Huffines as a Defendant.
14) 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.
15) The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED: May 5, 2017
FOR THE COURT:

__s/Sue E. Myerscough_________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

1

 The case was inadvertently closed when the merit review order entered. 

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